On October 17, 2018, recreational use of cannabis (marijuana) became legal in Canada. The Cannabis Act came into force then, and now governs usage, cultivation, possession and trafficking in cannabis.
It is very important to understand that only cannabis purchased or cultivated legally per the rules and restrictions found in the Act is considered legal. Any cannabis purchased outside of a properly regulated store (or online store), or grown at home without following the proper restrictions, is still considered “illicit” cannabis which is illegal. Having too much legal cannabis or growing too much cannabis is also an offence. Possessing this cannabis can cause serious problems for one’s immigration status if someone is not a citizen of Canada, especially for a worker, student or visitor. Edible cannabis products are still not legal in Canada right now and would be considered “illicit”.
Before legalization, simple possession of small amounts of cannabis was dealt with as a summary offence only under the Controlled Drugs and Substances Act. If a foreign national (worker, student or visitor) was charged with possession of a small amount of cannabis, they would generally not be considered “inadmissible” to Canada for “criminality” and they would not be subject to removal proceedings for this offence (unless there were two convictions not arising out of the same incident). This is because prior to legalization the offence was designated as a summary offence only (this does not apply to larger amounts over 30g). Since legalization, personal possession of cannabis (possession of legal cannabis over the limit or ilicit cannabis) is now classified as a hybrid offence, which puts foreign nationals at serious risk, as under immigration legislation, a hybrid offence is considered an “indictable” offence such that it can attract immigration consequences. Foreign nationals (workers, students or visitors) would likely be subject to removal from Canada for a conviction for possession under the Cannabis Act, and they would not have a right to appeal that removal. It is important to remember this legislation is not retroactive, meaning if someone was convicted before legalization, the previous legislation would apply to them.
In the United States, at the federal level all possession of cannabis is still considered “illicit”. This means that if a Canada Border Services Agency (“CBSA”) officer asks a person trying to enter Canada from the U.S.A. whether they possessed cannabis or purchased cannabis before, and the person answers “yes”, they could be considered to have “committed an offence outside of Canada that is an offence where it was committed and that, if committed in Canada, would constitute an indictable offence (possession of illicit cannabis)” (section 36(2)(c) of the Immigration and Refugee Protection Act). This applies even if someone has tried cannabis in a state where it was legalized (confusing, I know). This provision can also apply to similar admissions for things done in other countries. It is very important to never lie or mislead the government when these questions are asked, as CBSA has wide powers to search your belongings or electronic devices, or investigate further.
When it comes to the unauthorized distribution or sale of cannabis (less than 3kg), under the Cannabis Act, permanent residents (as well as foreign nationals) can now be found inadmissible and subject to removal from Canada, regardless of the actual sentence received. Prior to legalization, unauthorized distribution and unauthorized sale of cannabis (under 3 kg) would only have a maximum sentence of 5 years less a day, which would not make a permanent resident inadmissible unless they actually received more than 6 months in prison as a sentence. Now, the maximum sentence is 14 years and so permanent residents of Canada are at much higher risk (if an offence has a maximum sentence of 10 years or more, permanent residents can be subject to removal from Canada). Importing and exporting cannabis is also not permitted under the Cannabis Act and could result in removal for a foreign national or permanent resident.
Another aspect of the new Cannabis Act to understand are “ticketable offences”; offences that a police officer or peace officer could provide you a violation ticket for, similar to a driving offence. Under the Cannabis Act, officers are provided the discretion to write a ticket for many offences (rather than arresting and charging someone at the police station). Section 52 of the Cannabis Act says that the payment of a ticket is the same as a guilty plea to an offence, but a person would receive an “absolute discharge”, meaning for immigration purposes this would not be considered a conviction. However, if a person contests the ticket and loses, or fails to pay the ticket, then a conviction is entered against them. This conviction could then possibly lead to the process where CBSA finds a person to be inadmissible to Canada, and removal proceedings may begin. As this legislation is so new, we do not yet know exactly how these will be dealt with by immigration authorities, but it is something to be aware of and seek legal advice right away if you are ever given a ticket, before the deadline for payment.
A conviction resulting from failing to pay a ticket, or unsuccessfully contesting a ticket also means that on any future immigration-related applications to travel to Canada or other countries, or applications for an eTA (electronic travel authorization), a person must admit that they have a conviction for an offence on their record, otherwise they could be considered to have misrepresented to the government. A finding of misrepresentation can lead to removal from Canada, and a 5-year bar from the country.
McCuaig Desrochers LLP is a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the April 2019 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.
