The Minister of Public Safety and Emergency Preparedness (appellant) v. Thanh Tam Tran (respondent) (A ; 2015 FCA 237)

Transcription

1 The Minister of Public Safety and Emergency Preparedness (appellant) v. Thanh Tam Tran (respondent) (A ; 2015 FCA 237) Indexed As: Tran v. Canada (Minister of Public Safety and Emergency Preparedness) Federal Court of Appeal Gauthier, Ryer and Near, JJ.A. October 30, Summary: Tran, a citizen of Vietnam, was a permanent resident in Canada. In 2012, he was convicted of producing marijuana, and received a 12-month conditional sentence of imprisonment. A delegate of the Minister of Public Safety and Emergency Preparedness, under s. 44(2) of the Immigration and Refugee Protection Act (IRPA), referred Tran to a hearing before the Immigration Division of the Immigration and Refugee Protection Board, to determine whether he should be found inadmissible on account of serious criminality (s. 36(1)(a)). Tran applied for judicial review. The Federal Court, in a decision reported at [2014] F.T.R. TBEd. NO.005, allowed the application, and certified the following questions: "1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to of the Criminal Code 'a term of imprisonment' under s. 36(1)(a) of the IRPA? 2. Does the phrase 'punishable by a maximum term of imprisonment of at least 10 years' in s. 36(1)(a) of the 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 Minister appealed. The Federal Court of Appeal allowed the appeal. The delegate's interpretation of s. 36(1)(a) was reasonable. The decision on the merits was reasonable. (1) A conditional sentence of imprisonment might reasonably be construed as "a term of imprisonment"; (2) the phrase "punishable by a maximum term of imprisonment of at least 10 years" could reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined; and (3) the delegate was entitled to consider the arrests, charges and police reports for his broader assessment of Tran's behaviour and rehabilitation prospects. Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Act (IRPA) s. 36(1)(a)) - The Federal Court allowed Tran's judicial review application, and certified the following question: "2. Does the phrase 'punishable by a maximum term of imprisonment of at least 10 years' in s. 36(1)(a) of the 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 Federal Court of Appeal, guided by Driedger's modern rule of statutory interpretation, concluded that the phrase could "reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined." - See paragraphs 36 to 60.

2 Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Act (IRPA) s. 36(1)(a)) - The Federal Court allowed Tran's judicial review application, and certified the following question: "Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to of the Criminal Code 'a term of imprisonment' under s. 36(1)(a) of the IRPA?" - The Federal Court of Appeal answered the question in the affirmative - The legislative history supported the interpretation of the Minster's delegate, and was particularly relevant in addressing the "inconsistent consequences which might be regarded as absurd" - See paragraphs 61 to 88. Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Act, s. 36(1)(a)) - On judicial review, the judge found that the overall decision was unreasonable because the Minister's delegate had relied on arrests and unproven charges to find that Tran would likely "reoffend because he had done so in the past" - The Federal Court of Appeal held that the judge did not properly apply the standard of review to the delegate's overall conclusion - The delegate was entitled to consider the arrests, charges and police reports for his broader assessment of Tran's behaviour and rehabilitation prospects - The words "reoffend as he has done so in the past" were to be read in context - The delegate's failure to be more specific as to which information in the police report he actually considered to be reliable did not justify quashing the decision - See paragraphs 89 to 94. Criminal Law - Topic Punishments (sentence) - Conditional sentence - General - [See second ]. Statutes - Topic 1449 Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - [See second ]. Statutes - Topic 2614 Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See first ]. Words and Phrases Punishable by a maximum term of imprisonment of at least 10 years - The Federal Court of Appeal interpreted the phrase "punishable by a maximum term of imprisonment of at least 10 years" in s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c See paragraphs 36 to 60. Words and Phrases Term of imprisonment - The Federal Court of Appeal interpreted the meaning of a "term of imprisonment" in s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c See paragraphs 61 to 88. Cases Noticed: Hernandez v. Canada (Minister of Citizenship and Immigration) et al., [2006] 1 F.C.R. 3; 271 F.T.R. 257; 2005 FC 429, refd to. [para. 12].

