December 21, 2017 – Canada's Supreme Court has ruled that a conditional sentence does not count as time spent in jail in cases involving serious criminality under section 36(1)(a) of the Immigration Act. That section is the basis for finding a permanent resident inadmissible to Canada on grounds of "serious criminality and can lead to loss of status and removal from Canada.
The ruling was made in a recent case involving Thanh Tam Tran, a Vietnamese national who became a permanent resident of Canada in 1989. He was convicted of running a marijuana factory in 2013, an offence for which he was given a one-year conditional sentence which did not involve a term of imprisonment.
When he was convicted, the crime carried a maximum sentence of 14 years. Immigration authorities began proceedings to revoke his permanent residence status, as is the law for all crimes carrying a maximum sentence of 10 years or more, or a minimum six months jail time.
However, Tran committed the offence in 2011, when the maximum sentence for the offence was seven years. He argued that he should therefore keep his permanent residence, given his punishment was only a conditional sentence and not a term of imprisonment.
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The content of this article reflects the personal insight of Attorney Colin Singer and needs no disclaimer