Canada: A Review Of U.S. Border Crossing Issues One Month After Cannabis Legalization

Last Updated: November 22 2018
Article by Henry Chang

On April 13, 2017, the Canadian Government introduced the Cannabis Act1 in the House of Commons.  Its purpose was to legalize marijuana and establish a framework to control its production, distribution, sale, and possession across Canada.  The Cannabis Act received Royal Assent on June 21, 2018, and came into effect on October 17, 2018. 

Unfortunately, many Canadians (and foreign nationals residing in Canada) still do not understand how the Cannabis Act interacts with the inadmissibility grounds contained in the U.S. Immigration and Nationality Act2 ("INA").  As we are now at the one-month anniversary of cannabis legalization in Canada, it would be an appropriate time to revisit the issue of U.S. border crossings, in the context of cannabis. 

Marijuana Use/Possession After Legalization

Under INA §212(a)(2)(A)(i)(II), individuals who have been convicted of, or who admit to having committed the essential elements of, a controlled substance offense are inadmissible.  This ground of inadmissibility results in a permanent bar to the United States.

As of October 17, 2018, marijuana use/possession (in accordance with the Cannabis Act) will not be prosecuted as a criminal offence in Canada.  However, it is still possible for an individual to be charged with a controlled substance offence even after October 17, 2018.  For example, it will be a criminal offence for an individual:

  • Who is 18 years of age or older to possess more than 30 grams of dried cannabis (or the equivalent) in a public place;
  • Who is 18 years of age or older to possess any cannabis that they know is illicit cannabis (i.e. not obtained through authorized sources);
  • To possess one or more cannabis plants, which are budding or flowering, in a public place;
  • To possess more than four cannabis plants that are not budding or flowering.3

These controlled substance offenses (and others) could still result in a permanent bar to the United States after October 17, 2018.

In addition, a formal conviction is not required for INA §212(a)(2)(A)(i)(II) to apply.  Simply making an admission to a United States Customs and Border Protection ("USCBP") officer (or to certain other officials) may result in finding of inadmissibility. 

Of course, for an admission to result in inadmissibility under INA §212(a)(2)(A)(i)(II), the act performed must have been considered a crime in the jurisdiction where it was committed, at the time that it was committed.  Admitting to lawful marijuana use/possession (in accordance with the Cannabis Act), which occurred on or after October 17, 2018, would not be a criminal offence in Canada.  Therefore, it should not result in a permanent bar under INA §212(a)(2)(A)(i)(II). 

That said, legal use/possession of marijuana (in accordance with the Cannabis Act), occurring on or after October 17, 2018, could still result in a bar under one of these other grounds of inadmissibility:

  • 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.  Therefore, medical marijuana users who use/possess marijuana in Canada pursuant to a valid prescription, in accordance with Canadian law4, would not be considered drug abusers. 

For either of 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.  If the USCBP officer decides to refer an individual to a Panel Physician, they will be denied entry and instructed not to return until USCBP has received their medical assessment. 

An individual who is found to be a drug abuser or addict by an approved Panel Physician will be barred from the United States.  However, they will cease to be barred if their drug abuse or addiction is later found to be in remission.  In order for a finding of remission to be made, the individual will need to obtain another medical assessment from an approved Panel Physician. 

Marijuana Possession Convictions Prior to Legalization

Although it is legal to use/possess marijuana (in accordance with the Cannabis Act) as of October 17, 2018, this does not affect prior criminal convictions for marijuana possession.  An individual who was convicted of marijuana possession in Canada prior to October 17, 2018, will still be inadmissible under INA §212(a)(2)(A)(i)(II).  

The Government of Canada recently announced its plan to offer expedited Pardons (now known as Record Suspensions) to individuals who were previously convicted of simple possession of marijuana in Canada.  Unfortunately, Canadian Pardons (i.e. Record Suspensions) are administrative and are not considered Executive Pardons, such as those granted by United States Governors or the President of the United States.  As a result, Canadian Pardons do not have the same effect as an Executive Pardon granted in the United States. 

According to Subsection 2.3(b) of the Criminal Records Act, a Record Suspension requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament.  In other words, a Record Suspension does not erase the fact that an individual was convicted of an offence; it merely seals their criminal record and removes any disqualification that might otherwise be imposed under Canadian federal law. 

Even if the Canadian Government proceeds with its plan to address past marijuana convictions by means of an expedited Record Suspension, this will do nothing to address the U.S. inadmissibility of individuals who may have been convicted of simple marijuana possession offences prior to legalization.  These individuals will remain permanently barred from the United States. 

Admitting to Marijuana Possession/Use Prior to Legalization

Merely admitting to marijuana use/possession, which occurred prior to the effective date of the Cannabis Act, should result in a bar under INA §212(a)(2)(A)(i)(II).  This is because it would have been considered a criminal offence at the time that it occurred.  The bar would apply even if the actual admission was not made to a USCBP officer until after October 17, 2018. 

USCBP previously suggested that officers would not ask every traveler whether they previously used marijuana, after it became legal in Canada.  However, there have already been several incidents involving Canadians being randomly asked about their prior marijuana use.

