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Liberalization of Marijuana? Not for Foreign Nationals Trying to Enter Canada

Published by the Lawyer’s Daily

Monday, November 27, 2017 @ 10:50 AM | By Jacqueline Bart and Carrie Wright

The legalization of marijuana is no easy feat. It is not simply a matter of changing the existing drug laws to remove marijuana. Legalization requires that the government regulate access, growth, manufacturing, transportation and the sale of marijuana, affecting numerous federal and provincial laws. There is one factor, however, that does not appear to have been considered: the impact on immigration law.

At first glance, it may seem unusual that the legalization of marijuana would have any impact on the flow of persons across Canada’s borders. However, the wording of Canadian immigration legislation relies on Canadian criminal laws to determine who is permitted into the country, and the changes to the laws regarding marijuana will have a surprising impact on foreign nationals.

Section 36 of the Immigration and Refugee Protection Act defines criminal inadmissibility to Canada. Under this section, foreign nationals are inadmissible if they have been convicted outside Canada of an offence that, if committed in this country, would constitute an indictable offence under an Act of Parliament. In addition, any hybrid offence is deemed to be an indictable offence for the purposes of assessing admissibility.

Currently, s. 4 of the Controlled Drugs and Substances Act outlines the offence of possession of marijuana in Canada: no person shall possess various substances, including marijuana. The punishment for possession of marijuana under 30 kilograms is governed by s. 4(5), which states that possession of marijuana in an amount that does not exceed 30 grams is only a summary offence.

When these sections are read together, a foreign national convicted outside Canada of the offence of possession of marijuana, where the foreign national was in possession of less than 30 grams, will likely be found to be admissible to Canada. But this could all change under the proposed legislation to legalize marijuana.

The Liberal government has tabled Bill C-45, the Cannabis Act, which will permit adults over the age of 18 to legally possess up to 30 grams of legal dried marijuana (or equivalent), provided it has been purchased from a provincially licensed retailer. However, to permit this type of legal access to marijuana, the bill also aims to deter individuals from acting outside the regulatory framework to obtain the drug, including greater punishment for possession in certain circumstances. Under s. 8, an individual found with “illicit” cannabis can be prosecuted either summarily or by indictment.

The impact of this change could be significant. While many foreign nationals with charges for possession outside Canada were not barred from entering under the current law, the current version of the Cannabis Act could result in numerous foreign nationals becoming inadmissible to Canada overnight.

In assessing a foreign national’s admissibility, immigration officers are required to find an equivalent Canadian offence for the foreign offence of possession. The prohibition against “illicit” cannabis could potentially permit immigration officials to find that a conviction for possession of marijuana, regardless of the amount, is equivalent to a hybrid offence in Canada. Since all hybrid offences are deemed to be indictable offences for the purposes of immigration law, foreign nationals who have a charge for possession of marijuana could therefore be found inadmissible, despite years of legal entry to Canada.

While Canada is in the process of making the possession of marijuana more acceptable within our borders, the current form of the legislation could effectively prohibit more possessors from entering Canada. Immigration lawyers across the country must be prepared to explain to their clients this apparent contradiction, and to conduct careful examinations of foreign laws and equivalent Canadian laws governing possession.

 

Visas To Canada No Longer Required for Romanian and Bulgarian Citizens

As of December 1, 2017, citizens of Romania and Bulgaria no longer need a visa to travel to Canada for short stays (normally for up to six months) for business, to visit family and friends, or for tourism.  Like other visa-exempt travellers, they will need an Electronic Travel Authorization (eTA) to fly to or transit through a Canadian airport.

 

Firm News:

Jacqueline Bart ranked #1 Corporate Immigration Lawyer for Canada and the “most highly regarded” Canadian corporate immigration lawyer by the Who’s Who of Business Law Research, affiliated with the American Bar Association: “BARTLAW CANADIAN IMMIGRATION, BARRISTERS AND SOLICITORS founding partner Jacqueline Bart receives praise for her “very strong practice” and her leading expertise in the field of immigration law.” http://whoswholegal.com/news/analysis/article/34141/canada-corporate-immigration-2017/

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