Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 22 - Evidence - Meeting of March 26, 2018
OTTAWA, Monday, March 26, 2018
The Standing Senate Committee on National Security and Defence met this day at 2:32 p.m. to give consideration to 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, and in camera, for the consideration of a draft agenda (future business).
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to the National Security and Defence Committee. Before we begin, I would ask my colleagues to introduce themselves, starting with the deputy chair.
[Translation]
Senator Dagenais: Senator Jean-Guy Dagenais from Quebec.
Senator Boisvenu: Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator McIntyre: Senator McIntyre, New Brunswick.
Senator Dean: Tony Dean, Ontario.
Senator Jaffer: Mobina Jaffer, B.C.
Senator Richards: David Richards, New Brunswick.
Senator Oh: Senator Oh, Ontario.
The Chair: This afternoon, we will continue our consideration of the subject matter of Bill C-45, the cannabis act, insofar as it relates to border issues. In our first session, we are very pleased to welcome Mr. Lorne Waldman, a lawyer specializing in immigration law who is no stranger to this committee. Mr. Waldman, we will hear your opening remarks, after which we will have some questions for you. Welcome.
Lorne Waldman, Lawyer, as an individual: Thank you. It’s not that often that I get a request from a clerk of a committee who sends me a transcript and says, “We want you to come and comment.” I assure you, I dutifully read the transcript, and I have some comments to make about it.
It’s interesting that when you read the transcript, you get two different views. I’m talking about the witnesses who came to talk about border issues. There were the officials, then the lawyer and then the Canadian officials. You get two very different views. The officials say, “There’s no problem, there’s no official policy of asking questions, and Canadians shouldn’t have any issues at the borders.” Then you read the comments of the U.S. immigration lawyer, Mr. Saunders, and he says he’s getting two cases a week of people who have been turned away at the border because they have been asked whether they smoke marijuana, and when they answer in the affirmative, they are deemed inadmissible under the immigration law, which is similar to the Canadian law in that you don’t have to be convicted. If you admit to committing an offence under the Criminal Code, then you’re inadmissible.
So you have two different views.
The question is, is there inconsistency? As a lawyer, I always try to find a way to reconcile these two positions, and I would suggest there isn’t. I would suggest there is an official policy, which is not to ask questions. Maybe I should rephrase that: There doesn’t seem to be an official policy to actively seek out answers and to bar people who may have admitted to smoking marijuana.
On the other hand, it’s pretty clear, and I know this also from my own experience, that there are a few officials who are legally entitled to and do ask the question. This creates very serious consequences for Canadians, because once the law is passed, it will mean that a Canadian will be barred from the United States because he engaged in lawful activity in Canada. This is a serious problem that we have to consider.
There are a few comments I can make about this particular issue. The immigration lawyer seemed to suggest there might be some role the Canadian government would officially play in giving legal advice to Canadians about how to answer questions at the border. I don’t think that’s a possibility. It’s not the role of our government to advise Canadians as to what they should say to U.S. immigration officials if they’re asked whether they smoke marijuana.
I understand that the advice of the U.S. lawyer would be, “Don’t answer the question. Turn around and leave, because if you admit to it, you’re going to be barred. So just say, "I’m not answering the question," withdraw and go back and hope that the next time you cross, you don’t get asked the question.”
It seems to me, though, that although the Canadian government can’t get involved in providing legal advice, what it can and must do — and here I’d like to comment for a second on the reading of the testimony of the Canadian officials. I have to say I was a little disappointed in their testimony. It seems to me the officials of the Canadian government have an obligation to the Canadian public, and it’s not just to explain to the U.S. government what the new law is, what legalization is and why we’re doing it — I think that’s important — but given that there are potentially serious consequences to Canadian citizens, the Canadian government must officially take a position and officially say to the U.S. government, “Look, we as a country are going to legalize cannabis. Once we legalize cannabis, we would be very upset if Canadian citizens are barred for life from entering into the United States for having engaged in activity that is completely legal in Canada.” I would remind the U.S. officials that — and I’m sure there is someone in this room who must be able to tell us how many tens of billions of tourism dollars cross the border every year; it’s not as if we don’t have a card to play.
This is a very serious matter. Canadians should not be barred from the United States for engaging in activity that is lawful in Canada. Obviously, Canada cannot tell the U.S. what to do, but Canada can and should as a country express in the strongest possible terms its official position as a government.
Smoking marijuana will be legal in Canada in small amounts, including possession, and Canadians shouldn’t be penalized. That’s what I would expect and what I think the Canadian government should do.
I have one other point I wanted to make. It wasn’t reflected in the testimony, but it’s a concern that’s been expressed to me. It has to do with some of the changes to the maximum punishments that you are seeing in Bill C-45 and Bill C-46. They have serious immigration consequence that I don’t think everyone has anticipated.
Under our immigration law, if you’re a permanent resident, you can only be deported if you get six months or more in jail or if you’re sentenced to a term of imprisonment for an offence that is punishable by 10 years or more. When you increase the maximum to 10 — and I gather there have been some offences that have increased to 10 and some to 14 — that automatically puts the offence into the category of serious criminality.
There may be valid policy reasons for doing that, but it’s important to consider the immigration implications of those changes. For example — and I don’t know if it’s in this bill or Bill C-46 — the change to impaired driving from 5 to 10 years as a maximum has a very serious consequence. It means now that a permanent resident who is convicted of impaired driving can be deported for his first offence of impaired driving. I don’t think that was the intended consequence of it; I think there are other policy reasons for making that change.
I would suggest that it might be possible for the Senate to consider an amendment that makes it clear that although the maximum punishment has been increased to 10 years, it should not have an impact on the immigration consequences. I could easily send in an amendment that would say something along the lines of, “This amendment will not, for the purposes of the Immigration and Refugee Protection Act, require that this offence be considered serious criminality.” Once it’s serious criminality, it becomes a ground for deportation for permanent residents.
More importantly, for people who cross the border, it’s relatively easy, if you’ve got a minor conviction for impaired driving, to get a permit to come into Canada, but, if the conviction now becomes what’s called serious criminality, the authority to issue permits is at a much higher level and takes much longer. It’s going to complicate the immigration system in ways that weren’t intended. So I think we need to consider whether or not the government really intended to have the immigration impact that it did by some of these changes in maximum penalties.
So those are my brief comments. I hope I’ve been of assistance.
Senator Jaffer: Thank you, Mr. Waldman, for always making yourself available. You spend more time here sometimes, I think, with different committees, than practising law . Thank you so much for being here.
I have one question you haven’t covered. It wasn’t in our transcript, but this is something that is really concerning me. For many years, I represented clients who were convicted for possession, simple possession. I know you don’t practise in that field, so, if you’re not comfortable commenting on it, let me know. The minister is not going to move to get those convictions set aside as San Francisco is doing or other jurisdictions are doing. I was wondering if you have any comments on that.
Mr. Waldman: This goes back to the question of border issues, and it was actually a point that I noted but didn’t have time for in my opening remarks.
Canada and the U.S. have a very close information-sharing agreement. When an American official sees a Canadian at the border and swipes his passport, he will be able to get access to his criminal record. Even if there is a simple conviction for possession of marijuana, and even if the official might have been inclined to not ask the question, once he’s faced with a conviction, the official will have no choice but to deny the person admission.
I think there are two separate questions here. One is the access that U.S. officials will have to the criminal records of Canadians who are convicted of simple possession and whether they should have or whether there might be a mechanism to purge that from the record. It seems to me that the only way that that might happen would be through some kind of process where people who have been convicted of simple possession get retroactively pardoned.
I would support that, but it’s of concern to the issue you brought me here to talk about because, if a person is convicted, the U.S. officials will check the criminal record, the database, see the conviction on the person’s criminal record and be forced to bar them admission, even though the activity is now legal in Canada.
Senator Jaffer: My second question has to do with the Preclearance Act. I’m personally very unhappy with what has happened with the Preclearance Act because, under Bill C-23, travellers must truthfully answer any question that is asked by the pre-clearance officer. That means that Canadians will have to answer truthfully about their cannabis use, despite the fact that they do not have to disclose it at the normal port of entry, meaning if they drive across. But they have to if they go by the airport.
The other part of this, which you are very much aware of, is that it’s on our soil, but our RCMP may not be there if there is extensive questioning. I wanted to know how you feel, especially with people who are permanent residents.
Mr. Waldman: It will apply also to Canadian citizens. Obviously, I wanted to testify, but I missed the opportunity to testify on the Preclearance Act. I have a lot of concerns about that and precisely about those types of matters because people will now be compellable.
