A conditional sentence (such as house arrest) is available when the accused may show circumstances for the court to be lenient. However; in the immigration context, such leniency does not reflect the same way, because immigration presumes that convicted permanent residents or foreign Nationals already pleaded for any immigration consideration at sentencing. That’s how federal court stated in “Tran” on Oct 30, 2015.
As a result, it is critical to engage an immigration professional early-on when permanent residents or foreign Nationals face any criminal or criminal-like charges (drug charges).
Background
Some of you may be aware of this decision: FCA (Federal Court of Appeal) allowed Tran (2014 FC1040), issued recently, but I want to share it with you in context of criminal law & immigration law.
Mr. Tran was charged and convicted of production of a controlled substance – s.7(1) of CDSA in January 2013. At such time, the max term was 7 years for this conviction. But, Nov. 6, 2012 prior to Jan/2013, it was changed to 14 years from 7 years. He ended up getting a conditional sentence of imprisonment of 12 months in the end.
Mr. Tran won this conditional sentence because (1) his max sentence of imprisonment was 7 years, not 10 years; (2) “term of imprisonment” under s. 36(1)(a) [criminal inadmissibility] or s.64(2) [PR criminality] was only for “carceral term of imprisonment” to exclude a “conditional term of imprisonment”.
The Federal Court of Appeal now allowed the government’s appeal based on the following two points:
1. a conditional sentence of imprisonment (s.742 to s.742.7 of CCC) is now reasonably interpreted as “imprisonment” under Immigration and Refugee Protection Act (s.36(1)(a)); and
2. the phrase “punishable by a maximum term of imprisonment of at least 10 years” under s.36(1)(a) of IRPA can reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined, NOT at the time of sentencing.
We find the second point more troublesome for any criminal lawyers, since one may not consider it a problem at the time of sentencing, but it could be a problem at any time until/if Canada Border Services Agency triggers its intention to carry out any admissibility determination.
Any permanent resident who has a brush with the law– drink & driving, assaults, etc. would be exposed. Simply put, conditional sentencing did not used to affect permanent residents’ removal from Canada, but now it does!
This would remove permanent residents with conditional sentence from Canada without any benefits of appeal to Immigration Appeal Division where they could bring humanitarian and compassionate grounds for re-consideration.
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.
