Supreme Court


Immigration and Citizenship

Exclusion and removal

Inadmissible classes

Equating conditional sentence to term of imprisonment would open door to absurd possibilities

Applicant T became permanent resident of Canada in 1989. T was charged with producing marijuana “grow op”, which at time of offence, had maximum sentence of seven years' imprisonment. After he was charged but prior to conviction, maximum penalty was increased to 14 years’ imprisonment. T was convicted and 12-month conditional sentence was imposed. After referral to Immigration Division of Immigration and Refugee Board (Board), T was found inadmissible because of maximum sentence at time of hearing. T’s application for judicial review was allowed since Federal Judge held T’s offence fell outside s. 36(1)(a) of Immigration and Refugee Protection Act (Act) since conditional sentence imposed was not “term of imprisonment” and maximum sentence had to be applied at time of offence. Federal Court of Appeal allowed Minister of Public Safety and Emergency Preparedness’ (Minister) appeal finding overall purpose of s. 36 and Act was to prioritize security and safety of citizens. T appealed. Appeal allowed. Minister’s interpretation of s. 36(1)(a) of Act could not stand as it failed to meet modern principles of statutory interpretation. Equating conditional sentence to “term of imprisonment” would open door to absurd possibilities in context of immigration law. From reading of Act, it was clear that length of sentence was sign of whether crime was serious, which was why six-month bar was set. Since conditional sentence is meaningful alternative to incarceration for less serious and non-dangerous offenders, interpreting “term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermined efficacy of using length to evaluate seriousness of criminality. Outcome would be absurd if less serious and non-dangerous offenders sentenced to seven-month conditional sentences were deported while more serious offenders receiving six-month prison terms were allowed to remain in Canada. As objective of immigration law, public safety would not be enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada. Ensuring public safety also meant permanent residents must fully understand what it means to behave lawfully while in Canada and while Parliament is entitled to change its views on seriousness of crime, it is not entitled to alter mutual obligations between permanent residents and Canadian society without doing so clearly and unambiguous. Right to remain in Canada was conditional, but conditional on complying with knowable obligations.
Tran v. Canada (Public Safety and Emergency Preparedness) (2017), 2017 CarswellNat 5569, 2017 CarswellNat 5570, 2017 SCC 50, 2017 CSC 50, McLaclin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellNat 5677, 2015 CarswellNat 9252, 2015 FCA 237, 2015 CAF 237, Johanne Gauthier J.A., C. Michael Ryer J.A., and D.G. Near J.A. (F.C.A.).

 


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