The advice that the immigration officer said, — “You don’t have to answer the question; you can just turn around and go away” — won’t apply at Canadian airports, pursuant to this legislation. They will be compellable, and they will have to answer questions. So it’s a bit strange that a Canadian on Canadian soil will be in a weaker position than a Canadian who drives across the border and is on U.S. soil if you travel by car.
So it’s a matter for concern. I don’t think that, at the time the bill was passed, the drafters of the legislation really contemplated these types of situations. I think it’s a big problem, and it exposes some Canadians to a vulnerable position, for sure.
[Translation]
Senator Dagenais: Thank you, Mr. Waldman, for your presentation. I’d like to come back to the preclearance and customs question. Last week, our committee welcomed representatives from the American Border Services Agency, and a lawyer from Washington. Based on my understanding, we were told that if somebody’s jacket smells like marijuana, they would not be able to go through customs without a second inspection. Normal questions would be asked, but they would also be asked if they consumed marijuana. The Americans would have the right to ask this question and one would have to answer. They have even gone so far as to say that if someone admitted to smoking marijuana, it would be highly likely that they would not be able to enter the United States.
A number of Canadians now use the NEXUS card. I myself go to the United States regularly while using this card. You must certainly be aware that it does not take much to lose the privilege of having this card. Unfortunately, when we direct questions to the representatives of the current Government of Canada, we are simply told that they are working hard with our American neighbours. This is not an acceptable answer, two months before passing a bill. Canadians want clear answers.
To give you an example, a truck driver who is transporting cannabis in his truck cannot completely get rid of the smell even after washing the truck after the delivery. Afterwards, if the driver needs to pick up oranges in Florida, he risks being stopped at customs, which would lead to hours of delay. A number of people are working hard so that our borders remain fluid. I fear that this bill will interfere in these efforts. I would like to hear your opinion on this topic.
Later we will meet with the Minister of Public Safety and I hope that he will be able to provide us with answers. Once the bill has been passed, it will be too late to analyze the consequences. I don’t think that Mr. Trudeau will accompany people to the borders. I would like to hear your opinion on that.
[English]
Mr. Waldman: As I said, I understand the concerns. I think that legislation can’t be drafted based upon anecdotal evidence of a few people who might have difficulties. I am sure that there will be people who will have difficulties. Even now, people are asked the question, even though it’s not legal and they can be barred. When simple possession becomes legal, it’s likely more people will use it, and it becomes a problem.
That’s why my view is that the government should proceed with legalization, but, while they do, they must, at the same time, make it clear to the Americans that possession is legal in Canada and that the Canadian government does not think it is appropriate for Canadian citizens to be barred based upon something that is a legal activity in Canada.
So I think you’re right. The Government of Canada has to be clear, and the officials, last week, were not clear enough. So I agree with you. But I think that, certainly, it’s something the government can do and should do. I hope they will do it before the law passes.
[Translation]
Senator Dagenais: If I understand you correctly, Canadians that consume marijuana in Canada cannot necessarily do so after having crossed the border, even if certain American states have legalized it. These are additional reasons why the government needs to be very clear and inform Canadians on the consequences of smoking marijuana when crossing borders. At the moment, we are simply told that the government is working very hard. That answer is not satisfactory and can be used in any context.
[English]
Mr. Waldman: I think there is a second question there: What role does the Canadian government have in educating Canadians about the potential consequences of crossing the border into the United States?
I think that all citizens have the obligation to inform themselves of the risks that are associated with crossing borders at any time. Canadians need to know that you shouldn’t be carrying any contraband across the border, any kind of drugs at all, any border. And in some countries, the consequences are death penalties. So Canadians need to understand that.
I don’t think it’s the role of the Canadian government to educate Canadians about the potential consequences of breaking another country’s laws, but I do think it is the role of the Canadian government to explain to our neighbour to the south what the law is in Canada and to make it clear that we don’t think Canadians should be penalized for engaging in legal activity. Especially in the context of something which is legal, as you’ve said, in some form or another in 29 states. I hope I answered your question.
[Translation]
Senator Boisvenu: Thank you very much for coming today. Are you aware of Mr. Len Saunders’ statement? Mr. Saunders is a lawyer from Vancouver who appeared before us last week.
[English]
Mr. Waldman: I’ve read it. Yes.
[Translation]
Senator Boisvenu: Do you share his concern about the increase in the number of cases where people have lost their exemption, or have been denied entry at the American border? Is this something that worries you?
[English]
Mr. Waldman: The impression I get is that as a percentage of the number of Canadians crossing the border, it’s a tiny percentage. It doesn’t appear to be something that happens at such a frequent level.
Having said that, there seem to be, he said, if I understood him correctly, two cases a week that he was aware of in his practice. He has a very busy practice. Extrapolating from that, there are probably dozens of Canadians a week who are being barred. But when you consider the number of Canadians who are crossing, it’s not a significant percentage.
For that reason, we can’t build our governmental policy around something that affects a very small number of people. Having said that, I reiterate what I said before, which is that I think the government has an obligation to communicate to the Americans that simple possession will be legal in Canada, and we would not like it if Canadians are barred for activities that we’ve decided are legal here.
That should be communicated. The Americans will do what they want, and we can’t prevent them from doing that. It’s a problem now anyway because even though it’s not legal, there are still people who smoke and possess marijuana, and they get asked the question now and they get turned away. It will be a bigger problem once it’s legal.
[Translation]
Senator Boisvenu: We are expecting that about 10,000 jobs will be created in the marijuana industry in Canada. This encompasses the production sector, distribution and sales. What do you think would be the reaction of an American customs officer who asks a worker in this industry what their job is in Canada, if this person answers by saying that they produce marijuana?
[English]
Mr. Waldman: I think there could be difficulties there as well. If possessing marijuana is sufficient grounds to deny someone admission, acknowledging that you’re involved in the production of marijuana would also be grounds because if you’re involved in productions, it’s likely that you’ve possessed it, as well.
I think this is a problem. That’s why I say the Canadian government has to communicate with the American government and say, “Look, there are thousands of people who are going to be affected by this. There are tens of billions of tourism dollars every year spent by Canadians in the United States, and we don’t want that to be jeopardized. We want the rights of Canadians to be respected. We don’t think they should be punished and denied admission for legal activity.” That has got to be the message.
I don’t know what else the government can do. We cannot demand and require the Americans to enforce their law in the way we want. All we can do is make it clear that as a government that is what we want them to do. And they will make their own decision based upon their own political priorities at the time.
[Translation]
Senator Boisvenu: According to Donald Trump’s statement, the American federal government will not make any changes regarding the legalization of marijuana, and it will be up to every state to decide. But in the federal government’s regulations, the ban will stand.
Given the Americans’ aversion to drug sales, either marijuana or harder drugs, do you think that Canada will be able to encourage the Americans to make changes on this file?
[English]
Mr. Waldman: I think that international relations between states is a complex matter, and there are lots of different issues that are now confronting Canada and the U.S., the most important one being NAFTA.
Within the context of these bilateral negotiations, the issue around whether Canadians should be punished for and denied admission to the U.S. for smoking or possession of a small amount of marijuana or cannabis should be part of the bilateral negotiations that Canada and the United States are engaging in.
I think both countries realize that there’s a lot at stake in this. There are other tourist destinations besides the United States. If the Americans make it difficult enough for Canadians, maybe they will reconsider going to Florida and go to some other warm destination instead. The Americans have to be cognizant that they have interests at stake as well. I think the Canadian government has to make that clear to them.
Senator Oh: Mr. Waldman, thank you for being here and giving us great information on border crossings.
Last week, this committee heard from Mr. Saunders that border crossings and preclearance to the United States will be negatively impacted by the legalization of marijuana, specifically since Canadians admitting to having consumed marijuana could be barred permanently from the U.S.
Do you share the same concern? And do you think, when the use of marijuana is legalized in Canada, more Canadians will be denied entry into the U.S.?
Mr. Waldman: Obviously, you’re asking me to speculate. There’s no question that I’ve heard of cases of Canadians who have been permanently barred from the U.S. as a result of having admitted to smoking marijuana. That is something that occurs now, even though marijuana is not yet legal in Canada.
The problem exists now, and it will continue to exist after legalization. Will there be more cases after legalization? I think that would require me to speculate. That really depends on the policy of the U.S. government. Is the U.S. government going to become more aggressive in its enforcement of this law that says that if a person admits to having possessed marijuana they are inadmissible?
I think, in that context, there’s a role to be played by the Canadian government in meeting with U.S. officials and making it clear to them that we would be very concerned about increased enforcement of the law.
If we communicate that, and if the Americans hear us, my hope is that the number of cases will not go up but will go down.
Senator Oh: Mr. Saunders also briefly noted that after this legalization comes into effect, children and youth who possess or consumes cannabis would not be subject to a permanent bar from entering the United States, but their parents could be held liable.
Are you familiar with this issue? If so, can you please elaborate?
Mr. Waldman: I read Mr. Saunders’ testimony, and my understanding of his evidence is that parents could be held responsible for the fact that their minor children possess marijuana and could be barred as a result of that, although the children would not be. I read that in the testimony, and Mr. Saunders is obviously more knowledgeable in U.S. immigration law than I am. I’m a Canadian immigration lawyer. That’s my understanding.
Senator McIntyre: Thank you for your presentation. I would like to follow up in regard to one of the issues you raised: the impact on the U.S. economy should Canadians be barred from entering the United States when Bill C-45 becomes law.
Obviously, the Canadian government has to take steps to protect Canadians who will seek to enter the United States. Do you believe the government should pursue an agreement with the United States that would aim to protect Canadians from being prohibited or banned from entering the U.S.? Is that feasible?
Mr. Waldman: It would be difficult to have a formal agreement, because in Canada, for example, there is a provision in our immigration law that states that having committed an offence that is punishable by a certain length of time in Canada renders you inadmissible. If a U.S. citizen at this point comes to Canada and admits to having possessed marijuana, they could be technically denied admission into Canada and barred as well, because it’s still illegal in Canada to possess marijuana.
The question then becomes one of policy. It would be difficult to imagine how you would draft a specific exemption like that. I would think it would have to be in the form of a policy, and the policy would be simply not to ask questions of Canadians when they cross the border.
Senator McIntyre: The matter can get complicated, because we have state jurisdiction on one hand, and you have the federal jurisdiction, and it is the federal jurisdiction that controls the border —
Mr. Waldman: Right.
Senator McIntyre: — and enacts federal criminal law. That said, I just want to add to the question I was asking you a while ago about the agreement. If we don’t have an agreement, what other steps might the Government of Canada be advised to take?
Mr. Waldman: They need to communicate with the U.S. officials and explain that possession will be legal in Canada on a specified date, and that at that point, there will be Canadians seeking to cross into the United States who may have possessed marijuana, which in some parts of the United States and under federal law may be illegal, but the Canadian government would request that the Americans not take action against Canadians in relation to activities that are legal in Canada when they seek to enter the United States. It would have to be a formal request, government to government, that they do that. Then it will be up to the Americans to determine whether they agree with this request and determine how they’re going to implement it.
In Canada, I would expect that if it were the other way around and the Americans were coming to the Canadians, border officials could be directed to exercise their discretion to admit to Canada persons who may admit to having been in simple possession of marijuana.
There are mechanisms in Canadian policy that would allow Canada to do that, so I would think there are probably similar mechanisms in the United States that would allow Americans to do the same thing.
Senator McIntyre: You informed us that you read last week’s transcript. As you recall, officials from CBSA and Global Affairs Canada informed the committee that U.S. authorities have given no indication to them that their policies and practices on marijuana would change once Bill C-45 becomes law. Most witnesses told us that Canadians simply need to be cognizant of that fact when they seek to enter the United States.
In your view, will exercising greater caution be sufficient to protect individuals from a potential lifetime ban?
Mr. Waldman: That’s a complicated question, especially in view of the pre-clearance issues. I think the U.S. lawyer last week explained to you that, as a lawyer, no one can ever counsel anyone to misrepresent. I always say it is a very bad idea not to tell the truth to any official at any time. So if a Canadian is confronted with a U.S. immigration official who asks that question and the answer might be “yes,” they are better off not answering the question and withdrawing back to Canada. I think that was the advice the immigration lawyer gave.
The fact that the Canadian official said that the U.S. policy isn’t going to change means we’re left in a sort of ambiguous situation. From reading the testimony last week, generally speaking, the U.S. officials are not going to ask, but there might be some who do ask. If somebody asks, then a Canadian could be barred for life. That’s the situation we’re confronted with now.
It seems to me the Canadian government needs to take cognizance of that and deal with it, and say, “Look, this is the situation now. What is the U.S. government going to do, given the flow of tens of billions of dollars of Canadian tourist dollars to the United States? What are you going to do once the possession of marijuana becomes legal in Canada, and we don’t want Canadians to be banned for life from the U.S. for engaging in legal activity?”
[Translation]
Senator Dagenais: Mr. Waldman, I understand your point of view very well. There must be negotiations between the American government and the Canadian government to explain the situation in Canada. Based on what is happening currently with other files, things aren’t always easy.
This said, the Government of Quebec has begun to broadcast a television ad for teenagers and people in general explaining that the use of marijuana is dangerous to one’s health and that they should be careful. A government that drafts legislation has the responsibility to inform and educate people. In fact, the Government of Canada, more specifically the health department, has never shied away from mentioning that the use of tobacco was dangerous to one’s health. I hope that they will do the same thing for marijuana.
Given that this bill was rushed through, would you be amenable to delaying it and even its implementation for a few months, in order to educate and inform Canadians? Once the bill has been adopted, it will be a bit late to educate Canadians.
It is my understanding that some provinces have agreed to educate their populations. Currently, this falls under provincial jurisdiction, and more could be done, but municipalities were expecting to benefit from marijuana sales. However, they have been told that that is not the case. That being said, there are many repercussions.
Would you agree to have this bill delayed for at least a year in order to take the time to educate and inform Canadians? No matter how well we explain things to the Americans, we all know that we are considerably more nervous when we go through American customs than through Canadian customs. I would like to hear your comments on the subject of delaying this bill in order to better inform Canadians.
[English]
Mr. Waldman: In terms of the health effects of smoking marijuana as opposed to cigarettes, that’s well beyond my expertise, so I don’t really feel competent to advise the committee as to whether we should delay the bill to educate Canadians about that.
In terms of delaying the bill because of the border issues, I don’t think a delay is going to assist. What needs to happen is forceful communication between the Canadian government and the U.S. counterparts as to the implications of the legislation and the expectations of the Canadian government vis-à-vis U.S. government conduct in the face of this legislative change.
If we were doing something hugely controversial that would be viewed problematically, like legalizing heroin or something, there would be a huge issue, but since 29 states have legalized marijuana in some form, I really don’t think it’s so controversial that we can’t go to the Americans and say, “Hey, look. Twenty-nine of your states have some form of legal marijuana. It’s going to be legal in Canada. Leave Canadians alone for simple possession.” I think that’s what we need to do.
Senator Jaffer: Mr. Waldman, you always make your remarks thoughtfully, saying that our government has to talk to the Americans. As you’ve set it out, I won’t repeat about the monies we spend in the U.S. The challenge that the committee here faces is that when I pushed the official about this, I got a lecture about how we can’t tell another country what to do. So what you said, I felt like it was a fait accompli. That’s what they said. As you read in the transcript, it said the American government will not change its position, and our officials told me it’s not their position to tell another country what to do.
I hear what you say, and obviously the minister is appearing after you, and we will urge him regarding what you are telling us, but that’s the challenge we face.
Mr. Waldman: I think it’s important to distinguish we’re not telling the Americans what to do. We’re giving the Americans our official governmental position and asking the Americans to take that into account when they deal with Canadian citizens who are seeking to cross the border within the context of Canadians who spend tens of billions of dollars of tourism money in the United States.
We’re saying to the Americans, “It’s your call what to do, but possession is going to be legal in Canada on this date, and after that we would ask, as a government, that you take into account that it’s legal when you deal with Canadians crossing the border.” That’s all we can do.
Senator Jaffer: And the challenge gets even worse, because I live in B.C. When this law goes through, it will be legal in British Columbia. It’s legal in Washington state. So for a British Columbian, they think that they are not doing anything wrong. They’re going to a state where a certain amount of cannabis is legal, and yet federally it isn’t. It’s not that easy. People will be confused as to what’s happening. I think that there’s a lot of work that our government needs to do to protect Canadians.
Mr. Waldman: You know, in the same way that there’s been a lot of effort about educating people about not taking large amounts of currency across the border, I think the same thing has to happen with Canadians not taking drugs across the border. Even though it’s legal in Canada, it’s not legal in most contexts to transport marijuana between Canada and the United States after legalization in Canada. Canadians have to be educated about that, and it has to be made perfectly clear to them that legalization in Canada does not allow you to cross the border.
Maybe it makes sense to put signs up near the border crossings warning Canadians about that. I’m not sure. But there has to be a concerted effort to educate Canadians about what is and is not legal.
Senator Jaffer: For me, it’s worse than that. I accept you are going to another country, so you have to know the laws of that country. And if you’re going to take cannabis, you should know the law. If you just smoked some, you should be aware. But if you smoked 10 years ago, you can still be stopped from going in if you tell the truth. That’s the challenge, and that’s where our government needs to play an active role.
But I have another question for you. You spoke about people being deported because of the maximum years changing. Can you slowly repeat that, because that’s something very important that we must keep in mind.
Mr. Waldman: Okay. So in the Immigration and Refugee Protection Act there are two kinds of inadmissibility. Any foreign national is inadmissible if they’ve been convicted of an offence that is equivalent to any indictable offence. It doesn’t matter the maximum punishment.
Now, impaired driving is five years maximum in most cases. If it’s five years, you’re inadmissible. But it’s called criminality. It’s not serious. Implications of that are, one, a permanent resident can’t be deported for a simple conviction for impaired driving; and two, if someone is visiting Canada or applies for permanent residence and has a simple conviction, it’s relatively easy to get a permit to overcome that.
One of the proposals in the changes in the legislation is going to be to increase the maximum penalty to 10 years. If it’s 10 years or more, it’s now serious criminality under the Immigration and Refugee Protection Act, so that applies not only to non-permanent but to permanent residents. It means once this change goes into effect, a permanent resident could be deported for one impaired driving conviction.
It also means it’s more difficult for any person who seeks to come into Canada to overcome the inadmissibility, because once it’s serious criminality, the requirements for getting into Canada are more severe and require a higher level of delegation to allow for permission to come into the country.
So I think it’s an unintended consequence of some of these amendments that are increasing the maximum penalties that will have a negative impact on immigration. From some of my conversations, I have a sense that maybe even the immigration officials may be concerned about this, so it might be the kind of thing that the committee would want to explore with immigration officials because it would be possible for the Senate to introduce an amendment that would say that even though we’re increasing the maximum penalty under the Criminal Code, it shouldn’t be considered as an amendment that affects the seriousness for the purposes of the immigration law. I don’t know if that helps you.
[Translation]
Senator Boisvenu: Once again, thank you very much, Mr. Waldman.
We can see the scope of the problem many Canadians are facing. The fact that the department is so ill-prepared to negotiate or discuss issues with the United States is further proof that this bill involved little planning and a great deal of improvisation. Last week, representatives of three organizations appeared before the committee, including the RCMP, international organizations and CBSA. We asked them whether they had written to the United States to raise this issue. To our collective surprise, the answer was no. In your opinion, is it true that there was no correspondence between Canada and the United States?
[English]
Mr. Waldman: Obviously, I don’t have any knowledge as to correspondence or communications. I read the reports last week, and the officials made it clear that they’ve been communicating with the Americans, and I think it’s important that we have clarity as to what they have communicated and what they are going to communicate to the Americans.
I think it’s an extremely important question, but as I said, we can’t exaggerate it in the sense that given I don’t know how many crossings a week into the United States, the fact that there may be a small number of Canadians who have problems suggests that the majority are not going to. Having said that, that doesn’t mean that we shouldn’t be concerned about the small number who have problems. We need to look for a solution.
As I said, all we can do is communicate and say, “Look, this is the law in Canada. We ask you to take that into account when you enforce U.S. immigration law.” It’s up to the Americans to make that choice. Once the Americans decide what they’re going to do, then the Canadian public has to decide what it’s going to do. Maybe Canadians will say they are not going to cross into the United States if they are asked a question and they might be barred for life. The Americans will have to question whether they will enforce a law that will cost them tens of billions in tourism dollars.
[Translation]
Senator Boisvenu: It is simplistic to tell Canadians to simply go elsewhere. Some of them own houses and have investments in the United States. Travelling elsewhere often costs twice the price of a trip to Florida. If I were Prime Minister of Canada, I should therefore tell Canadians: If you are denied entry to the United States, just go somewhere else. Canadians are going to pay for this kind of improvisation, when legalization should have been properly planned. The problem should have been identified, because you are saying it may be a problem that is somewhat magnified. We do not know that. We will find out over the coming years. Are we to depend on that type of voluntary simplification that will penalize Canadians to an unknown extent?
[English]
Mr. Waldman: But the truth of the matter, sir, is that Canadians can be penalized now. The fact that we legalize possession isn’t going to change anything. There are Canadians who are being barred at this moment from going into the United States when they get asked the questions. The statistics already show that there’s a significant number of people in Canada who have smoked marijuana at one point or another in their life, and, if a U.S. official asks them and they choose to answer truthfully, they will be barred from entering the United States. It is a problem that existed before legalization, and it is a problem that will continue to exist. The difference is that, at this point, it’s very difficult for the Canadian government to go to the Americans and say, “Hey, look, why are you penalizing Canadians for doing something that is illegal in Canada?” When it’s legal, then we can go to the Americans and say, “Why are you penalizing Canadians for doing something that is legal in Canada,” and it gives us a much more convincing argument than the one we have now.
The problem with your reasoning, with respect, is that I don’t think anything has changed because the problem exists now. I think we’ll be in a better position if simple possession is legalized because we have a more compelling argument to make to the Americans at that point about whether they should penalize Canadians for conduct that is legal in Canada.
Senator Oh: We have been talking about going to the States. What about the other way, Americans coming in? Are they allowed to freely bring marijuana into our country? Do we ask them?
Mr. Waldman: The Americans are not allowed to freely bring marijuana. It is illegal to possess marijuana in Canada at this time. If an American admitted to having possessed marijuana in the past, they could be barred entry into Canada, and I wouldn’t be surprised if it has happened. I wouldn’t be surprised if Americans were barred from coming into Canada for having been convicted of simple possession. Actually, I know of cases where they have been barred because they approach my office. At the present time, the situation is the same. Right? If a Canadian port-of-entry official asks, “Have you possessed marijuana,” and the U.S. citizen says yes, they can be barred entry into Canada. After legalization, that won’t be the case because, in order to be barred, it has to be a crime in Canada. If it’s no longer a crime in Canada, a U.S. citizen won’t be able to be barred for simple possession of marijuana.
Senator McIntyre: Mr. Waldman, I want to get your thoughts on the issue of implications for Canadians who become involved in the marijuana business legally in Canada but who then may seek entry into the United States.
You’ve read the transcripts, so you know that, last week, Mr. Saunders informed this committee that all of these individuals were technically legally inadmissible to the U.S. should that fact be discovered. My question is this: Do you agree that this is a serious risk for an individual who is involved in marijuana legally in Canada but seeks to enter the U.S.?
Mr. Waldman: In the same way that possession is a problem, being involved in production could be a problem as well, for sure. There is no question that the testimony of the witness was correct. I agree with it. So that really leads to the question of what Canada can do about that, and I think I’ve made my position pretty clear.
[Translation]
Senator Dagenais: I have a supplementary question. Mr. Waldman, I heard you say that if Canadians did not wish to travel to the United States, they could simply go elsewhere. However, some countries require visas. We cannot tell Canadians to travel to other countries. We must be careful. I recommend that you not consume any marijuana at all. If you smoke marijuana and you travel to Thailand or Costa Rica, you may be denied entry.
[English]
Mr. Waldman: I’m not familiar with the immigration laws in Costa Rica. I could try to find out whether they can bar people who haven’t been convicted just on the basis of admission that they possessed.
We all know that it’s very irresponsible for any person to cross a border with drugs. So, if people do that, then they’re doing it at their own risk and risking serious consequences.
What would be the likely consequences in other countries that we might want to visit if we didn’t visit the United States? I don’t know. We’d have to get someone to look at that. I’m not an expert on Costa Rican immigration to tell you the answer to that.
Senator Dean: Thank you, Mr. Waldman. I just want to be absolutely clear. I think you have been very clear in answering most of the questions, but you said something a few moments ago that I think is important and should be of interest to my colleagues around the table. I think I heard you say that the Government of Canada would be in a stronger position in approaching its U.S. counterparts to tackle some of the border issues that have been identified here post-legalization and strict regulation than it is today because we would be arguing from a position in which those questioned activities are now legal. Do I understand that correctly?
Mr. Waldman: Yes. It’s very difficult for the Government of Canada now to go to the Americans and say, “Don’t punish a Canadian for doing something that they could theoretically be punished for in Canada.” When we reach the point where it is legal to possess a small amount of cannabis in Canada, we have the moral authority to go to the Americans and say, “Hey, look, this is legal in Canada. As a country, we would ask that you not punish Canadians for doing something that is legal in Canada.” I think it’s much more difficult for us now to make that approach. We can make it now in anticipation of legalization. That’s what we should be doing.
Senator Dean: Thank you.
The Chair: Seeing no more questions. Mr. Waldman, let me take this opportunity to thank you very much, as always, for your frank answers and for joining us today. We’re very grateful for your expertise on this matter.
Mr. Waldman: Thank you. It’s a pleasure, as always.
The Chair: Colleagues, as you will recall, we heard last week from officials representing the CBSA, the RCMP and Global Affairs Canada. A number of issues were raised that could not be answered at that time. As such, we are very pleased to welcome the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. He is accompanied by Mr. Trevor Bhupsingh, Director General of Law Enforcement and Border Strategies at Public Safety Canada.
Minister, we will hear your opening remarks, after which we will have questions for you. Welcome.
Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Thank you, Madam Chair, and good afternoon, everyone. My apologies for being a bit late. As you know, there was a special proceeding in the House of Commons this afternoon regarding the Chilcotin people of British Columbia. All members of Parliament were there to witness the apology and the exoneration. That was an important moment in the House of Commons for which we all needed to be present. I’m also informed that about an hour from now, the bells will start to ring for a vote, so we have about an hour, Madam Chair.
I’m pleased to have the opportunity to be back again to discuss Bill C-45. I want to thank the committee and its members for your very careful consideration of the bill, especially given my responsibilities from a border and law enforcement perspective.
As you know, this legislation represents a major overhaul of the laws governing the production, sale, possession and use of cannabis in Canada. The long-standing prohibition and criminalization approach has, over the last 90 to 100 years, proven to be pretty well a complete failure on virtually all levels. Like alcohol before it, the illegality of cannabis has certainly not stopped people from consuming it.
Yet, for decades, inaction on pursuing a different approach has led to the accumulation of some seriously negative consequences. Fighting the production, possession and consumption of cannabis has wasted valuable resources and cost this country a fortune; I’m told, in terms of law enforcement, in the neighbourhood of $2 billion to $3 billion a year goes into attempts to enforce a law that clearly has failed.
The criminal charges that result from that fight have ruined many people’s lives, particularly the lives of young people. In spite of this, Canadians, including especially youth, continue to use cannabis at a higher rate than people in most other countries. In many cases, it’s actually easier for our youth today to buy cannabis than it is cigarettes or alcohol.
Nobody benefits from the failed system currently in place, except for one group, and that, of course, is the criminals who reap huge profits from the sale of illegal cannabis. It is estimated that somewhere between $6 billion and $9 billion a year flows into the coffers of organized crime.
Because the cannabis sold by criminals is unregulated, its content, its potency and its quality can and do vary greatly. Also, the product can be profoundly dangerous. With Bill C-45, the government is proposing to take a bold and much-needed new approach to cannabis in this country. The bill covers every aspect of the cannabis industry. It reflects the testimony and advice of experts and academics, law enforcement and other stakeholders, parliamentarians and the Canadian public at large. It also takes into account what we’ve learned from the experiences of other jurisdictions that have legalized cannabis for non-medical purposes.
As is the case for other legal products, such as alcohol and tobacco, we recognize that cannabis use is certainly not without risk. For example, we know that the younger someone is when they start using cannabis, the greater the overall risks to their health. That’s one reason why this bill is driven, in large part, by a zero-tolerance policy with respect to youth.
To help keep cannabis out of the hands of young Canadians, Bill C-45 would introduce strict rules on plain and factual packaging and labelling. Promotion and display would also be tightly controlled. Anything that could be appealing to youth would be prohibited.
These regulations would be accompanied by serious criminal penalties for those who sell or provide cannabis to children or use children to commit a cannabis offence.
At the same time, this bill would promote health and safety by offering those Canadian adults who choose to use cannabis legal access to a regulated supply of cannabis with strict product safety and quality requirements.
A competitive legal market would help combat crime by drying up a major source of income for criminals. In fact, as I noted in my appearance before the Committee of the Whole last month in the Senate, legalization recently shrank the criminal share of the cannabis market in Washington state by almost 75 per cent.
Officials in Washington, as well as Colorado and Oregon, have also stressed the importance of early public education and awareness. In line with this advice, the government is informing Canadians, young people in particular, of the risks of cannabis use and the risks of driving while high. Public education and awareness campaigns have already begun, and they will continue to be a priority.
In addition, the government is investing up to $274.5 million over five years to support law enforcement and border efforts to enforce the new cannabis legislation and regulations, and to deter drug-impaired driving.
Up to $161 million of that total is earmarked for building law enforcement trainer capacity, training front-line and Border Services officers on the signs and symptoms of drug-impaired driving, bolstering research, supporting policy development and raising public awareness, all to ensure public safety on our roads.
Provinces and territories will be able to access up to $81 million of this funding to enhance training capacity related to impaired driving and to access drug screening devices.
The rest of the funds, about $113.5 million over five years, will help ensure that organized crime does not infiltrate the legalized system to keep cannabis from crossing our borders.
There has been a lot of discussion about how Bill C-45 will affect the Canada-U.S. border, in particular. You may have heard me having a discussion with the media in the hallway about that topic as I came in.
This committee has heard from a number of witnesses on the issue of the border. It is, of course, illegal today to take cannabis into or out of Canada. And it is important to reiterate that under Bill C-45, that would remain to be the case. It is illegal now and it will continue to be illegal to cross the border either way with cannabis.
That means that the Canada Border Services Agency would continue to examine people and shipments for cannabis at ports of entry. CBSA plans to install signage at ports of entry to let travellers know that they cannot bring any cannabis, recreational or for medical purposes, into Canada. It would also develop a penalty regime for unauthorized cross-border criminal activity related to cannabis. And it would invest in its laboratory capacity to keep pace with increases in referrals for analysis of seized substances.
In addition to these measures, CBSA will be communicating with travellers, stakeholders and other key players to inform them about the border-related issues associated with cannabis. That includes reminding Canadians that cannabis and cannabis products are illegal under federal law in the United States.
Every country has the right to make its own decisions on admissibility. The U.S. is no exception. We make our own rules, and we would take great umbrage if the United States purported to tell us how we should run our border.
Canadians who wish to enter the U.S., or any other country for that matter, must adhere to all local laws when attempting to gain entry into that country. Awareness measures are essential in informing the travelling public of the continued prohibition of the cross-border movement of cannabis. This will mitigate the risk of unintentional violations of border or national laws.
I can also assure you that my officials and I continue to have ongoing discussions about cannabis with our American counterparts. I have raised this issue a number of times with the previous and now new and current Secretary of Homeland Security. It comes up in virtually every conversation that we have. Our respective officials and border agencies are in active dialogue about it. We want to make sure that the United States understands the changes that we are proposing to make and, equally important, the reasoning behind those changes, why we are moving the way we are.
We also want to identify and mitigate, as much as possible, any concerns regarding border enforcement. Our ultimate goal is threefold, and I’ll conclude with this: ensuring that travellers are aware of regulations and what to expect when crossing the Canada-U.S. border; ensuring that people are treated in a fair, respectful and consistent manner at the border, in accordance with all relevant law; and ensuring that the legitimate flow of goods and travellers across the border is unimpeded in both directions.
Thank you, senators, and I look forward to trying to answer your questions.
The Chair: Thank you, minister.
Mr. Goodale: I’m grateful to have Trevor with me who knows the detail in the fine print.
The Chair: Senators, I want to remind you that there are a number of people on our list for questions. Please keep them as brief as you can.
[Translation]
Senator Dagenais: Thank you for appearing today, minister. I would like to come back to your comments regarding the sale of marijuana and its disruption of criminal activity.
According to a televised news report this past weekend, organized crime makes more money with contraband cigarettes than with cannabis. I just wanted to make that little aside.
I would like to come back to the issue of borders. Canada goes to considerable effort to improve the flow at borders, for example through programs such as PreCheck and the NEXUS card. Among the witnesses we have heard thus far, I would like to mention a Washington lawyer, according to whom if for one reason or another, you arrive at the border, you may be asked certain questions: how much money do you have? Where will you be travelling and how much time do you plan to stay there? Have you smoked marijuana? You could be denied entry at the border for simply admitting that you consumed marijuana. I mentioned to the same lawyer that if one smokes marijuana the odour can remain on one’s clothing. If a sniffer dog detects that odour on you, you may be detained at the border. You may be subjected to a secondary inspection and then denied entry to the U.S.
There is also the issue of people who transport marijuana in a truck, for one reason or another. There is often a requirement for vehicles to be washed at the border. For example, someone may be bringing oranges back from Florida in their truck. The truck smells like marijuana. This may lead to a second inspection of the truck, following which the driver may be detained for several hours.
I understand that the bill is one thing, but we are finding it difficult to obtain clear answers, and the devil is in the details. What impact will this bill have on Canadians? We were told a few minutes ago that if Canadians did not wish to travel to the U.S. because they had consumed cannabis, they could simply travel elsewhere. That is an overly simple answer, especially given that many Canadians have investments in the U.S. because of that country’s economic stability and easy access. Often, Canadians are part-time snowbirds, part-time citizens of the U.S. Will we be getting clear answers? I understand that the rules must be followed, but I get the impression that we are being told the following, “Americans will do their jobs, and we will do ours.” However, this is not always the case when one is crossing the American border. I would like to hear your comments on that subject.
[English]
Mr. Goodale: Senator Dagenais, the potential problems you identify actually exist today; there are some people, even though marijuana is illegal, who consume the product now and approach the border. If the border guard on the U.S. side has reason to be suspicious, they are entitled, in the application of American law, to ask questions or to require secondary screening, and so forth.
So the problem you describe exists right now. The question is whether it will become a more significant problem once the law changes.
Canadians need to be very alert to the fact that when they go toward that border, they are approaching a different country with a different set of laws, and they need to be respectful of those laws if they wish to cross that border. If you are driving up to the U.S. border and smoking marijuana in your vehicle, you are really asking for a secondary investigation. That is very foolish behaviour. It’s foolish behaviour to have marijuana in a vehicle, period, because of the danger with respect to driving, but to approach the border, say, when you’re just finishing a joint, you are creating the evidence that invites the U.S. border officer to do a secondary examination.
This is why I said in my opening remarks that we have to make sure Canadians are acutely aware of this and that they should not approach the American border in a manner that invites suspicion, because, quite frankly, they will bring upon themselves whatever the consequences are.
Canadians need to know that the law changes at the border. They need to be respectful of the other country’s law.
The thing that some of our interlocutors on the American side of the border have said is that it’s not perhaps the safety concern that is their big worry with respect to marijuana; it’s lineups that could cause congestion at border points. We’re obviously working with the American officials to anticipate the kinds of problems that might arise and to understand on both sides of the border what the protocol will be for managing those problems.
The key point is this: Moving marijuana across the border, in either direction, is illegal today, and that will continue to be the case under the new regime, and Canadians should not play fast and loose with border procedures.
[Translation]
Senator Dagenais: You have had discussions with the Americans. Did they give you very clear answers? I understand that one cannot cross the border with marijuana. That said, were they clear in their answers? The Government of Quebec is currently running advertisements about the dangers of marijuana. Does your government intend to raise awareness among Canadians by having a public awareness campaign so that they will clearly know that they may lose their right to enter if they pass customs with marijuana? Did the Americans give you clear answers? The laws will not be changed. When people arrive in the United States, the Americans will not relax the laws. Canadians understand marijuana legalization, but the laws in the United States will not change. We will have to ensure that they have understood the message. If someone goes to the United States, they will see a sign when they arrive at the border. I understand what you’ve said.
[English]
Mr. Goodale: The point about making sure people are fully, thoroughly and repeatedly informed is a very good one. Signage is part of making sure people know what consequences follow when they approach the border, and CBSA will be undertaking that both for Americans approaching the border from their side so that they understand the Canadian rules and regulations and for Canadians approaching from our side of the border to make sure people going both ways are fully informed of the law and the consequences of violating the law.
Your advice about various advertising campaign, and educational and information efforts so that people really do understand the facts and how serious this is — and they do need to treat it seriously — those are going to be critical parts of our information campaign.
As well, it may sound like a flippant reply, but one very solid reply actually came from John Kelly when he was Secretary of Homeland Secretary before he moved over to the White House. General Kelly said, “Just make sure you tell all the Canadians coming to the border to check their pockets before they get there, and don’t give the border officer an inadvertent surprise by finding something in a pocket that you hadn’t expected.”
We’ve got a parallel situation that we need to think our way through here. The situation we’re grappling with here is offences with respect to marijuana that will no longer be criminal or even illegal on the Canadian side of the border but that are considered to be federal offences under American law. Flip it around the other way and consider DUI, driving under the influence. Those are state laws in the U.S.; they aren’t federal offences under U.S. law. But they are in Canada; driving under the influence — impaired driving — can be an offence under the Criminal Code.
So right now, Americans coming to the border, if it comes to the attention of a CBSA officer that an American has a DUI on their record, they can be denied entry into Canada, and they are on a not-infrequent basis.
There needs to be a discussion here with the Americans about how they would treat something that is not a federal offence in Canada but is in the United States, just as we need to think our way through how we would treat offences that are not federal offences in the United States but are in Canada. The flow works both ways. We need to make sure that our border officers are handling this flow in an intelligent, respectful, consistent manner.
The key to it, I think, lies in your question: People have to be thoroughly informed about what these rules are so that they can’t say after the fact, “Oh, I didn’t know.” They need to know.
Senator Jaffer: Thank you, minister, for being here. I want to first thank you for your leadership in introducing a bill to keep our communities safe by ensuring guns are used in a safe manner. I remember as president of the Women’s Commission working with you on the last round and the scars you suffered then. It takes a lot of courage for you to do it this time, so thank you. I want to tell you that Mr. Bhupsingh has represented you well in Legal, so you are well served.
I have two questions before the chair cuts me off. My first question, following up on what Senator Dagenais said, is this: I accept that if somebody goes to the border with marijuana, there should be consequences because you’re crossing. I accept that if you have just smoked or it’s in your pocket, there are issues. The challenge I have and the concern I have — and I really want you to take this very seriously, minister — is the question that came up last week when I asked the lawyer from the U.S.: Somebody who has smoked cannabis five, 10 years ago and who has to truthfully answer that they did can be denied for life. We have an Olympian from my province who was denied. I would like you, minister, to work on that. That’s not something that’s an immediate risk. That was in the past. We want people to be honest. The lawyer suggested just to walk away from the interview, but under section 23, as you know, that can lead to obstruction charges for this person. So it’s not that easy to do that anymore. I would like you to look at that.
I will have you comment on this, and my other thing is this, minister: I’m not really happy with the response you’ve been giving on convictions of mere possession. You’ve said you will look at that later. Minister, we share our CPIC with the other side. They will have that in front of them when a person goes across the border. I believe, minister, you have to do something now, not wait to deal with people who have mere possession.
I’m coming to you with a solution, and that is to see the San Francisco model, where, if you have a mere possession, it will just go off your record, because I think that if you are serious about these issues you really need to look at the mere possession convictions from the past.
Mr. Goodale: On the latter point, senator, as you know, the legislative calendar, at the moment, is chock-a-block full, but the Prime Minister has indicated, on several occasions, that once the new regime is in place, which changes the paradigm that has existed for nearly 100 years in Canada, we will examine all of the ways in which we can ensure that all Canadians are treated fairly.
The process for doing that has several options and models, and I would certainly be glad to look at the one that you’ve described. There are several different ways to accomplish that objective, but, at the moment, the urgent requirement is to make sure that Bill C-45 and Bill C-46 are actually enacted so that the law changes. We’ll welcome every good idea about how to deal with the consequential issues and make sure that Canadians are treated fairly.
Senator Jaffer: Having smoked cannabis five years ago.
Mr. Goodale: Oh, yes. The Americans have said many things, but two things relevant to this. First of all, people do need to answer border questions truthfully. So the notion of being dishonest in a border interview is not a good idea because that can have huge ramifications for a very long time. So Canadians should answer truthfully.
But they have said to me that their greatest concern is the potential for congestion and lineups. My response to them was, “Well, if circumstances aren’t changing at the border — it’s illegal now and it will be illegal then, both ways; nothing has changed at the border — why would you change your interview to ask people a different set of questions, because the border facts have not changed?”
So the issue of asking, out of the blue, a question that actually has nothing to do with anything, about conduct or behaviour 10, 15 or 20 years ago, is, quite frankly, an irrelevant question to anything that has to do with border security right at this moment with this particular person.
So we are having a dialogue with the Americans, trying to step through all of the scenarios, all of the what-if possibilities, to make sure that they are thoroughly informed about what we’re doing and also, as I said in my remarks, thoroughly informed about the rationale for why we’re doing it and also pointing out to them that there are — I forget the number now — a substantial number of states in the U.S. that are presenting this challenge to the United States domestically.
We all need to think this through thoughtfully together, and there’s no reason for that border interview to change in any significant or substantive way, because the rules haven’t changed.
Senator Jaffer: I think there are 27 states. Minister, I was very unhappy with the answers we got from your department last week, and that’s why we asked you to be here because the idea — and I could be wrong; you can look at the transcript — was that the campaigns will start after.
I come from B.C. In Washington, cannabis is legal. In my province, if this goes through, it will be legal. I believe that the campaign should start now to protect Canadians as to what their rights are.
Mr. Goodale: I’ll check the transcript.
Senator Gold: Welcome, minister. Just before you arrived, we heard from an experienced immigration lawyer, Mr. Waldman, and this issue of being potentially barred for life if one admitted to having smoked cannabis at any time in one’s life was an issue that was much pursued. I just wanted to get the benefit of your comments on a suggestion he made, a suggestion and an observation.
The suggestion, and recommendation, was that the government should, if it isn’t already, be engaged in serious discussions with its counterparts, government to government, to request that the U.S. government not punish Canadians for doing something that will be legal under Bill C-45, when it’s passed, and he was hoping that that would have an effect on the discretion that border officials might exercise in the United States, as it would on our officials if the request came from the United States.
That was his recommendation, and I’d like to know whether that is part of the conversations to which you’ve alluded.
The other observation that he made — and I’d like your comments — was that, in making that request to your counterparts and the officials, Canada would be in a much stronger position post-Bill C-45, post-legalization, than it is now. Otherwise put, the legalization of cannabis could actually make it easier for Canada and more persuasive for Canada to request that no changes take place at the border and that Canadians are not punished for engaging in behaviour that is now legal in Canada.
I would appreciate your comments on the recommendation and the observation.
Mr. Goodale: Well, the dialogue with the Americans is ongoing. As I said, this is a topic that gets dealt with, in one manner or another, every time I’m in conversation with the Secretary of Homeland Security, and the border agencies on the Canadian side and the American side are working through all of the potential issues that they might be confronted with.
I think our message to the Americans, while it may not be expressed quite as bluntly — although we may get there — is that this should not be an issue. It becomes an issue if you make it one, and there is no need to make it one because the border rules have not changed.
Senator Gold: But would you consider, at the appropriate time, requesting from your counterparts that they not make it an issue because the law has now changed in Canada and it is irrelevant in any case?
Mr. Goodale: That is the gist of the proposition that we’re putting to them. We may have to be increasingly blunt in the way it’s expressed. We want to make sure that the treatment of Canadians at the border is fair and reasonable, and based on the facts and reality. We will take every opportunity with the United States to make that point clear.
Senator Oh: Thank you for being here, minister. We heard earlier that Bill C-45 and Bill C-46 could have an impact on our immigration system. More specifically, we heard that permanent residents and foreign nationals could end up being deported from Canada on grounds of criminality or serious criminality for a single marijuana-related offence.
Was this the federal government’s desired outcome?
Mr. Goodale: I’m just struggling a bit to understand why that comes about, how that argument is made.
If someone is drug smuggling, that is certainly a ground upon which a person might be inadmissible to Canada, but at least one of the points in changing the regime that presently exists with marijuana is to get rid of that problem of people carrying a criminal record for what is a minor offence and will, in future, not be an offence at all.
There will be very tough penalties in Bill C-45 for drug trafficking, especially for drug trafficking in relation to young people, and violations of the law in relation to trafficking and the exploitation of young people could indeed trigger a record that makes a person inadmissible. But not in terms of simple possession. The law is moving in the opposite direction on that.
Maybe I’m misunderstanding your point.
Senator Oh: What about something like the impaired-driving laws? They can lead someone to have a 10-year sentence.
Mr. Goodale: Yes. That’s an important point. People should not drive high. You’re endangering your own life and everybody else on the road.
Senator Oh: So this could be a marijuana law, in Bill C-45?
Mr. Goodale: Not under Bill C-45. But in Bill C-46, we’re proposing the toughest impaired-driving regime in the world, whether alcohol or drug impaired. And it is for very good reason: in order to keep Canadians safe.
We are substantially strengthening the law and creating two new offences under the law for people who endanger the lives of others by driving while impaired.
The Chair: This is a reminder to keep your questions as short as possible so that we can get all the questions in.
Senator McIntyre: Thank you, minister, for being here today and answering our questions. My question has to do with the American approach to enforcement at the border, in other words, state jurisdiction versus the federal jurisdiction.
Minister, as we all know, some U.S. states are relaxing their marijuana laws or have legalized marijuana, such as the states of Alaska and Washington, which have land borders with Canada. That said, some people may think that the flow of marijuana from Canada to those states or vice versa will be done more freely. However, the fact is that the U.S. federal government has not relaxed its laws, and it is they who control the international border as well as enact federal criminal law.
Minister, do you acknowledge that the difference between American states and Canada is that American states do not have to deal with the international border?
Mr. Goodale: The international border is clearly federal jurisdiction, whether that’s in Canada or the U.S.
Senator McIntyre: That seems to be the crux of the matter.
Mr. Goodale: We’ve discussed this with the Americans, and they quite readily acknowledge that their situation within the boundaries of the United States is getting more and more complex because they have more and more states that are either legalizing or decriminalizing or, in a very significant way, changing their state regime. Two that are in the process at the moment are New York and California, and that, of course, engages a huge population share in the United States.
So the situation in the U.S. is becoming confused, and within each one of the states, the rules are a little bit different. They’re not identical in those various jurisdictions that are legalizing or decriminalizing.
We need to keep reminding ourselves that while the Americans sort this out domestically, it will take a while for all of this legal innovation and confusion on the American side settles down, which it will eventually. In the meantime, the federal law is the federal law. And it’s the law that governs the terms and conditions for crossing the border.
Senator McIntyre: Minister, as you’ve indicated, there are ongoing discussions between the Canadian government and the American government on the issue of the legalization of marijuana, and I understand that no agreement has been signed with the United States government. Why has the government not attempted to secure such an agreement up to now, or have you?
Mr. Goodale: The conversation is very much alive. All of these issues are under discussion.
Senator McIntyre: Have you secured an agreement with the United States?
Senator McIntyre: There is no agreement or protocol in place at the moment.
Senator McIntyre: Nothing has been signed so far?
Mr. Goodale: No, not specifically on this point. I don’t know that it’s realistic to expect another country to sign a specific protocol on a border issue like this one. If somebody came to us and asked if we would sign a border protocol that somehow constrained Canadian discretion and authority at the border, that’s something that governments tend not to do. But what we have done is to make the issue very much alive, to keep reminding the Americans so that they know clearly what we are doing, why we are doing it.
A key point is that at the border the rules don’t change, so your interview processes at the border should not change. If you’re concerned about backlogs, don’t change your questionnaire. Continue to conduct the same border inquiries as you do today, because the law is the same today and after the Canadian law changes in the summer.
Senator McIntyre: But if Bill C-45 becomes law, things will change. That said, don’t you think it is crucial, it is important for the federal government to sign an agreement with the United States before Bill C-45 becomes law?
Mr. Goodale: I think it is very crucial for us to, at all times and by all means, insist on the proper and fair treatment of Canadians at the border.
Senator McIntyre: And the agreement would do that.
Mr. Goodale: It is one technique for doing it, but there may be other, more practical ways to —
Senator McIntyre: Such as?
Mr. Goodale: To constantly reinforce with the Americans that if they are concerned with backlogs, which they say they are, then don’t create one by a change in your questionnaire which is unnecessary, because the law hasn’t changed at the border.
In the kind of dynamic relationship that we have with the U.S., that very active pursuit of the issue, from minister to secretary, from CBSA to the border agency on the U.S. side, from Public Safety to DHS, we just constantly need to reinforce our interests, and we’re doing that quite literally on a daily basis.
Senator McIntyre: The idea is to protect Canadians from being banned from entering the United States simply because they have used marijuana. That’s the bottom line.
Mr. Goodale: Yes. Just as I guess you could say the Americans have a vested interest the other way around, in trying to persuade us about how to treat DUIs, driving under the influence.
Our view is that it’s a criminal offence in Canada, and we take a very dim view of those who have a record for this that could potentially put Canadians at risk.
