Cannabis, Canadians & The US Boarder

Thousands of Canadians cross the US border on a daily basis.  When doing so, they are subject to US federal laws, specifically US immigration laws.  If a traveler is inadmissible to the USA, the traveler will likely not be admitted into the country.  In many cases and where applicable; they will be asked to address the “inadmissibility” and return once that is dealt with.  Criminal inadmissibility is one of many types of inadmissibility. 

The Cannabis Act[1] is a Canadian federal law which creates a legal framework for controlling the production, distribution, sale and possession of Cannabis across Canada.  While possessing Cannabis is legal in Canada, subject to the “Cannabis Act” and other provincial laws, there are still many restrictions both in Canada and abroad.

The legalization of Cannabis has triggered many questions affecting Canadians’ ability to cross the US border.  Here are some common questions we have received:

 

I AM A CANADIAN CITIZEN.  I WAS CONVICTED OF POSSESSION OF MARIJUANA IN 2015.  NOW THAT CANNABIS USE IS LEGAL IN CANADA, CAN I TRAVEL TO THE USA?

The short answer is that this individual remains inadmissible to the USA.  The legalization of marijuana or cannabis does not affect convictions that occurred prior to October 17, 2018.  The individual will still be inadmissible under the Immigration and Nationality Act[2].

It is important to note that a formal conviction is not necessary.  Even admitting to the essential elements of this criminal offence to a USCBP officer can result in inadmissibility to USA and a permanent bar.

I AM A CANADIAN CITIZEN.  I WAS CONVICTED OF POSSESSION OF MARIJUANA IN 2015. I APPLIED FOR AND RECEIVED A PARDON.  AM I STILL INADMISSIBLE?

Unfortunately Canadian pardons do not have the effect of cancelling the conviction.  It merely seals the conviction.  For purposes of US immigration, an individual who has obtained a Canadian pardon or a record suspension is still deemed inadmissible and will have to obtain a waiver in order to address the inadmissibility.

I AM A CANADIAN CITIZEN AND WORK FOR ONE OF THE CANADIAN CANNABIS COMPANIES.  CAN I TRAVEL TO THE USA?

The answer to this question is that it will depend on the purpose of travel.

After the legalization of Cannabis in Canada, USCBP (US Customs and Border Protection) made a broad and strict policy announcement concerning Canadians involved in the Cannabis industry, investors and employees alike, whereby they were deemed inadmissible.  This announcement spread a wave of uncertainty and anxiety amongst those involved in the industry as they scrambled to figure out how they were affected by this policy.  However, on October 9, 2018, CBP updated its statement[3] with regards to individuals working in the Cannabis industry as follows:

“A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.”

 

It can be tricky at times to determine “reasons related to the marijuana industry”.  Judging by the reported examples we now know that attending marijuana related conferences is an activity related to the marijuana industry and will render the Canadian traveler inadmissible.  Meeting industry counterparts in the US is also likely to have the same effect.

Canadian Companies involved in the Cannabis industry should exercise caution when sending their employees to the US for work related reasons. It may be a good idea to explore alternatives such as attend meetings via video conference so that Canadian employees’ admissibility to the US is not jeopardized.  Another solution, when possible, would be to send US citizen employees to the US as they are not subject to admissibility provisions.

NOW THAT CANNABIS IS LEGALIZED IN CANADA, IS IT STILL POSSIBLE FOR A CANADIAN TO BE BARRED FROM ENTERING THE US FOR USING OR POSSESSING CANNABIS?

It is correct that after October 17, 2018, marijuana use and possession in accordance with the Cannabis Act will not be prosecuted as a criminal offence in Canada.  However an individual can still be charged with a controlled substance offence after October 17, 2018 as the Cannabis Act establishes a strict framework with regards to possession and purchase of Cannabis.  For example purchasing marijuana from an unauthorized source is a criminal offence in Canada. 

There are also related controlled substance offences such as operating a motor vehicle under the influence of marijuana.  An individual can be inadmissible if they pose a threat to the safety of others provided it is associated with a physical or mental disorder.  In this case a USCBP officer will request a medical determination by an approved panel physician to determine whether the individual has a mental disorder or is a drug abuser. A positive determination will result in a bar from the USA.

I AM A CANADIAN CITIZEN AND WAS BARRED FROM ENTERING THE USA DUE TO A PRIOR CONVICTION RELATED TO MARIJUANA USE.  WHAT CAN I DO NOW?

This is a lifetime bar and the options are rather limited. An individual who receives a lifetime bar can apply for what is known as a US waiver.  This is a discretionary remedy and it takes several months before a waiver is issued.  The waiver is also a temporary remedy in that it is issued typically for a period of one year and the individual has to reapply.  The individual has to meet all other admissibility and eligibility conditions.  That means that if there is a new conviction or a new ground of inadmissibility, the existing waiver will not address the new ground of inadmissibility and the individual may still be barred.

In Conclusion, it is important for Canadians to familiarize themselves with not only the existing Canadian laws that affect cannabis use but also with how cannabis use can affect their ability to enter the USA.  This is particularly relevant and significant for individuals and companies that are involved in the Cannabis industry in Canada.

If you need any assistance or more information visit our US Waivers page.

Article References:
[1] The Cannabis Act (S.C. 2018, c. 16)
[2] INA section 212(a)(2)(A)(i)(II)
[3] https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border

Negar is a professional lawyer, very knowledgeable in the area of immigration law. Her expertise and commitment to clients files go above and beyond. I’d highly recommend.”

Alain Desire, Canadian Immigration Client

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