When criminal inadmissibility
depends on whether an offence is “punishable by a maximum term of
imprisonment,” timing matters. In Tran v. Canada (Public Safety and
Emergency Preparedness), 2017 SCC 50, the Supreme Court of Canada addressed
exactly which maximum penalty applies when the law changed over time.
The issue Tran answered
IRPA s. 36(1)(a) (serious criminality) can be triggered if a
person was convicted in Canada of an offence punishable by a maximum term of at
least 10 years, or if a term of imprisonment of more than 6 months was imposed.
In Tran, the Court considered (among other issues)
whether the “maximum term of imprisonment” should be assessed based on:
● the law at the time
of the offence, or
● the law at
conviction/sentencing, or
● the law at the time
of the inadmissibility decision.
The key takeaway: use the law in force when the offence
was committed
For the maximum-penalty analysis, Tran supports using
the maximum penalty available at the time the offence was committed, not later
increases applied after the fact.
Why this matters in real cases
If Parliament later increases the maximum sentence for an
offence:
● that increase
should not automatically change the inadmissibility classification for conduct
that happened before the increase, when assessing the “10-year maximum”
trigger.
The other major holding in Tran: conditional
sentences and the “6 months” rule
Tran also held that a conditional sentence is
not a “term of imprisonment” for the purpose of the “more than six months”
branch of IRPA s. 36(1)(a).
Practical guidance for files (how to apply this)
When assessing whether a conviction triggers serious
criminality based on maximum penalty, you generally need:
● the offence date
(date of commission),
● the version of the
Canadian offence provision and its maximum penalty in force on that date,
● the conviction and
sentence details (including whether it was custodial or conditional).
FAQs
If the law is tougher today, can Canada apply today’s
maximum to my old offence?
Tran supports using the maximum penalty at the
time of the offence for the maximum-penalty test.
Does the “current law” ever matter?
Current law still matters for many things (including how offences are
structured today), but for the specific “maximum penalty” trigger discussed in Tran,
timing is central.
Does a Conditional Sentence Count as “Imprisonment”
Over 6 Months for Criminal Inadmissibility in Canadian Immigration?
Not for the “term of imprisonment” threshold in IRPA s. 36(1)(a),
according to Tran.
Call A&M Canadian Immigration Law Corporation:
(204) 442-2786
If your offence occurred years ago or the law changed after your offence
date, a timing review under Tran can be critical when assessing IRPA s.
36.
Disclaimer (Educational Use Only)
This content is for general educational and informational
purposes only and is not legal advice. Immigration laws, regulations, policies,
and officer practices can change, and outcomes depend on the facts and official
records in each case.
Sources (hyperlinks)
● Tran v. Canada (Public Safety and Emergency Preparedness),
2017 SCC 50 (CanLII): https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html
● Tran v. Canada (Supreme Court of
Canada decision document): https://decisions.scc-csc.ca/scc-csc/scc-csc/en/16803/1/document.do
● IRPA s. 36: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/section-36.html
