Assessing inadmissibility due to serious criminality following Tran v. Canada

These instructions provide guidance for temporary and permanent resident applications on how to apply the October 19, 2017 Supreme Court of Canada (SCC) Tran decision to the Immigration and Refugee Protection Act (IRPA) subsection 36(1) determination of serious criminality and equivalency.

Following the SCC decision in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, new instructions are necessary for officers and the Minister’s delegate in the assessment of serious criminality inadmissibility under subsection A36(1). The SCC concluded that

• a conditional sentence of imprisonment imposed pursuant to sections 742 to 742.7 of the Criminal Code does not constitute a “term of imprisonment” (that is, a jail or prison term) under paragraph A36(1)(a)
• the phrase “maximum term of imprisonment” in paragraph A36(1)(a) refers to the maximum term of imprisonment available at the time of the commission of the offence and not the term of imprisonment available at the time of sentencing or the time admissibility is assessed

On this page

• Where the ruling applies
• Determining criminal inadmissibility
• Relief mechanisms for serious criminality

Where the ruling applies

IRCC’s policy position is to apply this decision to permanent residents and foreign nationals who are inadmissible on the ground of serious criminality for offences committed inside and outside of Canada under paragraphs A36(1)(a), (b) and (c). The policy decision does not apply to subsection A36(2) criminality or to cases where the maximum punishment in Canada has become more lenient.

See the Safe Streets and Communities Act for further examples of offences whose maximum punishment have increased.

Determining criminal inadmissibility

The policy decision concerning maximum punishment only applies in situations where the offence would be considered serious criminality under subsection A36(1) by today’s Canadian laws.

If the offence is considered serious criminality by today’s laws, officers should verify the maximum punishment at the time of the commission of the offence. However, if a person received a sentence of more than 6 months’ imprisonment, there is no need to consult older versions of the Act of Parliament, as the person would be inadmissible for serious criminality.

Offences under subsection A36(2) are to be processed as usual according to today’s Canadian laws.

Officers are expected to make reasonable decisions with the evidence available to them and to maintain good records of what evidence was reviewed and relied on in their decision making.

The following sections illustrate scenarios for applying the policy decision:

Crimes where the penalty has become more lenient

The policy decision would not apply.

Equivalency – Serious Criminality/Criminality: When the maximum punishment for the offence under Canadian law has become more lenient between the time of the commission of the offence and the time of the inadmissibility determination, officers are advised to apply the spirit of the Charter, which accords the benefit of the more lenient penalty. Therefore, officers should look at the maximum possible punishment under Canadian law at the time of inadmissibility assessment.

Crimes outside Canada where the penalty has become more strict

Equivalency: Officers should equate under today’s Canadian law. If it appears to be serious criminality due to the maximum possible punishment (that is, an offence under Canadian law which carries a term of imprisonment of at least 10 years), then officers should see if it was still serious criminality at the time of the commission of the offence.

Note: For the foreign offence, officers should continue to apply paragraph A36(1)(b) or A36(2)(b) accordingly, meaning officers should equate using the foreign statute at the time of the commission of the offence. If there is no foreign conviction, officers could apply paragraph A36(1)(c) or A36(2)(c) using the foreign statute at the time of the commission of the offence.

Acts committed over a period of time

There may be offences that occurred over a period of time (such as fraud or embezzlement). Officers should use a known date of commission, which may appear in

• the police or investigative reports
• police certificates
• court records

If a date range is known, officers should use the last date in this range, as it would carry the most current maximum punishment.

Conditional sentences

A conditional sentence does not count as a term of imprisonment for determining serious criminality under subsection A36(1).

Offences that occurred before current Canadian legislation existed

Officers should determine what offence(s) under a Canadian Act of Parliament may apply based on the elements of the case.

Relief mechanisms for serious criminality

There are no changes to determining how relief mechanisms under the IRPA or Immigration and Refugee Protection Regulations (IRPR) should be applied.

• Record suspensions
• Foreign pardons for convictions outside Canada
• Criminal rehabilitation
• Temporary resident permits (TRPs)
• Humanitarian and Compassionate (H&C) Grounds

Record suspensions

The Criminal Records Act provides the Parole Board of Canada the authority to grant and issue record suspensions (formerly known as “pardons”) to persons who have been convicted in Canada of an offence under an Act of Parliament.

Per paragraph A36(3)(b), inadmissibility under subsections A36(1) and (2) may not be based on a conviction for which

• a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act
• there has been a final determination of an acquittal

Foreign pardons for convictions outside Canada

A foreign pardon does not necessarily make the person admissible to Canada.

With a foreign pardon, in the vast majority of cases, the applicant should be able to produce a copy of the pardon.

The laws about recognition of foreign pardons developed from jurisprudence, with the Federal Court of Canada decision in Saini v. Canada (Minister of Citizenship and Immigration), [2000] 3 FC 253, outlining the test for recognition of foreign pardons, including:

• the foreign legal system as a whole must be similar to that of Canada
• the specific foreign law must be similar to Canadian law in its
  • aim
  • content
  • effect
• there must be no valid reason not to recognize the effect of the foreign law

If the country’s legal system is based on similar foundations and values to Canada’s, the foreign legislation must be examined to determine whether the effect of the pardon is to erase the conviction or merely recognize that rehabilitation has taken place. In the latter case, the applicant is inadmissible and an application for rehabilitation is necessary.

Criminal rehabilitation

The IRPA gives authority to the Minister and delegated authorities to approve rehabilitation for persons described in paragraphs A36(1)(b) and A36(1)(c). Per paragraphs R17(a) and R17(b), applicants inadmissible for serious criminality outside Canada can apply to the minister for rehabilitation 5 years after the sentence has been completed, as long as there are no subsequent convictions.

Temporary resident permits (TRPs)

A temporary resident permit (TRP) allows the holder either to enter or to remain in Canada. It may be issued to any person who is inadmissible under the IRPA and seeking to come into Canada, if an officer is of the opinion that it is justified under subsection A24(1). Officers should issue permits only when the individual’s need to enter or remain in Canada is compelling and sufficient to overcome any risks that they might pose.

See the TRP section under Functional Guidance on Temporary Residents for more information.

Humanitarian and compassionate (H&C) grounds

IRCC officers may consider H&C grounds if a foreign national (who may be a former permanent resident) who is under a removal order that has not been enforced makes an application under subsection A25(1).

See Humanitarian and Compassionate Consideration for more information.