The Supreme Court’s decision, new hope to permanent residents

By Joel Sandaluk / Partner, Immigration Lawyer

The Supreme Court of Canada’s recent decision in Tran v Canada has changed the definition of “imprisonment” for immigration purposes, opening the way for some Permanent Residents to appeal their deportation orders.

Prior to the Supreme Court’s decision, a conditional sentence, commonly referred to as “house arrest” was treated as a term of actual imprisonment within the meaning of s 64(2) of the Immigration and Refugee protection Act. S. 64(2) of the Act. This provision strips permanent residents of their right of appeal to the Immigration Appeal Division [IAD] if they have been convicted of an offence and sentenced to 6 or more months imprisonment.

Therefore, a conditional sentence of over 6 months was sufficient to eliminate a person’s right of appeal to the Immigration Appeal Division despite the fact that they may have never spent a single day in actual custody.

What did the Court say?
In its decision, the Supreme Court of Canada made the following statements:

. . . If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes? Shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1)(h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50

Who is affected?
Any individual who received a conditional sentence in excess of 6 months and whose Removal Order has not yet been executed may have the ability to file an appeal to the Immigration Appeal Division. This is incredibly important because the Immigration Appeal Division has the authority to allow a person to remain in Canada notwithstanding their inadmissibility if it is satisfied that there exists sufficient humanitarian and compassionate circumstances to warrant the granting of equitable relief.

In addition to ordering that an appeal be allowed outright, the Board also has the authority to impose a “stay of execution” on a Deportation Order. This form of relief is similar to a probationary term in that an Appellant will be required to comply with certain terms and conditions for a set period of time. If the Appellant complies, then at the end of the term of their stay, their Removal Order will be set aside and their appeal allowed.

For many years, government has treated a conditional sentence as an actual term of imprisonment. Therefore, many people have been deported from Canada without having the opportunity to have the humanitarian and compassionate factors of their case heard by the Immigration Appeal Division. However, there may yet be many people still in Canada who are the subject of a Removal Order but whose Removal Orders have not been executed. People who remain in Canada in this situation may still have the opportunity to exercise their right to a deportation appeal.

Some people facing removal for a long time may benefit
Citizens of, for example, Vietnam, China, Jamaica and former Soviet Republics are notoriously hard to remove form Canada. As a result, they may still be in the country even years after the issuance of their Deportation Orders if, for example, their government is not cooperative with respect to issuing new passports and travel documents.

Convention refugees may also have regained ability to appeal their Deportation Orders. Although a Convention refugee may have been ordered deported and deprived of their right of appeal due to a conditional sentence. A Convention refugee may only be removed from Canada if the Minister’s Delegate is satisfied that they represent a Danger to the Public – the determination of which is a lengthy process. As a result, because their offences may not have been violent and as such not present a danger to the Canadian public, these individuals may spent years languishing in Canada until they are eligible to apply for a record suspension and ultimately restore their status.

A renewed ability to appeal one’s Deportation Order before the Immigration Appeal Division will have the effect of restoring their permanent resident status and providing them with an opportunity to explain themselves and demonstrate that based on all the circumstances of their case, their Removal Orders ought not to be executed.

This change in the law is significant and has meaningful consequences for many individuals who has previously been denied a right of appeal to the Immigration Appeal Division. If you believe that the Tran decision may affect you or someone you know, contact Mamann, Sandaluk & Kingwell right away and ask for a consultation.

Share This Post: