Removal Orders:  Serious Criminality


 Canada’s Immigration and Refugee Protection Act ("IRPA") recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.

One obligation incumbent on permanent residents is the obligation to avoid “serious criminality”.

Section 36(1)(a) of the IRPA.

This obligation is breached when a permanent resident (or a foreign national) is convicted of a federal offence punishable by “a maximum term of imprisonment of at least 10 years”, or of a federal offence for which “a term of imprisonment of more than 6 months” has been imposed.

Can a conditional sentence be “a term of imprisonment for more than 6 months”?

A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.  Interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality

A conditional sentence does not comprise a “term of imprisonment” for the purposes of  section 36(1) (a) of the IRPA.

Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 28.

“Punishable by a maximum term of imprisonment of at least 10 years”

The phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.

Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, at para. 35.


Pre-sentence Custody
For immigration purposes, pre-sentence custody credited towards the offender’s sentence constitutes “a period of imprisonment  Thus, defence counsel may not always seek to have all of an offender’s pre-trial custody credited toward sentence.

[FN] The phrase “term of imprisonment” does not bear a uniform meaning within the Criminal Code. In some instances, it captures conditional sentences, in others it does not.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca






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