Supreme Court: Conditional sentences not necessarily “serious criminality” under Immigration Act
In order to be admissible to Canada, permanent residents and foreign nationals must avoid “serious criminality” as set out in s. 36(1)(a) of Canada’s Immigration and Refugee Protection Act. That section provides that “serious criminality” is evidenced by being sentenced in Canada to a term of imprisonment of more than six months, or by being convicted of an offence punishable by a maximum term of imprisonment of at least 10 years.
In its October 19, 2017 decision of Tran v. Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada held that:
- a conditional sentence constitutes a “term of imprisonment” under s. 36(1)(a) of the IRPA;
- the phrase “punishable by a maximum term of imprisonment of at least 10 years” in the IRPA refers to the maximum term of imprisonment available at the time the person was sentenced, not at the time that admissibility to Canada is determined.
Mr. Tran is a citizen of Vietnam who acquired permanent resident status in Canada in 1989. In 2011, he was involved in a marijuana grow operation and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act. On November 6, 2012, legislation came into effect increasing the maximum sentence applicable to this offence from 10 years of incarceration to 14 years. Three weeks later, on November 29, 2012, Mr. Tran was convicted and given a 12-month conditional sentence to be served in the community.
A CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1)(a) of the IRPA. A delegate of the Minister of Public Safety and Emergency Preparedness (“Minister”) referred Mr. Tran’s case to an admissibility hearing before the Immigration Division – this referral was withdrawn due to legislative changes to appeal rights under s. 64(2) of the IRPA.
Mr. Tran argued in writing that he did not fall within the purview of s. 36. A second CBSA officer reviewed those submissions and concluded in another report that Mr. Tran should be referred to an admissibility hearing. This report canvassed conditions in Vietnam, Mr. Tran’s degree of establishment in Canada, and the best interests of his children. The report also considered Mr. Tran’s history of arrests and charges without conviction, ultimately concluding that Mr. Tran seemed not to have accepted responsibility of his actions. The Minister’s delegate endorsed this report and referred the matter to an admissibility hearing. The Minister’s delegate’s decision is the decision under review in this case.
Lower Court Decisions
On judicial review in the Federal Court, Justice O’Reilly found the Minister’s delegate’s decision to be unreasonable, ordering that another officer consider the question of Mr. Tran’s admissibility. The Minister appealed.
At the Federal Court of Appeal, Justice Gauthier for a unanimous court allowed the Minister’s appeal. Gauthier J. found that the reviewing judge failed to do what he was required to under a reasonableness standard of review: to assess whether the administrative decision-maker’s interpretation of s. 36 fell within the range of interpretations defensible on the facts and law.
Supreme Court Decision
This case went up to the Supreme Court for determination of the two main issues summarized below.
Issue 1: is a conditional sentence a “term of imprisonment”?
At the Supreme Court of Canada, Justice Côté, writing for the unanimous Court held that conditional sentences are not captured by the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA for at least three reasons.
First, “length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of a permanent resident.” Conditional sentences are crafted for less serious offences. In fact, there are cases in which mitigating factors have prompted courts to replace jail terms of less than 6 months with conditional sentences. There are also cases in which aggravating factors led courts to replace conditional sentences longer than 6 months with jail terms shorter than 6 months.
Second, “the meaning of “term of imprisonment” varies according to the statutory context.” For example, in some parts of the Criminal Code, “imprisonment” captures conditional sentences, but in other cases it does not. The Court noted that there is similarly no consistent meaning for what “imprisonment” entails in other statutory contexts.
Third, including conditional sentences in the phrase “term of imprisonment” would lead to absurd results. Côté J. reasoned that it would be an absurd outcome if a “less serious and non-dangerous offender” sentenced to a 7-month conditional sentence in the community could be deported while a more serious offender serving a 6-month sentence in jail could be allowed to remain in Canada. It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they could remain in Canada – as Mr. Tran had actually done before the Court of Appeal. This would sabotage the goals of conditional sentences which include encouraging rehabilitation, reducing the rate of incarceration, and improving the effectiveness of sentencing.
