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Criminal Sentences and Discharges - ABAILN 2022

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Criminal Sentences and Discharges - ABAILN 2022

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utkanth sharma
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Canada – Immigration Consequences of Criminal

Sentences and Discharges


Sergio R. Karas and Reeva Goel

This article will focus on criminal inadmissibility and the previous stance and held that conditional sentences
consequences that distinct types of sentences have on should not be considered when determining
permanent residents convicted in Canada. inadmissibility for serious criminality. In Tran, the
Inadmissibility prevents certain individuals from entering appellant was a permanent resident who pleaded guilty
or remaining in Canada. There are numerous grounds of to production of a controlled substance under the
inadmissibility under sections 34 to 37 of Immigration Controlled Drugs and Substances Act, 11 as a participant
and Refugee Protection Act (“IRPA”), based on in an illegal marijuana growth operation. He received a
security, 1 human or international rights violations, 2 one-year conditional sentence. Because the sentence
criminality 3 or organized criminality. 4 was longer than six months, a Canada Border Services
Permanent residents convicted of an offence are Agency officer prepared a report alleging that Mr. Tran
deemed to be criminally inadmissible and run the risk of was inadmissible under section 36(1)(a) of IRPA. The
deportation. The two grounds of criminal inadmissibility Minister of Public Safety and Emergency Preparedness
under section 36 of IRPA are (1) serious criminality and, agreed with the report, which resulted in an admissibility
(2) criminality. A permanent resident can be found to be hearing and a removal order was issued. Mr. Tran filed
criminally inadmissible for serious criminality if convicted an application for judicial review and argued that a one-
in Canada of an offence under an Act of Parliament that year conditional sentence was not a “term of
is punishable by a maximum term of imprisonment of at imprisonment” under section 36(1) of IRPA. The
least 10 years. 5 Supreme Court agreed and held that a conditional
Ordinarily, permanent residents have the right to sentence was not a term of imprisonment. The Court
appeal a removal order to the Immigration Appeal held that a conditional sentence:
Division (IAD) of the Immigration and Refugee Board. “[…] will usually be more lenient than jail terms of
However, they do not have the right to appeal if they equivalent duration, and generally indicate less
have been found to be inadmissible on the grounds serious criminality than jail terms. Since a
listed under sections 34 to 37 of IRPA. 6 This means that conditional sentence is a meaningful alternative to
permanent residents do not have the right to appeal a incarceration for less serious and non-dangerous
removal order for serious criminality if a custodial offenders, interpreting “a term of imprisonment of
sentence of six months or more has been imposed. 7 more than six months” as including both prison
sentences and conditional sentences undermines
Conditional Sentences the efficacy of using length to evaluate the
If a court imposes a conditional sentence the offender is seriousness of criminality.” 12
allowed to serve it in the community subject to certain This decision gives offenders with conditional
conditions. 8 Before the decision in Tran v Canada, 9 the sentences of more than six months the right to appeal
Supreme Court of Canada held that conditional their removal orders if they are found to be inadmissible
sentences of more than six months were custodial on the grounds of serious criminality.
sentences, and therefore could cause a permanent
resident to be inadmissible for serious criminality. 10
However, the Supreme Court in Tran reversed its

1
Immigration and Refugee Protection Act S.C. 2001, c. 27, section 34 7
Ibid at section 64(2).
‘Security’. 8
Criminal Code R.S.C., 1985, c. C-46, section 742.7
2
Ibid at section 35 ‘Human or international violations’. 9
Tran v. Canada (Public Safety and Emergency Preparedness) 2017
3
Ibid at section 36 ‘Criminality’. SCC 50, 2017 CSC 50
4
Ibid at section 37 ‘Organized criminality’. 10
R v Proulx 2000 SCC 5
5
Ibid at section 36(1)(a). 11
Controlled Drugs and Substances Act S.C. 1996, c. 19
6
Ibid at section 64(1). 12
Supra note 9 Tran v Canada

