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October 18, 2018

High on Changes on Cannabis Legalization – Can I Now Get into Canada with a Criminal Record for Cannabis?

Posted by Mario Bellissimo - Bellissimo Law Group PC

So, there is much buzz and rightly so about the Cannabis Act coming into law on October 17, 2018 which legalized marijuana use throughout Canada.

What has changed?

The implementation of the Cannabis Act has legalized the possession of less than 30 grams of cannabis purchased from authorized distributors, however, possession of more than 30 grams of cannabis and cannabis purchased from an unauthorized distributor will remain a (serious) offence.[1]

There is a misconception that the Cannabis Act makes it legal to possess cannabis without conditions. This is not true.  Section 2 of the Act defines illicit cannabis as ‘that which is or was sold, produced or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act.’ Additionally, the Act prohibits the use and possession of Cannabis outlined under S.8 (1):

  • for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
  • for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis;
  • for a young person to possess cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 5 g of dried cannabis;
  • for an individual to possess, in a public place, one or more cannabis plants that are budding or flowering;
  • for an individual to possess more than four cannabis plants that are not budding or    flowering; or
  • for an organization to possess cannabis.

Pardon?

The Federal NDP Justice Critic, Murray Rankin tabled a Private Member’s Bill on October 4 calling for the expungement of cannabis charges from the records of Canadians. He outlined that should the bill be passed, this will clear the charge from a person’s criminal record who had faced the charges in Canada.[2] He believes this is preferable to the government’s plan to offer expedited pardons (now known as record suspensions) to individuals who were previously convicted of simple possession of marijuana in Canada. Member’s On the other hand, convictions made outside of Canada will depend on the jurisdiction’s laws regarding Cannabis.  And there is more.  One, Private Member’s Bills rarely receive traction and the effect of an expungement is different from a pardon.  The former being the proffered route because it is as if the offence never happened.

Two, some of these convictions go back many years so funding the records and in particular the amount may be virtually impossible in certain cases.  More still, applying for a pardon may place something on the radar that may not have been there before.  So until there is a better sense how this will play out perhaps a wait and see approach should be a consideration.

Be Careful Stepping Outside Canada!

Additionally, Canada Border Service Agency rules are not changing. Taking cannabis, or any product containing cannabis, across Canada’s international borders, whether when leaving or entering Canada, will remain unlawful and can result in criminal inadmissibility.[3]

Am I Inadmissible?

The hope is that the new law would benefit future applicants who can meet the lawful exemptions for cannabis possession.  But again, this is not a given.  If the offence was committed prior to the legalization of cannabis it was still an offence then under Canadian law which may deem a person inadmissible even after legalization.  In all more questions than answers, proceed cautiously and let’s not get to high on the changes until more of the details become clear.

(sources)