3 Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409; 349 N.R. 233; 2006 FCA 126, refd to. [para. 12]. R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 23]. R. v. Middleton (T.), [2009] 1 S.C.R. 674; 388 N.R. 89; 251 O.A.C. 349; 2009 SCC 21, refd to. [para. 23]. Medovarski v. Canada (Ministre de la Citoyenneté et de l'immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 23]. Sanchez v. Canada (Minister of Citizenship and Immigration) (2014), 464 N.R. 333; 2014 FCA 157, affing. (2013), 438 F.T.R. 279; 2013 FC 913, refd to. [para. 24]. Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 30]. Najafi v. Canada (Minister of Public Safety and Emergency Preparedness) (2014), 466 N.R. 82; 379 D.L.R.(4th) 542; 2014 FCA 262, refd to. [para. 31]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 44]. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 44]. Wilson v. Superintendent of Motor Vehicles (B.C.), [2015] N.R. TBEd. OC.013; [2015] B.C.A.C. TBEd. OC.031; 2015 SCC 47, refd to. [para. 46]. Edmond v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 318; 2012 FC 674, refd to. [para. 53]. Ward v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 1 (T.D.), refd to. [para. 53]. Weso v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No (T.D.), refd to. [para. 53]. Robertson v. Minister of Employment and Immigration, [1979] 1 F.C. 197; 91 D.L.R.(3d) 93 (C.A.), refd to. [para. 54]. Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 56]. R. v. Wu (Y.), [2003] 3 S.C.R. 530; 313 N.R. 201; 182 O.A.C. 6; 2003 SCC 73, refd to. [para. 66]. R. v. Fice (L.), [2005] 1 S.C.R. 742; 333 N.R. 243; 198 O.A.C. 146; 2005 SCC 32, refd to. [para. 66]. Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 82]. Statutes Noticed: Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 36(1)(a) [para. 28]; sect. 36(2), sect. 33, sect. 50 [Appendix A]. Interpretation Act, R.S.C. 1985, c. I-21, sect. 10 [Appendix A]. Counsel: Banafsheh Sokhansanj and Alison Brown, for the appellant; Peter Edelmann and Aris Daghighian, for the respondent. Solicitors of Record: Department of Justice, Public Safety, Defence and Immigration, Vancouver, British Columbia, for the appellant; Edelmann & Company, Vancouver, British Columbia, for the respondent. This appeal was heard at Vancouver, British Columbia, on May 12, 2015, before Gauthier, Ryer and Near, JJ.A., of the Federal Court of Appeal. In reasons written by Gauthier, J.A., the Court

4 delivered the following judgment, dated October 30, 2015, at Ottawa, Ontario. Appeal allowed. Editor: E. Joanne Oley Criminal Law - Topic Punishments (sentence) - Conditional sentence - General - Tran, a permanent resident, was convicted in 2012 of producing marijuana - He received a 12-month conditional sentence of imprisonment - A delegate of the Minister of Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Division of the Immigration and Refugee Protection Board, to determine whether he should be found inadmissible on account of serious criminality (Immigration and Refugee Protection Act (IRPA) s. 36(1)(a)) - The Federal Court allowed Tran's judicial review application, and certified the following question: "Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to of the Criminal Code 'a term of imprisonment' under s. 36(1)(a) of the IRPA?" - The Federal Court of Appeal answered the question in the affirmative - The legislative history supported the interpretation of the Minster's delegate, and was particularly relevant in addressing the "inconsistent consequences which might be regarded as absurd" - See paragraphs 61 to 88. Statutes - Topic 1449 Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Tran, a permanent resident, was convicted in 2012 of producing marijuana - He received a 12-month conditional sentence of imprisonment - A delegate of the Minister of Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Division of the Immigration and Refugee Protection Board, to determine whether he should be found inadmissible on account of serious criminality (Immigration and Refugee Protection Act (IRPA) s. 36(1)(a)) - The Federal Court allowed Tran's judicial review application, and certified the following question: "Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to of the Criminal Code 'a term of imprisonment' under s. 36(1)(a) of the IRPA?" - The Federal Court of Appeal answered the question in the affirmative - The legislative history supported the interpretation of the Minster's delegate, and was particularly relevant in addressing the "inconsistent consequences which might be regarded as absurd" - See paragraphs 61 to 88. Statutes - Topic 2614 Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - Tran, a permanent resident, was convicted in 2012 of producing marijuana - He received a 12-month conditional sentence of imprisonment - A delegate of the Minister of Public Safety and Emergency Preparedness referred Tran to a hearing before the Immigration Division of the Immigration and Refugee Protection Board, to determine whether he should be found inadmissible on account of serious criminality (Immigration and Refugee Protection Act (IRPA) s. 36(1)(a)) - The Federal Court allowed Tran's judicial review application, and certified the following question: "2. Does the phrase 'punishable by a maximum term of imprisonment of at least 10 years' in s. 36(1)(a) of the 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 Federal Court of Appeal, guided by Driedger's modern rule of statutory interpretation, concluded that the phrase could "reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined." - See paragraphs 36 to 60.

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