Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 23 - Evidence - Meeting of April 16, 2018
OTTAWA, Monday, April 16, 2018
The Standing Senate Committee on National Security and Defence, to which was referred 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, met this day at 2:09 p.m. to give consideration to the bill; and in camera, to examine and report on Canada’s national security and defence policies, practices, circumstances and capabilities.
Senator Gwen Boniface (Chair) in the chair.
The Chair: Honourable senators, welcome to the Standing Senate Committee on National Security and Defence. I’ll ask my colleagues to introduce themselves.
Senator Jaffer: Welcome. My name is Mobina Jaffer, and I am from British Columbia.
Senator Griffin: Diane Griffin from Prince Edward Island.
Senator Dagenais: My name is Jean-Guy Dagenais, and I represent the province of Quebec.
Senator McIntyre: Paul McIntyre from New Brunswick.
Senator Smith: Larry Smith from Quebec.
Senator Richards: David Richards from New Brunswick.
Senator Gold: Marc Gold from Quebec. Welcome.
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.
We are pleased to welcome a panel of witnesses, two of whom will come to us via video conference. We have His Worship Drew Dilkens, who is appearing from Windsor, Ontario. Welcome, Your Worship. And we also have Mr. Scott Railton, attorney, Cascadia Cross-Border Law, who is in Bellingham, Washington. Mr. Railton, welcome. And we welcome Mr. Jonathan Blackham, Director of Policy and Public Affairs for the Canadian Trucking Alliance, assisted by Mr. Lak Shoan, Director of Policy and Industry Awareness Programs. Welcome to all of you.
Mr. Blackham, I understand you have some comments you’d like to make to begin. Please go ahead.
Jonathan Blackham, Director, Policy and Public Affairs, Canadian Trucking Alliance: Good afternoon, senators. Thank you very much for having both me and Lak Shoan. As you mentioned, my name is Jonathan Blackham. I’m the Director of Policy and Public Affairs for the Canadian Trucking Alliance. We’re both very pleased to be here today to discuss legalization, Bill C-45 and its potential impacts on the border.
For those of you who are unaware of who the CTA is, we’re a federation of the nation’s provincial trucking associations. We represent well over 4,500 companies in the transportation sector, including industry suppliers as well.
In terms of the industry itself — the trucking industry — without a doubt it’s Canada’s dominant mode of freight transportation. It contributes more to Canada’s GDP than all other modes combined. Trucking is also very much a trade facilitator. Nearly 11 million trucks across the Canada-U.S. border every year. I think that’s something to the tune of a truck every four seconds crossing the border. The value of trade that those trucks are carrying has been steadily increasing over time, and certainly since 2011.
Over 40 per cent of Canada’s GDP is dependent on trade with the United States. Again, trucks are the dominant mode carrying that trade. In turn, anything that negatively impacts, slows down or restricts access to the U.S. market for Canadian carriers will ultimately flow through in its consequences to the wider Canadian economy.
In preparation for this appearance, I obviously had a look at some of the discussion that’s been going on to date, and I note some of the points that I believe Mr. Saunders and Mr. Waldman discussed. Essentially, they noted a dichotomy between what some have been saying at the border — that it will be business as usual there and that this won’t really have any impacts — and then put that up against some of the lived experiences of some people who have gone to the border, admitted to perhaps using and suffered lifetime bans.
Obviously, these are important questions that warrant answers, and we very much support that. I will say, following those lines on the passenger vehicles, that even if we see increased congestion and clogging at the Canada-U.S. border in passenger vehicle lines, leaving the commercial vehicle lines aside for a second, we still believe that will flow through to impact us due to the physical nature of the border.
Certainly, if we expect to see an increased number of passenger vehicles sent to secondary inspection, we need a plan in place to help prevent that from generating a backlog that goes throughout the borderline queue.
With all that said, leaving the passenger vehicles aside, I think when it comes to commercial vehicles, this issue is perhaps somewhat easier or less complicated. Some of the issues being discussed were that there might be some smell on a passenger vehicle, or an everyday citizen crossing might have left little amounts of marijuana in their car in the glovebox, or that sort of thing.
In the commercial vehicle world these issues, at least in our view, aren’t really issues at all. All Canadian trucking companies and drivers that operate in the United States are subject to rules set out by the U.S. Federal Motor Carrier Safety Administration when it comes to drug and alcohol use. This includes cannabis, which is a listed substance in these rules, and we expect that that will remain the case regardless of cannabis’s legal status in Canada.
These regulations provide that an employer must have comprehensive workplace drug and alcohol testing procedures in their company. This includes pre-employment, post-incident, reasonable suspicion and random drug testing. FMCSA regulations also specify how often these tests must be conducted, under what circumstances, who can do the testing and that sort of thing.
In a practical sense, there is no real difference between the regulations an American trucking company in the U.S. needs to follow and a Canadian trucking company operating in the U.S. needs to follow.
With that said, like in the case of passenger vehicles and some of the discussion that’s taken place here, we have heard through the grapevine that there are concerns out there that there may be a thickening of the Canada-U.S. border. As we speak, the Canadian Trucking Alliance is preparing correspondence and materials for U.S. officials and U.S. CBP to remind them that Canadian commercial vehicle drivers are subject to these U.S.-based regulations, and that we’ve been following these since 1995, so for well over 20 years. From our perspective, it very much is business as usual at the Canada-U.S. border.
I think, in all of this, there probably is also a very clear role for government to help support industry in communicating that message to U.S. officials and to CBP. As I said, these regulations have been in place for some time, but it’s always healthy to remind them that commercial vehicle drivers are held to the highest standards of anyone crossing the border.
I will take a brief moment to note that although these drug and alcohol testing requirements are there for Canadian drivers entering the United States, these same rules do not apply for domestic-only Canadian commercial vehicle drivers. While many employers will do pre-employment, reasonable suspicion and post-incident testing, many are very hesitant to introduce the random element. Of course, this is the key element of the U.S. system as a strong deterrent. So I do note that’s not something Canadian drivers are subject to.
We, as the Canadian Trucking Alliance, however, are supportive of stricter rules coming in for the Canadian pool as well, to help bring more of a harmonization in the regulations both driver pools must meet.
As things stand now, if somebody does use or abuse drugs or alcohol, there’s very clearly one driver pool they would like to be in versus the other.
I think I’ll hold my comments there. Again, I’ve been following the legalization and Bill C-45 fairly closely. Lak is our lead on all our border initiatives and FAST cards and Trusted Trader programs and things like that. We’d be happy to take any questions you may have.
The Chair: Thank you very much. I will now turn to His Worship Drew Dilkens. Sir, we welcome you and thank you, given I’m sure you are dealing with issues as a result of the storm as well in Windsor. Thank you for taking the time. You can go ahead.
His Worship Drew Dilkens, Mayor, City of Windsor: It’s my pleasure. I tried to be with you in person today, but all the flights were cancelled to get from Toronto to Ottawa. I’m glad I could join you via video conference. Good afternoon, senators, and thank you for this invitation to appear before you for this timely and relevant discussion regarding an issue that will present challenges to those of us who are mayors of border cities.
It’s often said that the federal and provincial governments develop policy and develop the framework for implementation, and then cities deal with the realities and consequences of both.
I’m proud to be the mayor of the fourth most diverse community in Canada, a city that hosts not one but five international points of entry between Canada and the United States.
To provide you with a bit of perspective, the City of Windsor hosts the busiest commercial border crossing in North America, the Ambassador Bridge, which sees 10,000 trucks and in excess of $450 million of goods travel between Canada and the United States every day. The Ambassador Bridge handles 31 per cent of Canada-U.S. trade carried by truck, which accounts for over $100 billion each year. Windsor-Detroit is also connected via the Detroit-Windsor Tunnel. In 2017, 4.3 million cars, 34,000 trucks and over 4,000 buses travelled through the tunnel. As well, we have an international truck ferry, a rail crossing and the Windsor International Airport.
In addition, 7,000 people from my community travel across the border for work every single day. They build American-made goods, work in the American health care sector, teach in U.S. schools, and provide professional and scientific advice to American businesses.
We certainly have a very rich history with our neighbours in the United States — in our case, our Detroit neighbours to the north. Crossing the border is a way of life for those of us who live in Windsor and Essex County. People on both sides of the border travel across the border frequently to visit with family and friends; for shopping, dining, entertainment and sporting events; to attend school; and for a host of other reasons.
Windsor has long been identified as the auto capital of Canada, and we’re home to the Canadian headquarters of Fiat Chrysler. In fact, Canada’s auto sector is deeply integrated with that of the United States. The auto manufacturing industry in Canada employed nearly 225,000 people in 2016, and 70 per cent of those jobs were in the province of Ontario. In Windsor-Essex, 20,000 jobs have direct ties to the automotive sector.
