Deportation, appeals, and conditional sentences as “terms of imprisonment” – the case of Tran vs. Canada
In 2013, Than Tam Tran, was convicted of producing marijuana contrary to Controlled Drugs and Substances Act. At the time of his conviction, the offence for which the was charged carried a maximum sentence of 7 years imprisonment. After his conviction, this maximum sentence for the offence was raised to 14 years. Mr. Tran, however, was sentenced to a “conditional sentence” of 12 months. A conditional sentence is what is commonly referred to as “house arrest”.
As a result, Mr. Tran, not being a citizen of Canada, faced deportation according to the Canadian Border and Services Agency (CBSA). In seeking Mr. Tran’s deportation, they relied on s. 36(1)(a) of the Immigration and Refugee Protection Act (IRPA) which states:
36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
The CBSA took the position that
1) since the maximum sentence was increased by Parliament to 14 years from 7; and,
2) since he served a term of 12 months of “imprisonment” by virtue of the conditional sentence (house arrest)
he should therefore be properly deportable on both grounds contemplated in the statute.
Today, the Supreme Court of Canada said no to both issues.
Issue 1: Whether a conditional sentence is a “term of imprisonment” under the IRPA
This issue was, in essence, reduced to two questions:
1) Is a conditional sentence a “term of imprisonment” for purposes of assessing permanent resident’s admissibility to Canada on grounds of serious criminality under s. 36(1)(a) of IRPA?, and
2) Is the “maximum term of imprisonment” referred to in s. 36(1)(a) is maximum sentence that could have been imposed at time of commission of offence or of admissibility determination under s. 36(1)(a) of IRPA?
In answering both questions, the Supreme Court said “No.”
In reaching their conclusion, the Court held the phrase “term of imprisonment” was not the same as a “conditional sentence” for three reasons.
First, the “length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident” which is a prerequisite for deportation.
Second, the meaning of “term of imprisonment” varies from statute to statute and statutory context. Without this consistent meaning, it must be interpreted in context of the IRPA alone. In this context, a conditional sentence does not have the same meaning of “imprisonment” by way of a plain reading.
Third, interpreting “term of imprisonment” as incarceration would lead to absurd results. For example, people who were convicted of less serious offences but whose sentence may span a longer term because of probationary requirements, etc. might end up being deported while those convicted of more serious offences (but shorter jail terms) are not. It would also absurdly incentivize potential deportees to seek jail sentences to remain in Canada rather than a more appropriate, and less severe sentence of house arrest.
Issue 2: When is the “Maximum Term” of the sentence determined?
The Court held, quite simply and succinctly on this issue that:
(at para 35) “in my view, a contextual reading of s. 36(1)(a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.”
The Court held that any other interpretation woudl be inconsistent with section 11(i) of the Charter of Rights and Freedoms which reads:
11. Any person charged with an offence has the right
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Therefore, the maximum Mr. Tran would have received at the time of the commission of the offence would be a maximum of 7 years and thus not triggering the threshold under section 36 of IRPA. The Court disagreed with the inferior Courts ruling on this issue and held that
The criterion cannot simply be the abstract maximum penalty divorced from the actual “permanent resident . . . convicted” in a particular case. In my view, “punishable by a maximum term of imprisonment of at least 10 years” is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances.
The impact of R. v. Tran in immigration and criminal law
There is little doubt that Tran will have have sweeping consequences in the realms of immigration and criminal law.
First and foremost, the decision released today in Tran will allow those previously receiving a conditional sentence to have access to the Immigration Appeal Division (hereinafter the “IAD”) .
Eligible findings of criminal inadmissibility pre-dating this decision will likely be overturned and notice of appeals dismissed for lack of jurisdiction will likely be remitted for re-instatement. The importance in this lies in the IAD’s ability to consider what are known in the Immigration Realm as “H&C” or Humanitarian and Compassionate Ground factors.
These include things such as:
- establishment in Canada for in-Canada applications;
- ties to Canada;
- the best interests of any children directly affected by the H&C decision;
- factors in their country of origin including adverse country conditions;
- health considerations including inability of a country to provide medical treatment;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment (in the case of applicants in Canada);
- ability to establish in Canada for overseas applications;
- any unique or exceptional circumstances that might merit relief.
This decision may also cause a swarm of sentencing appeals at the Ontario Court of Appeal to seek variations of sentences that would now render them eligible for appeals of deportation orders that they would otherwise be refused. Combining this case with another seminal Supreme Court of Canada case of R. v. Pham, will have significant impact on appeals by immigration lawyers, and criminal lawyers’ request for sentencing that would allow for appeals of deportation orders.
It also cannot be ignored that this case is a significant win for often marginalized communities that may not have the same access to resources due to language, cultural and immigration barriers and the Immigration Appeal Division is going to be flooded with those that are now eligible for appeals or those that no longer need to appeal because of this decision.
This is a fantastic decision by the SCC and will have monumental repercussions in both Immigration and Criminal law circles!
The complete decision of this case can be found here.
This article was written in collaboration with immigration counsel Allison Pyper of Pyper Law