10/31/2018 14:15 EDT | Updated 10/31/2018 14:58 EDT

Canada Should Stop Penalizing Foreigners For Past Pot Possession

Immigration policies shouldn't condemn visitors and immigrants for actions for which our own citizens are no longer punished.

Following the legalization of cannabis on October 17, a visitor from the U.S. may reasonably believe it is now easier for him to enter Canada despite a prior conviction for marijuana possession. He would be wrong. It is now much more difficult.

For immigration purposes, any foreign conviction for possession of marijuana can be equated to the new crime of possession of "illicit cannabis" under s. 8 of the "Cannabis Act." Moreover, simple possession under 30 grams was previously a pure "summary" offence and not subject to immigration penalties. This new offence, however, is "hybrid" and thereby captured by the inadmissibility provisions of the "Immigration and Refugee Protection Act" (IRPA).

The Canadian Press Images/Stephen C. Host
The Canada-U.S. border at Fort Erie, Ont.

Thus, counterintuitively, those with foreign cannabis convictions now face greater inadmissibility to Canada than they did before, unless discretionary policies are introduced.

Not only have the immigration consequences of marijuana use not been alleviated, but such conduct is now subject to harsher penalties. The government last week quietly published a notice on the new cannabis and DUI changes, warning: "The impact of these new penalties on permanent and temporary residents could be significant." This applies equally to a tourist from Europe, a U.S. employee being transferred to a Canadian subsidiary, or a spouse in the U.K. being sponsored to Canada by her husband.

It is a high-profile example of the possible downstream immigration effects of statutory changes. Yet, such effects are rarely considered when policies change and laws are amended. The consequences can be absurd and inequitable.

There is now a profound dissonance between how Canadian law treats citizens who use marijuana, and foreigners and immigrants who have used it in the past.

Likewise, the companion Bill C-46 increased the maximum penalty for DUI offences. This is tempered in the criminal context by the discretion afforded to the Crown and sentencing courts. However, for immigration purposes, the change causes DUIs to now be classified as "serious criminality" under IRPA s. 36, with no right of equitable appeal to the Immigration Board.

This means that humanitarian and compassionate circumstances — such as a father in the U.K. separated from his wife and newborn in Canada — can no longer be considered for someone who has incurred a single DUI.

There is now a profound dissonance between how Canadian law treats citizens who use marijuana, and foreigners and immigrants who have used it in the past. This is especially so since the Liberal government has also announced a streamlined pardon process for Canadians with prior convictions for possession of cannabis under 30 grams. They will even waive the standard processing fee.

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a pile of old passports

Public Safety Minister Ralph Goodale explained, "Individuals who previously acquired criminal records for simple possession of cannabis should be allowed to shed the stigma and the burden of that record."

In other words, the government has accepted that possession of marijuana is not legally or morally culpable, which should extend retroactively to those who were previously convicted when the offence was still illegal. This is a commendable approach that acknowledges our collective understanding has evolved to the extent there should be no further opprobrium associated with such conduct past or present. It is a shame then that the same rationale is not being extended toward foreigners, immigrants or refugees.

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While security and safety at our borders is a paramount concern, the federal government must ensure changes in policy are applied equally across statutes. At this time, this means amending the IRPA so as to be consonant with the recent changes to the Criminal Code. Until then, the Ministry must act swiftly to implement temporary policies which ensure we are not condemning foreigners and immigrants for actions for which our own citizens are no longer penalized.

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