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 how the Cannabis Act (Bill C-45) and the accompanying changes to impaired driving laws (Bill C-46) will affect foreign nationals looking to enter Canada. Despite the fact that possession of cannabis (of less than 30 grams) purchased from authorized distributors will be legal in Canada, the precise wording of the Cannabis Act has actually raised questions in the Canadian legal community as to whether a cannabis possession conviction (of less than 30 grams) in another country will translate less or more harshly into Canadian law. Perhaps more significantly, American citizens with DUI offences outside or inside of Canada should take note of the implications of Bill C-46, as the consequences for this offence have increased substantially for admissibility into Canada.
Background
Canadian border agents have full access to FBI criminal history records at a port of entry, and depending on what it lists, one could be deemed criminally inadmissible and be refused entry into the country. Foreign nationals with criminal offences on their record should be aware that it does not matter whether the offence is considered a misdemeanor or a felony in the United States; instead what matters is how the offence translates into Canadian law. For American citizens, a single offence that translates into an indictable offence, or two or more offences that translate into summary offences in the Canadian Criminal Code, will result in criminal inadmissibility. Put simply, an indictable offence is one that is considered serious, with the possibility of being tried before a jury, and has heavier prison sentences and fines. A summary offence is a less serious offence, tried before provincial court judges alone, with lower fines and prison sentences. Some offences in criminal law are considered to be hybrid offences, which means that the prosecutor has the discretion to charge the accused with either a summary offence or an indictable offence.
Translating criminal offences into Canadian criminal law is not always a simple task. For instance, residents of California who receive a “Wet Reckless”, which is considered a less serious DUI in their state, often mistakenly believe that their offence will also be seen as less serious in the eyes of Canadian border agents. This is not the case, as there is no such thing as a less serious DUI in Canada. More importantly, the equivalent Canadian law of an American criminal offence could be found by comparing the essential elements of the American law to Canadian criminal law, rather than the particular wording or the names given to the American offences. For this reason, it is recommended that foreign nationals consult Canadian immigration lawyers before rushing to judgments about their admissibility into Canada.
Cannabis Possession and Criminal Inadmissibility
Until October 17th 2018, cannabis-related offences in Canada are found in the Canadian Drug and Substances Act, and in this act, possession of less than 30 grams of cannabis is considered only a summary offence, whereas possession of more than 30 grams of cannabis is considered an indictable offence. Therefore, Americans entering Canada prior to October 17th are deemed criminally inadmissible if they have one conviction of cannabis possession of more than 30 grams or more than one conviction of cannabis possession of less than 30 grams. The implementation of the Cannabis Act on October 17th, 2018 will legalize the possession of less than 30 grams of cannabis purchased from authorized distributors, but possession of more than 30 grams of cannabis will remain an indictable offence. The Cannabis Act will also increase the criminal consequences for those found to be in possession of cannabis purchased from unauthorized distributors. Since the Canadian Government is trying to have full control over the production and sale of cannabis in Canada, the illicit cannabis provision in the Cannabis Act makes possession of cannabis purchased from unauthorized distributors a hybrid offence, regardless of the quantity.
Cannabis Possession Convictions INSIDE Canada Post-Legalization
Foreign nationals convicted of possessing more than 30 grams of cannabis in Canada will still be deemed criminally inadmissible as it will only be legal to possess less than 30 grams of cannabis in the country. On the other hand, if a foreign national is convicted inside Canada of being in possession of any amount of cannabis purchased from an unauthorized distributor, they will face harsher consequences than if they were convicted before the implementation of the Cannabis Act. Previously, unauthorized cannabis possession of less than 30 grams would result in only one summary conviction, and it would not render one criminally inadmissible, but with the recent change to it being a hybrid offence, a foreign national would be deemed criminally inadmissible. For the purposes of Canadian immigration law, a hybrid offence is deemed to be an indictable offence, even if the offence was prosecuted summarily. It is advised that if foreign nationals enter Canada for cannabis tourism that they do not purchase cannabis from unauthorized distributors, such as a Canadian friend, and that they keep receipts of cannabis purchased from authorized government distributors. Foreign nationals should also be aware that it will remain illegal to bring cannabis into the country, even for medical purposes.
