Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 21 - Evidence - Meeting of March 19, 2018
OTTAWA, Monday, March 19, 2018
The Standing Senate Committee on National Security and Defence met this day at 1:03 p.m., in order to elect second deputy chair and to begin its examination of the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s borders.
Senator Jean-Guy Dagenais (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, witnesses, welcome to the Standing Senate Committee on National Security and Defence.
Before we begin, I will ask my colleagues to introduce themselves.
Senator Jaffer: My name is Mobina Jaffer. I am from British Columbia.
[English]
Senator Richards: Dave Richards from New Brunswick.
Senator Oh: Senator Oh from Ontario.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator McIntyre: Senator Paul McIntyre, New Brunswick.
[Translation]
The Deputy Chair: I am Senator Jean-Guy Dagenais, the deputy chair of the committee. I will chair the meeting until our chair, Senator Boniface, arrives.
Before we start our work, we have to elect a new deputy chair. Senator McIntyre, do you have a nomination?
[English]
Senator McIntyre: I submit the name of Senator Mobina Jaffer.
[Translation]
The Deputy Chair: My congratulations to Senator Jaffer, therefore. Welcome back. We are pleased to see you and to work with you again.
This afternoon, we are beginning our study on Bill C-45, An Act respecting cannabis and to amend to the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s borders.
In our first group of witnesses, we have Gil Kerlikowske, a former Commissioner of the U.S. Customs and Border Protection, who is joining us by videoconference from Boston, and John Hudak, the Deputy Director of the Center for Effective Public Management in the Brookings Institution. Welcome to you both.
Mr. Kerlikowske and Mr. Hudak will each give their presentations, then they will answer questions from senators. We will start the meeting with a presentation from Mr. Hudak.
[English]
John Hudak, Deputy Director, Center for Effective Public Management, Brookings Institution: Thank you, senators, for the opportunity to speak to you today. My name is John Hudak. I am a Senior Fellow in Governance Studies at the Brookings Institute in Washington, D.C., and a senior adviser at Freedman & Koski, Inc.
I would like to thank the committee for the opportunity to testify on this very important topic. As Canada considers whether to legalize adult-use cannabis nationwide, it faces a series of issues and concerns that in some ways this country has not faced previously.
While there are many other items to address, because of the interest of this committee today, I will focus on two specifically that the committee expressed interest in: U.S. border issues and broader relations with the United States. The latter involves perceptions of Canada by the U.S. government and its people. Canada and the U.S. have long enjoyed positive relations, trade and cooperation. However, some in Canada worry whether legalization could damage that perception in the U.S. and abroad. As an American citizen, I worry too about Canadians’ perceptions of the U.S. given our current political environment in my country. So I am sensitive to those fears and their implications for our countries’ relations.
However, on cannabis, Americans are unlikely to react negatively to Canadian legalization. Nationally, over 60 per cent of Americans support adult-use cannabis legalization in the U.S., and an even higher percentage of Americans believe the federal government should not interfere with states that opt to reform their cannabis laws.
In fact, during the 2016 presidential campaign in the U.S., Mr. Trump argued that adult-use cannabis legalization was a states’ rights issue and that the federal government should respect the choices of states that opt for reform. And although President Trump has surrounded himself with legalization opponents, most notably Attorney General Jeff Sessions, the American public and even the President himself seem unmoved by the political opinions of individuals like the Attorney General.
Further evidence of this stability in public opinion and perception comes from Uruguay. After Uruguay legalized adult-use cannabis in 2013, positive relations with the U.S. continued, and flows of American tourists to Uruguay remained static as well.
In the same way majorities of Americans and most elected officials do not judge their own states for legalizing cannabis, it is unlikely they will judge their neighbours to the north.
Another concern around this issue involves U.S. border officials’ fears about diversion. That is the transfer of legal Canadian cannabis into the U.S. This concern is real and something border officials will react to. However, this is really not a new issue.
U.S. border officials already see the Canadian border as Canadian officials see the American border, as a porous one that risks the transfer of illicit products. Under Canadian legalization, there will be an increased risk of the transfer of small amounts of cannabis for personal use from Canada into the U.S. However, individuals seeking to smuggle large quantities of cannabis are unlikely to make that choice based on the legal status of the substance, nor would the regulated legal market in Canada serve as an effective source of such smuggling supply.
Government officials already have experienced this in the U.S., whether they are airport officials in Denver or Seattle, customs agents in New York inspecting passengers and baggage from the latest flight from Amsterdam, or police officers patrolling near the Colorado-Nebraska border. American law enforcement had been looking for cannabis — America’s most widely used illegal drug — long before legalization was a serious part of the policy conversation.
The best way for Canada to deal with this issue is to be proactive. Designing information campaigns in dispensaries, on roadways near airports and borders, and in airports themselves is an important step. These information campaigns should address how Canadian and U.S. laws work, what penalties there are in the U.S. for bringing product into the country, and how violations could impact future opportunities to re-enter Canada. In addition, placing amnesty boxes in airports or at other key exit points will give individuals crossing into the U.S. additional opportunities to comply with the law and dispose of cannabis.
These efforts will not be perfect, but they will help individuals who are genuinely unfamiliar with policy or will help motivate people to do the right thing. Such a comprehensive effort will also signal to the U.S. government that Canada is serious about preventing cannabis diversion to the south. If this body opts to pass this legalization legislation, the Canadian government should also continue to work cooperatively with their American counterparts to learn from each other about what works and what does not work in preventing diversion across the border in an era of legalization.
Legal cannabis will manage to cross the border illegally. It already does, and it will under a legalization regime. It is the task of this body and this government to act in good faith to minimize the amount that does. Prohibition does not eliminate diversion, yet education and cooperation offer opportunities to limit it.
Thank you for your time, and I look forward to your questions, senators.
[Translation]
The Deputy Chair: Thank you very much for your presentation, Mr. Hudak.
[English]
Mr. Kerlikowske, can you hear me?
Gil Kerlikowske, former Commissioner, U.S. Customs and Border Protection, as an individual: I hear you. Yes, I do.
The Deputy Chair: Mr. Kerlikowske, it will be our pleasure to now hear your presentation.
Mr. Kerlikowske: Thank you. I was asked to be able to answer questions about my former position as Commissioner of Customs and Border Protection on the issue of marijuana, but I was also the police chief in Seattle for nine years.
I think that the concern about large amounts of marijuana entering the United States from Canada is not one that is of particular concern today and will not be one of particular concern with legalization in Canada.
With the fact that 10 states within the United States have legalized marijuana and also the fact that there is so much homegrown marijuana, I think the days of what was called “B.C. bud” and others coming into the United States in larger amounts are very much behind us.
I believe the concern for Canada will be this: people crossing the land border and inadvertently having cannabis in the vehicle. You can imagine some situations in which perhaps parents are in a vehicle, they have marijuana legally but they were not particularly interested in telling their young children or their teenaged children about the marijuana, and they inadvertently forgot about it. Now how do they dispose of it if, in fact, they remember that they have it in the vehicle? How do they dispose of it before approaching that border checkpoint in the United States?
I think the opposite could also be true with teenagers in a vehicle at the age of 18, I believe, as the law states, having the marijuana in the vehicle but not having been particularly enthused about telling their parents. And now they are approaching that checkpoint and that drug has to be disposed of before they get to that border checkpoint.
So I think the previous testimony that would be important is this educational campaign and this information and these warning signs that would be quite important, and the fact that pre-clearance exists in 10 airports in Canada so that you clear United States customs before you ever leave Canada. Those warnings and that information are going to be particularly important.
All that being said, there is certainly the potential for some type of detention or apprehension of someone who inadvertently has that. We’ve seen, for example, with the number of firearms that are allowed to be legally possessed in the United States, the number of firearms that are confiscated at our airports every year by people who forget that they have a firearm in their baggage. You can only suspect what may occur with small amounts of marijuana.
[Translation]
The Deputy Chair: Thank you very much, Mr. Kerlikowske. I agree with your point of view entirely, given that I am a former police officer myself.
[English]
We are brothers of the badge, and I understand your opinion and your situation.
Senator Jaffer: Thank you to both of you for being here and helping us with this legislation. We very much value the relationship we have with the United States and want it to continue for a very long time.
I will give you a summary of where my question is coming from to both of you. From my understanding, it is still illegal federally in the U.S. under the Controlled Substances Act, meaning that U.S. border agents will still have to block Canadian travellers who admit to having consumed cannabis.
Even if Canadians go into states where cannabis is legal, my understanding is that at points of entry under U.S. federal jurisdiction, the federal ban would apply over any state exemptions. I am from British Columbia, and I understand that in the past people who have admitted to consuming cannabis at U.S. points of entry have been denied entry. These people are then forced to apply for waivers that cost hundreds of dollars each time they wish to enter the U.S.
If Bill C-45 legalizes the use of cannabis in Canada, will the U.S. amend its policy in a way that will protect Canadians from being barred from the U.S. for consuming cannabis?
I would like to ask both of you this question, and I would like to start with Mr. Hudak.
Mr. Hudak: It is obviously unclear whether the federal government in the U.S. will move forward with such a reform. My guess, however, is that there would be significant pressure, given a new legalization regime in Canada, to amend those policies in ways that allow Canadians entry into the U.S. while still speaking honestly with U.S. border agents.
It would be an extraordinary moment in a country that now has states that have legalized cannabis, which include about 20 per cent of the American population, to say to a friendly neighbour, no, we won’t reform our laws to reflect the reality of their own. In fact, you could understand a border agent refusing to admit a Canadian to the United States who is obviously intoxicated from cannabis. I don’t think Canadian or American officials would disagree over that. But simply not to admit an individual for having admitted to using cannabis is a hard policy to justify, I think, given the current American political environment. Obviously, though, I think pressure from your embassy in the United States and pressure within the State Department in the United States, once the personnel in the State Department is sorted out, could be quite fruitful.
Senator Jaffer: Commissioner, I would also like you to answer that question, but I think Canadians have to be respectful and, until things are resolved, not take cannabis across the border or not have it in the vehicle. I’m not talking about that. I’m talking about being truthful that, yes, I have consumed cannabis previously. My understanding is that for that you can be banned from going to the U.S., and I would like your opinion.
Mr. Kerlikowske: During the three years that I headed Customs and Border Protection, with over 25,000 Customs and Border Protection officers, the issue of someone being asked about having used or consumed marijuana never, ever reached a point of concern.
There are issues, of course, with addiction. I’m thinking of and talking about addiction to drugs such as opioids, heroin, et cetera, but the marijuana issue never came up. I would very much agree with the last bit of information: I would seriously doubt that for a Canadian admitting to having smoked or used marijuana in some form — medicinal, edible or recreational — under the new law there would be a bar, particularly if you have those serious negotiations with the State Department and those members.
Senator Jaffer: Commissioner, I have another question. As you and I are neighbours — I’m from Vancouver and you are from Seattle — one of the things that comes from the people I represent is the issue of profiling, especially racial profiling and this issue. From your extensive experience, is this something we should be concerned about, or are people who talk to me just being overly concerned about the issue of racial profiling and cannabis, especially once this legislation goes through?
Mr. Kerlikowske: Our data in the United States is very clear that, actually, Caucasians use marijuana at higher percentages and in larger numbers than, in fact, people of colour or minorities.
I don’t see any entanglement between racial profiling and cannabis, but certainly we’re both familiar with concerns and complaints that have been raised in the past regarding racial profiling upon entering the United States based upon the colour of one’s skin.
[Translation]
Senator Boisvenu: My question goes to Mr. Kerlikowske and is about organized crime. As a former Seattle police chief, you have surely had to deal with cross-border trafficking. Marijuana smuggling is often tied in with other kinds of smuggling, such as tobacco or firearms. We know that the trade between Canada and the United States is quite substantial, the proof being that most of the firearms seized in Canada are illegal firearms that often come from your country.
What will be the impact of the legalization of marijuana on organized crime? One of the Liberal government’s objectives is to get rid of organized crime by legalizing an illegal substance. Will organized crime maintain its operations in marijuana trafficking, or in other kinds of smuggling? Trafficking is often interconnected.
[English]
Mr. Kerlikowske: There was no translation. Could I get the question in English?
Senator Boisvenu: I will speak in English for you. I know that your experience is extensive, and you should have experience about organized crime. We know that those who are involved in marijuana production and distribution illegally are most of the time also involved in other kinds of trafficking, such as tobacco and firearms.
As the government wants to legalize marijuana to take out organized crime in the production and selling of marijuana, what do you think about that? Will organized crime still be involved in marijuana, firearms and tobacco, or will this bill eliminate organized crime?
Mr. Kerlikowske: Senator, I can only speak from the knowledge of the two states in the United States that I am most familiar with — certainly Colorado and then my own state of Washington — for legalizing marijuana. It was often proffered that by legalizing marijuana you would eliminate the black market and reduce crime involved in marijuana distribution and sales.
I would tell you that the chiefs of police of the large cities — for instance, Denver and Seattle — would tell you that the black market still exists and that although the sales of marijuana through the legal methods are high, there is still plenty of black market.
Whether or not there is the involvement of the organized crime groups that are also involved in firearms and different types of drugs other than cannabis, or including cannabis, I just am not that familiar with the situation in Canada.
Senator Boisvenu: I have had some communication with a transport company, and we know that between Canada and the United States there are a lot of trucks on the highways. They are a bit upset about their drivers who can smoke or who can carry marijuana if it’s legal in the United States. What will be the impact on truck drivers, on that industry? Also, will the time to cross the border be longer, or what will be the impact?
Mr. Kerlikowske: As for the impact on the transport companies, I don’t know of a transport company that wants any of their drivers who drive those large rigs to be involved in any type of marijuana use — legal, recreational or carrying marijuana — particularly if it’s going to make that truck subject to greater inspection.
I think we are both familiar with the fact that when someone is detained or drugs are found, oftentimes if no arrest is made, in the future, either that company or that particular individual operating that vehicle will be subject to increased scrutiny, which is going to take a greater amount of time.
