A conditional sentence does not equal imprisonment for the purposes of serious criminality under s 36(1)(a) of the IRPA.  As for sentencing, the officer has to look at the sentencing at the time of the conviction.

Facts:

Mr. Tran came to Canada in 1989 and became a permanent resident.  In 2013, he was convicted of production of marijuana and sentenced to a conditional sentence.  At the time, the maximum sentence for production of marijuana was 7 years but it was later increased to 14 years.

The case was referred to an Immigration Division for inadmissibility.  The officer found Mr. Tran inadmissible for an offence punishable by a maximum of at least 10 years’ imprisonment or for receiving a sentence of more than 6 months’ imprisonment.

The relevant provision of the Immigration and Refugee Protection Act (IRPA) is:

  1. (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;

Issues:

  1. Does a conditional sentence of 12 months constitute a term of imprisonment greater than 6 months?
  2. Was Mr Tran convicted of an offence punishable by maximum of at least 10 years’ imprisonment?
  3. Was the officer’s conclusion unreasonable?

 

Analysis:

  1. Does a conditional sentence of 12 months constitute a term of imprisonment greater than 6 months?

The Minister argues that a conditional sentence is a sentence of imprisonment.  Therefore, 12 months conditional sentence is imprisonment of greater than 6 months.  The Court disagrees.

The term “imprisonment” is not uniform in the Criminal Code (R v Middleton, 2009 SCC 21, at para 14).  Typically, courts impose conditional sentences on criminals not considered to be serious. According to the Supreme Court in R v Proulx, (2000 SCC 5), a conditional sentence “is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (at para 21). To include conditional sentences within s 36(1)(a) is contrary to identifying those coming within the concept of “serious criminality”.

Moreover, in Medovarkski v Canada (MCI), (2005 SCC 51), at para 11 the Supreme Court noted that “imprisonment” for s 36(1)(a) of the IRPA refers specifically to incarceration.

As such, Mr. Tran’s 12-month conditional sentence is not imprisonment greater than 6 months for the purposes of s 36(1)(a).

 

  1. Was Mr Tran convicted of an offence punishable by maximum of at least 10 years’ imprisonment?

 

The Minister argues that Mr. Tran was convicted of an offence punishable by maximum of at least 10 years’ imprisonment.  The Court disagrees.

 

The test for s 36(1)(a) is whether the person was convicted of a crime punishable by a maximum of 10 years.  The officer had to look at the sentence at the time of the conviction, which in Mr. Tran’s case at the time was only 7 years.  It was raised to 14 years only after his conviction.  Thus, Mr. Tran is not caught by s 36(1)(a).

 

  1. Was the officer’s conclusion unreasonable?

 

The Court found that the officer only considered arrests and charges, which in themselves are not evidence of criminal conduct.  Similarly, police reports that did not give rise to charges are not proof of criminal conduct.  Reliance on that proof rendered the officer’s conclusion that there were reasonable grounds to believe Mr. Tran was inadmissible for serious criminality unreasonable.

Conclusion:

The application for judicial review is allowed.  The matter is referred back to another officer for reconsideration.