Cannabis Possession Convictions OUTSIDE Canada Post-Legalization
More disputable is whether a cannabis possession conviction outside of Canada will result in harsher or more lenient admissibility consequences for foreign nationals with convictions of less than 30 grams of cannabis possession. Since possession of more than 30 grams of cannabis will still be an indictable offence, a foreign national will still be deemed criminally inadmissible for being convicted of possessing this amount outside of Canada. The question is whether a conviction of less than 30 grams of cannabis possession will translate into the illicit cannabis provision of the Cannabis Act or whether there is no Canadian equivalent law. It could be argued that this offence translates into the illicit cannabis provision in the Cannabis Act, as the essential elements of state laws against possession and the illicit cannabis provision are the same: unauthorized possession. If the law gets interpreted this way, only one conviction of possession of less than 30 grams of cannabis in another country would result in criminal inadmissibility, whereas previously, only one conviction of possession of less than 30 grams would not have rendered someone inadmissible.
It seems more plausible, however, that cannabis possession offences of less than 30 grams outside of Canada will be considered a less serious offence in the eyes of Canadian border agents than previously, if one takes into account the context of leniency towards cannabis consumption in the Cannabis Act and the fact that Americans who purchase cannabis illegally do not have a legal option like Canadians will soon have. If the law is interpreted this way, a cannabis possession conviction (of less than 30 grams) would not translate into the illicit cannabis provision, and thus there would be no equivalent Canadian criminal law. As a result, any amount of convictions for cannabis possession of less than 30 grams would not render someone inadmissible into Canada. Previously, Americans with two or more cannabis possession convictions (of less than 30 grams) were deemed criminally inadmissible, but if the law is interpreted this way, they will no longer have a problem getting into Canada. Ultimately, we have to wait to see how Canadian border agents react to the Cannabis Act, and subsequently, how the Canadian Federal Court will answer this question should a border agent’s decision be challenged. Foreign nationals with possession convictions should stay in the loop about how the new law is interpreted for criminal inadmissibility purposes and consult Canadian immigration lawyers accordingly.
Driving Under the Influence and Criminal Inadmissibility
The solutions to overcome criminal inadmissibility, for foreign nationals with DUI convictions, will change significantly after the implementation of Bill C-46. 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 a maximum of 10 years in prison. Hence, a foreign national who is convicted of a DUI outside or inside of Canada will no longer be criminally inadmissible on grounds of criminality, but on grounds of serious criminality. As a result, it will be more difficult for a foreign national to overcome their inadmissibility after October 17th.
Temporary Resident Permit for a DUI
There are two potential solutions for a foreign national trying to overcome their criminal inadmissibility, the first being obtaining a Temporary Resident Permit. A Temporary Resident Permit is a temporary solution for a foreign national who needs to enter Canada for specific work, family or emergency reasons. These permits could be granted for a single entry or multiple entries, usually for a span of 1-2 years. In their 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 delays in getting an approval to enter Canada temporarily, as there is usually only one program manager at every port of entry. Moreover, since there have been instances of program managers refusing to consider the granting of 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.
Criminal Rehabilitation for a DUI
Criminal Rehabilitation, on the other hand, is a permanent option for foreign nationals, where 5 years have elapsed since the completion of their sentence. Through a Criminal Rehabilitation application, a foreign national could 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, if 10 years elapsed since the completion of one’s sentence for a single DUI conviction, a foreign national would be deemed rehabilitated by the passage of time, and Criminal Rehabilitation would not be necessary. 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 before the date they plan to enter Canada will not be deemed rehabilitated by the passage of time and will have no other option but to apply for a Temporary Resident Permit or Criminal Rehabilitation to wipe their record clean.
How a Canadian Immigration Lawyer Can Help
While it is not legally required to hire a Canadian immigration lawyer to help with a Temporary Resident Permit or a Criminal Rehabilitation application, not doing so could be compared to representing oneself in court. Canadian immigration lawyers know exactly what the Canadian Consulate is looking for in Temporary Resident Permit and Criminal Rehabilitation applications, and specialize in assisting applicants with presenting themselves in the best possible way, without misrepresenting the facts of their situation. The stakes are also high. The decision taken by the Immigration Program Manager at the Canadian Consulate in response to an application is usually final, and being refused Criminal Rehabilitation usually means never being allowed to enter Canada again.
Blog post written by Leonardo Lucia
