Tran v. Canada – positive SCC decision received

Erin Roth, Peter Edelmann and Aris Daghighian (Aris was formerly with Edelmann & Co.) received a positive decision on a case that they argued before the Supreme Court of Canada. Tran v. Canada (M.P.S.E.P.), 2017 SCC 50 settled two important issues at the crossroads of criminal and immigration law.

First, the Supreme Court determined that a Conditional Sentence Order (CSO) – a criminal sentence to be served within the community – was not a ‘term of imprisonment’ under the Immigration and Refugee Protection Act. Prior to this decision, those with CSOs of over six months could be found inadmissible to Canada for serious criminality, and permanent residents with CSOs over six months lost the right to appeal that finding of inadmissibility to the Immigration Appeal Division.

Second, it was determined that immigration consequences which may flow from a Canadian criminal conviction has to be assessed as of the date of the criminal offence. In Mr. Tran’s case, the criminal law was amended between the date he commit the offence and the date that he was criminally sentenced. Under the Canadian Charter, a person must be criminally sentenced based on the law as it existed at the time he committed the offence. The Supreme Court confirmed that this was also true for immigration law, and the immigration consequences of a Canadian criminal conviction must reflect the law at the time of the criminal offence.