Newspaper article The Canadian Press

Conditional Sentences Don't Count as Jail Time in Immigration Law: Supreme Court

Newspaper article The Canadian Press

Conditional Sentences Don't Count as Jail Time in Immigration Law: Supreme Court

Article excerpt

Conditional time not jail time: top court

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OTTAWA - Equating time served in the community with time spent in jail opens up the door to absurd possibilities within immigration law, the Supreme Court of Canada ruled Thursday.

In an unanimous decision, the court said conditional sentences do not count as jail time when it comes to deciding whether permanent residents convicted of a crime should lose their status in Canada.

The justices also ruled that deciding whether a permanent resident is inadmissible to Canada depends on the maximum sentence on the books at the time they committed the offence and not at the time their immigration proceedings begin.

Thursday's decision means the federal public safety minister must now decide anew whether Thanh Tam Tran, who came to Canada from Vietnam as a teenager decades ago, ought to have his permanent status reviewed in light of his criminal past.

Tran was convicted in 2012 for his role in running a marijuana grow-op. At the time of his conviction, the offence carried a maximum 14-year jail term, but he was given a 12-month conditional sentence to be served in the community.

The government began a process to revoke his permanent residency under a section of immigration law that renders a person inadmissible to Canada if they're convicted of "serious criminality," defined as an offence that carries a maximum 10-year penalty or a conviction that results in at least six months behind bars.

Tran took the government to court to stop the immigration proceedings.

He argued that in 2011, the year he committed the offence, the maximum penalty on the books was only seven years, and that the law at the time of his offence must be the one under which his admissibility was judged. He also argued the conditional sentence he received ought not to count as a "term of imprisonment."

The Federal Court agreed with him, but the Federal Court of Appeal sided with the government. …

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