Of course, INA §212(a)(2)(A)(i)(II) would not apply to individuals who legally used/possessed marijuana for medical purposes, in accordance with current or prior Canadian laws.5  This is because lawful medical marijuana use would not have been considered a criminal offence in Canada, even prior to October 17, 2018.  In addition, INA §212(a)(1)(A)(iv) would not apply since medical marijuana use is not considered substance abuse.  Finally, INA §212(a)(1)(A)(iii) would not apply in the absence of associated harmful behavior. 

Unfortunately, admitting to legal use of medicinal marijuana, pursuant to a valid prescription, could prompt a USCBP officer to ask if the individual ever illegally used marijuana before obtaining the prescription.  If they admit to doing so, they can still be barred from the United States under INA §212(a)(2)(A)(i)(II), based on the illegal marijuana use. 

Employees and Investors of Legal Cannabis Companies in Canada

There is still a great deal of uncertainty regarding whether employees of Canadian cannabis companies will be permitted to enter the United States for business purposes.  Although USCBP has now clarified that these employees may enter for tourism, it is still not clear what business activities will be permitted. 

On October 9, 2018, USCBP revised its Policy Statement on Canada's Legalization of Marijuana and Crossing the Border (the "Revised Statement).  Prior to this date, USCBP had taken the position that merely being an employee (or an investor) of a legal cannabis business in Canada could result in inadmissibility under INA §212(a)(2)(C). 

INA §212(a)(2)(C) permanently bars an individual if a USCBP officer has reason to believe that he or she is an illicit trafficker in a controlled substance, or a knowing assister, abettor, conspirator, or colluder in illicit trafficking. This is the same ground of inadmissibility that would be used to bar individuals such as Pablo Escobar or El Chapo. 

Prior to the Revised Statement, there were alreadyreported cases of employees of Canadian cannabis businesses receiving lifetime bans under INA §212(a)(2)(C).  Also, in at least one case, an investor in a Canadian cannabis company also received a lifetime ban under INA §212(a)(2)(C).  Although these cases appeared to be limited to ports of entry on the West Coast, they demonstrated that employees and investors of Canadian cannabis companies might actually be banned as illicit traffickers. 

The risk became even greater when Politico interviewed Todd Owen, Executive Assistant Commissioner for USCBP's Office of Field Operations in September 2018.  During this interview, he specifically told Politico that working in the Canadian cannabis industry would be grounds for inadmissibility. 

The Revised Statement was considered welcome news for employees and investors of Canadian cannabis companies.  The current position taken by USCBP is as follows:

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.  However, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

The Revised Statement was significant because it confirmed that employees of Canadian cannabis companies should be admissible if their reasons for coming to the United States are "unrelated to the marijuana industry."  This clearly includes travelling purely for tourism (for example, going to Disneyland) and even business visitor activities that are completely unrelated to the marijuana industry (for example, representing a different company that is not involved in the cannabis industry). 

Although the Revised Statement does not specifically refer to investors in the Canadian cannabis industry, it clearly includes passive investors who merely purchase a small number of shares in a Canadian cannabis company, since they typically will not be entering the United States in furtherance of the marijuana industry.  It may even apply to large investors in Canadian cannabis companies, as long as they are not entering the United States as a representative of that cannabis company (i.e. officer, board member, etc.). 

Although the Revised Statement was a step in the right direction, it did not state what activities would be considered "unrelated to the marijuana industry."  As I have repeatedly stated, this left open the possibility that someone could be barred merely for attending a marijuana conference in the United States or visiting a U.S. investor in his or her Canadian cannabis company. 

On October 25, 2018, the Canadian Press reported that they had received an email from Stephanie Malin, USCBP Branch Chief for Northern/Coastal Regions, which stated the following:

If the purpose of travel is unrelated to the marijuana industry such as a vacation, shopping trip, visit to relatives, they will generally be admissible to the U.S.  However, if they are coming for reasons related to the industry, such as the conference... they may be found inadmissible.

Chief Malin was referring to a cannabis industry conference in the United States as an example of a reason that could result in a finding of inadmissibility under INA §212(a)(2)(C).  

This latest comment from USCBP creates further uncertainty for employees and investors of Canadian cannabis companies, many of who are still required to travel to the United States as business visitors in connection with the Canadian cannabis industry. 


Marijuana legalization in Canada has clearly created many unintended U.S. immigration consequences.  It is therefore important for Canadians (and foreign nationals residing in Canada) to educate themselves on how marijuana use (both before and after legalization) could affect their ability to enter the United States.  Employees of Canadian cannabis companies in particular should be aware of the significant risks associated with entering the United States for reasons related to the marijuana industry.


1 S.C. 2018, c. 16.

2 Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101–1524).

3 Cannabis Act, s. 8.

4 See the Access to Cannabis for Medical Purposes Regulations  (SOR/2016-230).

5 This would include the Access to Cannabis for Medical Purposes Regulations (SOR/2016-230), the Marihuana for Medical Purposes Regulations (SOR/2013-119), the Marihuana Medical Access Regulations (SOR/2001-227), and the section 56 exemptions under the Controlled Drugs and Substances Act (S.C. 1996, c. 19). 

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

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

Henry Chang
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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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