Why Is Tran Mostly About Serious Criminality, Not Ordinary Criminality, in Canadian Immigration?

Many people searching for “criminal inadmissibility” find Tran v. Canada (2017 SCC 50) and assume it changes all criminal inadmissibility rules. In reality, Tran is mainly about serious criminality, especially:

●        which maximum penalty applies when the law changed over time, and

●        whether a conditional sentence counts as a “term of imprisonment” for the “more than 6 months” branch of IRPA s. 36(1)(a).
 Source: Tran (CanLII)
 Source: IRPA s. 36

What this article covers

This article explains:

1. What Tran does apply to, and
2. What ordinary criminality still depends on (and why it usually doesn’t turn on Tran).

1) What Tran applies to (serious criminality)

Serious criminality is in IRPA s. 36(1). One major trigger is whether the offence is punishable by a maximum term of at least 10 years. Another is whether a Canadian conviction resulted in a term of imprisonment of more than 6 months.
 Source: IRPA s. 36(1)

(A) “Which maximum penalty?” — timing rule

Tran supports using the maximum penalty in force at the time the offence was committed, rather than later increases, for the “maximum penalty” analysis.
 Source: Tran (CanLII)  

(B) Conditional sentence ≠ “term of imprisonment”

Tran held that a conditional sentence is not a “term of imprisonment” for the >6 months threshold in IRPA s. 36(1)(a).
 Source: Tran (CanLII)

2) Why Tran usually does not decide “ordinary criminality”

Ordinary criminality is in IRPA s. 36(2) and applies to foreign nationals. In most cases, it turns on whether the Canadian equivalent offence is:

●        indictable, or

●        there are two convictions not arising from the same occurrence.
 Source: IRPA s. 36(2)

The key ordinary-criminality rule is statutory: “hybrid = indictable”

IRPA says that if an offence may be prosecuted either summarily or by indictment (a hybrid offence), it is treated as an indictable offence for inadmissibility purposes.
 Source: IRPA s. 36(3)(a)

That’s why many U.S. “minor” offences (especially misdemeanors) can still lead to problems: after equivalency, the Canadian equivalent may be hybrid and therefore treated as indictable for s. 36(2).

3) How Tran can still matter in an “ordinary” file (limited situations)

Even if someone starts as an ordinary criminality case, Tran can become relevant if the analysis shifts into serious criminality, such as:

●        when the Canadian equivalent offence is at or above the 10-year maximum threshold, or

●        when a permanent resident’s case is assessed under s. 36(1).
 Source: IRPA s. 36