I’m providing all of these statistics only to give you a perspective on the amount of commercial and vehicular traffic that crosses our local borders every day and the importance of that traffic to the economies of not just my city but our province and our nation.
Trade currently travels on infrastructure that is over 90 years old. The Ambassador Bridge is consistently under construction, and this, along with layers of regulations that have been introduced since 9/11, causes regular backups into both the U.S. and Canada. This is of particular concern to our local industries that depend upon an efficient border for just-in-time delivery. Anything that adds yet another layer to an already thick border will have a detrimental effect.
I realize that the ability to ask questions related to cannabis is already an option. However, the pending legalization of cannabis in Canada will undoubtedly create a heightened awareness with U.S. Customs and Border Protection, particularly in border cities like Windsor.
I read with interest some of the comments made by others who have appeared before this committee. One thing became very clear to me: Nothing is that clear. There is a real difference of opinion between former CBP personnel, CBSA staff and a lawyer who deals with this in his practice every day regarding what will happen when Canada legalizes cannabis.
A red flag was raised when I read the example of his experience at the port of entry between Washington State and British Columbia once cannabis had been legalized in Washington State. Even though cannabis had been legalized in the state, enforcement by CBP increased dramatically, and his practice began to increase. That is still true five years on.
I did a very quick search, and I found that in 2013, 2.5 million vehicles travelled across the Blaine-Surrey border. Compare that with Detroit, where over 11.2 million vehicles travelled across the Ambassador Bridge and through our tunnel in 2017.
We fully expect that once cannabis is legal in Canada, we will see a material increase in traffic crossing our border.
I’m not going to sit here and tell you I have all of the answers. I do not. But I am concerned about any additional delays at our border crossings and the effects these will have not only on local nurses and health care professionals who cross the border to work in U.S. hospitals, but students who study in Michigan universities, automotive professionals who work in facilities on both sides of the border, and cross-border international trade generally. We have an excellent relationship in the City of Windsor with our friends at CBSA and with CBP in Detroit, but these discussions are best held between federal officials in Canada and the United States.
One other area I would like to touch on is related to the challenges facing local municipal policing services in border cities. The pending legalization will certainly create challenges for the Windsor Police Service, including in the training of officers, enforcement, manpower and additional operating costs, just to name a few.
The Windsor Police Service has approximately 430 officers in various units. Each of these officers will require training on standard field sobriety testing. They will also have to be trained to identify licit versus illicit cannabis. Training will be mandatory and will be accompanied by a significant financial cost.
As I said previously, we fully anticipate a significant number of cannabis tourists, and it will rest with Windsor police to deal with the enforcement of individuals who will partake in the use of cannabis. The law will allow for the use of cannabis in a residence and, like alcohol, the law prohibits the consumption of cannabis in a public place, while the Smoke-Free Ontario Act prohibits the use inside buildings or hotels.
U.S. residents will be able to purchase cannabis in Windsor but won’t be able to transport it back to the U.S. or smoke it outside of a residential setting. If they are coming for tourism and can’t smoke marijuana inside a hotel, in a public place or, frankly, in any place deemed a workplace in Ontario, one needs to contemplate what the likely outcome will be. I suggest to you that transport across the border is one such real possibility.
All of this is to say that the federal government must be proactive in discussions with counterparts in the United States and undertake significant efforts to educate the travelling public prior to the legalization of cannabis in Canada. In a border city like Windsor, delays can have a significant impact on our economy, tourism, residents who are employed or attend school in Michigan and our municipal police service.
As I mentioned just a few minutes ago, 7,000 residents of my community cross the border to work every day. Many subscribe to the NEXUS program, which allows for pre-screening of applicants and accelerated processing at designated booths when entering either Canada or the United States. Part of the application process requires an individual to attend an interview with CBP officials in person. From my experience having crossed the border literally hundreds of times in my lifetime here living in the city of Windsor, I have never — not one time — been asked whether I’ve consumed illegal drugs. However, during these interviews for the NEXUS application, it is a very common question, one that I was asked at that particular time. Answering the question affirmatively, whether the drugs were consumed legally or illegally, is cause for denial of acceptance into the NEXUS program and could also cause one to be inadmissible to the United States.
Our country needs to work toward a resolution that doesn’t require law-abiding citizens to lie to federal officials or risk the possibility of being denied entry to the United States for activity that was undertaken legally in Canada.