INTERNATIONAL LAW NEWS Spring 2022 17


Suspended Sentences two types of discharges: (1) absolute discharges, and (2)
Section 731(1)(a) of the Criminal Code allows a court to conditional discharges. For absolute discharges, a
suspend the passing of a sentence. This means that the conviction is not registered and there are no conditions
offender is released under a probation order with imposed. However, a finding of guilt is made. A
conditions for a period of up to three years. According to conditional discharge subjects the offender to a
the Citizenship and Immigration Canada Manual probation order with certain conditions attached for a
guidance on evaluating inadmissibility, a suspended period of up to three years.
sentence is a conviction. 13 A conviction does not exist when courts grant
In Roman c. Canada, 14 a permanent resident pleaded discharges 18 and therefore if a court imposes one on a
guilty to one count of fraud and received a one-year permanent resident, they are not inadmissible for serious
suspended sentence. A deportation order was issued criminality. 19 For example, in Ranger v Canada, the IAD
against the appellant, for inadmissibility on grounds of set aside a removal order made against an offender who
serious criminality. The IAD of the Immigration and was subject to a conditional discharge, stating that “he
Refugee Board ordered the appellant to be removed was not convicted of an offence reportable under section
from Canada and held that he had no right to appeal the 36(1)(a) of IRPA.” 20 The appellant, a permanent
removal order as he was inadmissible for serious resident, had been ordered removed due to his
criminality. The appellant argued that “a suspended conviction for possession of counterfeit currency. During
sentence of more than six months was not equivalent to the hearing, it was submitted by the appellant that “the
a prison sentence within the meaning of paragraph removal order made against him was not valid in law,
36(1)(a) of the [IRPA].” 15 The panel held that a one-year because he had not been convicted, but rather subject to
suspended sentence was “considered a prison a conditional discharge.” 21 The IAD agreed.
sentence,” 16 and: Like conditional sentences, discharges also allow for the
“[…] that the appellant has no right of appeal right of appeal in circumstances where a removal order
under subsections 64(1) and 64(2) of the Act is made against an offender.
because he is inadmissible on grounds of serious
criminality under paragraph 36(1)(a) of the Act, Conclusion
and received a prison sentence of at least six Permanent residents convicted of an offence for which a
months, i.e., a 12- discharge or conditional sentence is imposed will not be
month suspended prison sentence.” 17 inadmissible for serious criminality and have the right to
Unlike conditional sentences which the Supreme appeal to the IAD if a removal order is made against
Court has held are not equivalent to custodial sentences, them. However, if a suspended sentence is imposed,
the same guidance does not exist in relation to permanent residents lose the right to appeal the removal
suspended sentences. The IAD held on various order. They are limited to filing applications for judicial
occasions that a suspended sentence makes permanent review at the Federal Court, and to filing applications to
residents criminally inadmissible and subject to removal Immigration, Refugees and Citizenship Canada, for
orders that they cannot appeal if convicted to six months reasons involving humanitarian and compassionate
or more. grounds.

Absolute and Conditional Discharges


Sergio R. Karas, principal of Karas Immigration Law Professional
Discharges are a way for courts to avoid imposing the
Corporation, is a Certified Specialist in Canadian Citizenship and
full impact of a criminal conviction on an offender Immigration Law by the Law Society of Ontario. He is Past Chair of the
ABA International Law Section Canada Committee and current co-
pursuant to section 730 of the Criminal Code. There are chair of the International Ethics Committee, International Law Section,

13
CIC Manual ‘ENF 2 Evaluating Inadmissibility’ 19
Government of Canada “Rehabilitation for Persons Who Are
http://overseastudent.ca/migratetocanada/IMMGuide/CICManual/enf/e Inadmissible to Canada Because of Past Criminal Activity”
nf02-eng.pdf https://www.canada.ca/en/immigration-refugees-
14
Roman c Canada (Ministre de la Sécurité publique et de la citizenship/services/application/application-forms-guides/guide-5312-
Protection civile) 2016 CarswellNat 2467. rehabilitation-persons-inadmissible-canada-past-criminal-activity.html
15
Ibid at para 9. 20
Ranger v. Canada (Minister of Public Safety and Emergency
16
Ibid at para 16. Preparedness) 2014 CarswellNat 7414 at para 8.
17
Ibid at para 29. 21
Ibid at para 5.
18
Supra note 12 CIC Manual.

INTERNATIONAL LAW NEWS Spring 2022 18


Past Chair of the Ontario Bar Association Citizenship and Immigration
Section, Past Chair of the International Bar Association Immigration
and Nationality Committee, and Editor of the Global Business
Immigration Handbook. He can be reached at karas@karas.ca.

Reeva Goel holds a LL.B. from the University of Ken, UK, and a LL.M.
in Canadian Common Law from Osgoode Hall Law School, Ontario,
Canada. She can be reached at goelreeva@gmail.com.

INTERNATIONAL LAW NEWS Spring 2022 19

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