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Cannabis legalization and the impact on immigrants and temporary residents

On October 17, 2018, the Cannabis Act legalized recreational use of marijuana in Canada. The legislation now regulates the production, distribution, sale and possession of cannabis throughout the country.

This generally means that purchasing, possessing, and consuming small amounts of government-regulated marijuana is legal for adults. However, new provisions come into effect on December 18, 2018 that provides stricter punishment for impaired driving. Visitors and immigrants to Canada may be disproportionately affected by these new provisions. Immigration, Refugees, and Citizenship Canada has published a page summarizing this issue available here.

The new legislation will have longer maximum sentences for impaired driving and other related offences. Currently, the maximum imprisonment sentence for similar offences is five years. However, the government advises that on December 18, most impaired driving offences will increase to ten years. This means that the new offences will fall within what is defined as “serious criminality” in the Immigration and Refugee Protection Act. 

There are general and serious criminality provisions in the IRPA that place restrictions on who can enter and stay in Canada. While even general criminality provisions can bar one’s entry into the country, it is the serious criminality provisions that make immigrating or visiting Canada significantly more difficult.

Section 36(1)(a) states that a permanent resident or foreign national (e.g., visitor, refugee, temporary worker) is inadmissible for serious criminality if he/she has been convicted of an offence having a maximum imprisonment term of at least ten years, whether or not the incident took place in Canada. The “serious criminality” provision also affects appeal rights in certain situations. There are also limited exceptions to serious criminality. 

These upcoming changes will have a significant impact on the immigration system:

  • Permanent residents could lose their PR status and be forced to leave the country
  • Visitors, international students, foreign workers, and other temporary residents may not be able to enter or remain in Canada
  • Refugee claimants might be ineligible to have their claim referred for a hearing

It remains uncertain how stringently these changes will be enforced, particularly with respect to refugee claimants.

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