I want to thank you very much for the opportunity to address you, and I look forward to your questions. Thank you very much.
The Chair: Thank you. We’ll now move to Mr. Scott Railton, coming to us from Bellingham, Washington.
Scott Railton, Attorney, Cascadia Cross-Border Law, as an individual: Good afternoon. Thank you for the invitation. It’s a pleasure to participate in your study. I commend the Senate committee for taking this issue up. It’s an issue of concern to me as an attorney practising in immigration law. I practise, as you mentioned, at Cascadia Cross-Border Law. We are located very near the Canadian border.
I’ve been practising there full-time since 2001, before 9/11. Since 9/11, I’ve seen many changes in immigration law, though we haven’t seen too many statutory changes outside the formation of the Department of Homeland Security. But at the administrative level, we see that the border has gotten tougher — thickened, as it were.
In 2012, Washington State and Colorado became the first two U.S. states to legalize recreational marijuana. Being in Washington State, I noticed the apparent conflict of laws between the federal law, the Immigration and Nationality Act and as the Controlled Substances Act in the United States, and I was interested in issues that might arise as a matter of justice and law, and for our clients’ interests, because of the apparent conflict of laws. Canada’s plan to legalize cannabis potentially adds another layer of complexity to these border matters.
Since 2012, I’ve written and spoken on various aspects of this subject. I have observed that there’s always another wrinkle or added concern that comes up. I’ve forwarded to the committee’s attention an article I wrote for the American Bar Association last year for their magazine called Criminal Justice. The article was entitled “Marijuana and Immigration.” The article concerns the various ways that marijuana interacts with the Immigration and Nationality Act as well as the agencies that administer the Immigration and Nationality Act.
For the committee’s attention, I would like to highlight a few things. First of all, I know we talk about the border, and this is the purpose of the discussion, but it’s also worth noting that many Canadian residents undergo consular processing at the U.S. consulates throughout Canada, whether they be Canadian citizens applying for certain types of visas or residents of Canada applying for immigration benefits at the consulate. This is another place that I would like to call the committee’s attention to where there may be examinations, and questions may be asked as to a person’s admissibility.
The United States still lists cannabis as a Schedule I narcotic under the U.S. Controlled Substances Act. This means that the U.S. federal government is legally obliged to treat cannabis in the same manner as cocaine, LSD and heroin. By definition, a Schedule I substance is one the U.S. government considers to have no medical use, a high propensity for abuse and severe safety concerns.
Of course, this is in complete conflict with the views of many states and the aspirations of Bill C-45. Still, when I discuss legalized cannabis with clients, I have to point out to them that these more serious substances are lumped into the same category as cannabis, so it’s noteworthy.
If you look at the United States Immigration and Nationality Act, there are several bases for inadmissibility associated with cannabis. These include a past conviction related to cannabis; as was mentioned, admitting to committing a violation of any law or regulation of a foreign country related to controlled substances; admitting to committing acts that constitute the essential elements of any law or regulation of a foreign country related to a controlled substance. Those are the criminal bases for inadmissibility. There are health-related grounds under the Immigration and Nationality Act such as a determination that a non-citizen is a drug abuser or a drug addict in accordance with the regulations prescribed by the U.S. Health and Human Services department.
Also, there is a basis for inadmissibility where the U.S. government knows or has reason to believe a person is an illicit trafficker or who is or has been a known aider, abetter, assister, conspirator or colluder with others engaged in illicit trafficking. There is a provision in the trafficking section of the Immigration and Nationality Act which focuses on the spouse, son or daughter of illicit traffickers who has received financial benefit from the trafficking in the past five years and knew or reasonably should have known.
Additionally, there’s a security basis for inadmissibility associated with seeking entry principally or incidentally for an unlawful activity. That is separate from the health-related basis, separate from the trafficking basis or the overall criminality basis.
Finally, one thing I see in practice sometimes is fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit. When certain questions are asked, sometimes people are reluctant to volunteer, or actually they may just misrepresent themselves, and that is its own separate basis for admissibility, which is an enduring ground of inadmissibility requiring a waiver for life if so identified.
In the last year, I’ve increasingly heard the question what happens when cannabis is legalized throughout Canada. I will speculate briefly, but as Mayor Dilkens noted, there are many unknowns here. Frankly, the U.S. government is short on guidance outside of what is provided in the Immigration and Nationality Act and the adjudicators’ manuals for officers with USCIS or CBP. I have filed Freedom of Information Act requests of the U.S. government in the last few years. I’ve observed in their internal correspondence that in many cases they are still working out the issues with state legalization. As I said, foreign country legalization adds another wrinkle.
