On October 17th 2018, Canada legalized the sale of cannabis. You might think that foreign nationals who have been convicted of cannabis-related offenses no longer have to worry about entering Canada – yet the opposite is true.
American citizens, and other foreign nationals, with cannabis possession convictions, as well as those with DUI convictions, should be aware that the consequences of these offences have increased substantially. Make sure you also read our page about what you need to know about Cannabis at the U.S. / Canadian border.
Possession of Cannabis and Criminal Inadmissibility
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 refused entry into Canada. It does not matter whether the crime is considered a misdemeanor or a felony in the United States; instead what matters is how the offence translates into Canadian law.
If an American with a single conviction of less than 30 grams of cannabis possession tried to enter Canada before the implementation of the Cannabis Act, they would have had no issue. However, under the Cannabis Act, having a conviction of less than 30 grams of cannabis possession could result in criminal inadmissibility.
The Canadian government is trying to destroy the black market for cannabis in Canada, and the Cannabis Act makes possession of illegally purchased marijuana a “hybrid offence”, regardless of the quantity. In the eyes Canadian border agents, an American citizen convicted of cannabis possession of less than 30 grams now translates under the Cannabis Act into a much more serious Canadian offense – and criminal inadmissibility is likely.
If you were convicted of offences like importing, exporting, or trafficking cannabis, you are even more likely to be considered criminally inadmissible to Canada because the offenses are considered serious criminality.
You should also note that even though cannabis is legal in Canada, it is likely that foreign nationals caught trying to bring cannabis into Canada – including for medical purposes – will be turned away and deemed criminally inadmissible. It does not matter how much is involved. It is also possible you will be arrested. Do not try to bring Cannabis into Canada.
Driving Under the Influence and Criminal Inadmissibility
Americans convicted of DUIs will have a more difficult time entering Canada than they did previously, due to the changes in Canada’s impaired driving laws.
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. As a result, American citizens convicted of a DUI were previously considered inadmissible due to criminality, will now be considered inadmissible due to serious criminality. The solutions for Americans with DUIs looking to enter Canada will therefore be notably different.
So, what can you do to get around a decision that you are inadmissible to Canada?
Filing for a Temporary Resident Permit
There are two potential solutions for a foreign national who is criminally inadmissible into Canada – 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. 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. See our page Resolving Criminal Inadmissibility to Canada for more information on filing for a Temporary Resident Permit.
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. 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. The decision taken by the Immigration Program Manager at the Canadian Consulate in Los Angeles is almost always final, so it is in the best interest of the applicant for the application to be without any errors.
Filing a Criminal Rehabilitation Application
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. See our page Resolving Criminal Inadmissibility to Canada for more information on Criminal Rehabilitation.
You should note that before the Cannabis Act, 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 Criminal Rehabilitation.
Should you Hire an Attorney?
While it is not legally required to hire an immigration lawyer to help with a Criminal Rehabilitation application, not doing so is tantamount to representing oneself in court. The stakes are high because a refusal to grant Criminal Rehabilitation usually means never being allowed to enter Canada again.
In general, it is recommended that foreign nationals with criminal records consult immigration lawyers when trying to entering Canada, as attorneys are most qualified to say whether an offence translates into a Canadian law that renders them criminally inadmissible. See our page on How to Select an Immigration Attorney.