Issue 2: how is “maximum term” determined?
Justice Côté held that a contextual reading of s. 36(1)(a) “supports only one conclusion”: that the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum penalty available at the time that the offence was committed.
The Supreme Court accepted Mr. Tran’s argument that a reading of the provision indicates that since section 36(1)(a) begins with “having been convicted”, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed.
The Court rejected the conclusion of the Federal Court of Appeal that the phrase could be interpreted in the abstract, without reference to the particular individual. Rather, the phrase must be interpreted with reference to the actual offender or others in similar circumstances. This would accord with the purpose of the IRPA: to “permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents.”
The Court explained that the IRPA establishes “mutual obligations” between permanent residents and Canadian society which must be knowable in order to apply. Individuals cannot be required to act in accordance with rules that do not yet exist.
Côté J. reasoned that while section 11(i) of the Charter (right to lesser punishment) did not apply to the decision of a Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that did apply. The presumption engages the rule of law by providing individuals with a “stable, predictable and ordered society in which to conduct their affairs,” in the words of Lord Denning. The presumption also promotes fairness and respects decisions of sentencing judges, who are required to consider immigration consequences. It would offend fairness, the rule of law, and undermine a sentencing judge’s decision if, after a change in the law, a permanent resident who had already served a sentence 25 years ago could suddenly be found inadmissible.
Côté J. held that the presumption against retrospectivity was not rebutted in this case because there was no express language or necessary implication indicating that Parliament had turned its mind to the issue of retrospectivity.
Analysis of Tran
As to issue 1, the Supreme Court’s decision in Tran should provide certainty for lawyers acting for clients with criminal and immigration matters. Tran has harmonized s. 36 of the IRPA with criminal sentencing jurisprudence by clarifying that a conditional sentence is not indicative of “serious criminality” under the IRPA. Before Tran, a lawyer could be remiss to recommend a longer conditional sentence to be served in the community instead of a shorter sentence of incarceration due to potential deportation consequences. The Supreme Court has clarified that decisions to refer non-citizens to admissibility hearings under the IRPA should reflect the criminal law’s understanding of seriousness of offences.
The relationship between criminal law and immigration law in s. 36(1) of the IRPA means that a criminal offence may have serious consequences for the offender beyond criminal sanctions. Tran suggests that the possible immigration consequences of an offence should be considered as a factor by the sentencing judge when determining the appropriate sentence to impose. Negative immigration consequences may prompt judges to impose conditional sentences in cases where penal sentences of at least 6 months could also be imposed.
As to issue 2, this decision of the Supreme Court’s underscores that Canadian citizenship is not a right but a benefit that depends on mutual obligations between Canadian society and the individual. Part of Canadian society’s obligation is for the law to be intelligible and predictable in order for permanent residents to be able to “plan their lives”.
The Supreme Court’s emphasis on fairness, the rule of law, and the discretion of sentencing judges should provide certainty for non-citizens living in Canada. Although the Court held that s. 11(i) of the Charter did not apply to the decision since the proceedings were neither criminal nor penal, the principle behind that section – the presumption against retroactivity – was available. By applying the presumption of retrospectivity, the Court furthered the principles of fairness, predictability and intelligibility of the law. The Court’s application of the presumption of retrospectivity also seems to echo jurisprudence in the administrative law context suggesting that decision-makers should consider Charter values when making decisions.
Docket : 36784
Date of Decision: October 19, 2017
 S.C. 2001, c. 27 [“IRPA”].
 2017 SCC 50 [“Tran”].
 S.C. 1996, c. 19 [“CDSA”].
 2014 FC 1040, 31 Imm. L.R. 160 (F.C.).
 2015 FCA 237.
 Tran at para. 25.
 Tran at para. 27.
 Tran at para. 29.
 Tran at para. 29.
 Tran at para. 32.
 Tran at para. 40.
 Tran at para. 45.