Conditional Sentences Don’t Reflect “Serious Criminality”, Supreme Court Decides

The Supreme Court of Canada came to a decision this week in a case that asked whether a person can lose their permanent residence status after being convicted of a crime and receiving a conditional sentence – that is, a sentence to be served not in prison but in the community. It also asked whether a person can lose their status for being convicted of a crime that would not have resulted in a loss of status at the time it was committed, but would have by the time an immigration officer examined the case because the maximum sentence had been raised by Parliament. The Court answered “no” to both questions.

Under section 36 of the Immigration and Refugee Protection Act, a permanent resident may be declared inadmissible – and subsequently removed from the country – for “serious criminality”. The Act defines “serious criminality” as committing a crime that carries a maximum punishment of 10 years’ imprisonment, or a conviction that results in a “term of imprisonment” of more than six months.

The Tran case concerned a permanent resident who had been convicted under the Controlled Drugs and Substances Act for his part in running a marijuana grow op. At the time of the offence, the maximum penalty he could have received was seven years in prison, but by the time he was convicted it had been raised to 14 years. The punishment he was actually given, however, was a 12-month conditional sentence.

The Supreme Court looked at the language and the purpose of the IRPA provision in order to reach a conclusion. Justice Côté, writing for the unanimous panel, decided that “term of imprisonment” must strictly mean time in prison. She reasoned that the Act uses sentencing to determine when a criminal act can be called “serious”, and that a conditional sentence is meant to be a less serious punishment than time in prison, reflecting a lower degree of culpability. If a sentence of five months in prison is more serious than a sentence of 12 months of conditional release, for example, then it wouldn’t be right for the person serving the conditional 12 months to be deported while the person serving five in prison could stay in Canada.

She went on to address the second question by referring to criminal law, where there is a mutual obligation between the state and its citizens: citizens must abide by the law, but the government must be clear about what the laws are, and usually won’t make new laws that apply retrospectively to past events. Similarly, permanent residents must honour their obligation to avoid serious criminality, but they are entitled to know in advance what will be considered “serious” enough to lead to their removal from Canada. Therefore, writes Justice Côté, the relevant time for determining serious criminality is when the offence is committed.

The way that the “serious criminality” provision in the IRPA is constructed means that the line between losing PR status and remaining in Canada can move from time to time, depending on what Parliament decides is a more or less serious crime and what a judge rules in an individual case. But the Tran decision brings more clarity to the rule and a greater degree of predictability for permanent residents.