A heartfelt congratulations to Peter Edelmann and his team for winning a great victory in the Tran case.
A copy of the decision is linked here:
(1) Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a "term of imprisonment" under s 36(1)(a) of the IRPA?
The Supreme Court has answered "no" to this question. Prior to this decision an individual who received a C.S.O of six months or more would be treated the same as an individual who was incarcerated for the same period. In both cases, the individual concerned, if a permanent resident, would lose their right to appeal any removal order issued against them as a result of a conviction with a sentence of six months or more incarceration or a conditional sentence for the same term. Now, an individual with a conditional sentence of six months or more could retain their right to appeal a removal order to the Immigration Appeal Division. A right to appeal to the IAD ensures that a decision maker will only proceed with deportation if, after a review of all the humanitarian and compassionate factors in this case, they determine these factors are insufficient.
(2) Does the phrase "punishable by a maximum term of imprisonment of at least ten years" in s. 36(1)(a) of IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined.
The Supreme Court has determined this refers to the maximum term of imprisonment available at the time of the commission of the offence. This is essentially a ruling regarding retroactivity in immigration matters and not only is it potentially applicable to deportation cases based on criminality, but also could apply to changing rules for parental sponsorship appeals and misrepresentation cases.
This is a decision which will change the lives of many foreign nationals and permanent residents convicted of offences in Canada. While one could debate whether such individuals deserve second chances or the right to have the humanitarian factors in their cases assessed given their misconduct, what is inarguable is that at the very lease innocent individuals caught in the whirlwind of spouses, parents, siblings or children who have committed offences will have a chance to provide evidence to prevent the deportation of their love ones. This is therefore a decision which will be life changing for many individuals. These are the types of cases and decisions which make one proud to be a member of this profession and a colleague of Mr. Edelmann and the others who worked on this case. Well done!
A copy of the decision is linked here:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16803/index.do
Essentially the Court's decision can be summarized as follows:(1) Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a "term of imprisonment" under s 36(1)(a) of the IRPA?
The Supreme Court has answered "no" to this question. Prior to this decision an individual who received a C.S.O of six months or more would be treated the same as an individual who was incarcerated for the same period. In both cases, the individual concerned, if a permanent resident, would lose their right to appeal any removal order issued against them as a result of a conviction with a sentence of six months or more incarceration or a conditional sentence for the same term. Now, an individual with a conditional sentence of six months or more could retain their right to appeal a removal order to the Immigration Appeal Division. A right to appeal to the IAD ensures that a decision maker will only proceed with deportation if, after a review of all the humanitarian and compassionate factors in this case, they determine these factors are insufficient.
(2) Does the phrase "punishable by a maximum term of imprisonment of at least ten years" in s. 36(1)(a) of IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined.
The Supreme Court has determined this refers to the maximum term of imprisonment available at the time of the commission of the offence. This is essentially a ruling regarding retroactivity in immigration matters and not only is it potentially applicable to deportation cases based on criminality, but also could apply to changing rules for parental sponsorship appeals and misrepresentation cases.
This is a decision which will change the lives of many foreign nationals and permanent residents convicted of offences in Canada. While one could debate whether such individuals deserve second chances or the right to have the humanitarian factors in their cases assessed given their misconduct, what is inarguable is that at the very lease innocent individuals caught in the whirlwind of spouses, parents, siblings or children who have committed offences will have a chance to provide evidence to prevent the deportation of their love ones. This is therefore a decision which will be life changing for many individuals. These are the types of cases and decisions which make one proud to be a member of this profession and a colleague of Mr. Edelmann and the others who worked on this case. Well done!
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