December 21, 2017 – Canada’s Supreme Court has ruled that a conditional sentence does not count as time spent in jail in cases involving serious criminality under section 36(1)(a) of the Immigration Act. That section is the basis for finding a permanent resident inadmissible to Canada on grounds of “serious criminality and can lead to loss of status and removal from Canada.
The ruling was made in a recent case involving Thanh Tam Tran, a Vietnamese national who became a permanent resident of Canada in 1989. He was convicted of running a marijuana factory in 2013, an offence for which he was given a one-year conditional sentence which did not involve a term of imprisonment.
When he was convicted, the crime carried a maximum sentence of 14 years. Immigration authorities began proceedings to revoke his permanent residence status, as is the law for all crimes carrying a maximum sentence of 10 years or more, or a minimum six months jail time.
However, Tran committed the offence in 2011, when the maximum sentence for the offence was seven years. He argued that he should therefore keep his permanent residence, given his punishment was only a conditional sentence and not a term of imprisonment.
The Supreme Court in a unanimous decision ruled that a conditional sentence cannot constitute a «term of imprisonment» under s. 36(1)(a) of the IRPA. It also held the phrase «punishable by a maximum term of imprisonment of at least 10 years» in 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.
If a Canada Border Services Agency (“CBSA”) officer is of the opinion that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit that report to the Minister of Public Safety and Emergency Preparedness (“Minister”) (IRPA, s. 44(1) ). If the Minister is of the opinion that the report is well founded, the Minister may refer the report to the Immigration Division of the Immigration and Refugee Board (“Immigration Division”) for an admissibility hearing. However, even if he is of the opinion that the report is well founded, the Minister retains some discretion not to refer it to the Immigration Division.
If the Minister does refer the report to the Immigration Division, an admissibility hearing is held for the permanent resident, and the Immigration Division must either recognize that person’s right to enter Canada (IRPA, s. 45 (a)), authorize him or her to enter Canada for further examination (s. 45 (c)), or make a removal order against that person (s. 45 (d)). If a removal order is made, that person’s permanent resident status is lost (IRPA, s. 46(1) (c)). Although a right to appeal to the Immigration Appeal Division exists against a decision to make a removal order against a permanent resident (IRPA, s. 63(3) ), there is no right to appeal by a permanent resident who has been found inadmissible on grounds of serious criminality if the finding of inadmissibility was “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months” (IRPA, s. 64(2) ).
This decision is significant in that it provides an important avenue for legal counsel and their clients to seek conditional sentences wherever possible. Tran has harmonized s. 36 of the IRPA with criminal sentencing jurisprudence by clarifying that a conditional sentence does not infer «serious criminality» under the IRPA.
Tran also suggests that the prospect of negative immigration consequences of an offence should be considered as an important factor by the sentencing judge when determining the appropriate sentence to impose. Negative immigration consequences may lead judges to impose conditional sentences in cases where penal sentences of at least 6 months could also be imposed.
Finally, the decision highlights the reality that Canadian citizenship is not a right but a benefit which depends on mutual obligations between Canadian society and the individual.
Guidelines Pertaining to the Risk Assessment
When considering an immigration application from a candidate with a criminal conviction, here are some of the guidelines an IRCC case officer will consider:
The authorities require officers to review criminal cases. While reviewing these cases, officers will need to verify the time that has elapsed since the individual served the sentence. Doing this enables the officer to determine whether the client might be eligible for rehabilitation or can be deemed rehabilitated.
The onus remains on the client for demonstrating their level of risk and that further criminal activity is unlikely.
While carrying out a risk assessment, officers will need to assess:
- The seriousness of the offence
- The chances of the client committing any further offences
- Any behavioural or medical factors involved in the case
- Any evidence of reform or rehabilitation
- Whether the influence of drugs, alcohol or a medical condition was a factor in the commission of the crime
- If a pattern of criminal behaviour exists e.g. the offence was a single event and out of character
- If the client has completed all the sentences, paid all the fines or made all the necessary restitution
- If there are any outstanding criminal charges against the client
- If there is any restriction of travel following parole or probation
- The eligibility for rehabilitation or a record of suspension
- The time that has elapsed since the client committed the offence and,
- Any controversy or risk that the presence of the person has caused in Canada
Guidelines Pertaining to Frequent Travellers
In some cases, the authorities permit officers to issue a Temporary Resident Permit (TRP) that authorises re-entry into Canada. This is especially so in case the person is not eligible for obtaining relief from the Minister or has not received a record of suspension, and if circumstances warrant facilitation. The authorities typically permit officers to issue a Temporary Resident Permit (TRP) in case:
- The crime did not involve drugs i.e. the officers could exclude the simple possession of hashish / marijuana from this consideration
- The crime did not involve physical harm or violence
- The crime resulted in a suspended sentence or probation (with no jail term), unless it was the result of plea bargaining
- The crime did not involve any damage to property i.e. impaired driving resulting in an accident would not be eligible
- The person has been fulfilling the conditions while on probation (if applicable)
- There are no more than two convictions and,
- The crimes were both summary offences (i.e. arising out of one offence) and not indictable
For instance, an officer could consider granting a Temporary Resident Permit (TRP) valid for re-entry to a frequent business traveller who had been convicted of a minor criminal offence that made the individual inadmissible based on the provisions specified in A36 (2) and in case, the applicant meets the criteria outlined above.
In accordance with the provisions specified in A36 (1), the authorities will consider a permanent resident or a foreign national as being inadmissible on the grounds of serious criminality for:
- 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 the authorities have imposed a term of imprisonment of more than six months
- Having been convicted of an offence outside Canada that, in case it had been committed in Canada, would have constituted an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or,
- Committing an act outside Canada that is an offence in the place where it was committed and that, had the crime been committed within Canada, would have constituted an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years
Similarly, in accordance with the provisions specified in A36 (2), the authorities will consider a foreign national as being inadmissible on grounds of criminality for:
- Having been convicted in Canada of an offence under an Act of Parliament that is punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence
- Having been convicted of an offence outside Canada that, in case the offence had been committed in Canada, would have constituted an indictable offence under an Act of Parliament, or of two offences under any Act of Parliament not arising out of a single occurrence that, had they been committed in Canada would have constituted offences under an Act of Parliament
- Committing an act outside Canada that is an offence in the place where it was committed and that, had the offence been committed within Canada, would have constituted an indicatable offence under an Act of Parliament or,
- Committing, after entering Canada, an offence under an Act of Parliament prescribed by regulations
Guidelines for Frequent Travellers Who Have Not Applied for Rehabilitation Where Eligible
The authorities want officers to encourage applicants to apply for rehabilitation. In addition, they require that officers provide such applicants with the Application for Criminal Rehabilitation i.e. IMM 1444E.
It is worth mentioning that frequent travellers who repeatedly seek Temporary Resident Permits (TRPs) but have not applied for rehabilitation in spite of receiving counselling from officers about this, should not warrant any favourable consideration.
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