Attention criminal lawyers and immigration lawyers:

Under the Immigration Refugee Protection Act (IRPA), section 36(1)(a) states that a foreign national, including a permanent resident in Canada, is inadmissible to Canada due to “serious criminality” – one punishable by a maximum of 10 years or more and sentenced to six months or more of imprisonment.

Context in criminal codeOne of the critical questions in Tran (2014 FC 1040) was whether a conditional sentence – 12 months to be served in the community – was a term of imprisonment of 12 months under section 36(1)(a) of IRPA.   Specifically, the question is whether the term, “imprisonment”, includes conditional sentences.  To this question, Mr. Justice O’Reilly stated “The fact that a conditional sentence is described as a sentence of imprisonment in general terms in the Criminal Code does not necessarily mean it should be considered to be a sentence of imprisonment in other statues, such as IRPA.  Context matters.”

Furthermore, a conditional sentence is “a meaningful alternative to incarceration for less serious and non-dangerous offenders” in Proulx (2000 Supreme Court of Canada).  In such context, it does not align with the concept of “serious criminality” under section 36(1)(a) of IRPA.

In Medovarkski (2005 SCC), the Court stated that the reference to a term of imprisonment in section 36(1)(a) relates to the period or number of times the person has been sentenced to spend in prison, which exclude conditional sentences.

However, parole cases are different because a person already got her prison sentence but is released early with a possibility that he could go back into prison.

For now, it appears that a conditional sentence is not considered as a term of imprisonment under IRPA.  If you practice criminal law in any capacity, it is critical to keep in mind how section 36 of IPRA is translating the Criminal Code in the context of Immigration law.  After all, “context matters.”

If you have any individual questions or concerns, please contact our office for more customized consultation for your unique situation.  Please note that this posting is for general information only and is not to be considered binding or official legal counsel since situations will vary and can be complicated. The content in this post is current as of the day of entry. Due to the changing nature of Immigration law, the information in this entry may or may not still be applicable.

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *