Intoxicants and Immigration

It’s been an interesting summer so far in Canadian Parliament.  Marijuana has been legalized under the Cannabis Act, and the Driving Under the Influence (DUI) laws under the Canadian Criminal Code have just gotten tougher.  Although these two have not directly been reported as linked, one must wonder if the legalization of another controlled substance has caused concern over the social realities of such legalization.  It’s already common to walk down the streets of Toronto with the waft of skunk in the air.

The Criminal Code has now made the penalties for Driving under the Influence tougher and raises the possible sentence for a DUI conviction to a maximum ten years imprisonment.  Regardless of whether you think this tougher sentencing will have the desired deterrent effect, it will have a disproportionate effect on foreign nationals whether already in Canada or seeking to enter Canada.

A conviction under the criminal code of ten years or more is deemed to be a serious criminality by IRCC and what could have previously been dealt with by applying for Temporary Resident Permit (TRP) or be Deemed Rehabilitated if the offense occurred more than ten years ago, is now much more difficult to overcome.

For those already in Canada, even as permanent residents, a single DUI conviction can now jeopardize their status in Canada and they may be subject to deportation.  For those seeking to enter Canada, deemed rehabilitation will no longer be an option for single convictions over ten years ago and a full Rehabilitation application will need to be made.  Governmental filing fees associated with a Rehabilitation application for serious criminality is significantly more than for a standard Rehabilitation application (CAD$1000 vs CAD$200). In addition, processing time is generally longer and approval must be made by the program manager, and not just the processing officer, at the applicable processing office.

Although the new Cannabis Act, which is set to go into effect in October 2018, permits the possession and production of cannabis for personal use, it also increases the consequences for possession or production of “illicit” cannabis even if the amount is under 30g.  The definition of “illicit” cannabis under the Act is broad and includes cannabis sold, produced, distributed, or imported by a person unauthorized to do so.  This definition includes a conviction of possession outside of Canada in a country where possession remains illegal.

So, although today a foreign national who has a cannabis possession conviction in South Africa for an amount under 30g is not considered criminally inadmissible to Canada as this is currently considered a summary judgement conviction, they will be found criminally inadmissible to Canada once the Cannabis Act is operational as the same action will now be considered a hybrid offense.

Possession of illicit cannabis will be a ticketing offense, however it’s not like a parking ticket.  Paying the ticket will be considered an admission of guilt and will result in a criminal conviction on your permanent record.  So, if you are a foreign national who has been issued a ticket for possession of illicit cannabis, it is important to seek legal advice before paying the ticket as the guilty plea and conviction can have consequences for your status in Canada.

Lastly, the sale and importation of cannabis must be specifically licensed under the Cannabis Act, so if you are driving to Buffalo for a concert, leave the marijuana at home.  Taking it across the border either into the USA or returning to Canada with it is still a criminal offense and would have significant consequences for a foreign national’s ability to remain in Canada.

– Sarah Adler, Immigration Lawyer

To see Sarah’s full profile or to schedule a meeting with her, click here.

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