Supreme Court of Canada upholds fairness and Charter rights in immigration processes

THE Supreme Court of Canada in its unanimous decision in Tran v. Minister of Public Safety and Emergency Preparedness released on Thursday ruled that permanent residents should not lose their immigration status if they are sentenced to a conditional sentence, that is, a sentence that does not require them to serve time in prison.

The case considered what constitutes “serious criminality” for the purposes of deporting a Canadian permanent resident who has committed a crime.

The Court further held that deciding whether a permanent resident is inadmissible to Canada depends on the maximum sentence available under law at the time the offence was committed, rather than the maximum sentence at the time their immigration proceedings are heard.

The British Columbia Civil Liberties Association (BCCLA) intervened in the case to argue that whether a person should be deported from Canada because of serious criminality attracts protections found in s. 11 of the Charter of Rights and Freedoms. The Supreme Court of Canada agreed with BCCLA’s submissions.

Caily DiPuma, Acting Litigation Director of the BCCLA, reacting to the decision, said: “This decision represents a huge step towards a more just and fair immigration system. The Court recognized that Canadian permanent residents shouldn’t be kicked out of Canada for less serious crimes, and that they are entitled to protection under s. 11 of the Charter when facing deportation.”

Tran, a Canadian permanent resident since 1989, was criminally convicted for operating a marihuana grow operation. At the time Tran committed the offence, the maximum sentence was seven years imprisonment. By the time Tran was convicted, the maximum sentence had been increased to 14 years. Tran was given a 12-month conditional sentence, which meant that he served no time in prison.

After he was sentenced, Tran was referred to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing to determine whether to order his removal from Canada.  Under s. 36(1)(a) of Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), permanent residents are inadmissible to Canada for serious criminality if they have been “convicted in Canada of an offence … punishable by a maximum term of imprisonment of at least 10 years, or of an offence … for which a term of imprisonment of more than six months has been imposed”. The Immigration and Refugee Board held that Tran was inadmissible because the punishment for his offence was a maximum of 14 years at the time of his inadmissibility hearing.

The BCCLA was represented by Lorne Waldman and Warda Shazadi Meighen of Waldman & Associates.