The owners and operators of those transport vehicles should be advised through your discussions with them, and through the public relations work that will go on as a part of this, to be extra careful to make sure that their employees and their personnel are not engaged in any type of marijuana use or marijuana transport.
Senator Boisvenu: With regard to Canadian tourists who cross the border to the United States — we know that there are a lot of Canadians who go to the United States; it’s such a nice place there — what will be the impact for the citizens that cross the border?
I know at the border we are asked questions such as “Do you have food? Do you have money? Do you have firearms?” Now, I think, they’re going to have another question: “Do you have marijuana on you?”
What will be the impact for the citizens when they cross the border to the United States? Will the time be longer? Is there a risk of having an investigation of their cars? What will be the impact as Canada legalizes marijuana?
Mr. Kerlikowske: If one additional question is asked along with the other prohibited items about things coming into the United States, just as CBSA asks people from the United States about prohibited items, I would not foresee that as slowing down the process.
The difficulty will come whether or not Customs and Border Protection increases or adds additional drug-detection dogs at different ports of entry because there can always be, within a vehicle, residue or something that could end up alerting the dog. That means that that vehicle and those passengers are going to be subject to increased scrutiny.
But overall, my general perception right now would be that this proposed change in Canadian law would not increase the wait times at our borders.
Senator Boisvenu: Thank you, sir.
Senator McIntyre: Thank you, gentlemen, for your presentations. I have a question for both of you.
First of all, Mr.Kerlikowske, my understanding is you were a former commissioner of U.S. Customs and Border Protection under President Obama and also a drug policy adviser to the former president.
Now, we know there has been a change of administration in the United States, and my question is this: What are the U.S. administration’s views on Bill C-45, the legalization of marijuana? To the best of your knowledge, have those views been shared with the Canadian government?
Mr. Kerlikowske: Well, this issue, during the time that I served President Obama, was not really on the table at the clarity and the height in Canada that it is today.
In my recommendation and briefing of President Obama when the states of Washington and Colorado were considering legalizing recreational marijuana, there was a lengthy discussion with the Attorney General, the Vice President and others on what the role of the United States should be. I think it was clear then that because federal law in the enforcement of drugs also includes state law — for instance, in immigration, immigration is in the sole purview of the federal United States government, but in the drug laws, there is the Controlled Substances Act, which also includes states having their own laws. I think that made it a bit more difficult.
As far as Canada goes, this issue was not really a subject of discussion, and particularly small amounts of marijuana by adults was not a subject of a great deal of discussion at Customs and Border Protection during the three years I served as commissioner.
Senator McIntyre: Where do you think the Trump administration stands on this issue? Can you give us your views on that?
Mr. Kerlikowske: I can only tell you what I read and what the open-source information is. The Attorney General has taken a very hard line on a variety of marijuana federal enforcement issues, much different than the previous administration under Deputy Attorney General Jim Cole and under Attorney General Eric Holder.
So I am loath to predict where this could come about. Also, remember that Customs and Border Protection is a separate organization within the Department of Homeland Security, reporting to its own secretary, and of course the Attorney General and the Department of Justice are in another part of the government, so I think some of that will have to be ironed out. Maybe my colleague will be able to fill that in a little bit better than I can.
Senator McIntyre: Thank you, sir.
Mr. Hudak, I understand that you’re the deputy director of the Brookings Institution. I further understand that you’ve written extensively about marijuana law.
You’ve argued that attitudes and norms on marijuana are changing, and you believe that “trial and error” in reforming marijuana laws is essential to build good public policy on this issue. I was wondering if you could elaborate a bit on that, please.
Mr. Hudak: Sure. Thank you for your question. What we have seen in the United States is a real patchwork of laws regarding cannabis. In large part, to the senator’s point earlier, it remains illegal under federal law in all circumstances with no grey area.
States have been left to their own devices to reform what they see as an ineffective drug war that was waged for about 100 years in the U.S. Through that process there have been reforms, first for medical cannabis and then later for adult-use recreational cannabis.
In that process, each reform often is a little bit different than the others that exist and a bit different than the previous ones. So what you have seen in the U.S. is exactly what your question noted, a process of trial and error. There are things that have worked. There are things that have not worked and have required future reforms or re-regulation.
In the states that have been most successful — that is, they have been able to set up a safe, fairly effective system that has not contributed to the types of social effects like public health and public safety effects in widespread ways that were initial concerns — the states that have avoided that have done so because they have been proactive and responsive to the realities of their system.
It’s important to note that, like any area of public policy, cannabis reform is one that drafters and designers do not get right on the first try. They don’t get everything right on the first try, rather. Part of that process, too, is understanding how this new law will operate in the environment, both the policy and the political environment that it will operate in.
Canada will be the first large nation in the world to legalize cannabis. There will be certain outcomes that could not be foreseen, but it is incumbent upon the government then either to allow ministries the flexibility to regulate in areas that can make that law responsive to those realities or to have Parliament step in and be willing not to throw the baby out with the bathwater but to go in with a scalpel and fix what needs to be fixed while letting alone the parts of that system that are operational and functional.
Senator Oh: Thank you both witnesses for being here.
My question for both is the $10,000 limit for crossing the border on both sides. Cannabis has always dealt in cash up here, and according to my friends in Seattle, all cannabis there was still a cash transaction.
We also have home cultivation in Canada. With the home cultivation, every house is allowed to have four marijuana plants, so eventually there will be lots of cannabis available. Some of this will find a way into the United States, or vice versa.
How is this border crossing of the $10,000? Eventually it’s going to be more since it’s dealing in cash.
Mr. Hudak: I think there are plenty of policy reasons why that $10,000 limit should be increased based on inflation, based on relations generally, and cannabis should not necessarily be the motivator for that.
I will say that if you are growing four plants in your home, under Canadian law, you are probably charging way too much for your cannabis if you’re getting $10,000 for it, or you have a really uninformed purchaser. Either you would have to horde harvest after harvest after harvest of those four plants or you’re growing more than your four plants or you don’t have to worry about hitting that $10,000 limit.
So I don’t think cannabis necessarily would put upward pressure on the need to reform that part of policy.
Senator Oh: Commissioner?
Mr. Kerlikowske: And I don’t believe that there will be any close relationship between the $10,000 and the legalization of small amounts of marijuana for adults in Canada.
Senator Oh: Thank you.
Senator Dean: I’d like to follow up, Mr. Hudak, on your comments about what we’ve regarded here as a precautionary approach to potential legalization and reform of cannabis.
The expert task force that advised the government on its approach talked a lot about the precautionary approach, about trial and error, acknowledging that without stepping forward it’s kind of hard to predict what will happen.
One of the examples of that approach that was recommended was that as much benchmarking as possible should be done on the current status before any reforms kick in. So we now have Statistics Canada surveying on use by age, types of use, how cannabis is consumed and price, as it’s aligned to illicit market prices. Health Canada is running its own surveys. University research departments are being funded by the government to benchmark and assess, in real time, the actual use and issues associated with that.
Are these the kinds of indicators of a precautionary approach that your kind of research and work would suggest are appropriate? How does that description of preparedness here sit with you?
Mr. Hudak: I think Canada’s approach in terms of developing early pre-legalization benchmarks is absolutely the best example set forth throughout the world. That includes other countries, but it also includes American states. For that, the government should be quite proud of the work that they’ve done.
One of the real challenges that exist in the U.S. is trying to figure out social public health, public safety and other effects of legalization. Unfortunately, too often those data are politicized rather than analyzed, and the problem is that often you are comparing apples to oranges because something is happening post-legalization in the way that data are collected or even in the way that data are defined. So being able to create those pre-legalization benchmarks is essential to understand the effects of the system.
Governor John Hickenlooper of Colorado, when he is asked about this, whether it’s by media or by other states or other foreign government officials, says one of his top recommendations is to begin collecting data now the way that you believe you will want to collect data then so that you can better understand the impact. For him, he’s usually talking about a state, but for you it’s for Canada. I think the areas that these data are being collected in Canada are on point.
Mr. Kerlikowske can tell you that for a police department, for instance, effective policing involves analyzing and understanding data; and when state or municipal or county officials are not collecting data in a way that is effective, it complicates the ability of law enforcement to do their jobs, in the same way that it complicates the ability of public health officials or other administrators throughout the government to do their jobs.
So, again, I applaud this country for the work they’ve done in this area. It will surely be imperfect. You will find later that there are needs that require different data collection. But in terms of preparedness, no one has come close to what this government has done in that area.
Senator Richards: My question is about the policing in Colorado, Oregon and other states that have legalized it. Are they having a more difficult time now with drug-impaired driving and a combination of alcohol and drug? Is it being policed well, or are they finding more problems?
Secondary to that, has the black market slowed in these states, or is it every bit as much as it was earlier?
Mr. Kerlikowske: Let me mention a couple of things. One is that the State of Washington and the medical examiner’s office for the state have produced some very concerning data regarding fatal accidents and the number of people who tested for marijuana.
That being said, we have very stringent blood alcohol levels to test for alcohol. The ability to test for driving under the influence of drugs is still in great need of additional research and also additional technology that can help do that. There is no particular standard that tells you that a person at a certain time is under the influence of marijuana. You can certainly tell that the person had used marijuana, but within what period? It depends on whether the test was done using saliva or whether the test was done using drugs.
So I would say that’s an issue.
Our former president, George H. W. Bush, a long time ago said something like nothing is ever as bad as it seems and nothing is ever as good as it seems. So for the people who talked about legalization, reducing the black market or ending the black market, essentially talking about this as if it was prohibition, that has not been eliminated, the drug driving.
But let me jump back to the collection of data. I think the collection is important. Both Colorado and Washington have surveyed students. There’s a great deal of information about this. But in Washington state, $4.7 million a day of marijuana, both recreational and medicinal, is sold. In the state of Colorado last year they collected an additional $200 million.
I think a great test for Canada will be that if you have collected all of this pre-data, and then, as some time goes by, you see disturbing or concerning problems, will the country be willing to say that it’s going to have to put in stricter or sterner measures that might in fact then reduce revenue that’s collected? I don’t see Colorado or the State of Washington, regardless of what data shows, turning around and saying, “Well, we’re going to reject that amount of money that we made.”
Also, what are the costs that are not counted? We know about things like driving under the influence of drugs, but what are the costs that are not counted such as the additional number of people who call a 1-800 number and say, “I need help with a drug,” meaning marijuana, or, “I need rehab or therapy,” et cetera? There are a lot of additional costs that are very difficult, one, to capture, and two, to put in perspective, as Mr. Hudak mentioned.
[Translation]
The Deputy Chair: If I may, before we move to the second round of questions, I would like to ask our guests two questions myself.
Mr. Kerlikowske, Canada and the United States have worked very hard to improve the flow across our borders, including with the NEXUS and TSA PreCheck programs.
However, for any given reason, someone can cross the border with a NEXUS card and the sniffer dog can smell marijuana if that person used it two days before. You are a police officer, so you know that marijuana has a strong smell and that it can get right into people’s clothes. Do you believe that crossing the border smelling of marijuana could affect the NEXUS and TSA PreCheck programs? You could have your NEXUS card confiscated.
[English]
Mr. Kerlikowske: I think the test would be if the canine alerts to the marijuana, then the search of the person and the search of the baggage. If no marijuana is produced — and in fact marijuana, recreational marijuana for small amounts is legal in Canada — I don’t see that having an adverse effect or impact on the person as in having their NEXUS card or their pre-clearance being revoked.
[Translation]
The Deputy Chair: Maybe not now, but when people go to renew their NEXUS membership, will they not be more tentative about doing so?
[English]
Mr. Kerlikowske: Again, I could only tell you that I’m not sure that that actually would occur because no violation, no seizure of marijuana was actually made; therefore, I think it would be difficult to enact that and to enforce that, based upon the fact that they were detained to be searched. Remember, people can be put into secondary upon entering the United States for a variety of reasons. But if there’s no violation and if there is no seizure, the mere fact that they went into secondary for additional inspection should not have an adverse impact. That would be my prediction at this point in time.
[Translation]
The Deputy Chair: Here is my last question.
Border services officers sometimes can ask a lot of questions and sometimes very few. That is their privilege. Freely and legally, they could ask Canadians a new question: whether they use marijuana. Could that have any consequences?
[English]
Mr. Kerlikowske: I would think that the asking the question of possession is one thing: Do you possess anything? We’d ask about the firearms, about the amount of currency, et cetera. But asking if they’ve consumed marijuana, in this day and age in our two countries, I would not see that as a particularly efficient use of very finite resources in Customs and Border Protection, and I would doubt very seriously that leadership would say it is an efficient and useful tool to ask people whether they’ve consumed marijuana.
Senator McIntyre: Mr. Kerlikowske, you may have answered this question already in answer to a question raised by Senator Dagenais, but I’ll ask it anyway.
Recently both Canada and the United States passed an act regarding the pre-clearance of goods and persons. The act is entitled Preclearance Act, 2016: An Act respecting the pre-clearance of persons and goods in Canada and the United States.
My question is this: If adopted, what impact, if any, would the legalization of marijuana have on this act?
Mr. Kerlikowske: Senator McIntyre, I apologize. I actually have been out of office well over a year and am just not familiar with that. I’m sorry.
Senator Oh: Getting back to smoking and driving and public safety, what happens if you drink and smoke at the same time? What is the concern for public safety?
Mr. Hudak: The commingling of alcohol and cannabis is extraordinarily dangerous for a driver. We do know that the likelihood of a car accident happening after consuming an intoxicating amount of alcohol is significant. It is lower for cannabis than it is for alcohol, but it is still higher than if an individual is sober.
When people commingle cannabis and alcohol, the effects are not as predictive in terms of that individual’s behaviour. For example, if you consume cannabis, you typically have similar outcomes each time that you consume cannabis, with some variation, of course. If you consume alcohol, you typically are similar under similar levels of alcohol intoxication. Commingling is a real problem. It is something that people certainly engage in.
There is evidence that for some users you will substitute rather than complement cannabis for alcohol, that is, instead of consuming alcohol you will consume cannabis if you want to get intoxicated. But certainly the commingling is something law enforcement takes seriously. Individuals are being stopped for intoxication of both substances. Typically in the U.S., it is much easier to convict a person of driving under the influence of alcohol than of driving under the influence of cannabis, for the reason that Mr. Kerlikowske said earlier: It is very difficult to tie specific levels of active cannabinoid metabolites in the blood to a certain level of intoxication, whereas it is much easier for alcohol. But commingling is certainly a concern that Canadian law enforcement will also have to prepare themselves for.
Senator Oh: Commissioner, any comments?
Mr. Kerlikowske: He’s exactly right. The commingling of the substances or the use of either one to a point of intoxication has dangerous effects.
A very positive thing for American law enforcement is that the federal Canadian government has people with an incredible amount of expertise in these leadership positions, specifically my former colleagues Toronto Chief Bill Blair and OPP Commissioner Gwen Boniface. American law enforcement has tremendous personal and professional respect for both of those individuals, so having them involved intimately, with their knowledge and experience, is a great step forward and is helpful during times that are a bit uncertain.
Senator Richards: This is a bit of an observation. When I was growing up in the 1960s and 1970s, alcohol and marijuana were never separated, really; they were pretty much a companion drug. That’s where the real problem of drinking and driving or drugging and driving comes in. I don’t know how to assess that, but I just thought I’d throw it out there.
Mr. Kerlikowske: Senator Richards, having grown up in that same era, the marijuana that existed at that time was significantly less powerful regarding the THC level than the marijuana that is grown and produced today. As the saying goes in the United States, it’s not your grandfather’s marijuana. It’s an extremely powerful and active substance.
Mr. Hudak: I take your point to be a powerful one that people certainly do commingle. For some people, alcohol and cannabis go together.
The difference today versus what was happening in the 1960s and 1970s is that cannabis, when it is sold, is oftentimes curated. It is not just picked up at a party. It is not just something you get from a friend. But the cannabis industry creates an experience around this. It is in their interest to get you to use cannabis rather than other substances. So there are real efforts within the industry to try to win people over as a cannabis user as opposed to an alcohol user. As part of marketing that experience, the cannabis industry has taken steps to try to make individuals consistent, not just in their use, but in the experience that they’re getting out of that use. Alcohol commingling can dampen or harm that for the industry, and it’s something, while it is not certainly true for everyone, that some people are responsive to as consumers.
[Translation]
The Deputy Chair: Mr. Hudak, to add to what you have just said, we know that, for some, marijuana is the gateway to harder drugs.
Do you have access to any data in American states where marijuana use is legal, that would show us an increase in the use of stronger drugs?
[English]
Mr. Hudak: There is certainly a relationship. Individuals who use stronger drugs oftentimes have used cannabis at some point in their lives. However, most cannabis consumers never use harder drugs. When you look at usage rates in the United States for cannabis versus stronger drugs, those usage rates differ dramatically. So we do know that what is often called the gateway effect, that is, that a user of cannabis is then somehow chemically induced into using harder drugs through addiction or some other process, has been disproven.
However, we also know that typically that gateway effect runs through the source from which an individual gets cannabis. For an average drug dealer, cannabis has a low profit yield. Other products have higher profit yield. So it is the incentive of that drug dealer to graduate a cannabis user from cannabis to heroin or methamphetamines or something like that. There’s nothing chemical or biological about cannabis that would predispose people to using a harder drug, and the fact that the vast majority of cannabis users ultimately do not use harder drugs demonstrates that.
In a legalized market, when you are selling cannabis in a dispensary or shop, and only selling cannabis in that shop, that will help ameliorate quite a bit of that gateway effect, if the gateway effect does run through a dealer who is incentivized to graduate an individual to harder drugs.
[Translation]
The Deputy Chair: Mr. Kerlikowske, Mr. Hudak, thank you for your testimony. It will be very useful as we examine the issue of legalization of marijuana in Canada.
We now welcome Len Saunders, an attorney at law with The Immigration Law Firm.
[English]
Welcome to the committee, Mr. Saunders. I am sure you have a presentation. We will hear your presentation, after which you will receive questions from senators. Thank you so much.
Len Saunders, Attorney at Law, The Immigration Law Firm, as an individual: Thank you, senator. Let me just quickly explain my background, who I am, what I do and why I think my testimony here today is going to be helpful to fellow Canadians when marijuana is legalized in Canada.
I am actually a Canadian myself, even though I practise U.S. immigration law. I have been licensed for almost 20 years. I have been practising at the Blaine port of entry, which is in northern Washington state, just south of Vancouver, for 15 years. When I first started practising 15 years ago, right after 9/11, I would maybe see, once or twice a year, a situation where someone admitted to smoking marijuana and was denied entry to the U.S.
Marijuana was legalized in Washington state about five years ago. Washington was one of the very first states, along with Colorado, where it was legalized. Until recently, it was the only border state that legalized marijuana.
Three blocks north of my office, where the U.S. border is, I started seeing more cases of admission to marijuana usage. It went from one or two cases a year to probably one or two cases a month where someone would call me and say that basically at some point during an attempted entry to the U.S., the question would come up whether the person had used marijuana either recently or in the past, which could go back 40 years.
Now, I see one or two cases a week where people call me and say, “I was just recently denied entry coming to the U.S.” Most of these people are not coming to the U.S. to buy marijuana, which is legal in Washington state. They are coming to vacation and to do business. For me right now it’s a booming business, which is unfortunate because I look at myself and I think I should be helping people immigrate to the U.S. and get work visas, not spend thousands of dollars after being interrogated at ports of entry, admitting innocently to smoking marijuana — and these are usually not just quick questions.
Canadians are taken into secondary inspection. They’re basically read a series of questions, which U.S. Customs and Border Protection has fine-tuned over the years to get the person to admit that they understand that marijuana is illegal in the United States and it is also illegal in Canada. So it doesn’t matter where they smoke it. They’re basically turned around, told to go back to Canada and told they are inadmissible for life. This is a lifetime ban.
I was fairly optimistic with the Obama administration with regard to the legalization of marijuana federally, like what apparently is going to happen in Canada. With the new Trump administration, I can’t see it being legalized federally in the United States in the foreseeable future.
People say to me, “Why are these officers asking these questions? Why are they denying entry to Canadians?” They’re merely doing their job. Their job is to enforce federal immigration laws. Federally, in the United States, marijuana is illegal.
Most Canadians will drive into Blaine, where I work, and will see two or three marijuana shops with signs that say “Canadians welcome.” They take Canadian cash. I think for our local marijuana shop, which is two blocks south of the border, 90 per cent of its clients come from Canada.
Canadians frequently buy marijuana in the U.S. What I see, when it gets legalized in Canada, is that the question is becoming more common at the border. U.S. Customs and Border Protection officers are going to be asking these questions more frequently because they’re going to know it is now legal in Canada.
I have read statistics that 40 per cent of Canadians, when it becomes legal in Canada, will buy marijuana. That means that 40 per cent of Canadians technically could be deemed inadmissible to the United States.
When Trump talks about building a wall on the southern border, I see a wall on the northern border for Canadians because of marijuana. Adam contacted me and wanted to know whether there was a thickening of the border. There’s a brick wall going up on the northern border for Canadians if they answer truthfully whether they have smoked marijuana.
I have been quoted mostly on the West Coast— CTV News, CBC News and Global News — and this has been going on for years. The eastern media picked up on this a year ago and were shocked to hear that a mere admission to smoking marijuana results in a lifetime ban.
I am trying to warn Canadians. Quite often I’m asked, “What should the person do? Should they lie at the border?” As an attorney, I can’t advocate for people to lie. What I tell them is this is not a question that you are bound to answer.
If you have been charged or convicted in the past in Canada for marijuana use, you have to answer yes. If you have marijuana on you, and they ask you, you have to answer yes. But if you smoke marijuana recreationally or buy it recreationally in Canada, you are under no obligation to answer that question at the border.
But what they do is they interrogate you. They tell you that if you don’t tell them the truth, they’re going to do a drug test on you. They can’t do that. They tell you they’re going to do a lie-detector test. They can’t do that. They tell you they will hold you indefinitely or possibly arrest you for not telling the truth. They can’t do that. I see this intimidation. People eventually break down and they admit to it. So these people become a client for life.
A great example— I have asked for his permission to tell you his story— is Ross Rebagliati. I’m sure everyone in this room knows who he is. I got a call from Ross just over a year ago. I’m in my late forties, so I watched him win the gold medal 20 years ago in Nagano. When he called me, he said he needed a waiver. I said, “Ross, you have never been convicted of marijuana possession.” He said that shortly after the Olympics, when he went on the “Jay Leno Show,” he admitted to Jay Leno he had smoked marijuana.
So Ross has needed a waiver for the last 20 years. So there’s his fee payment, US$585. That’s getting chose to C$1,000. That’s what waiver approval looks like. After paying almost US$600, this is his waiver. It is good for five years.
Most Canadians, when they get a waiver approved after admitting to smoking marijuana, will get a one-year waiver, and then a two-year waiver and maybe a three-year and a five-year waiver. He got a five-year waiver because his issue happened 20 years ago.
So Ross is a great example of someone in the system. He will be in the system requiring a waiver for the rest of his life because he admitted to using marijuana on the “Jay Leno Show.” That’s just the tip of the iceberg on these cases.
I’m probably filing 200 to 250 waivers a year for Canadians right now. That’s just little me in Blaine. I’m a sole practitioner. I’m not at a huge law firm. So you take all the attorneys across the country, either in the U.S. or in Canada who are U.S. immigration attorneys, and there are thousands of Canadians in this situation. So my concern is that, yes, it gets legalized, but what are the cross-border implications?
Here is another example. An individual went to apply for an E-1 visa. E-1 visas are Treaty Traders. You are selling your goods or services. A Canadian citizen selling his consulting services to the marijuana industry in the United States, not only was he denied his visa, his investor visa, he was deemed inadmissible for life as someone who is aiding and abetting the illegal drug industry.
So any Canadian who wants to get involved either in Canada or in the U.S. in the marijuana industry, once again, will have a lifetime ban. That is the U.S. Department of State doing that. So we have examples for CBP at the border, Homeland Security and the State Department. The same law, federal government.
I would love to take any questions.
[Translation]
The Deputy Chair: Thank you very much, Mr. Saunders. Thank you for your presentation. The first question will come from our deputy chair, Senator Jaffer.
[English]
Senator Jaffer: Thank you for being here, Mr. Saunders. I follow what you do carefully. We are neighbours as well with your law office in Blaine.
What you say is very different from what our parliamentary secretary is saying. In your presentation, you spoke a little about this. The challenge many people have is about being honest. You want to be honest with authorities.
Your position on whether to disclose cannabis usage differs significantly from our Parliamentary Secretary to the Minister of Public Safety. Unlike the parliamentary secretary, you believe that disclosing past marijuana usage at the port of entry is dangerous and it could have you barred for life.
You gave examples. Of course, if you have just smoked marijuana, that is different. But if I understood you correctly, recreational use some time ago doesn’t have to be mentioned. You have also said that if U.S. officials ask Canadians about their past marijuana use, they are not obligated to answer.
Would a Canadian suffer consequences for withdrawing their application for entry at the port of entry if they refuse to answer?
Mr. Saunders: The worst thing that can happen, if you don’t answer the question, is you can be denied entry. I tell clients you could try back the next day, a week later or a month later. Chances are you will probably get a different officer who won’t ask the same question.
What most people have to understand is not every officer asks this question. It is discretionary. But if you are asked this question, I have always told clients, “You are under no obligation to say yes. It is not a question that is required to be answered at a port of entry.”
You are not lying if you say nothing. If you have been charged or convicted of an offence, yes. If you are found in possession of marijuana, yes. But if it’s just a random question, I tell clients the worst thing that could happen if you say nothing is just a simple denied entry.
Senator Jaffer: I have had people come to me and say they want to withdraw their leave and come back the next day at another border. As you know, there are a number of places you can cross the border to Washington from my province of B.C. But sometimes it’s marked in the computer and they can’t go back.
Mr. Saunders: When you get denied entry, usually what happens is there’s a “lookout pot” put on you. CBP will put a lookout on your profile. Chances are, whether you go to the same port of entry or a different one, you will be sent inside. But most officers don’t ask this question, and most officers aren’t going to follow through on a second entry. Some do.
Senator Jaffer: I have so many questions. I will ask one more question now on pre-clearance. You mentioned going to the border. What if you are asked these questions at pre-clearance?
Mr. Saunders: The new law allowing Americans more powers at pre-clearance actually concerns me. The reason it concerns me is that it is a slippery slope allowing the Americans more and more rights in Canada. It allows the Americans to interrogate individuals indefinitely. It allows the Americans to carry weapons at airports. It allows the Americans to give expedited removals — five-year bars — which they can’t do now. I have turned the table and asked would Canadian officers be allowed to do that in the United States? I don’t think ever.
Right now what I tell clients is if they are at pre-flight clearance and they run into any problems, there’s an RCMP officer sitting there, right beside secondary. At any point, you can withdraw your application and say, “I want to speak to that RCMP officer,” and you can leave. If this happens at the border, you cannot leave. They will tell you that you can withdraw your application for entry; that’s not correct. They will hold you, but not indefinitely, until they get you to admit to what they want. Right now at pre-flight clearance there are fewer powers.
Senator Jaffer: When the pre-clearance bill was being discussed here, I was very much against it. Unfortunately I couldn’t see it through. I was against it because in that bill it says that the RCMP officer may not be sitting in that corner.
Mr. Saunders: I agree with you.
Senator Jaffer: Also, if the RCMP officer is not available, then the American authorities can still continue with the questioning.
Mr. Saunders: Exactly.
Senator Jaffer: So what you are saying is very comforting.
Mr. Saunders: But it’s too late. Because my office is so close to Vancouver I don’t fly out of Seattle, I fly out of Vancouver. My office is 20 minutes away from the Vancouver airport, even though it’s in the U.S. Every time I go through pre-flight clearance I take comfort knowing that there’s an RCMP officer sitting there for my clients in the future. I like that.
[Translation]
The Deputy Chair: Mr. Saunders, as you said, marijuana will be produced by companies that of course employ hundreds or thousands of people. As I understand it, those workers could have difficulty going through customs for their holidays, for example, because they work for a marijuana producer.
My concern is about the expedited border clearance programs, such as NEXUS. Participants in programs like those go through Canadian and American customs and often, even though they have “trusted traveller” status in Canada, that status is not recognized in the United States. Situations like that occur frequently.
Can you clarify that for us?
[English]
Mr. Saunders: Let me first address, from the last hour’s session with the former CBP commissioner, NEXUS and marijuana. If you admit to smoking marijuana, you will lose your NEXUS card for life. If they smell marijuana on you, you will lose your NEXUS card for life. If you admit to it, you will lose it for life. That includes anything related to marijuana or working in the industry. When he mentioned that they have other issues to deal with, that has been my comment, and that’s what they should be doing. But what’s actually happening is if anyone has any involvement with marijuana or the smell on their car or their person, they will lose their NEXUS card like that, and there’s no way of getting it back.
With regard to people who work in the industry, my concern has been Canadians investing in the marijuana industry in the United States or supplying greenhouses or land that they’ve purchased. I’ve told people you can’t do that because it’s illegal federally. In Canada, when it gets legalized, my feeling is anyone involved in that industry is subject to being denied entry into the United States.
I’m a member of what’s called the American Immigration Lawyers Association, and I’m heavily involved in the Washington state and the Canadian chapters. The Blaine port of entry is the biggest port of entry west of Detroit. It is the third busiest on the northern border. It is a large port of entry. We had a meeting there with about 20 immigration officers and attorneys, and I brought this question up at the very end of the meeting: When marijuana is legalized in Canada, will you still be enforcing federal laws with people involved in that industry? And they said yes.
I frequently get these questions from people who want to invest in the industry or have invested in Canada. I tell them you’re subject to possibly being denied entry if that question comes up. What do you do for a living? What kind of business are you going down to invest in or possibly having meetings with producers? Anything related to marijuana at the ports of entry is the kiss of death.
Senator McIntyre: Thank you, Mr. Saunders, for your presentation. As you’ve indicated, you are an immigration lawyer practising in Washington state. You have represented Canadians arrested or denied entry into the United States for marijuana possession or for admitting marijuana use. Therefore, you are in a good position to answer some of our questions.
You may have covered some of this ground before, but despite cannabis being legal for medicinal and/or recreational purposes in some U.S. states, it remains illegal, as you’ve indicated, under U.S. federal legislation. Cannabis is legal in a number of U.S. states, such as Alaska and Washington, which have land borders with Canada.
I am interested in the situation regarding land borders. In your opinion, would Americans from those states be allowed to cross the Canadian border with cannabis bought legally in the United States? I want you to stick to the land border situation.
Mr. Saunders: Can Americans cross back and forth?
Senator McIntyre: Yes.
Mr. Saunders: I’m also an American citizen; even though I was born in Canada, I’m a naturalized American. I could purchase marijuana in Washington state and take it into Canada once it becomes legalized here, with no repercussions. If I were to bring it back into Washington state, where it is legal, it would be seized. It would be seized, but because it’s not illegal in the State of Washington they would just destroy it unless it were over 30 grams of marijuana. If it were over 30 grams, then I would be prosecuted federally. Colorado is not a border state and you technically can’t take it between states, but I’m assuming people do.
It’s interesting because our local marijuana retailer in Blaine thinks that when marijuana gets legalized in Canada it’s not going to slow down his business; it’s going to make it busier for him because he thinks, just like gas, milk, cheese and eggs, it will still be cheaper in the U.S. to buy it. So he expects many Canadians to come down, purchase it and then legally take it back to Canada.
Senator McIntyre: I want to clarify this with you: Assuming marijuana is legalized in Canada, how do you think this is going to work with the U.S. land borders with Canada? Do you think that there will be no problem at the pre-clearance, for example?
Mr. Saunders: No, it’s going to be worse.
Senator McIntyre: It’s going to be worse?
Mr. Saunders: I think it’s going to be way worse. I think the Americans are going to be asking these questions more because they know you can buy it legally in Canada. And the example was made with the last panel. What happens if someone leaves it in their car by accident and it’s found?
Let’s say I was living in Vancouver and one of my kids bought it legally. They’re in their early twenties and they leave it in their vehicle or a friend borrows your car. If it’s found in your vehicle entering the U.S., all it takes is reason to believe. You don’t have to make an admission to be deemed inadmissible to the U.S. Reason to believe you are involved with illegal drugs is all that it takes for reason to believe. I’m sure a lot of Canadians will have it in their vehicles because they won’t be walking to the local marijuana shop. They will leave it in their back seat or glove compartment, and if it’s found at the ports of entry it’s going to create lifetime bars, just like admitting to it.
Unfortunately, the ramifications for legalizing marijuana in Canada are the consequences for Canadians entering the U.S.
Senator McIntyre: In your opinion, the United States will continue to deny entry to Canadians who admit to having smoked marijuana or having marijuana in their possession, even if cannabis becomes legal in Canada?
Mr. Saunders: Absolutely 100 per cent.
[Translation]
Senator Boisvenu: You are explaining the unanticipated impacts, especially on young people, who often indulge in careless behaviour.
My first question is general in nature. In your experience with young people who have experienced problems with American customs, by legalizing marijuana, has the Canadian government underestimated the impact on the public and on tourists crossing the American border?
[English]
Mr. Saunders: Absolutely. That is my concern. You mentioned young people. The typical person I see getting denied entry is not a business traveller in a suit and tie. It is a younger Canadian, in their late teens or early twenties, who basically is going down to a concert in Seattle or going on a road trip with their friends. I see it every day. Young Canadians are calling me and saying, “I was intimidated by these border officers. I figured that if I told the truth, nothing bad would happen.”
I see that increasing substantially when marijuana is legalized in Canada because I honestly don’t see anyone putting out the warning signs. I was in India on a case in September. Even though I live in the U.S., I follow the Canadian news extensively. Ralph Goodale, I think his press secretary, was asked on a Sunday morning Ottawa news show if a Canadian is stopped at a port of entry and asked whether they have used marijuana when it becomes legalized what should they say? He said you need to tell the truth. Nothing will happen other than being denied entry.
I called the media when I was in India and said, “You need to follow up on this. He’s not telling the whole truth here. Yes, that person will be denied entry, but they will receive a lifetime ban. It is a financial issue too.”
[Translation]
Senator Boisvenu: In the current bill, one clause really floored me, if I may use that expression. We are going to allow young people from 12 to 17 to possess 5 grams of dried marijuana or 25 grams of fresh marijuana. We know that kids often travel with their parents during the summer, to go to Old Orchard or somewhere by the sea. Those kids may carelessly have a joint or two with them. Canadian law will allow that.
What will be the impact on the parents when they cross into the States and American customs officers find their minor children in possession of marijuana without them even being aware? In Canada, it will be legal to have a certain amount of marijuana.
[English]
Mr. Saunders: If you are a minor for immigration purposes — that is, under the age of 18 — and you admit to smoking marijuana or they find it on you, that’s not a lifetime ban. You have to be an adult for immigration purposes. If the person is under the age of 18 there are no long-term consequences. For the parents, they could say where did the money come from? The money came from the parents. So the parents are now aiding and abetting someone who is purchasing illegal drugs for immigration purposes.
It is not very hard to go from the minor to the parents by making these inferences.
[Translation]
Senator Boisvenu: So, there can be repercussions for the parents?
[English]
Mr. Saunders: Absolutely.
[Translation]
Senator Boisvenu: A survey, done in Canada, I believe, found that 40 per cent of people admit to having used marijuana. Is that correct?
[English]
Mr. Saunders: No. I read somewhere about a year ago that when it becomes legalized in Canada, the estimates are that roughly 40 per cent of Canadians will purchase marijuana. That was something I read about a year ago. In my mind, that means potentially 40 per cent of Canadians could be deemed inadmissible to the United States.
[Translation]
Senator Boisvenu: So, compared to the current situation, where it is estimated that 30 per cent of young people from 18 to 35 use it, it is an increase of 25 per cent, in theory. That is quite a significant increase.
[English]
Mr. Saunders: I guess so, but I’m not good at guessing here.
[Translation]
Senator Boisvenu: Would it have been preferable to decriminalize, rather than legalize, marijuana, observe the medium-term effects, and look at legalization later?
[English]
Mr. Saunders: My personal opinion, living in Washington state, which has now had legal marijuana sales for five or six years, is that I honestly think the Canadian government has done everything right here, the way they have legalized it from the federal government down. That’s the way the Americans should have done it.
My concern is there’s been no public awareness or information on the ramifications for Canadians entering the United States when it becomes legalized.
I’m not criticizing the Canadian government. From what I have seen, they have done the right thing. They have taken the right steps, doing it nationwide. Unlike this patchwork effect in the U.S. which makes people, okay, in this state you can do it, in that state you can’t, but the federal government says ultimately no.
I’m still doing lots of waivers. Most of my waivers used to be for people with criminal convictions. That is, old marijuana possession convictions, even minor amounts. I think decriminalizing it is smart. For someone being caught with a minor amount of marijuana 30 years ago and having to pay that fee of $585 and attorney’s fees if they wanted to hire a lawyer didn’t make sense.
Hopefully, with it being decriminalized and being legalized for recreational use, these issues won’t come up for border crossings unless people admit to it.
[Translation]
The Deputy Chair: You say that the government has done good work in preparing for legalization. However, by not being concerned for what will happen on the long border between Canada and the United States, do you believe that it would have been preferable to take some time to study the impact of legislation?
You are telling us that legalization is perhaps the right thing to do, but we have not paid enough attention to the impact, including when crossing the borders. I would like to hear your comments on that.
[English]
Mr. Saunders: This is why I have tried to be so public by going to the news and telling reporters of the stories. Ross Rebagliati’s story was in the news. Jessica Goldstein’s story was in the news, as was Matthew Harvey’s and Alan Ranta’s. I can go on and on. These are clients who have said you can tell my story in front of the news because I don’t want other Canadians to be caught in this situation. I have hundreds, if not thousands, of other clients who don’t want to go public because they’re embarrassed by this. They’re embarrassed by what happened at the port of entry.
These are not just young snowboarders, these are older people. Recently, a Canadian snowboarder was going down to her winter residence in Arizona in the fall and they got her to admit that she had smoked marijuana in 1982. What was the benefit of that? She was denied entry. She was so angry she sold her house. She said she’s not going to contribute to the U.S. economy anymore. A lot of people say that.
But it then comes down to the fact that people need to travel to the United States for recreation, such as Disneyland with their families. They need to go to weddings and so forth. It is interesting because not only do I see Canadians being denied entry into the U.S. but I see a lot of Americans being denied entry into Canada. Because my office is so close to the border, every day I see one or two Americans who come into my office and they have been denied normally because of a DUI. They come into my office, and they’re angry that the Canadian government has denied them entry. I look at it and I go, what’s worse? Being denied entry into the U.S. because you admitted to smoking marijuana or being denied entry into Canada because you have driven intoxicated? That is way worse. The Canadian government gets it when it comes to admissibility issues; the Americans don’t.
Even the commissioner who was speaking earlier, I don’t think he sees what happens on the front lines. I’m on the front lines. I’m there every day, crossing back and forth over the border, to see clients in Canada, to go to the border to file waivers. I’m the one who sees how the policies are actually working. They’re not working in favour of Canadians right now. Regardless of what the Americans tell you, I beg to differ.
Senator McPhedran: Mr. Saunders, welcome. It is good to have you here. I have to say, I wish we had had you here when we were discussing Bill C-23, the Preclearance Act, 2016. It sailed through this committee and the Senate, and most of those who spoke about it, including key witnesses here, referenced convenience, essentially, for business people in suits and for those in Canada lucky enough to go on vacation and own homes in warm places.
While I’m sure that convenience is now secured for those folks, what I would like to do is come back to Senator Jaffer’s questions and explore with you a little more the seriousness of the impact between Bill C-23 being adopted and Bill C-45. So bear with me; I have a couple of parts to my question.
I would like to remind you that we’re talking about the impact of Bill C-23 being Canadian lawmakers giving away Charter rights of Canadians. That’s what happened with Bill C-23. You have made some reference to it, but I want to go into a little more detail because of the impact of Bill C-23 and Bill C-45, particularly on young Canadians. I’m very concerned. I think this is going to be an avalanche that is going to limit lifelong opportunities for many young Canadians.
We are not just talking, in a pre-clearance situation, of being able to no longer walk away. That’s true. It is also true that an American border guard can strip-search a Canadian on Canadian land even when the Canadian guards say, “No, that’s not necessary.”
The protections you have been describing that you have seen in your practice all these years are gone.
Mr. Saunders: Until recently, if I thought there was a potential issue with someone entering the United States in the Lower Mainland of Vancouver, I would send them to the airport because I knew, always, that there was a way for that person to extract themselves from that interrogation. People would say to me, “But you are on U.S. soil when you are there.” I say no, you are not. That’s Canada; that is Canadian soil. Those officers have no weapons on them, and they have limited authority under U.S. immigration law because they’re in Canada.
That now is stopping. That’s my concern.
Senator McPhedran: Let me also ask whether in your practice you would have, perhaps, an additional level of concern in racialized situations.
Mr. Saunders: What do you mean by “racialized”?
Senator McPhedran: Those who are trying to obtain entry to the United States and are visibly or in some way can be identified as not looking like you.
Mr. Saunders: I don’t see that so much. What I see is the profiling of someone who — the whole marijuana thing, that is the profiling. In my practice, I honestly don’t see racial profiling at the border. I’m happy to say that.
You have to remember that a lot of the officers are themselves immigrants, like me, but they’re also visible minorities. They have hired a lot of Sikh officers, especially in the Vancouver area, or at least northern Washington state, Muslim officers, and Chinese, so they can speak the language.
I don’t see so much profiling. What I see is that the techniques or the powers they can use at the border have now moved inland into Canada, and that’s my concern.
Senator McPhedran: The last part of my question refers to Part 2 of Bill C-45. This is where you can get a ticket for a minor cannabis offence. Those provisions are in Part 2 of Bill C-45.
Do you have any concerns about receiving a ticket for a minor cannabis-related offence impacting admissibility to the United States?
Mr. Saunders: As I was saying earlier, if you are under the age of 18, possession of marijuana or admitting to using it are not grounds of inadmissibility. The only time a minor can be denied entry to the U.S. is if they have been convicted of trafficking. Let’s say they’re at their high school, and they’re a minor, and they sell marijuana to someone and get convicted of trafficking. That is considered an aggravated felony. That’s a ground of inadmissibility.
But it doesn’t take an officer to see that in the system, because when you get a Canadian pardon or any time you have been arrested, you have an FPS number. It’s always in the system there. New stuff shows up because Americans have access, once again, to Canadian databases. It doesn’t take a lot for an officer to say, “You were 16 years old. You were ticketed for marijuana possession.” Now the individual is 19 or 20. They could say, “Do you use it now?” It doesn’t take that jump very far for the person to say, “Yes,” and then now they receive that lifetime ban.
Senator McPhedran: With legalization under Bill C-45 or not, would you stand by the concerns you articulated about the inadmissibility and the kind of questioning that’s going on now and the problems that you are seeing now? Legalization is not going to take away those problems, but are we hearing from you that it is actually going to exacerbate the situation significantly?
Mr. Saunders: I could not get a direct answer from any CBP officer— senior, junior, anybody— on whether someone who bought marijuana legally in Canada when it becomes legalized, or has smoked it when it becomes legalized, would be deemed inadmissible to the United States. It wasn’t until two weeks ago that I had two senior officers at the Blaine port of entry say they will be deemed inadmissible. That’s the first time I got a straight answer on that question. And I have been asking that question for probably four or five years.
Senator Dean: What I’m hearing, Mr.Saunders, is that this issue has been going on for a number of years in an accelerating way, this issue about what people say and the results of that at borders.
It clearly wasn’t treated by potential cannabis reforms in Canada, although that might add to a direction that we’re already on in terms of border experiences. I sense that what you are saying is that we need to provide Canadians who are crossing the border with better advice on the nature of that border experience and the implications of the way that they might answer some questions.
Second, I’m hearing you say clearly that in a broader perspective, you think the Government of Canada has the policy prescription right in terms of cannabis legalization and reforms. I presume that that is because the additional harms that might result incrementally, over and above those that you have discussed, have to be counterbalanced against what we know about the harms of cannabis use in the country, the impact of criminalization — you would know about this as well — and the many problems associated with the massive illegal market.
In terms of relative risk, it goes back, I think, to Senator McPhedran’s question. I take from your testimony that you think the policy prescription is right in terms of legalization and strict regulation of cannabis in Canada, but we certainly need to be more aware, and we certainly need to be communicating much more effectively to Canadians approaching and crossing the border their rights and responsibilities, and their access to support from RCMP officers.
Have I summarized this correctly?
Mr. Saunders: Exactly. From my experience, I live in a state that has had legalized marijuana for five years. There has not been a big social epidemic of druggies and stuff. You can buy it two blocks from my office.
What I want the Canadian government to do is one of two things: I want them to tell Canadians that they could have serious implications entering the United States once it becomes legalized. Also, you need to get a direct answer from the U.S. government on what they’re doing, because they give wishy-washy answers on this issue. They will tell you, “Oh, we’re studying it,” or they’re doing this or that.
Their officers are asking these questions, and they are creating lifetime bans.
The commissioner who spoke earlier, I don’t think he realized, like when he talked about NEXUS and not losing your card; I would love it if it was like that. I have had hundreds of people call me over the years who have lost their cards just because a dog has smelled marijuana in their car. That’s all it takes.
I would love the American government to get back to you with a straight answer. I don’t know who would give it to you, but a straight answer. If a Canadian citizen admits to smoking marijuana at the border, what will you do? Because they’re violating U.S. immigration laws.
Senator Dean: Thank you.
Senator Oh: I will just follow up on an earlier question. Has any U.S. officer or congressional representative cautioned Canada on its plan of legalizing marijuana?
Mr. Saunders: Has cautioned who?
Senator Oh: Has a U.S. official representative or congressional representative cautioned the Canadian government on the impact on legalization of marijuana?
Mr. Saunders: About six months ago, I saw a coalition of Democratic senators or Congress members who sent a letter to Jeff Sessions cautioning about the implications of denying foreigners — not just Canadians but foreigners — access to the United States based upon admission to smoking marijuana.
I have seen it happen; you don’t have to be Canadian. You could be a German citizen seeking entry. Let’s say you fly into Colorado and they ask these questions. So these senators or Congress members brought it up to the Attorney General, but I don’t think any action was taken.
People aren’t seeing it because they’re not on the front lines. I’m on the front lines. I’m seeing this every day. When I tell people they have a lifetime bar, they’re like, “But it’s legal in Washington state; but it’s going to be legal in Canada.” The problem is there’s this thin line between the state and the province, and this is going to happen in Eastern Canada, Niagara Falls, Buffalo and Detroit. What I have been seeing as a snowball effect on the West Coast is going to start happening here — guaranteed.
Senator Oh: Do you think that for our government, the complete lack of extensive public education on border crossings — these are important issues, affecting, as you say, all ages of Canadian citizens?
Mr. Saunders: Absolutely. It will affect everybody, whether they are business people investing in the industry or just anyone who is buying marijuana recreationally.
Let me give you an example: Prime Minister Trudeau. He’s not admissible. He’s admitted to smoking marijuana as an MP. How can he travel to the U.S.? I asked some officers that. Because he travels on a diplomatic passport. The second that Prime Minister Trudeau is no longer Prime Minister or no longer travelling on a diplomatic passport, he is inadmissible to the United States. That’s a great example.
Senator Oh: To take it one step further, if Canadians travel to Indonesia, Malaysia, some of the Southeast Asian countries, anything — marijuana — anything, you get hanged over there.
Mr. Saunders: But it is legalized here and in many states. That’s why people find it ironic when they are given a lifetime ban.
Senator Oh: When you travel to other parts, overseas, our citizens, young people —
Mr. Saunders: That’s not what happens in Canada or many states. That’s the problem. Because people have this false sense of security travelling over the border and telling officers that they have used marijuana. That’s the problem.
Senator Oh: I’m talking about when you are going abroad.
Mr. Saunders: I understand that.
Senator Oh: You travel to Indonesia. Last year, they hanged six Australians who were in drug trafficking.
Mr. Saunders: But these aren’t drug traffickers. These are people who are going to be buying marijuana legally, recreationally, in Canada and then be subject to lifetime bans. That’s my concern.
It is interesting because a lot of my waiver clients have criminal convictions and they can travel anywhere else in the world because there’s no access to CPIC. The Americans have CPIC, and the Canadians have access to the FBI, going back and forth. And so it is interesting because you think all of these cross-border agreements actually make travel harder because the Americans can see someone who has a marijuana conviction from 1975 because the Canadians, once again, have allowed access to it.
Senator Oh: A lot of the country doesn’t recognize that. Legalizing it in Canada doesn’t mean you are allowed to use it somewhere else.
[Translation]
The Deputy Chair: I am sorry, Senator Oh, but I am going to have to stop you. I believe that Senator Richards has a question, as do four other senators. Please make your questions and answers short. I am sorry, Senator Oh, but we only have five minutes left.
[English]
Senator Richards: I have a comment. I don’t wear a suit when I go to the States, and I don’t have property down there, but I would far rather go through Toronto pre-clearance than Newark, New Jersey, especially when I have a chance of getting into trouble.
What remedy do you suggest for this? What you are saying is rather an awful situation that could happen especially to young kids. It seems like we’re going pell-mell through this, and it will be legalized in a couple of months. A lot of young kids I know in college smoke recreationally, and they’re a hundred miles from the border. Do you have any recommendations except warning them about this or talking to the United States congressmen about it?
If it’s going to be that dire, then there’s going to be a real problem; isn’t there?
Mr. Saunders: I agree. And that’s why I have been on the news networks numerous times — dozens of times — over the last five years, warning people: This could be you. I feel like I’m the only one.
I shouldn’t be warning. I should be hoping for more business, but I’m trying to help fellow Canadians get out of this, saying I understand if you have a criminal conviction you need a waiver, but it is silly to bar someone for life because they have admitted to smoking marijuana.
It is public education, but the Canadian government needs to contact the U.S. government and get a straight answer on this.
Senator Richards: What about people from the Netherlands? It has been legal there for a generation. What problems have they had coming in and out of the States? Are there statistics on that?
Mr. Saunders: I have never seen a case like that because I deal mostly with Canadians.
Senator Richards: Thank you.
Senator Jaffer: From what you have been saying, obviously, our government also has to do a very wide awareness campaign to Canadians that these are the consequences they will face. You would agree with that; right?
Mr. Saunders: Yes.
Senator Jaffer: Besides working with the U.S., which might be more difficult.
Senator McPhedran asked you this, but it is no secret that regarding cannabis American law enforcement is targeted disproportionately to people of colour. According to the American Civil Rights Union, Black people are almost four times as likely to be arrested for marijuana possession as White people despite almost equal usage rates; an earlier witness said that. I’m not trying to say White people, Black people; an earlier witness said that more White people smoked than Black people, but Black people are stopped more.
I know in your earlier answer you said you did not see it as racial profiling. It may also be because of where you practise.
Mr. Saunders: I don’t see any racial profiling at the border with that, and I’m very sensitive on that. Even though I’m Canadian by birth, my mother is from India, my father is from Trinidad, British West Indies. I’m sensitive when someone starts profiling. I do not see that racial profiling at the border with regard to the admission to smoking marijuana.
Senator Jaffer: Besides educational awareness and contacting the U.S., when you reflect on our questioning, if you think of other things the Canadian government should do before this bill comes into place, we would appreciate it if you would let the clerk know.
Mr. Saunders: Those are the two main issues.
Senator Jaffer: Thank you.
Senator McPhedran: I wanted to read into the record a statement made by Minister Goodale on September 19, 2017, before the Standing Committee on Health:
. . . on the subject of cannabis at the border. It is, of course, currently illegal to bring cannabis into Canada or to take cannabis out of Canada. Going both ways across the border, it’s illegal. Under Bill C-45, that would not change. Border officers already examine people and goods entering the country to prevent the smuggling of contraband, including cannabis.
I wanted to be clear that that’s a quote from Minister Goodale and just invite any response.
Mr. Saunders: I may be wrong on this, because I’m not an expert on Canadian law, but it was my understanding from what I’ve read that you can bring a certain amount back into Canada, just like you were buying milk or bread or whatever. I may be wrong on that, but that was my understanding, that you could bring marijuana back into Canada.
Senator McIntyre: My question is on scrutiny. Currently there’s a law in force respecting the pre-clearance of persons and goods in Canada and the United States. We know there is close scrutiny on travellers and/or cargo on the part of border officers.
My question is this: If Canada legalizes cannabis, would U.S. border officers be directed to scrutinize Canadian travellers and/or cargo more closely than now?
Mr. Saunders: I would imagine so, yes.
Senator McIntyre: Would there be less scrutiny if Canada does not legalize marijuana?
Mr. Saunders: Yes.
[Translation]
The Deputy Chair: We have come to the end of our second round of questions. Mr. Saunders, thank you for the information you have given us. I imagine that you will have a lot of work in years to come. Thank you for your presentation.
With the permission of Senator Boniface, the committee chair, I will continue to chair this session.
We will continue with the third group of witnesses: Peter Hill, Associate Vice-President, Programs Branch, Canada Border Services Agency, Kevin Thompson, Director General, North America Strategy Bureau, Global Affairs Canada, and Superintendent Jamie Solesme, Federal Policing, Criminal Operations, Royal Canadian Mounted Police.
Ladies and gentlemen, welcome. Mr. Hill, you have a presentation for us, and then we will move to questions. Go ahead.
[English]
Peter Hill, Associate Vice-President, Programs Branch, Canada Border Services Agency: Thank you, Mr. Chair. Good afternoon to all members of the committee.
I’m pleased to be here and to assist the committee in its study of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts — the cannabis act — as it relates to Canada’s borders.
[Translation]
As the committee is aware, the Canada Border Services Agency, or CBSA, administers over 90 acts and regulations at ports of entry on behalf of other federal government departments, provinces and territories.
The CBSA assists Health Canada in administering and enforcing Health Canada acts and regulations that relate to travellers, conveyances, cargo and certain controlled, prohibited, hazardous or regulated goods. This includes the Controlled Drugs and Substances Act.
[English]
The act establishes the legislative framework that regulates the possession, import, export, production, assembly, distribution, sale, transport, provision, sending and delivery of controlled substances and precursors that can be used in the manufacture of illegal drugs. All activities are prohibited unless authorized by regulation or exemption. There are various regulations under the act that set out the circumstances under which legitimate activities with controlled substances and precursors are permitted.
Currently, under section 99 of the Customs Act, the Canada Border Services Agency has the authority to inspect goods being imported into Canada. Section 95 compels exporters to report goods leaving the country, subject to certain exceptions. Bill C-45 would put in place a strict framework for controlling the importation and exportation of cannabis specifically under subsections 11(1) and 11(2) of the cannabis act.
Travellers are required under sections 11, 12 and 13 of the Customs Act to present themselves to an officer, answer truthfully the questions posed by the officer, and report goods upon arrival in Canada. Whether declared or undeclared, cannabis may be detained under section 101 of the Customs Act. If unreported, cannabis may be seized under section 110(1). And in either case, the CBSA would notify the RCMP and/or the local police of jurisdiction, who would collect that cannabis on behalf of Health Canada and dispose of it.
Under the Immigration and Refugee Protection Act, which governs the admissibility of foreign nationals and permanent residents into Canada, the CBSA may deny entry to those who attempt to smuggle goods into the country. Additionally, CBSA officers have the authority to arrest persons who attempt to import illicit drugs across the border. None of these authorities would change under the new legislation respecting cannabis.
In summary, the proposed legislation maintains the existing control framework associated with the prohibition of the cross-border movement of cannabis and by moving cannabis-related provisions from the Controlled Drugs and Substances Act into the proposed cannabis act. Travellers, mail, courier and commercial shipments will continue to be examined by the Canada Border Services Agency for cannabis. Enforcement measures will continue to be taken when incidents of non-compliance are detected.
The CBSA is a significant partner in the Government of Canada’s strategy to protect public health and safety and deter criminal activity related to cannabis. Funding of approximately $40 million over five years is being provided to the Canada Border Services Agency for the implementation of Bill C-45. This funding will allow the agency to carry out specific actions: invest in front-line processing capacity at the border through additional personnel; develop awareness tools and deploy inbound signage at ports of entry to inform travellers of the continued prohibition of the cross-border movement of cannabis; upgrade CBSA IT system reporting and analytical capability regarding the impacts of cannabis legislation on the different activities, modes and business lines that are administered by the CBSA; and finally, enhance the CBSA’s capacity to conduct analysis of seized substances.
Mr. Chair, the CBSA remains committed to vigilantly enforcing the applicable legislation regarding cannabis while maintaining the free flow of legitimate travel and trade. As an integral component of the Public Safety portfolio, the CBSA will continue to work closely with the Royal Canadian Mounted Police and with local police of jurisdiction to uphold the laws governing the cross-border movement of cannabis.
[Translation]
At this time, I would be pleased, along with my colleagues, to answer any questions the committee may have.
The Deputy Chair: Thank you, Mr. Hill, for your presentation. We will now move to questions. Deputy Chair Senator Mobina Jaffer has the floor.
Senator Jaffer: Thank you, senators, and thank you to the witnesses for their participation today.
[English]
I want to thank all of you for keeping our country safe. The work you do is very important.
Mr. Hill, I’m not sure if you were here earlier listening to other witnesses. One Canadian was asked a question at the border. You’ve talked very comprehensively of what you will do in Canada, but many Canadians go south. In my province we go to the U.S. to buy milk. There’s a lot of travel back and forth into the United States.
If you’re asked if you smoked cannabis 10 years ago and you say honestly that, yes, you did, then you could be denied for life access to the U.S. Our witnesses said to us Prime Minister Trudeau, when he finishes his term, will also be denied access because he has admitted to smoking cannabis as an MP.
What are you doing, how are you working with the U.S.? I’m not talking about someone you found cannabis on or they’ve just smoked it and it’s in the car, but somebody who smoked 10 years ago and honestly admits they did smoke cannabis 10 years. What are you doing to protect Canadians?
Mr. Hill: Thank you, senator. Canada and the U.S., and in particular the Canada Border Services Agency, enjoy a long-standing track record of collaboration with the United States Customs and Border Protection. That cooperation continues. As an example, we have established a working group of senior officials and subject matter experts, and we are focusing ourselves on ensuring that we share information. In particular, the working group will be looking at communication and outreach activities. We’ll be exploring operational scenarios with our U.S. counterparts — scenarios that touch on travellers, commercial processes, immigration enforcement, what happens between ports of entry, the processing of marijuana or cannabis for medical purposes, exploring the activities that would be undertaken at the pre-clearance. We’d also be exploring how the legislation would affect our trusted programs, in particular, NEXUS, our Free and Secure Trade and commercial drivers programs.
Throughout our discussions to date, there’s no indication that the United States partner will be changing their posture. They are very interested in understanding the new Canadian legislation, the requirements, the implications and the repercussions associated with failure to comply.
In summary, there appears to be no indication that the U.S. will be changing their posture at the border in terms of their admissibility determination of both people and goods.
Senator Jaffer: Superintendent, I’m very worried about the recent law that passed, the Preclearance Act, Bill C-23. Under Bill C-23, travellers must truthfully answer any question that is asked by the pre-clearance officer. That means Canadians will have to truthfully answer about their cannabis usage despite the fact they do not have to disclose it in normal ports of entry.
What role do you see for you and the RCMP when cannabis is legal here and then at pre-clearance Canadians have to answer whether they had smoked cannabis 5 or 10 years ago and then they are denied access to the U.S.? My bigger question is you may not even be there, because from Bill C-23 I understand that from time to time you will not even be at those interviews. What do you see as your role under this legislation?
Jamie Solesme, Superintendent, Federal Policing, Criminal Operations, Royal Canadian Mounted Police: I think that question may be better placed with my colleague Peter Hill.
Senator Jaffer: Okay.
Mr. Hill: The Canada Border Services Agency is responsible for administering the laws as they pertain to many different departments and agencies at ports of entry, so we anticipate continuing to do our job on a daily basis, much as we do it today. Our Border Services officers at all ports of entry are detecting non-compliance and seizing contraband, including cannabis and generally in small quantities on a daily basis today, and we envisage a very similar operational posture going forward.
Senator Jaffer: Mr. Hill, I don’t think I’m making myself clear, and I’m getting a little annoyed because you’re not answering my question. The best thing to do is to ask the clerk to send you the transcripts of earlier witnesses. As soon as they’re available, I’ll ask the clerk to send them to you. Please study them. We have to turn this legislation around. Please give us a full answer. I believe your job is also to protect Canadians, but you have not answered my question. I’m not going to pursue it because the chair will cut me off.
I have a question for you, Mr. Thompson. What steps will the government take to ensure that Canadians will have the right to not disclose their previous cannabis usage when undergoing pre-clearance? In particular, does the government intend to ensure that travellers not disclosing their past cannabis usage will not be charged with resisting or willfully obstructing a pre-clearance officer, which can result in up to two years of imprisonment?
Kevin Thompson, Director General, North America Strategy Bureau, Global Affairs Canada: What I can say at this point is that we’re working closely, as Mr. Hill has indicated, with various actors within the U.S. administration to identify some of the risk areas and some of the scenarios that may arise when and if this legislation is implemented. So we have a robust dialogue among a variety of departments and organizations within the U.S. government. This is certainly one of the issues that has been raised, and as Mr. Hill has indicated, at this point the administration has not indicated that they are going to fundamentally change their approach to dealing with these issues at the border.
We continue to work very closely with the U.S. administration, and we will continue to probe just these types of scenarios.
Senator Jaffer: Mr. Thompson, thank you for your answer, but you didn’t answer me. You just said you’re continuing to talk.
You want us to pass this legislation. Your government wants this legislation passed. You are here from Global Affairs, saying you’re talking. Our job is to protect Canadians who have used cannabis in the past. They think it’s legal in our country, so they go to the border, and because it’s legal here, they smoke it. Then they go to the border and they could be barred forever. What are you doing to educate Canadians as to the consequences of what can happen to them at the border?
Mr. Thompson: As I mentioned, we continue to engage with the U.S. administration to identify the potential scenarios that could raise issues at the border. This is one of those issues that we’ve had discussions with the Americans about, and we will continue to try to elaborate on this particular matter.
If I could just say that every country has a right to establish its own requirements for entry. Canadians, when entering into any other country, have to adhere to the local requirements that are imposed by that foreign country. So we will set in place a communication plan to ensure that Canadians who are travelling to the United States continue to be aware that the laws in relation to the export and the import of cannabis will not be changed by this legislation. Canadians will continue to be aware of the fact that crossing the border with cannabis will continue to be prohibited under this legislation.
[Translation]
The Deputy Chair: You say that you are holding panel sessions with your American counterparts, and the issue seems quite straightforward. I believe that Senator Jaffer wanted to know what you had learned regarding what they enforce. Mr. Thompson said that each country has the right to enforce the provisions of their choice. Canadians need to know the truth. It’s nice to talk the talk, but we need to be able to know what is going on, because it is not clear to me. For example, many Canadians use NEXUS cards to travel between the United States and Canada because of the very smooth border crossings. They could say that they have previously smoked marijuana, and they will be allowed to cross the border. Eventually, they will have to renew their NEXUS cards. You know that both countries conduct their investigations differently. When Canada investigates, it’s not an issue. However, the Americans will refuse to renew NEXUS cards. Many Canadians travel with these cards and will lose this privilege, because they will have said during a previous crossing that they had smoked marijuana. The Americans enforce the laws they want to enforce, and they are much stricter when it comes to renewing the TSA PreCheck program. I actually have concrete examples of people telling me this.
Senator Jaffer finds your answers vague. Passing a bill is nice and all, but Canadians need to be aware of the consequences. I find that it is quite easy to pass bills, but we need to inform Canadians of what will happen after this bill comes into effect. Make no mistake: Close collaboration will be paramount.
Our neighbours to the south are quite strict. Some Canadians could lose their rights. I would like to hear your point of view on this issue.
[English]
Mr. Hill: Thank you, Mr. Chair. As you’ve noted, the NEXUS program — really, our flagship program for trusted travellers — is a binational program that we administer in partnership with U.S. Customs and Border Protection. Each country conducts a risk assessment of the applicants and an ongoing and thorough risk assessment of membership to ensure the integrity of the program and to facilitate the travel of our most trusted and frequent travellers.
I’m doing my best to explain where we are in collaboration with United States partners, hence the importance of this working group. We are at the stage of having discussions with our American colleagues to make sure that they fully understand the intent and the provisions of the proposed act. I think they are assessing and understanding exactly those specific details of the new legislation in order for them to then subsequently be able to determine their approach to determining admissibility of people and goods coming into the United States. What I can share with you is that in discussions to date, there is no indication that the U.S. is planning to change their posture.
Mr. Chair, as you know, the Canada Border Services Agency will be introducing a mandatory question for travellers coming into Canada as part of the legislation and as part of our efforts to maintain an absolute prohibition of the importation of cannabis into this country. The question will be: Are you bringing cannabis or any goods containing cannabis into Canada? We will administer this as part of our standard practices at the primary inspection line.
We have no indication that the United States is planning to take a similar step. Every indication is they will continue their current practices.
As you have noted, the United States has zero tolerance when it comes to the importation of cannabis, just as Canada does. We also have zero tolerance for the importation or exportation of cannabis, and the framework that we propose to put in place will maintain that absolute prohibition. There will be exceptions, of course, when a minister provides a permit for the movement of cannabis across the border for scientific or medical purposes or in relation to industrial hemp. Those three are the only exceptions. I hope that answers your question.
Senator Boniface: Thank you very much for coming. I wanted to explore the experience you may have gained from the reverse situation in Washington and the B.C. border. I appreciate that federally it isn’t legal in Washington, but certainly at the state level it is. Is there anything we can learn from that experience that would be helpful, or would it be fair to say, for instance, that business continued as usual despite differences between two sides of the border?
I think the emphasis, Mr.Hill, you are trying to make is importing and exporting. Consequently, I am curious as to whether or not there were any adjustments when Washington made the decision that cannabis was legal.
Mr. Hill: Senator, I would be happy to provide a complete answer to that question. I am afraid that I do not have the operational background to properly answer that question. I would be happy to provide further information. However, we have studied and continue to study the history. The agency is well aware that some of the states have legalized marijuana; yet, it remains an illegal activity federally.
So we are learning from the United States and their experience through our working group. We find it helpful, in the exchange of that information, to better understand trends. For example, what happens when you change the legislation in a state that is adjacent to the border? So we intend to learn everything we can from the collaboration with the U.S. and their experience.
Senator Boniface: We would be interested in that. That may tell us a bit about how the discussions have taken place in the past.
Senator McIntyre: My question is complementary to a question raised by Senator Jaffer. I thought this was an interesting and excellent question. Basically, it has to do with the impact of marijuana legislation on cross-border trade.
I believe Mr.Thompson can answer this question. I’m interested in the discussions our embassy in Washington has had with the administration in Congress on Bill C-45. What specific discussions have taken place and what has been the response? Have U.S. officials or congressional representatives cautioned Canada on its plan to legalize marijuana? These are the answers that we want.
Mr. Thompson: Thank you, senator. I am not aware of all the instances or discussions that have taken place between officials at our embassy and U.S. administration officials. Certainly, here in Ottawa, we have met on two occasions with the U.S. embassy. In addition to the CBP, Canada Border Services, U.S. Customs and Border Protection working group that Mr.Hill has been referring to, we also have a regular dialogue with the U.S. embassy here in Ottawa.
Certainly, a range of issues have been raised by U.S. officials. We spent a fair bit of time explaining to the U.S. embassy the objectives behind this legislation and seeking to obtain information from them about the practices in now nine U.S. states where recreational marijuana has been legalized.
I would note that of the 11 states that have a land border with Canada, four now have legalized marijuana for recreational use. This is not just a southbound issue; this is an issue that is shared between our two countries.
When you expand the list to include all those states in the United States that have legalized marijuana for medical use, there are now approximately 29 states. In fact, 10 of the 11 states that have a land border with Canada have legalized marijuana on the basis of either recreational use or medical marijuana.
Senator McIntyre: I understand there have been discussions. Have U.S. officials or congressional representatives cautioned Canada about its plan to legalize marijuana? That’s what we want to know. Has there been any response from the Trump administration, for example?
Mr. Thompson: The Trump administration is represented here in Ottawa by the U.S. embassy. We have had discussions with the U.S. embassy about potential areas of concern. I would not characterize their comments to us as a caution against legalizing marijuana. They want to better understand the legislative framework here in Canada. They want to better understand some of the similarities between what we’re proposing here and what numerous states in the United States have proposed. They want to better understand the implications for cross-border trade, and how we can ensure that Americans as well as Canadians don’t inadvertently bring cannabis across the border. They want reassurance of Canada’s continued commitment to work with the U.S. in a variety of different fora from a law enforcement perspective to focus resources on criminal networks. Those are all things that we discussed.
I would not characterize the questions they are raising as a caution against legalization in Canada.
Senator McIntyre: Is there anything in writing from the U.S. to Canada?
Mr. Thompson: Not that I’m aware of.
Senator McIntyre: Mr.Hill, is there anything in writing?
Mr. Hill: Again, I have seen nothing in writing from the U.S. cautioning Canada.
Senator McIntyre: Is there anything in writing from the RCMP?
Ms. Solesme: No, sir.
[Translation]
Senator Boisvenu: I am increasingly convinced that we should invite Minister Goodale, because some issues aren’t related to the administration, which leaves me really wondering. There is hardly any preparation behind this legalization. Police officers tell us that they are not ready, likewise for the municipalities, and we see that Mr. Goodale is not ready. I could ask you dozens of questions, but my concerns are of a political nature. The administration is not responsible for establishing a political stance through discussions with the Americans. Canadians can return from the United States with two bottles of wine, two cartons of cigarettes, and people believe that they will be able to return with two marijuana joints. Legalization is a few months away, and no information campaign has been launched. I am aware that this is not your responsibility. It is the minister’s responsibility. We are told that the government is talking with the Americans, but we should not be having talks, we should be taking a stand. Mr. Goodale should be the one appearing before us. Thank you.
[English]
Senator Oh: Thank you, witnesses. My question is what has the CBSA done to date to educate Canadians to ensure that they are aware of — their lack of awareness and education on border crossing? Has any education been done to make the public aware of this?
Mr. Hill: Thank you, senator. Yes, the agency has taken steps to make it clear to travellers that the existing prohibition for the importing or exporting of cannabis will remain a criminal offence under the proposed bill. We have taken steps through our website, and we are taking steps as one of the partners in the Government of Canada’s effort to develop and implement a more robust communications strategy.
In addition to that strategy, we will be sending clear messages as to what the law states and what the repercussions are for non-compliance. The agency is planning signage, so there will be signage at the ports of entry. We have funding through the budget to have signage at 75 per cent of our major ports in place this summer. We have funding, as well, to have signage at 100 per cent of our priority ports for the spring period of 2019.
These signs are really intended to make sure that travellers understand and do not inadvertently fall into non-compliance with the new legislation.
We’re working with our Global Affairs Canada counterparts to ensure that travel advisories are clear and up to date. We’re working with our Health Canada partners, as well, to ensure that it is clear when products can be moved across borders for medical purposes or for scientific purposes.
This is being developed and implemented in a phased way to align with the discussions and the progress with respect to the proposed legislation.
Senator Oh: I was told by the car rental industry that if people rent a car and smoke marijuana inside it, they can’t get rid of the trace of it. It takes a long time. What would happen if someone rented a car, crossed the border and the dog picks it up? What happens?
Mr. Hill: That scenario, along with numerous other scenarios that one might imagine, would be subject to the standard determination on whether a person is admissible or not. From the perspective of someone coming into Canada, they will be asked a mandatory question. If they declare that they’re bringing marijuana into the country, they will automatically be referred to secondary examination, and they will be questioned further, their conveyance will be examined, and if they’re found to be bringing in small quantities or large quantities, then the result will be proportionate in response to that situation.
I can also say that in terms of strengthening the regime, the CBSA is developing an administrative monetary penalty regime. Right now we have the regulatory authority to seize cannabis, but going forward, again we have funding through the budget to develop an additional regulatory regime that envisages penalties of up to $1 million for non-criminal matters. These would be administrative penalties for non-criminal-related scenarios to ensure that the enforcement is effective and streamlined and deals with scenarios such as the one you mentioned with respect to the car rental.
Senator McPhedran: Mr. Hill, I was very taken by the way in which you described the higher level of trust for trusted travellers with NEXUS. I must ask you this question: I have been conducting my own survey, airport by airport, as a long-standing NEXUS cardholder. I have been placed behind one person with a NEXUS card and the rest of his sports team going through the NEXUS line. I have been placed behind one member of a family having a NEXUS card and the whole rest of the family going through the NEXUS line.
I don’t understand how this is policy in airport after airport. And then I make sure I ask the officers, “Did I just see what I just saw? Is that what you are told to do here?”
Recently, I received an extension of my card, and there were a number of dos and don’ts in an advisory that came with it, and I see nothing that says that this is the way we would be maintaining our high level of scrutiny. In fact, what I see is a very clear statement that says only the NEXUS cardholder can go through the NEXUS line.
That is absolutely not what is happening in our country, and this relates to trying to establish and maintain a high level of scrutiny at a time when we’re going to see a lot of challenges to the system as a result of Bill C-45. I’m wondering if you could comment on that.
Mr. Hill: I would be pleased to respond to confirm that it is the policy. It is the practice, to my knowledge, that NEXUS cardholders have NEXUS privileges, and those who don’t have a NEXUS card don’t have NEXUS privileges. That extends to family members, and that extends to persons in a vehicle or in a bus.
Every person who can benefit from the program of trusted travellers, known as NEXUS, must have a NEXUS card.
Senator McPhedran: May I ask that you move this further down the lines of authority to the level of whoever is managing the Ottawa airport and whoever is managing the Winnipeg airport as two very recent examples where I have seen this happen. I have specifically asked the officers if indeed that is the policy, and I have been told, yes, that is the policy. One cardholder can sweep others through the NEXUS line.
Mr. Hill: Senator, I will follow up on your remarks.
Senator McPhedran: And if you would please report back to this committee.
Mr. Hill: Yes.
Senator McPhedran: Thank you.
Senator Richards: Thank you for being here and for your service. I mean that.
This is a follow-up, in a way, to Senator Jaffer: When Bill C-45 came in, I was not a senator. I was fairly ambivalent about it. I thought, well, so many kids and adults use it recreationally, it is not a big problem.
I get to the Senate, and the more I sit and listen, the more of a problem it seems to be. Now I’m on the fence about the whole thing.
But this really bothers me about the United States and its ability to deny entry to any kid who says they might have had a toke, or at least the idea that that hasn’t been rectified here in Canada. We’re not really sure what they would or would not do.
Did anyone in the administration study what happens to the Dutch who come over? The Netherlands has had marijuana legalization for over a generation. I’m wondering if they found any of the problems that have been discussed here today. Certainly there were some dire predictions of what would happen to our kids or our friends who went to the United States and got in trouble with marijuana that they wouldn’t be allowed back in the country or whatever. I haven’t seen any studies about what happens to the Dutch, so I’m not sure if it was ever done or it was ever looked into.
I’m wondering if this is a true scenario about what will happen to kids who might have had too many tokes at a party and crossed the line and tried to go into the States.
Have you talked to the administration in the States about this? Any one of the three of you can answer.
Mr. Thompson: This certainly has been an issue of discussion in our conversations with the U.S. embassy. Their responses have been consistent with what Mr. Hill has indicated, that at this point there’s no indication that CBP will be changing its current practice.
I think I need to reiterate. There will be 10 jurisdictions, as of July 1, in the United States that will have legalized marijuana for recreational use. So approximately one in five Americans will have legal access to marijuana for recreational use. I think that’s a part of the broader context.
One of the things we’re focused on in our discussions is ensuring that Canadians entering the United States, or Americans coming into Canada, do not bring in cannabis, either inadvertently or intentionally, so that’s one main issue.
Then obviously there are the other law enforcement issues where people in fact intend to bring into Canada or export from Canada cannabis for the purposes of trafficking. There is robust cooperation between our law enforcement agencies and the U.S. to track down and investigate such activities.
In short, this issue has been discussed with the U.S., and there has been no indication at this point that they will be changing their posture.
[Translation]
The Deputy Chair: Mr. Hill, as you surely know, Canadians have developed a very privileged relationship with the United States. Indeed, many Canadian snowbirds own property in the United States, and travel there frequently. I would even say that the United States have become a part-time adopted country. It is more than a country that people go to visit. They will stay there for four, five or six months. And I believe that these people invite many Canadian guests to stay with them.
I am not concerned about the Americans who come to Canada. But, if the laws are unclear, I will be concerned for Canadians who travel to the United States, and who will be denied entry because they smell of or are in possession of marijuana.
We know that the government is in a hurry to pass this legislation, and, if everything goes as planned, it will happen in a few months. I believe that it is very important for Canadians to get clear answers on the possibility that they might be denied entry at the border. Imagine that you own a house in the United States worth $200,000 or $300,000, and you are told tomorrow morning that you cannot cross the border into the United States. You could sell your property, no problem, but I do not think that is what Canadians want to hear.
As Senator McPhedran mentioned, I think we are facing an emergency situation: Canadians might be denied entry for life, or might lose privileges connected to their NEXUS cards.
I would love to talk about Denmark, Norway, England and France, but we do not share the same relationship with these countries as with our neighbours to the south. Canadians have second homes there. We’re talking about thousands of Canadians, not a handful of exceptions. I believe that we are in urgent need of crystal clear answers.
Senator Boisvenu said that it would be good to invite Minister Goodale. I understand that you are administrators, but, all in all, when people cross borders, they have to deal with your agency and with U.S. customs.
I wanted to make this comment before moving to the second round of questions.
[English]
Senator Jaffer: I have not received answers from you on my first question about protecting Canadians. We are going to make it legal to use cannabis here, but we are not telling Canadians that if you cross the border they will have issues. You did say, Mr. Hill, by 2019 you’ll have this and by 2019 you’ll have that, but this will be law before that. But I don’t think you can answer this. We’ll just have to get the minister here to answer that.
I have a technical question for you. Under federal U.S. law, working with the U.S. marijuana business counts as a federal drug trafficking offence — that’s my understanding — regardless of whether or not the state allows it. That could get Canadian entrepreneurs who wish to cooperate with these businesses in a lot of trouble. Even if Canadians’ actions do not actually involve marijuana itself, Canadians could get into trouble simply because the business they are associating with is technically involved with drug trafficking.
Once Bill C-45 is passed, it is reasonable to believe that Canadians may get caught in this technicality. At best, they would be banned from the U.S. for life. At worst, these people could be charged with federal drug trafficking offences.
Does our government intend to work with the U.S. to create a framework that will protect Canadians from these very broad laws?
Mr. Hill: Thank you, senator. I’d like to try to explain the communication strategy that is being developed and implemented. With respect to your question, it will be made clear, if it’s not clear to date, for Canadians who wish to import any cannabis into the United States, that that is a criminal offence. So entrepreneurs in Canada who are going to be investing and working in the cannabis industry in Canada will understand the domestic legal framework that is being put in place, and they will also understand the implications with respect to the movement of cannabis goods or goods with cannabis in them across the border. It will be made very clear to them that that continues to be criminally prohibited. It continues to be a serious criminal offence to take any amount of cannabis across into the U.S. unless an exception is provided clearly by law.
So we will be doing our utmost to ensure that Canadians understand that so that they do not inadvertently or because of a lack of awareness fall into this unfortunate situation. That is our commitment. That is our objective. We’re working in partnership with Transport Canada, Health Canada, Global Affairs, the RCMP, the Public Safety portfolio, to ensure that that communication is comprehensive and timely, so that the information is available before the legislation comes into force. So that is the work we are undertaking.
Senator Jaffer: I really appreciate that, and what you are saying gives me some satisfaction, but you’re not telling me what you’re going to do. I understand you’re going to do a campaign. I understand you’re going to tell citizens, but by when? We are being pushed to pass this legislation right now. By when are you going to tell Canadians all of that? What is your exact plan?
Mr. Hill: We are already communicating to Canadians through, for example, the travel advisory that Global Affairs has on its website. We are already communicating to Canadians through the Canada Border Services Agency website and our interactions with stakeholders and industry and in the not-for-profit sector. So we are already communicating with our stakeholders and partners, and you will see a much more visible communications campaign in the short term, in advance of the legislation coming into force, if it does get Royal Assent.
Senator Boniface: I’d like to raise a question around outreach efforts. I’m not sure who the outreach would be done with, but, Mr. Hill, you indicated, for instance, the trucking associations, organizations that are doing business on both sides of the border. One issue that was raised to me by one of our colleagues is if the product, for instance, that you’re transporting is legal to go into the country or back into Canada, but at some previous point the truck had been transporting marijuana, as an example, because it was legal to do so, but now you’re concerned about any residue or odour left, similar to what Senator Oh referred to.
I’m wondering, in your outreach and discussions with trucking associations and the major organizations involved in export and import, whether you’re having that level of discussion yet, and if so, what type of feedback you’re getting. I think there are two priorities that this committee would like to be assured of. One is that people can continue to go across the border in a way that is similar to the way they do it today, and trade and commerce will continue to not be negatively impacted by this legislation. I wonder if you can help us in terms of the commerce side of things.
Mr. Hill: Thank you, senator. One of the primary objectives of the Canada Border Services Agency is, of course, to ensure and maintain an orderly management of the border. So this is clearly an objective that we will commit to achieving in relation to the proposed legislation. We have a number of standing fora that we use to engage our commercial partners both in strategic discussions about the future of border management, and also in talks about day-to-day operational obstacles, impediments and issues. It’s in those fora that we discuss these kinds of issues to ensure that industry not only can be aware of the requirements of new legislation, but actually can have an opportunity at least to influence that legislation, to influence the kinds of procedures and protocols that are put in place, so that they actually work to ensure that supply chains are properly protected and properly managed.
That is the nature of the engagement that is under way, led by the Canada Border Services Agency and partners. We will continue to ensure that those partners in the ecosystem around the movement of goods and people have an opportunity to voice their concerns, and therefore we will then have a responsibility to respond to those concerns.
The prohibitions regime that’s being proposed is very significant for individuals and for organizations. If it’s a large amount, then it is a criminal prohibition, and that would mean that a person or an organization would be guilty of an indictable offence for which imprisonment of up to 14 years is envisaged under this legislation. For smaller quantities that are transported, that would be dealt with by a summary offence and subject to a fine and/or a six-month imprisonment.
That kind of detail is the detail that we discuss and share with our stakeholders so that they fully appreciate the implications and have an opportunity to plan and make the appropriate adjustments to their practices and procedures, so that together we do everything we can to ensure an orderly border and that we do not unnecessarily hinder the movement of legitimate people and goods across the border.
Senator, I hope that addresses your question.
Senator Boniface: Yes. I’m going to make an assumption. You can tell me whether you can answer this. I’m assuming that when you sit at a table with your colleagues on the other side of the border, these are exactly the level of detail of discussions you would be having now. You said at one point we go through various scenarios. Having some background in this area, I’m assuming those scenarios would be looking at all of those inadvertent things that could take place and how they might be dealt with. Would that be correct?
Mr. Hill: That would be absolutely correct. I can assure you that the scenarios that are discussed are meticulous in detail and are deliberately meticulous to ensure that as much as is humanly possible, there’s no misunderstanding as to what is intended and what the implications and consequences would be; so yes.
Senator Boniface: Those consequences and decisions lie in the jurisdiction. To your point, Canada can take certain positions, and the U.S. can take certain positions. It’s the outcomes and the side effects I think where there is concern around the table. Thank you for your answer.
Senator McIntyre: My question is for the RCMP and CBSA.
There are linkages between organized drug trafficking across the border and other types of trafficking, including tobacco and firearms trafficking, for example. How do you see Bill C-45 impacting organized crime activities in this regard?
Ms. Solesme: Thank you for your question. In regard to Bill C-45 and the impact on the border, the impact will be minimal. When we’re dealing with organized crime along the border, we take into consideration all the activities they are doing. So this would form part of the case that we would have. Understanding the legislation and enforcing those laws would become part and parcel of the bigger investigation.
When talking about organized crime, we’re talking about large, complex organizations that will look for any way to infiltrate or circumvent the legislation. But in bringing those perpetrators to justice, the investigation will take into account all the offences that transpire.
Senator McIntyre: My other question has to do with wait times. What potential impact do you see Bill C-45 having on border wait times, particularly at crossings such as Detroit-Windsor, with heavy traffic?
Mr. Hill: Senator, I’d be happy to add on a little bit of additional information to your first question.
Senator McIntyre: Yes.
Mr. Hill: From a statutory perspective in relation to the CBSA’s mandate and the proposed cannabis act, there’s very little change from a statutory perspective, with one exception that’s worth noting. Under the new legislation, the agency will have the authority to seize cannabis. It will be added along with the existing authorities to seize alcohol, tobacco, contraband, et cetera. So that authority will be made explicit in the legislation, and the language of the legislation that’s being proposed is “shall not be returned.” So cannabis is seized and shall not be returned, the same as is the case today for alcohol and tobacco.
With respect to organized crime — and I agree with my colleague from the RCMP — from the perspective of the CBSA, we see, on a day-to-day or on a year-to-year basis, organized crime groups shifting their posture, depending on what enforcement agencies do. They can be quite agile in how they respond to additional measures taken to enforce or strengthen our enforcement posture. One might therefore expect similar shifts. The agency, in partner with its law enforcement agencies at the federal level, is preparing in anticipation of those kinds of shifts that are really part of our business. It’s part of the way we operate. We see and look into the future, in part based on patterns and analysis of past transactions and interdictions and enforcement.
So I would want to convey that we are leaning ahead, looking to the future to be prepared to address shifts in organized crime patterns that relate to the CBSA mandate.
Senator McIntyre: This question is directed to Global Affairs.
Mr. Thompson, to what degree are you concerned, at a time when Canada is trying to secure a favourable deal on NAFTA with the United States, that Bill C-45 could ignite U.S. concerns about the Canada-U.S. border?
Mr. Thompson: I think the two issues are very different. The issue of cannabis legalization in Canada has, to my knowledge, not been raised in the context of the NAFTA negotiations. It has not been discussed in the context of any of either the technical discussions or, to my knowledge, the more political discussions. So at this point in time, this issue has not been discussed in that context, and we don’t really expect that it will be.
Senator McIntyre: Surely the legalization of marijuana will ignite some U.S. concerns about the Canada-U.S. Border. I can’t see it any other way. It has to.
Mr. Thompson: Well, I think the way to deal with these concerns is the way that we have been dealing with them to date: active engagement with the U.S., work through specific scenarios, whether it’s the CBSA, CBP or the discussion that we have with the U.S. embassy, and active engagement with the relevant U.S. administration agencies, trying to work through specifically what the various scenarios and concerns are.
At the risk of repeating what we said earlier, we have been adamant with the Americans that the existing prohibition on the movement of cannabis across the border will remain in place. We will be taking steps to educate Canadians about the fact that that prohibition is still there and educating Americans seeking to come into this country. That is a preoccupation of the Americans, namely, to ensure that there is not an increase in cross-border movement of cannabis. I think our response is very much that this prohibition remains a central part of Bill C-45, and we will be adopting a communication strategy to ensure that Canadians and Americans know that that remains the case.
Senator McIntyre: So you’re not concerned that the smooth flow of cross-border trade could be impacted by U.S. responses to the legalization of marijuana?
Mr. Thompson: I think there may be a short-term transition period as any new change comes into place. But again, I would point to the broader context: As of July 1, you’ll have four states along the Canada-U.S. border — Washington, Vermont, Alaska and Maine — that have legalized the recreational use of marijuana. Furthermore, an additional six states will have legalized the use of medical marijuana. This issue is not a new issue. There may be short-term adjustment periods where they need to ensure that Canadians are fully aware of the implications of the changes, but there is a broader context. The issue of legalization of marijuana has been an issue in the United States for quite some time.
[Translation]
The Deputy Chair: I would like to add something to Senator McIntyre’s question regarding NAFTA. It is all a matter of perspective. When I look at what happened with softwood lumber, NAFTA, supply management, and aluminium, I ask myself whether Canada’s questions were not clear enough during the talks we had with the United States? Or is it simply that they do not want to answer our questions? That is my perspective. I see this with many issues.
As Senator McIntyre said, Bill C-45 is added to the list of matters to discuss with our American neighbours.
[English]
Senator McPhedran: I have a question for the superintendent and Mr. Hill, and I also have a question for Mr. Thompson.
I’ll start with my question to you, Mr. Thompson, which is similar to questions that have been asked about compliance with American and Canadian law. I’d like to ask about potential non-compliance by Canada with a number of treaties with international bodies, and in particular, looking at, for example, the Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. I have to assume discussions are under way. I have to assume they’re similar in nature to what was described by Senator Boniface. Could you give us an update on that, please, and whether any resolution has been attained?
Mr. Thompson: Certainly. I would note at the outset that the Assistant Deputy Minister for International Security and Political Affairs, Mark Gwozdecky, will be appearing before the Foreign Affairs and International Trade Committee on March 21, specifically to address questions involving Canada’s international obligations.
Canada is adopting a strict regulatory framework to address a series of public health and safety challenges here in Canada. This approach is very much consistent with the overarching goals of the drug conventions that you have mentioned, namely, to protect the health and welfare of members of our society. Canada remains committed to international cooperation to combat drug trafficking and promote evidence-based solutions to essentially mitigate the harm of problematic substance abuse. We’re committed to continuing to work in the context of the various international organizations of which we’re members, but we see that the goals of this legislation, which is to deter the use by youth of cannabis and to reduce the involvement of criminal activity in the cannabis trade, is consistent with the overarching goals of these drug conventions.
Senator McPhedran: If I may just clarify my question, it was more specific than your answer, as interesting as it was, has given as a response. My question was about whether in fact we are in non-compliance once Bill C-45 becomes law and whether the discussions that you’ve referenced have resulted in an agreement among any of the international organizations that our non-compliance will be acceptable. Are we going to continue to be in non-compliance once Bill C-45 becomes law?
Mr. Thompson: As the director general for North America, I think I’d prefer to defer an answer to that question to my colleague who will be appearing before the Foreign Affairs and International Trade Committee. What I can tell this committee is that we have been actively engaging with the international narcotics commission. We have been explaining the objectives behind this legislation, and we have been underscoring the fact that this legislation is very much consistent with the overarching goals of the convention.
I understand — not being personally involved in those issues — that the commission and our international partners are very interested in the approach that we’re taking, particularly the extent to which this will fulfill those objectives of reducing youth access to cannabis, as well as curbing criminal activity. There’s a fair bit of interest, and we are continuing to engage constructively with not only our international partners but also the international narcotics commission.
Further elaboration on that I’d prefer to leave to the assistant deputy minister, who will be appearing before the Committee on Foreign Affairs and International Trade.
Senator McPhedran: Since the cross-communication among committees isn’t necessarily perfect, Mr. Chair, may I request that the question be answered by whomever within Global Affairs is best suited to do so and have that answer come to this committee?
[Translation]
The Deputy Chair: You might need to put that question to the chair.
Senator McPhedran: Yes, thank you.
[English]
I have a question for the superintendent, please. I want to understand better the impact on the role of the RCMP in border situations with the combination of Bill C-23 and Bill C-45. When Canadians — and, as we anticipate, often young Canadians — are detained at the border, what has been determined to this point in running scenarios about the combination of the impact of Bill C-23, which is law, and Bill C-45? How is that going to change the role of the RCMP in such situations, if at all?
Ms. Solesme: The RCMP is responsible for policing between the ports of entry, so any activities occurring there that are illegal. I’m trying to —
Senator McPhedran: I gather you weren’t here earlier to hear from, for example, the lawyer specializing in immigration from the United States. He was talking about the role of an RCMP officer essentially standing by in the event that a Canadian gets into a difficult border crossing situation with an American guard. What he didn’t address was the impact of Bill C-23.
Is the RCMP role removed from those scenarios? Given that an American border guard can override Canadian authorities at that point, and if they want to detain, if they want to strip-search, whatever they want to do will, excuse the pun, trump whatever the Canadian officials who are there may want to do. Does this impact — and I guess specifically, limit — any RCMP involvement as we’ve come to know it?
Ms. Solesme: I apologize because I’m not familiar with that component, so I would prefer to have a response prepared and delivered back.
Senator McPhedran: Great. Thank you.
Mr. Hill, we heard from Mr. Hudak from the Brookings Institution that some consideration should be given to various ways in which Canadians have inadvertently been caught up in a border crossing situation and may have in their possession what would be considered under Bill C-45 to be legal amounts of marijuana. Is any consideration being given to a number of actions to be more protective of Canadians? For example, the amnesty boxes that were mentioned, if those are under consideration or anything else that’s under consideration to ameliorate what seems to be shaping up to be Canadians being set up for very difficult scenarios when they’re trying to cross the border.
Mr. Hill: Could you clarify what an amnesty box is?
Senator McPhedran: My understanding of it — and I don’t think there was a lot of detail from Mr. Hudak — is that it’s essentially one way of making it possible for a Canadian to take off their person or out of their possession what they may be carrying — they may have forgotten — and to place it in a secure box equivalent or place so it was no longer in their possession.
Mr. Hill: And this is a Canadian trying to travel into the United States?
Senator McPhedran: Yes.
Mr. Hill: Okay. I’m afraid I’m just not in a position to describe what the United States might be planning in that regard. I’m not aware that they’re planning anything in that regard, based on my discussions and what the subjects for discussion have been so far in the Canada Border Services Agency-Customs and Border Protection working group that I mentioned earlier this afternoon.
I can tell you that, from the point of view of Canada, we’re not considering an amnesty box for travellers coming into Canada that may inadvertently have a small quantity in their possession. Coming into Canada, whatever amount that’s not declared would be seized and would not be returned.
Senator McPhedran: My question was, I think, the other way around. I’m asking you to focus on Canadians and the protection of Canadians who get caught in a border crossing situation where, if they were outside of that particular physical area of the border crossing — they were 20 feet away — what they had was completely legal for Canadians in Canada.
Has there been any discussion about these kinds of scenarios where, in good faith, inadvertently, there is possession of what 20 feet away in Canada is perfectly legal but is going to create huge negative consequences for that person, perhaps for their lifetime? What are we doing? Are you thinking about it? Is it under discussion about how to be respectful of what will become Canadian law if Bill C-45 is passed and the various situations in which Canadians are going to be caught up in a border crossing scenario with some very significant, long-term negative consequences?
[Translation]
The Deputy Chair: Mr. Hill, I will ask you to keep your answer brief, because we only have five minutes left, and I see that there are two senators who want to speak. So, I would ask that the questions and answers be brief, please.
[English]
Mr. Hill: Yes. The current practices and posture for enforcement and determining admissibility or inadmissibility by U.S. Customs and Border Protection is what we understand will be the posture they will have going forward. We’re discussing our legislation so that they fully understand what it is. We have not yet had the U.S. explain to us a position that differs from the existing way they conduct their business. We are most interested to learn if there will be a change. I believe they will share that information if in fact there is a change, but it would be pure speculation on my part, and I’d rather not go there at all.
I can share with you that the U.S. appears to be most interested and most focused on understanding what our legislation is at the present time.
Senator Jaffer: I have a quick question for the superintendent. I understand you’re not quite aware of the operation of Bill C-23. In the answer you give, can you please tell us, an earlier witness, Mr. Saunders, spoke about an RCMP officer always sitting in the corner when people go through U.S. pre-clearance. I want to know if that practice will continue after the passage of Bill C-23.
One thing that really brothers me about Bill C-23 is the fact that there can be strip searches and questioning of Canadians without RCMP officers being present. I want to know if you now know how often that will be and why that is happening.
Ms. Solesme: Again on the pre-clearance?
Senator Jaffer: If you could please provide those answers as well. Thank you very much.
Ms. Solesme: Very well.
[Translation]
The Deputy Chair: We have reached the end of our meeting. I would like to add to what Senator Jaffer was saying. There are RCMP officers stationed in the United States. I imagine a similar policy exists.
I would like to thank our witnesses for their participation. Know that your testimony will be useful for our study of Bill C-45. On behalf of all my colleagues, I want to restate the urgency of getting clear answers for all Canadians. Thank you very much for your testimonies and presentations.
(The committee adjourned.)