Tran v. Canada (Public Safety and Emergency Preparedness) – 2017 SCC 50 (Cote):

[5] Section 36(1)(a) of the IRPA provides the basis for finding a permanent resident inadmissible to Canada on grounds of “serious criminality”: —36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; Inadmissibility can lead to loss of status and removal from Canada.
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[9] Mr. Tran is a citizen of Vietnam. In 1989, he acquired permanent resident status in Canada. In March 2011, he was involved in a marihuana grow operation containing approximately 915 plants and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). At the time of the commission of the offence, the maximum penalty if convicted was seven years of imprisonment (s. 7(2)(b)).

[10] On November 6, 2012, legislation came into effect (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 41) increasing the maximum sentence for this offence to 14 years of imprisonment and providing for a new minimum sentence of 2 years of imprisonment if the number of plants produced was more than 500 (CDSA, s. 7(2)(b)(v)).
[11] On November 29, 2012, Mr. Tran was convicted of the charge against him. On January 18, 2013, he received a 12-month conditional sentence of imprisonment, to be served in the community.
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[32] If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes — shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1)(h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

[33] It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

[34] For these reasons, the phrase “term of imprisonment” in s. 36(1)(a) of the IRPA cannot, by either standard of review, be understood to include conditional sentences.