Published Spring 2022
Inadmissibility under Canadian immigration law can prevent certain individuals from entering or remaining in Canada. Sections 34 to 37 of the Immigration and Refugee Protection Act (“IRPA”) set out multiple grounds of inadmissibility, including security concerns, human or international rights violations, criminality, and organized criminality. For permanent residents, criminal convictions can have serious immigration consequences, including the risk of removal from Canada.
Section 36 of IRPA establishes two categories of criminal inadmissibility: (1) serious criminality and (2) criminality. A permanent resident may be found inadmissible for serious criminality if they are convicted in Canada of an offence under an Act of Parliament that carries a maximum possible sentence of at least 10 years’ imprisonment. In many cases, this finding can lead to the issuance of a removal order.
As a general rule, permanent residents have a right to appeal a removal order to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board. However, this right is restricted where inadmissibility is based on certain grounds listed in sections 34 to 37 of IRPA. In the context of serious criminality, a permanent resident loses the right to appeal if a custodial sentence of six months or more is imposed.
Conditional Sentences
A conditional sentence allows an offender to serve their sentence in the community, subject to court‑ordered conditions, rather than in a correctional institution. Prior to the Supreme Court of Canada’s decision in Tran v Canada, conditional sentences exceeding six months were treated as custodial sentences for the purposes of determining inadmissibility for serious criminality.
In Tran, the Supreme Court reconsidered this interpretation. The appellant, a permanent resident, pleaded guilty to producing a controlled substance under the Controlled Drugs and Substances Act for his involvement in a marijuana grow operation. He received a one‑year conditional sentence. On that basis, a Canada Border Services Agency officer prepared a report alleging inadmissibility under section 36(1)(a) of IRPA, which ultimately resulted in a removal order.
Mr. Tran sought judicial review, arguing that a conditional sentence did not amount to a “term of imprisonment” under section 36(1) of IRPA. The Supreme Court agreed, holding that conditional sentences should not be equated with custodial sentences. The Court emphasized that conditional sentences are generally imposed for less serious and non‑dangerous offenders and are intended to be a meaningful alternative to incarceration. As a result, the length of a conditional sentence should not be used to assess the seriousness of criminality in the same way as a jail sentence.
This decision means that permanent residents who receive conditional sentences of more than six months are not automatically barred from appealing a removal order to the IAD on the basis of serious criminality.
Suspended Sentences
Under section 731(1)(a) of the Criminal Code, a court may suspend the passing of sentence and release an offender on probation for a period of up to three years, subject to conditions. Immigration policy guidance has long treated suspended sentences as convictions for the purpose of assessing inadmissibility.
The immigration consequences of suspended sentences were considered in Roman c. Canada. In that case, a permanent resident pleaded guilty to fraud and received a one‑year suspended sentence. A deportation order was issued on the basis of serious criminality, and the IAD concluded that the appellant had no right of appeal.
The appellant argued that a suspended sentence should not be considered equivalent to a prison sentence within the meaning of section 36(1)(a) of IRPA. The IAD rejected this argument, finding that a one‑year suspended sentence was to be treated as a prison sentence for immigration purposes. As a result, the appellant was found inadmissible for serious criminality and barred from appealing the removal order.
Unlike conditional sentences, there is no Supreme Court of Canada guidance excluding suspended sentences from the definition of custodial sentences under IRPA. IAD decisions have consistently held that suspended sentences of six months or more can result in serious criminal inadmissibility and the loss of appeal rights.
Absolute and Conditional Discharges
Discharges are provided for under section 730 of the Criminal Code and allow courts to avoid registering a criminal conviction, despite a finding of guilt. There are two types of discharges: absolute discharges and conditional discharges. An absolute discharge carries no conditions, while a conditional discharge requires the offender to comply with probation conditions for up to three years.
Because a discharge does not result in a conviction, a permanent resident who receives either an absolute or conditional discharge is not inadmissible for serious criminality under section 36(1)(a) of IRPA. This principle was affirmed in Ranger v Canada, where the IAD set aside a removal order against a permanent resident who had received a conditional discharge. The IAD concluded that the individual had not been convicted of an offence reportable under IRPA.
In practice, discharges preserve a permanent resident’s ability to challenge a removal order, including through an appeal to the IAD, where such an order is issued.
Conclusion
The type of sentence imposed in a criminal matter can significantly affect a permanent resident’s immigration status in Canada. Conditional sentences and discharges do not, on their own, result in inadmissibility for serious criminality and generally preserve the right to appeal a removal order to the IAD. In contrast, suspended sentences may be treated as custodial sentences for immigration purposes, potentially eliminating appeal rights where the sentence is six months or longer.
Where appeal rights are lost, permanent residents may be limited to seeking judicial review before the Federal Court or pursuing relief on humanitarian and compassionate grounds with Immigration, Refugees and Citizenship Canada.
