Tran v Canada (Public Safety and Emergency Preparedness) : Bringing Cohesion Between Criminal Sentencing and Immigration Law
In Tran v Canada (Public Safety and Emergency Preparedness) 2017 SCC 50 [Tran], the Supreme Court of Canada (“SCC”) applied principles of statutory interpretation to answer two questions:
- First, does a ‘term of imprisonment’ under section 36(1)(a) of the Immigration and Refugee Protection Act, SC 2011, c 27 [IRPA] include conditional sentences?
- Second, is the ‘maximum term of imprisonment’ in the same section defined at the time a person commits the offence, or at the time of sentencing?
These two questions have a significant bearing on individuals without citizenship in Canada. Lawyers in the criminal justice system are increasingly advocating for conditional sentences rather than jail time for their clients. However, avoiding jail time offers little comfort for an accused with non-citizen status as a conditional sentence of six months or more could still result in their deportation. Furthermore, the point in time at which the maximum sentence associated with an offence is determine can have far reaching consequences for ensuring certainty and intelligibility of the law for non-citizens.
In its decision in Tran, the SCC took significant strides towards aligning principles of fairness in criminal sentencing with collateral consequences to immigration law.
Facts and Judicial History
Mr. Tran, a permanent resident of Canada, pled guilty to production of a controlled substance under section 7(1) of the Controlled Drugs and Substances Act, SC 1996 c 19 for his participation in a marijuana grow operation in March 2011. On January 18, 2013, he was given a 12 month conditional sentence. A conditional sentence is defined in section 742.1 of the Criminal Code, RSC 1985, c C-46 [Code], which states that:
If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if… (emphasis added)
After Mr. Tran’s sentencing, an officer at the Canadian Border Services Agency (“CBSA”) became aware of Mr. Tran’s criminal conviction. The officer prepared a report, arguing that Mr. Tran was inadmissible to Canada under section 36(1)(a) of the IRPA, which states:
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; (emphasis added)
The delegate of the Minister of Public Safety and Emergency Preparedness (“the Minister”) agreed with the CBSA officer and as a result, ordered Mr. Tran to report for an admissibility hearing before the Immigration Division, which would determine whether he would be able to stay in Canada or be required to return to Vietnam, his country of citizenship.
Mr. Tran filed an application in Federal Court for judicial review of the Minister’s decision, arguing that his one-year conditional sentence did not constitute a “term of imprisonment” under section 36(1) of the IRPA. He further argued that at the time he committed the offence, the production of a controlled substance under section 7(1) of the Controlled Drugs and Substances Act had a maximum sentence of seven years, which would mean the offence does not meet the ‘maximum term of imprisonment’ requirement of at least ten years under section 36(1) of the IRPA. However, on November 2012, the maximum sentence was amended to be 14 years imprisonment. Mr. Tran’s sentencing and the CBSA’s subsequent assessment of his admissibility occurred after the amendment of the law.
The Federal Court allowed Mr. Tran’s application, on the basis that the Minister’s decision was unreasonable, finding that a conditional sentence did not constitute a term of imprisonment, and that the officer should not have relied on predictions of Mr. Tran’s propensity for criminal activity (Tran v Canada, 2014 FC 1040). The Minister appealed the decision to the Federal Court of Appeal, which overturned the Federal Court’s decision and found that the Minister’s decision to order an admissibility hearing was not unreasonable (Canada v Tran, 2015 FCA 237).
Decision at the Supreme Court
Writing for a unanimous Court, Justice Côté rejected the argument that a conditional sentence constitutes a “term of imprisonment.” Justice Côté stated that the term “serious criminality” in section 36(1) of the IRPA cannot be defined by a “term of imprisonment greater than six months” alone, but it must also consider the difference in nature between conditional and jail sentences. To equate conditional and jail sentences would lead to “absurd results” as conditional sentences are considered to be more lenient than jail (Tran para 31).
As for defining the “maximum term of imprisonment” in section 36(1) of the IRPA, Justice Côté held that the maximum term is defined by the law as it was at the time the person committed the offence. Justice Côté arrived at this definition through an interpretation of section 3(1)(e) of the IRPA, which states:
The objectives of this Act with respect to immigration are…
to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (emphasis added)
The SCC found that the term “mutual obligations” extends to Parliament clearly communicating to permanent residents when they have decided to change the maximum punishment for a certain crime. Parliament cannot expect that permanent residents, at the time of the offence, would anticipate that the maximum punishment for the crime would increase in the future and impact their status. Therefore it is proper to construe the “maximum term of imprisonment” based on the date of the commission of the offence.
Conditional Sentences are not a “Term of Imprisonment”
In Tran, the SCC sets down an admirable judgment. The decision to exclude conditional sentences as a “term of imprisonment” harmonizes with extensive sentencing jurisprudence in criminal law that indicates conditional sentences are more lenient than jail terms. On his appeal, Mr. Tran used several criminal cases where mitigating factors persuaded judges to grant longer conditional sentences rather than shorter jail terms, while aggravating factors persuaded judges to do the opposite. Tran further strengthens the notion that conditional sentences and jail terms should not be considered equally punitive in nature.
Supporting the idea that conditional sentences are more lenient is the belief that people who are convicted can successfully obey their conditions without the need for incarceration. Conditional sentences are granted to individuals in part because the judge is satisfied that they “would not endanger the safety of the community” (Code, s 742.1(a)) and therefore do not need to be separated from the wider community.
For many, Tran is a welcomed decision. Given the strong intersections between criminal and immigration law, Tran represents the right step in ensuring the two bodies of jurisprudence are cohesive with one another in principle. For those who work in a criminal context, Tran represents further guidance on how a criminal charge can affect a client with non-citizenship status.
As the SCC previously held in R v Pham 2013 SCC 15 [Pham], judges can exercise their discretion and consider the collateral consequences on immigration status when they impose a criminal sentence. While the sentence ultimately has to be appropriate for the particular crime, Pham also recognizes that criminal law’s collateral consequences can have a significant impact on a person’s rehabilitation and reintegration into society. The SCC agreed in Pham that a criminal sentence can be appealed if the judge was not aware of these collateral immigration consequences, given the significant impact that the loss of status can have on the individual and their family.
Tran builds upon Pham and directs lawyers and judges to turn their mind in criminal sentencing to the risk of deportation given the circumstances of a particular offender. Judges should consider whether imposing a conditional sentence is appropriate if they are persuaded that the potential loss of immigration status may be a disproportionate consequence to a particular crime.
Statutory Interpretation and Section 11(i) of the Charter
Unsurprisingly, the SCC in Tran decided that the “maximum term of imprisonment” is determined at the commission of the offence. Justice Côté relied on section 11(i) of the Canadian Charter of Rights and Freedoms [Charter] to inform the SCC’s analysis, which states:
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.
As previously mentioned, Mr. Tran was convicted of production of a controlled substance under section 7(1) of the Controlled Drugs and Substances Act. At the time Mr. Tran committed the offence, the section carried a maximum punishment of 7 years in prison. However, upon Mr. Tran’s sentencing, the law had changed and the section now carries a maximum punishment of 14 years in prison. At the time of Mr. Tran’s sentencing, the judge was bound by the maximum sentence of 7 years in prison as mandated under section 11(i) of the Charter.
However, Mr. Tran could not receive the same benefit of section 11(i) of the Charter for his admissibility assessment. Section 11(i) of the Charter only applies to criminal sentencing and not the interpretation of the IRPA. The Minister had the option to use the 14 year maximum term in making a decision for an admissibility hearing, even though Mr. Tran could not have known or predicted this change in the law at the time of the offence.
Nevertheless, Justice Côté in Tran applied section 11(i) of the Charter to support the decision that Mr. Tran should have the benefit of the lower maximum punishment of 7 years during his assessment for admissibility, just as he would at his criminal sentencing. Her decision to use section 11(i) of the Charter in her interpretation extends the fairness given to the accused at the time of sentencing to collateral consequences in immigration as well.
Tran brings cohesion between criminal sentencing principles and the definition of “serious criminality” under the IRPA. In light of Tran, we may be cautious and see whether Parliament amends the IRPA to explicitly include conditional sentences under the umbrella of “serious criminality.” At the moment, Tran represents a second chance for many. For the non-citizens given a conditional sentence for crimes that carry a maximum term of imprisonment of less than ten years at the time of the offence, Tran makes way for an opportunity to appeal their cases and maintain their permanent resident status – and their lives – in Canada.