Canadian Law Group

The Cannabis Act and Its Effects on Canadian Immigration

By Véronique Malka

iStock imageryThere has been a great deal of talk about the legalization of marijuana in Canada, and regardless of what side of the debate you are on, legalization may affect your travel plans. Legalizing marijuana (or “cannabis”) in Canada has been one of Prime Minister Trudeau’s biggest projects yet and the revised Cannabis Act will soon become law.

Legalizing marijuana affects many different areas of Canadian law, such as intoxicated driving charges, commerce control, and immigration. In June 2018, two bills: Bills C-45 and C-46, received royal assent and will soon become law. These bills suggest changes and clarifications to certain immigration laws in regards to the Cannabis Act.

We have included a short summary of Bill C-45 detailing what changes will be made, and what the government wants to keep intact. We also highlighted the aspects related to immigration in Bill C-46.

Bill C-45

Most offenses listed under this bill have to do with two central aspects: (1) authorized use and commerce of marijuana, and (2) what the government of Canada has determined to be “illicit cannabis”. In order to legally possess or sell marijuana, one must be licensed and/or authorized to do so by the federal government. If someone wishes to possess or sell illicit marijuana, which is medically harmful to its users, they will be penalized. In terms of immigration, offences related to illegal Cannabis possession, production or commerce, may render foreign nationals inadmissible to Canada, depending on the severity of the crime. 

Personal Possession and Production of Marijuana

  • The unauthorized possession of less than 30 grams of cannabis for personal use is a summary offence (less serious): A single conviction for simple possession of less than 30 grams cannot render foreign nationals inadmissible. This clause is supported by Section 36 of the Immigration and Refugee Protection Act (IRPA), which requires a minimum of 2 summary convictions to render a foreign national inadmissible.
  • Illicit cannabis is prohibited in any quantity, and one conviction for illicit cannabis under the Cannabis Act will cause inadmissibility to Canada.
  • Cannabis that is imported, sold, produced or distributed by someone not licensed to do so under the Act or any provincial law, is prohibited under the Act.
  • Certain types of marihuana are prohibited and carry a greater penalty under Section 8 of the Cannabis Act. This is significant for immigration purposes, as the prohibition in Section 8 can be prosecuted as a hybrid offence, which means that it could either be rendered a summary or indictable offence (more serious). For the purposes of immigration, a hybrid offence is deemed to be an indictable offence and one indictable offence represents grounds for inadmissibility to Canada.

Trafficking, Importation and Production of Marijuana

  • Unauthorized trafficking, importation and production of cannabis will constitute serious criminality in Canada, despite some changes, especially the removal of mandatory minimum penalties for this crime, and may render applicants inadmissible.
  • Changes under Section 13 of the bill will make it an offence to possess, produce, sell, distribute or import any materials or products with the intention that it will be used to produce, sell or distribute illicit cannabis.

Bill C-46

When modifying certain criminal laws, changes from “criminality” to “serious criminality” are significant, as inadmissibility issues arising from serious criminality can also affect Permanent Residents. For example, under Bill C-46, the penalties for Driving Under the Influence (“DUI”) are to increase from 5 to 10 years, which means that a Permanent Resident committing a DUI could face loss of status and deportation. This change in the level of criminality is not expected to be practiced retroactively, which means that Permanent Residents with a pre-existing DUI would not be deported because of it.

Moreover, cannabis continues to be listed in the Controlled Drugs and Substances Act (CDSA). This means that authorization to possess cannabis for personal medical use under the Marijuana for Medical Purposes Regulations (MMPR) only applies within Canada, and prohibits any import or export of cannabis.

We expect to see additional changes to current legislation as the law is implemented and unforeseen consequences arise. To find out if your travel plans or Permanent Residency may be impacted by these changes, contact us at info@canadianlawgroup.com or vmalka@ckrlaw.com.

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