Canada: How Marijuana Legalization Will Affect Your Ability To Enter The U.S.

Photo Credit: Mark Spowart

On April 13, 2017, the Canadian Government introduced Bill C-45 (the Cannabis Act) in the House of Commons. Once enacted, it will legalize marijuana and establish a framework to control its production, distribution, sale and possession across Canada.

The Cannabis Act is expected to become law sometime this summer. Unfortunately, the legalization of marijuana in Canada will have a significant impact on the ability of Canadians (and other foreign nationals) to enter the United States.

Here are answers to some of the questions you may have.

Will I be barred for using/possessing marijuana in Canada after it becomes legal?

Under the Immigration and Nationality Act (INA), individuals who have been convicted of, or who admit to having committed the essential elements of, a controlled substance offence are inadmissible.

Fortunately, for an act to result in inadmissibility, it must be considered a crime in the jurisdiction where it was committed. Once the Cannabis Act becomes law, marijuana use will no longer be a criminal offence in Canada.

Unfortunately, even legal use/possession of marijuana in accordance with the Cannabis Act could still result in a bar under one of the following grounds:

• An individual is inadmissible if they have been determined to have (or previously had) a physical or mental disorder and a history of behavior associated with the disorder that may pose (or has posed) a threat to the property, safety or welfare of themselves or others. As alcoholism can result in a bar under this ground of inadmissibility, marijuana use could also result in a finding of inadmissibility, provided that associated harmful behavior also exists. For example, driving a vehicle while under the influence of marijuana could be considered evidence of associated harmful behavior.

• A person is inadmissible if they’re determined to be a drug abuser or addict. Harmful behavior is not a relevant factor in rendering a determination of ineligibility under this ground. There is also no requirement that the use of a particular controlled substance actually be illegal in the jurisdiction where it occurs. However, use of controlled substances for medical purposes is not considered substance abuse.

Of course, for the above grounds to apply, a United States Customs and Border Protection (USCBP) officer will need to refer the individual to an approved Panel Physician, who will make a medical determination regarding these factors.

Will I be barred for a marijuana possession conviction or an admission of prior use that occurred before the Cannabis Act came into force?

Although the Cannabis Act will legalize marijuana use/possession once it comes into force, it will not affect prior criminal convictions for marijuana possession. Therefore, such convictions will likely still prevent you from entering.

Admitting to marijuana use prior to the enactment of the Cannabis Act will also likely prevent you from entering.

I’m employed in the marijuana industry in Canada. Can I be denied admission to the U.S. because of my occupation?

An individual is inadmissible if a consular or immigration officer has “reason to believe” they are, or have been, an illicit trafficker in a controlled substance (or a knowing assister, abettor, conspirator or colluder). The spouse or child of such a person is also inadmissible under this ground of inadmissibility.

An individual who is employed in the marijuana industry in Canada could theoretically be denied admission based on a USCBP officer’s “reasonable belief” that they’re an illicit trafficker (or a knowing aider, abettor, assister, conspirator or colluder) of a controlled substance.

It becomes more likely that such an individual will be denied admission as a controlled substance trafficker if they’re travelling to the U.S. on business, as a representative of the Canadian employer. In such cases, at least a part of that individual’s marijuana-related activities will be taking place in the U.S.

Will I be barred if I smoked marijuana during my trip to Colorado?

Recreational marijuana use is legal in the State of Colorado. However, such conduct continues to be a violation of U.S. federal law even in states where it has been legalized.

Although this fact may not be relevant to a U.S. citizen, the implications for a non-citizen can be quite devastating. Canadian citizens (and other foreign nationals) who admit to marijuana use in a U.S. state that has legalized it will still be barred from the U.S.

I’m a Canadian citizen who has been hired by a U.S.-based company involved in the marijuana industry, to work in a U.S. state that has legalized the substance. Will I have problems when I apply for my work permit?

A Canadian citizen (and any other foreign national) who intends to work for a U.S.-based company involved in the marijuana industry, even in a U.S. state that has legalized it, is likely to be denied entry as a controlled substance trafficker. This can result in a permanent bar to the U.S.

A foreign national could be accused of trafficking regardless of whether or not they have any direct contact with the company’s marijuana operations. For example, a Canadian citizen seeking a work permit as an accountant for a U.S. employer involved in a state-licensed marijuana business could still be denied admission as a trafficker.

Clearly, the legalization of marijuana has created considerable uncertainty for Canadian citizens (and other foreign nationals). Until detailed guidelines are provided by U.S. government agencies, precautions should be taken in order to avoid a permanent bar from the country.