The New Canadian Cannabis Act

On October 17th 2018, Canada will become only the second country in the world to legalize and regulate the sale of cannabis. There has been much discussion about how the legalization of cannabis in Canada could render Canadian citizens who admit to cannabis use inadmissible to the United States, but there has been less talk about the impact of the Cannabis Act (Bill C-45) and the accompanying changes to impaired driving laws (Bill C-46) on foreign nationals looking to enter Canada. Many might be under the impression that after October 17th, foreign nationals who have been convicted of cannabis-related offenses do not have to worry about entering Canada because cannabis will be legal in Canada – yet the opposite is true. American citizens with cannabis possession convictions, as well as those with DUI convictions, should take note of the implications of Bill C-45 and Bill C-46, since the consequences of these offences have increased substantially for foreign nationals with an interest in entering Canada.

Background

Canadian border agents have full access to FBI criminal history records at a port of entry and can deny entry to individuals with certain offences on their record. It does not matter whether the crime is considered a misdemeanour or a felony in the United States, instead what matters is how the offence translates into Canadian law. For foreign nationals, like American citizens, a single offence that translates into an indictable offence in Canadian law, or more than one offence that translate into summary offences, renders the offender inadmissible into Canada. Put simply, an indictable offence is a serious offence with heavier prison sentences and fines as well as the possibility of being tried before a jury. Summary offences are less serious, tried before provincial court judges alone, with lower fines and prison sentences. Some offences in Canadian law are considered to be hybrid offences, which means that the prosecutor has the discretion to charge the accused with a summary offence or an indictable offence. Canadian immigration law does not distinguish between a hybrid offence and an indictable offence, meaning that if a foreign national commits an offence that is deemed a hybrid offence in Canada, they are automatically considered inadmissible into Canada.

When entering Canada it is recommended that foreign nationals with criminal records consult immigration lawyers, who can advise whether their offence renders them criminally inadmissible by Canadian law. For instance, residents of California who receive a “wet reckless” charge, which is considered a less serious DUI in their state, often mistakenly believe that it does not make them criminally inadmissible into Canada. If the essential elements of the American law an individual was convicted under translate into a serious offence in Canadian criminal law, they are considered criminally inadmissible, regardless of the wording of the American law. Further, if a foreign national commits an act that is legal in another country but is a hybrid or indictable offence in Canada, and the border agent is in possession of credible information that the event took place, the foreign national would face the same difficulties entering Canada as someone convicted of the offence.  

Driving Under the Influence and Criminal Inadmissibility

Americans convicted of DUIs will have a more difficult time entering Canada than before, due to the changes in Canada’s impaired driving laws. Since the Canadian government is trying to discourage Canadians from driving after consuming cannabis, the penalties for driving under the influence of any substance will be increased from a maximum of 5 years in prison to 10 years. In Canadian immigration law, there is a distinction between inadmissibility due to criminality and due to serious criminality – the difference being the maximum term of imprisonment of the related Canadian criminal offence. American citizens convicted of a DUI were previously considered inadmissible for criminality, but they will now be inadmissible for serious criminality. This will result in notably different solutions for Americans with DUIs looking to enter Canada.

There are two potential solutions for a foreign national who is criminally inadmissible into Canada – the first is obtaining a Temporary Resident Permit. A Temporary Resident Permit is a short-term solution for a foreign national who needs to enter Canada for specific work, family or emergency reasons. In an application for such a permit, foreign nationals must demonstrate that their reason for entering Canada outweighs the potential threat they pose to Canadian society. In the past, foreign nationals with DUIs could present their Temporary Resident Permit applications to any border agent at the port of entry, but since the offence will now be considered serious criminality, only program managers will be able to approve these permits. Consequently, this change could result in delayed approval to enter Canada temporarily, as there is usually only one program manager at every port of entry. Since some program managers have previously refused to consider granting Temporary Resident Permits for cases of serious criminality, a more reliable way of applying for the permit might become to apply at the Canadian Consulate in Los Angeles, a process that regularly takes up to 4 months. The decision taken by the Immigration Program Manager at the Consulate is almost always final, so it is best to ensure that the application is completely error-free. Canadian immigration lawyers understand the specific requirements of Temporary Resident Permit applications at the Consulate, and specialize in assisting applicants with presenting themselves in the best possible way without misrepresenting the facts of their situation.   

Criminal Rehabilitation, on the other hand, is a permanent option for foreign nationals when 5 years have elapsed since the completion of their sentence. Through a Criminal Rehabilitation application, a foreign national can wipe their record clean for the purposes of travelling to Canada by convincing the Canadian government that they have completely overcome any tendency towards criminality. Previously, a foreign national with a single DUI conviction would automatically be deemed rehabilitated by the passage of time, 10 years after the end of their sentence. However, with the change in the seriousness of a DUI offence in Canadian criminal law, even foreign nationals who completed their DUI sentences more than 10 years ago will not be deemed rehabilitated and will have no option but to apply for Criminal Rehabilitation. While it is not legally required to hire an immigration lawyer to help with a Criminal Rehabilitation application, not doing so is tantamount to representing oneself in court. The stakes are high – a refusal to grant Criminal Rehabilitation usually means the individual can never enter Canada again.

What Will Remain the Same?

Although Bills C-45 and C-46 will bring many changes to immigration law, much will remain the same for serious cannabis-related offences. Those convicted of offences such as importing, exporting or trafficking cannabis will still be criminally inadmissible due to serious criminality. Even though cannabis will be legal in Canada, it is likely that foreign nationals who are caught trying to bring cannabis into Canada for medical purposes will still be deemed criminally inadmissible. As always, Canadian border agents have the discretion to refuse entry to foreign nationals who misrepresent themselves at the port of entry, so it is in the best interest of foreign nationals with cannabis-related convictions to be honest about their criminal history, especially if asked. Lastly, aside from the changes described above, Temporary Resident Permits and Criminal Rehabilitation will remain the best solutions for foreign nationals with possession or DUI convictions seeking to overcome criminal inadmissibility.

 

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