Canada: Canadian Companies Should Educate Their Employees Prior To Marijuana Legalization

Last Updated: October 11 2018
Article by Henry Chang

Original Newsletter(s) this article was published in: Blaneys on Immigration: October 2018

I previously discussed the increased likelihood that Canadians (and other foreign nationals) will be denied entry to the United States once marijuana becomes legal in Canada on October 17, 2018.  This is because many individuals still mistakenly believe that marijuana legalization will protect them from adverse U.S. immigration consequences. 

In reality, marijuana legalization will offer only limited protection to Canadians (and other foreign nationals) who cross the border into the United States.  However, it will give them a false sense of security and prompt many to volunteer potentially harmful information to United States Customs and Border Protection ("USCBP"), without realizing that it will earn them a lifetime ban from the United States. 

Employees of Canadian cannabis companies in particular are at risk of being banned from the United States.  Employees of such companies could be barred from the United States as controlled substance traffickers, solely because they work for a company that is engaged in a legal cannabis business in Canada. 

With marijuana legalization less than ten days away, Canadian companies should consider educating their employees now.  Doing so will reduce the risk that these employees will be barred from entering the United States after October 17, 2018.

Will Marijuana Legalization Offer Any Protection?

As mentioned above, marijuana legalization will offer some protection to Canadians (and other foreign nationals) but only on a limited basis.  On October 17, 2018, the following will occur:

  • Marijuana possession and use will no longer be a criminal offence in Canada, provided that these activities occur in compliance with the Cannabis Act1.  Therefore, individuals who engage in such activities will no longer be charged with or convicted of a criminal offence. 
  • Admitting to marijuana possession or use in Canada, which took place after legalization, will not be considered an admission to a criminal offence. 

As a result, marijuana possession or use occurring after legalization should not result in inadmissibility under INA §212(a)(2)(A)(i)(II), which states that individuals who have been convicted of, or who admit to having committed the essential elements of, a controlled substance offense are inadmissible. 

Unfortunately, marijuana legalization will not eliminate the effect of any prior convictions for marijuana possession.  It will also not prevent an individual who committed a marijuana-related offence prior to legalization from being barred even if it does not come to the attention of USCBP until after October 17, 2018.  For example, an individual who smoked marijuana many years ago (but who was never charged) can still be barred from the United States if he admits to a USCBP officer after October 17, 2018, that he committed the offence. 

Even possession or use of marijuana after legalization could still result in a bar under one of the following grounds:

  • Under INA §212(a)(1)(A)(iii), an individual is inadmissible if they have been determined to have 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.  They may also be barred if they previously had such a physical or mental disorder, which is likely to recur or lead to other harmful behavior.  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.
  • Under INA §212(a)(1)(A)(iv) a person is inadmissible if they are determined to be a drug abuser or drug 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. 

For the above grounds to apply, a USCBP officer will need to refer the individual to an approved Panel Physician, who will make a medical determination regarding whether that individual has a mental disorder (with associated harmful behavior) or is a drug abuser/addict.  Despite the additional requirement of a medical determination, it is still possible for USCBP to bar an individual who uses marijuana after it has become legal, under either of the above grounds. 

Increased Risks for Employees of Canadian Marijuana Companies

Employees of Canadian marijuana companies face additional risks when travelling to the United States.  They could potentially receive lifetime bans under INA §212(a)(2)(C), the controlled substance trafficking ground.  The media has reported that this has already occurred at some ports of entry.  In at least one case, an investor in a Canadian cannabis company also received a lifetime ban.

Under INA §212(a)(2)(C), an individual is inadmissible if an immigration officer has "reason to believe" that they are or have been an illicit trafficker in a controlled substance (a knowing assister, abettor, conspirator, or colluder).  Some USCBP officers have apparently taken the position that mere employment with a legal cannabis business in Canada makes that individual an assister/abettor/conspirator/colluder in illicit controlled substance trafficking. 

Although this appears to be an overly broad interpretation of INA §212(a)(2)(C), when Politico recently interviewed Todd Owen, Executive Assistant Commissioner for USCBP's Office of Field Operations, he also stated that working in the Canadian cannabis industry would be grounds for inadmissibility.  In other words, there is a very real danger that employees of Canadian cannabis businesses could receive lifetime bans as controlled substance traffickers.

Recommended Strategies

In order to minimize the risk of employees being barred from the United States, Canadian employers should educate their workforce on the above issues prior to (or soon after) October 17, 2018.  This can be achieved through a company-wide letter sent to all employees.  If necessary, we can assist in the drafting of such a letter. 

Footnote

1 S.C. 2018, c. 16.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Henry Chang
Events from this Firm
8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions