- A Smith (law student)
Two Days Left: Bongs Away at the US Border (a student perspective)
The clock is running twelve days.. eleven days.. and now just two days until Marijuana becomes legalized in Canada. Despite its prevalence before legalization, the decriminalization will cause even more Canadians to invest, grow, sell and consume cannabis products. Although Bill C-45 has been implemented to protect and inform Canadians about Marijuana use, there are tremendous implications that have been largely overlooked regarding Canadians entering the United States.
Bill C-45, also referred to as the Cannabis Act was created to amend the Controlled Drugs and Substances Act and the Criminal Code. Its objectives are to regulate the production and selling of Cannabis products, protect the public and to keep Cannabis out of the hands of youth. Failing to comply with the provisions can result in penalties ranging from fines to indictable offenses. Although Canada is paving the way for law reform, the United States is lagging behind and still views marijuana as illegal across various States. Although some States including Colorado have legalized the drug, at the border, treatment is different. An American border official has the power to ask individuals about their past Marijuana consumption, especially now that there is discrepancy in the law between two bordering countries.
Imagine pulling up to the border between Manitoba and North Dakota. You are a Canadian citizen that has followed all the provisions contained within Bill C-45, are not involved in growing or selling but occasionally smoke marijuana for recreation. The border official asks you about your past use and you are faced with a hard choice. Firstly, you can tell the official that you have never used Marijuana before. If they suspect that you have lied, they have permission to look through your phones, tablets and personal items. Lying to an Official attracts penal consequences in the USA. In addition to the prospective punishment you will also be denied entry into the United States. This is due to the fact that the Customs and Border Patrol view the admission of the drug as the same as a conviction, regardless of when or when it occurred.
When Bill C-45 was first introduced, the United States government had a strict policy regarding investors in the Cannabis Industry. Not only could one be denied entry for simply smoking pot, those who have invested in the industry could also be banned. Investors and executives of Cannabis businesses are viewed as members of criminal organizations. In addition, a higher risk exists for those who have invested in United States cannabis related businesses in the states where marijuana is legalized. However, this has since been changed and investors are allowed to enter the United States for pleasure purposes.
Whether one answers truthfully or lies, Canadians are at a fork in the road, each leading to potential misfortune. While being denied entry does not mean that Canadians can never enter the US again, a $600 waiver can be filled out to reverse the order. US officials have argued that Canadians will not be questioned unless they have cause to do so. However, with the increasing prevalence of Marijuana use in Canada, it only seems probable that there will be a parallel increase in the number of questions asked.
What should Canadian lawyers, government officials and officers be instructing Canadians to do? Obviously choosing between recreational marijuana use and traveling to the US is not a plausible solution to the problem. Even instructing individuals to limit their travels to the United States also isn’t a viable solution. An American immigration lawyers suggests that Canadians should refuse to answer. Although they will be denied immediate entry, they will not be banned for life. If it is in fact true that officials will only ask questions if “they have cause”, Canadians should refrain from using pot before traveling to the United States and traveling with individuals who are under the influence.
After considering these facts, one must wonder whether the Canadian government has thought of all the potential implications of legalizing cannabis use. While this seems like a pressing problem now, will larger implications emerge in the future? Despite these facts two things remain clear; lawyers should prepare themselves for an influx of cases and Canadians must decide whether to risk putting their passport away, or their bongs away.
Arshy Mann “How will marijuana legalization change the U.S. border for Canadians?”, Macleans (18 September 2018), online: < https://www.macleans.ca/news/canada/how-will-marijuana-legalization-change-the-u-s-border-for-canadians/>
Brandie Weikle “Canadian pot industry workers will be able to enter U.S for pleasure travel”, CBC News (11 October 2018), online: https://www.cbc.ca/news/business/canadian-pot-industry-workers-border-1.4858534
Jeff Hergott “Five Thing You Should Know-Cannabis and Travel to the US” (15 August 2018), online: Wildeboer Dellelce LLP <https://www.wildlaw.ca/resource-centre/legal-updates/2018/five-things-you-should-know-–-cannabis-and-travel-to-the-us/>