When Canada legalizes, I expect some bases for inadmissibility will become non-applicable for Canadians and Canadian residents. Legalization by definition eliminates the basis for certain cannabis convictions which otherwise would establish inadmissibility. Further, with legalization, a Canadian would no longer be in peril of admitting or violating Canadian controlled substance law or admitting to the essential elements of a controlled substance law if they admitted to current cannabis possession or use consistent with the law. However, that does not mean that if questions were asked about past use where cannabis was not legal, the basis for inadmissibility could still be created. For example, if someone admitted that yes in the past I used cannabis and it was not legal, then that would be an admission to the act of violating a former controlled substance law. So that is still out there. I’m speaking in reference to the laws of Canada, not the laws of the United States there.
Further, a person may still be deemed inadmissible on health-related grounds as a drug abuser or drug addict. Drug abuse and drug addiction relate to current disorders as established by medical opinion. We see persons denied admissibility on this ground particularly when a person has to take a medical examination from a panel physician abroad when working with the consulates. On occasion we’ve seen cases where Customs and Border Protection, the agency vested with border responsibilities at ports of entry, has referred individuals to a panel physician for an examination because they are unable to establish their admissibility on health-related grounds. That is not common, and I don’t expect that would be widespread, but there is this basis for health-related grounds for inadmissibility.
Additionally, we increasingly see people just unaware of the law because the laws are complicated, with medical marijuana legalized in some jurisdictions, and recreational marijuana legalized in others. We’ve seen cases where persons admit to use or admit to intention to go use or have cannabis in their vehicles. All those situations come up and, as I mentioned earlier, misrepresentation.
One final point of inadmissibility I would like to mention is seeking entry for an illegal purpose. I know the committee is interested in how cannabis might affect trade. Mr. Saunders testified earlier about where you could see legalized facilities in Blaine, and if somebody were to come to a port of entry and say that they were coming in to purchase marijuana, the border stands as a barrier to those purposes because that would be an illegal purpose for entry.
As Canada goes forward with study of this bill, I think there is a great need for public education concerning the border and pre-clearance issues. And so I would like to thank the committee for the opportunity to speak and I stand ready for any questions that might be asked.
Senator Jaffer: Thank you to all of you for being here. It’s been very interesting.
I would like to start with you, Your Worship. One of your concerns about this bill is educational awareness. I come from British Columbia, and I am worried that people I represent might be lulled into thinking that since it’s legal in Canada, they might not be as careful as they have been in the past. You’ve read some of the transcript. One of the big concerns is the fact that if you smoked even 10 years ago, you could be barred. If you are asked at the border have you ever smoked, the fact that you say you have smoked in the past can bar you for life. I’m really concerned about that. Just as you have the cross-border, we also shop down south all the time and I’m concerned.
I was wondering whether you have been working with the federal government to raise educational awareness before this bill comes into place.
Mr. Dilkens: Senator, I appreciate the question. The direct answer is no. We’ve been working on the municipal-related issues with respect to the rollout of the impact municipally. Ironically, we received a document today from the Federation of Canadian Municipalities which outlined the responsibilities and the jurisdiction of the federal government, the provincial government and the municipal government, and, of course, the municipal government has twice as many responsibilities as everyone else. It is not that they’re necessarily more important, but they’re the more operational things you would expect to see on a daily basis.
I take your point as someone who travels frequently across the border. It’s very common here. I go across the border several times a month for lunch and just go back. I could be at my office in City Hall and to a restaurant I enjoy in downtown Detroit in six or seven minutes; it’s that close. That’s how people treat the border here in my community. It’s not really a barrier. I’d just hate folks to have to get into a position where if they were doing something legal here they would be forced to contemplate lying to a federal official in the U.S. or the option was being denied entry into the U.S. entirely. That certainly is not a good proposition whichever way you consider it.
But I would say that we do a really good job notifying Americans — in fact, we are probably very strict in the way we do this — but we notify them as they cross the border that handguns are forbidden in Canada. Most Americans, if they’re travelling across the Ambassador Bridge or through other ports of entry, get the message that they can’t bring their handguns to Canada. A similar type of education effort should be contemplated because this does stand to jeopardize someone’s future, whether they’re Canadian or American. There has to be a strong distinction made that just because it’s legal in Canada doesn’t mean you can bring it back to the U.S., and you would be subject to enhanced scrutiny if you tried to do that. You could be subject to arrest, or inadmissible if you were Canadian.