It works both ways, and that’s why we need to keep the dialogue going.
[Translation]
Senator Boisvenu: Thank you, minister. Members of the RCMP, the Canada Border Services Agency, and Global Affairs Canada testified before our committee last week. They confirmed that no written correspondence had been sent to the Americans to make them aware of the problem raised by Mr. Len Saunders, a lawyer from British Columbia, who said that people will be banned for life from entering the United States. Is it true that to date, Canada has not sent any correspondence to the Americans about this?
[English]
Mr. Goodale: There certainly have been lengthy conversations, senator.
[Translation]
Senator Boisvenu: I am referring to written correspondence. Have you or someone in your government sent written correspondence to the Americans to make them aware of this problem which we will be facing in the coming months?
[English]
Mr. Goodale: I would have to check the written record. I don’t recall sending a letter to the Secretary of Homeland Security, because it just comes up in every conversation, and we exchange views directly person to person in the conversations. I’ll check to see if there’s any correspondence at any level on it.
[Translation]
Senator Boisvenu: I will tell you why this is important, minister. In Canada, there is no sector which employs people who will all be banned from entering the United States, except organized crime. By establishing a marijuana production industry in Canada, tens of thousands of jobs will be created in the production, distribution and retail sectors. Furthermore, employees in these sectors risk being banned for life from the United States because of their work.
Is there a plan to correct this situation, particularly in the case of Canadians who already have investments or property in the United States and who may be banned from entering? It is clear that if someone says they produce marijuana, the Americans will consider that person as an outlaw. We risk penalizing an entire sector because of this lack of an agreement between the United States and Canada.
[English]
Mr. Goodale: Again, senator, the Americans have the sovereign right to establish the rules of entry, just as we do the other way around. Canadians approaching the border and seeking to enter the United States need to ensure they are in compliance with American border requirements, because the United States will establish those requirements. If we wish to enter their country, we need to ensure we’re complying with their immigration and customs rules.
[Translation]
Senator Boisvenu: As you know, minister, there is currently a major labour problem in many regions of Canada. Given that employees in these industries know that they risk not being able to enter the United States, will this harm the recruitment done by some companies?
As a Canadian, I am not sure I would work in that industry if I knew that I might be banned from entering the United States because of my work.
[English]
Mr. Goodale: I think you have to make your own decisions about what enterprise you want to be involved with. We will continue to explain to the Americans the legitimacy of the Canadian plan, just as we have for years had a completely legitimate regime with respect to medical marijuana in Canada, and that has not, to the best of my knowledge, presented a border-crossing issue for the people who are involved in those enterprises right now.
They need to ensure, when they cross the border, that they’re satisfying all American standards, but the medical marijuana regime in the country has existed for more than a decade without a border-crossing problem that I’m aware of.
The Chair: We have about eight minutes left with the minister, and we have three more speakers.
Senator Lankin: I read the transcript from last week, minister, and thank you for being here. It appears there are a lot of questions after last week’s testimony that members were left with.
I’m not on this committee, but I attended today because I wanted to hear your answers. I’m a bit like Alice in Wonderland, because it seems to me that if someone wants to go into the United States, they learn what the laws are there, and if they have a prior conviction for possession and don’t want to be turned back, don’t go.
Sorry if I’m sounding tough on this, but similarly, if you choose to work in the cannabis industry and that becomes a problem at the border — and you rightly pointed out that for 10 years, it hasn’t been for those Canadians working in a cannabis industry — don’t work there. You choose. There are personal responsibilities; this is not all nanny-state issues such that everything is taken care of.
I completely agree with you on doing the absolute best job of informing Canadians of their rights and obligations. That makes sense. The ante seems to be upped by the questions today, because now it has to be a signed agreement or correspondence in writing. Your ongoing discussions with the homeland secretary and others don’t seem to be enough.
I’d appreciate it, and you might take this under advisement, if you could communicate to this committee if there are other cross-border issues of laws or differences in the application of laws in which or for which we have negotiated and/or signed agreements, or are they all, as you have proceeded here, a matter of trying to educate and convince our colleagues?
Last, Mr. Waldman pointed out the amount of tourism dollars and other things that Americans rely on regarding Canadians being able to cross the border. It would seem it’s in their interest to try to find the right way and the right balance to work with this as well.
I’d appreciate anything that could tell us whether we’re asking for something that is out of the ordinary by asking for a signed agreement or written correspondence.
Mr. Goodale: I will check the record on that, Senator Lankin. The major one I can think of is, of course, the agreement we have with respect to pre-clearance. That is a massive and complicated arrangement, and it’s existed since 1952. The agreement was recently upgraded, and that brought on the legislation the Senate has considered.
But I believe it took seven years of negotiation to work out all the fine points of that. I’ll find out if there are others, especially having to do with entry requirements and particular industries or sectors that are frowned upon in one country or the other where the counterpart has a more generous view. I’ll see if there’s a precedent.
Given the relationship between Canada and the United States, being able to work things out with Homeland Security and the U.S. Border Patrol is the more practical way to do it.
We have our responsibilities to make sure that we’re not creating an excuse by which the Americans could change the rules on the questionnaire and then you create a lineup.
Senator Lankin: For the record, of all the times I’ve gone to the United States, I’ve never been asked any questions about cannabis.
Mr. Goodale: Neither have I.
Senator Richards: Thank you very much. My question has kind of been answered.
Half the high-risk kids I know will never get to the border. Be that as it may, even if I’m not for Bill C-45 completely, I’m very protective toward Canadians. If the problem ever arose in the pre-clearance area, where people were hauled out willy-nilly in the back room and searched and strip-searched, which is a concern of some on this committee, something would be done about that, wouldn’t it? We’re not catatonic on this. Something would happen where we’d say, “The heck with you, you can’t do this to our people.”
I’m just hoping we wouldn’t allow them to run roughshod over us.
Mr. Goodale: The pre-clearance agreement has a number of very carefully balanced checks to ensure that power is not abused.
The overriding protection is that when pre-clearance happens, it happens in a Canadian airport on Canadian soil and the process is governed by the Charter of Rights. So there’s an umbrella of protection with respect to pre-clearance. If we find that our trustful relationship is abused, and that Canadians are being abused, our ultimate recourse is to withdraw from the agreement.
Senator Richards: Absolutely. Thank you very much.
Senator Jaffer: I have a supplementary question. My understanding is that the Charter of Rights only applies to Canadians, not to the Americans. When we studied Bill C-23, it was very clear that the Americans don’t have to abide by it.
Mr. Goodale: No. I think you’re mistaken in that, Senator Jaffer. The Americans are applying American law with respect to immigration and customs, but when they’re doing it on the Canadian side in the pre-clearance area, they are on Canadian soil. Part of the agreement requires the American officers to be trained in the Charter of Rights, the Bill of Rights, the Canadian Human Rights Act and the other civil liberties legislation that would apply to their behaviour when they are in the process of applying American law on the Canadian side of the border.
Senator Jaffer: That’s not what we understood. Of course, I accept what you say.
Senator Dean: Thank you, minister.
I can understand why this is a very difficult conversation to have with our U.S. counterparts, mostly because, of course, we’re doing it in a context in which cannabis is currently illegal outside of the medical system.
Mr. Goodale: Right.
Senator Dean: I was persuaded by a witness earlier today that that conversation — the conversation that you want to have and my colleagues want you to have — will be far easier to have post-legalization when we’re now making the case that the people that we’re concerned about have not, in fact, broken the law in Canada.
Is that fair enough?
Mr. Goodale: Exactly right. And there are some interesting parallels with their view toward us when it comes to impaired driving.
They consider it a lesser offence. We consider it a federal offence. So yes, I think the dynamics change when we actually have a different legal regime in place.
Senator Dean: Thank you, minister.
The Chair: Minister, I’d like to thank you on behalf of the committee for being here. I was asked to try to get you out at 4:45 for the vote. We’re about 30 seconds ahead. I think you’re in good shape to get across for the vote.
We appreciate you making yourself available, as well as for your candour in your answers.
Mr. Goodale: Thank you, Madam Chair. Let me just say that a number of references were made today to previous testimony, questions that arose out of that and so forth. If there are still lingering issues where people would like some more clarity, if you could send those over to me in a little written note, I’ll do my best to get a written answer back to you.
The Chair: Excellent. Thank you, minister.
Mr. Goodale: Thanks very much.
The Chair: We’d like to go in camera if members would kindly stay.
(The committee continued in camera.)