Criminal inadmissibility: cannabis and impaired driving offences

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Sergio R Karas
Karas Immigration Law Professional Corporation, Toronto
karas@karas.ca

Cannabis was legalised in Canada on 17 October 2018, and regulations regarding its possession, use, production and sale were codified. However, many restrictions remain in place. Possession of illicit cannabis not purchased from authorised dealers is an offence. On 18 December 2018, the Criminal Code provisions regarding impaired driving were tightened. The maximum punishment for driving under the influence was increased to ten years. These changes combined have serious implications for both permanent residents and foreign nationals, as convictions under these new provisions may render them inadmissible on grounds of serious criminality.

Criminal inadmissibility

A permanent resident or foreign national who has committed an offence in Canada, or in any other country, may be found to be inadmissible to Canada.

The 2001 Immigration and Refugee Protection Act (IRPA)^[1] divides criminal offences into two major classes:

• Section 36(1) deals with permanent residents or foreign nationals convicted of an offence with a maximum punishment of ten years imprisonment, or a person sentenced to imprisonment for more than six months. A person convicted of those offences will be inadmissible to Canada on grounds of serious criminality.

• Section 36(2) states that a foreign national is inadmissible to Canada on grounds of criminality, if they have committed an indictable offence or two summary offences, regardless of the penalty imposed.

Indictable offences are generally more serious and carry longer sentences. Summary offences are generally less serious with shorter sentences or fines. An offence which can be prosecuted either summarily or by way of indictment is considered a hybrid offence. For the purpose of IRPA, hybrid offences are deemed indictable offences.^[2]

Inadmissibility is determined by finding the equivalency of an offence committed outside Canada with the same or similar offence in Canada. For example, in the United Kingdom if a person drives under the influence of alcohol, they can receive a maximum of six months’ imprisonment.^[3] However, in Canada the punishment for the same offence is a maximum ten-year sentence, rendering the foreign national inadmissible on the grounds of serious criminality. The governing principle is the penalty the offence would incur if committed in Canada.

The ‘maximum term of imprisonment’ means the maximum term of imprisonment at the time the offence was committed, and not at the time of the determination of inadmissibility.^[4]

The Cannabis Act

The Cannabis Act (the Act)^[5] came into force on 17 October 2018, legalising the use of recreational cannabis. Cannabis was formerly a Schedule II drug under the Controlled Drugs and Substances Act.^[6] Possession, production and distribution in any form was prohibited. The Act legalises cannabis and regulates its use.

An individual 18 years of age or older is now allowed to possess up to 30g of dried cannabis which has been purchased from an authorised dealer.^[7] A household can grow up to four cannabis plants at a dwelling house. The cannabis in a person’s possession, or the seeds of a cannabis plant, must be purchased from a government authorised retailer. It is illegal to purchase illicit cannabis ie, from a seller who is not authorised.

There are restrictions on the possession, distribution, sale and production of cannabis. The import and export of cannabis is illegal. If a person is found to be in contravention of these restrictions, they may be found guilty of a hybrid offence. This means that the offence will be considered to be indictable for the purposes of determining inadmissibility under IRPA.

If a permanent resident or a foreign national commits an offence relating to cannabis in a foreign country, they may be inadmissible to Canada on grounds of criminality or serious criminality, depending on what the regulatory scheme is in Canada. In some cases, they may not be inadmissible at all, if the offence abroad is not equivalent to the Canadian one.

In Canada, if a person is found guilty of an offence related to possession under the Act, it is a ‘ticketable offence’.^[8] Sections 53(2) and 54(2) provide that once a convicted person has paid the fine or served their sentence, then ‘the judicial record of the accused in relation to the offence must not be used for any purpose that would identify the accused as a person dealt with under this Act.’ Section 15(1) of the Act states that the fundamental purpose of any sentence, for an offence under the Act, is to contribute to the respect for the law and maintain a just, peaceful and safe society, while encouraging rehabilitation and treatment of offenders and acknowledging the harm done to the victims and the community. This creates confusion regarding the inadmissibility of a permanent resident or foreign national, if they commit an offence under the Act. It may be argued that the record of the offence may not be used for the purposes of determining inadmissibility. However, this argument has not yet been tested in a court of law.

Impaired driving

Impaired driving is defined as operating a conveyance while the person’s ability to do so is compromised by consuming alcohol or a drug or a combination of both.^[9] Conveyance means a motor vehicle, a vessel, an aircraft or railway equipment.^[10] A person is considered to be impaired if they have a blood alcohol level equal to or greater than 80mg of alcohol in 100ml of blood.^[11]

Under the new impaired driving legislation, driving under influence is a hybrid offence with a maximum ten years’ imprisonment.^[12] A conviction renders a permanent resident or foreign national inadmissible on grounds of serious criminality.

Impact of the new provisions on inadmissibility

Some of the new provisions relating to cannabis, and the increased impaired driving penalties, create hybrid offences with maximum terms of imprisonment of ten years. Therefore, if a person was convicted under those provisions in Canada, or similar provisions abroad, they will be inadmissible on the grounds of serious criminality. Under the previous legislation regarding impaired driving, a person would have been inadmissible on grounds of criminality and non-serious criminality.

A person is deemed to be rehabilitated if they were inadmissible on the grounds of criminality and a period of either five or ten years has passed, depending on the offence. However, a person convicted of impaired driving is now inadmissible on grounds of serious criminality, therefore the benefit of deemed rehabilitation is no longer available to them. They must apply for criminal rehabilitation, a lengthy process.

These provisions do not apply retrospectively. The Supreme Court of Canada held that while determining inadmissibility, the relevant provisions are those that were in force at the time of commission of the offence and not at the time of the determination.^[13] This means that if a person was convicted of impaired driving before the coming into force of the new provisions, the old provisions would be applicable, and they will not be affected by the amendments.^[14]

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