Shift Happens: Why a cannabis conviction spells trouble for cross-border business

Moving one of your people stateside? Their past or present relationship with cannabis could see those plans go to pot.

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Moving one of your people stateside? Their past or present relationship with cannabis could see those plans go to pot

Congratulations! You’ve just hired a phenomenal VP to grow your business into the U.S. market. But on their first time crossing the border, they’re refused entry—decades back, when still in their teens, they were convicted of cannabis possession. The VP has no criminal record now (you checked), and the crime no longer exists in Canada. What are your options?

Even without a pot possession skeleton rattling in their closet, your VP could be in trouble. Say they simply answer honestly—as they must—if asked by U.S. Customs and Immigration if they’ve ever danced with Mary Jane. I mean, why not come clean? It’s legal now, right? Plus, they’re heading to California, which legalized recreational cannabis in 2016. (I mean, Seth Rogen lives there.)

So all good? Um, no. While laws vary from state to state, cannabis also falls under U.S. federal jurisdiction. It’s still illegal, and it’s likely the VP will be refused entry.

If that happens, you’ll both have a problem. Your VP has an employment contract, and they’ve done nothing wrong. So if no Canadian laws have been broken by your new hire, what can you, as an employer, do?

In this case, termination with cause won’t fly. But that doesn’t mean the employer-employee relationship has to continue, says Vancouver-based lawyer Carman Overholt, who also teaches employment law at UBC Sauder School of Business. “If the job duties really require someone to be able to travel to the U.S.,” he says, “and your conviction precludes you from travelling there, then you’re not able to perform your duties, and we consider the contract to be at an end.”

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In legal terms, the employment contract would be considered “frustrated.” Huh? “‘Frustration’ really means the parties are not able to perform the bargain that they entered into,” Overholt explains. But when invoking frustration, an inability to do the gig isn’t the gist. “The legal test is that frustration of contract applies where something unforeseen occurs that renders it radically different from what the parties bargained,” Overholt notes. “The threshold for establishing frustration is quite high.”

This scenario opens an ethical and legal can of worms. Aside from pot, there are other reasons why people can be denied entry to the U.S. From holding unacceptable political views to simply being born in the wrong part of the world, certain grounds for inadmissibility to the U.S. would be considered flagrant human rights violations if they presented a bar to employment or housing in Canada.

For example, during the Trump administration, citizens from several Muslim-majority countries were prevented from entering America. If our fictional VP had recently immigrated from Syria, and had been singled out for discriminatory treatment at the border solely because of national origin—a clear violation of Canadian and B.C. human rights codes—would the employer still be able to use “frustration” as a defence?

“It’s a very interesting question,” says Overholt, who concedes that the issue is complex. However, regardless of Canadian law, the fact that, for unanticipated reasons, the employee can’t fulfil the contract remains salient. “The reason why they cannot is really beside the point,” he adds. So the Canadian-made contract could be considered frustrated—even if discrimination based on similar criteria would be a human rights code violation here.

For the scenario at hand, though, there’s a rather dispiriting takeaway. With the sincerest of apologies to Woody Guthrie, when it comes to crossing into the U.S., their land is their land.

Fictional scenario. Not intended as legal advice.