Criminal inadmissibility in light of Tran v. Canada
Michael, a 35-year-old US citizen, had a DUI conviction in 2011. He has no other criminal history. Michael recently received a job offer from a Tech company in Vancouver, BC. However, he is nervous about the potential of being inadmissible to Canada. An immigration consultant explains that recent DUI convictions cause inadmissibility on serious criminality grounds. Nonetheless, the timing of Michael’s conviction in the wake of Tran v. Canada exonerates him. Is that true?
Table of contents
Understanding criminal inadmissibility to Canada
A criminal history could make a person inadmissible to Canada. Generally speaking, if you are inadmissible, you cannot enter Canada or apply for immigration or temporary status. The following articles give you more information about inadmissibility to Canada:
The second article directly relates to the topic of Tran v. Canada. However, here is a brief and partial comparison between criminality and serious criminality:
- Serious criminality affects both foreign nationals and permanent residents. On the contrary, criminality only affects foreign nationals.
- Serious criminality is never subject to deemed rehabilitation. Therefore, regardless of how many years ago it occurred, the person remains inadmissible to Canada. However, they can apply for a record suspension or rehabilitation.
- TRP (Temporary Resident Permit) is a temporary remedy for those inadmissible to Canada.
- In Canada, imprisonment for six months or longer leads to inadmissibility due to serious criminality. This rule does not exist for outside Canada offences.
Exploring Tran v. Canada
In Tran v. Canada (2017), Thanh Tam Tran, a Vietnamese citizen and a permanent resident of Canada, was convicted of producing a controlled substance under the Controlled Drugs and Substances Act. He was sentenced to a 12-month conditional sentence to be served in the community rather than in prison. Following this conviction, the Canadian government sought to deport him for “serious criminality,” as defined under the Immigration and Refugee Protection Act (IRPA).
Before the Supreme Court of Canada, the critical issue was whether Tran’s 12-month conditional sentence should be considered “imprisonment,” thereby making him inadmissible to Canada due to “serious criminality.”
The Court ruled in Tran’s favour, stating that:
- A conditional sentence is not equivalent to imprisonment for immigration law. As such, Tran was not inadmissible for “serious criminality” based on his 12-month conditional sentence.
- The Court also emphasized that the laws in effect during the offence should be used to determine inadmissibility rather than retroactively applying newer, more punitive laws.
How does Tran v. Canada affect offences in Canada?
If a person has a conviction in Canada, the officers must consider the following:
- Conditional sentences do not equate to imprisonment for inadmissibility because of serious criminality.
- If the maximum penalty under today’s laws results in serious criminality, they must look into the laws when committing the offence. If the laws at the time were more lenient, the officers must pick those laws. The Safe Streets and Communities Act includes a list of offences now facing longer prison times or harsher fines.
- If today’s laws are more lenient, the officers pick them instead of the laws that were in effect at the time of committing the offence.
- For an offence that occurred over time, the last occurrence of the offence defines the time of committing.
How does Tran v. Canada affect offences outside Canada?
If a person has a conviction outside Canada, the officers must consider the following:
- The term of imprisonment outside Canada is not essential. The officers look into the equivalency under Canadian laws only.
- The rest of the list is similar to the list I published for in Canada offences. However, remember that we must find the equivalency in Canada rather than relying on foreign laws.
Generally speaking, a foreign pardon does not automatically result in rehabilitation.
Remedies for inadmissibility
Depending on the type of inadmissibility, various remedies may be available. For criminal inadmissibility, here are some examples:
- Record suspensions for in-Canada offences
- Criminal rehabilitation applications
- Showing you are deemed rehabilitated.
- Immigration under Humanitarian and Compassionate grounds
- A Temporary Resident Permit
- Pre-removal Risk Assessment
Of course, Tran v. Canada is helpful in certain circumstances as we can switch from a more risky option to a less risky one.
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Al ParsaiAl Parsai, LLM, MA, RCIC-IRB
Regulated Canadian Immigration Consultant
Adjunct Professor – Queen’s University – Faculty of Law
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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