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Immigration Newsweek

By Atty. Henry Moyal

October 17, 2018 will be a monumental day in Canada as Canada will officially legalize marijuana.

While many may be celebrating this auspicious day in history it is important to consider the implication the Cannabis Act will have under Canada Immigration law.

The passage of the Cannabis Act under Bill C-45 and anyone who violates the law will be of serious consequence to permanent residents and foreign nationals.

At present the framework under the immigration law under IRPA differentiates between “regular” criminality and “serious” criminality.

Inadmissibility for regular Criminality is under section 36(2) and covers those who are convicted in Canada of an offence under an Act of Parliament by way of indictment or two offences under any Act of Parliament not arising out of a single occurrence.

Section 36(1) deal with inadmissibility for serious Criminality and covers those  convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

The new provisions under the proposed Cannabis Act substantially alter the regulatory landscape surrounding marijuana. Under the current  law – called Controlled Drugs and Substances Act, cannabis is a Schedule II substance. Possession, production and distribution in any form are prohibited without authorization.

Moreover, under the current CDSA, unauthorized possession of less than 30 grams of cannabis for personal use is an offence that can only be proceeded with summarily (not by way of indictment). A single conviction for simple possession of less than 30 grams would therefore not render a foreign national inadmissible as s.36(2) of IRPA requires two summary convictions to trigger inadmissibility.

The new Cannabis Act, will authorize the possession and production of cannabis for personal use. However the new law includes a category of “illicit cannabis” which is prohibited to possess in any quantity. The new law states:

s.8(1)  Unless authorized under this Act, it is prohibited

• (a) for an individual who is 18 years of age or older to possess, in a public place, […] more than 30 g of dried cannabis;
• (b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis; […]

(2) […] person that contravenes subsection (1)

• (a) is guilty of an indictable offence and is liable […] to imprisonment for a term of not more than five years less a day,

s.51 In addition to the procedures set out in the Criminal Code, proceedings [for listed offences] may be commenced by a peace officer

• (a) completing a ticket that consists of a summons portion and an information portion;

1. 52 Payment of the amount set out in the ticket […] constitutes a plea of guilty to the offence described in the ticket and, following the payment,

• (a) a conviction is to be entered in the judicial record of the accused;
• (b) the judicial record of the accused in relation to the offence must be kept separate and apart from other judicial records and it must not be used for any purpose that would identify the accused as a person dealt with under this Act; and

Illicit cannabis means cannabis that is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.

The implication for certain types of cannabis products is that personal possession will remain illegal but will carry a greater penalty under s.8 of the Cannabis Act. This is significant for immigration purposes because the prohibition in s.8 is a hybrid offence (meaning it can be proceeded with either summarily or by indictment). Therefore, a single conviction for simple possession of “illicit cannabis” under the Cannabis Act will therefore render a foreign national inadmissible. Therefore, while it seems like Canada is being liberal and legalizing pot for personal use, it in effect has increased the immigration consequences for those convicted.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.
Send questions to Attorney Moyal by email canada@moyal.com or call 416 733 3193