To answer your question, no, we haven’t done widespread outreach with the federal government with respect to education, but I sure hope they take that initiative and make sure they’re doing whatever they can at the ports of entry.
Senator Jaffer: We’ve understood that they are doing the education campaign, but if I’m not mistaken, it doesn’t start for almost a year. That’s my concern. I appreciate your answer.
I have a question for you, Mr. Railton. In your article that you mentioned, “Marijuana and Immigration,” you state:
Providing a government officer with a “reason to believe” that a noncitizen is associated with drug trafficking, which could include a normal association with state-legal marijuana businesses, is enough to make the noncitizen and even his or her family members inadmissible.
This worries me very much. It’s not just the person; the family could be prohibited from entering the United States. It’s like being guilty by association.
Did I understand your article correctly?
Mr. Railton: Thank you. First of all, immigration law is a very complicated area of law. May I just say that in trying to sum up the law of marijuana and immigration in my opening comments, I tried to tap on some of the highlights of different issues. But the article referenced working in a state legal operation. Washington State, for instance, has legalized recreational marijuana. We see folks working at stores, working in the production and working in professional positions associated with the businesses engaged in cannabis. The industry itself is growing in scale, so there is a lot of money and business to be done.
The state governments and the people in the states are subject to federal law, but in the United States, the Department of Justice has somewhat kept a hands-off approach to businesses in the states, such as Colorado, Washington and others that have legalized, while this industry develops. The question here is around somebody working in a Canadian legalized operation where, under the federal law of Canada, marijuana is legalized. That circumstance is a little different than where somebody is working for a state legal operation where there’s a conflict of laws with the U.S. federal Controlled Substances Act. In Canada, where cannabis is legalized, I don’t think working for a Canadian operation would create a basis for inadmissibility if it were strictly in Canada under a legalized regime. But this is one of the places where there are questions.
Now, if a Canadian business wants to do transboundary business with the United States, that is a problem, and we’ve seen a variety of situations with it over the last few years, where you have folks in Canada who would like to invest in state legal operations or otherwise get involved in them. When those persons are identified, they run a risk for immigration and inadmissibility. And, yes, the family would be involved in such situations.
Senator Dagenais: My first question is for Mr. Blackham. You work in the goods transportation sector. You discussed the issue of border slowdowns. Transportation plays an important role in the American and Canadian economies, and we need to improve its efficiency. With regard to transparency, have you received enough information from the Canadian government about this bill on the topic of borders? A truck that is an hour late can lead to significant costs for a company. Can you give us an idea of the extent of those costs? One can assume that if there is a second inspection, this will lead to delays; even if there isn’t one, if the person before you committed some offence, this can lead to delays for your company. I’d like to hear your comments on that topic.
Mr. Blackham: On the first point, as an organization, we have a very good relationship with CBSA — and CBP, for that matter. We have had conversations with both behind the scenes, informally. At times they’ve been, I would say, a bit conflicting in the sense that we have heard that there is sort of an expectation — which is our view as well — that this materially doesn’t really change much for commercial vehicle activity and that we shouldn’t be so concerned about this. But as the conversation progresses, you can very clearly see the logic that, “Oh, my God, this might have serious practical impacts at the border,” and that even though nothing changes, everything changes.
From that perspective, we’ve had informal conversations. I don’t know of any formal sitdowns or anything that we’ve had with them on this topic. We’d certainly be interested in doing so as we get closer to legalization.
On the question of cost, a delay for a truck will cost the company somewhere in the area of $100 per hour. If we’re talking about thousands of trucks, that adds up pretty quickly in terms of costs to the industry. That’s just to the carrier. There might be penalties associated with late deliveries if we’re talking about just-in-time scenarios or if it’s written in the contract that the load has to be there; if it’s not there, there can be substantial penalties added on top of what it costs to operate a truck per hour.
Senator Dagenais: We need to remember that the penalty will be passed on to the clients. This means that, sooner or later, it will be the consumer who will pay the penalty.
Mr. Blackham: Yes.
Senator Dagenais: Thank you, Mr. Blackham.
I have a second question for Mr. Dilkens. Thank you, Mr. Mayor, for your presentation. Your city occupies a strategic position. You have several border crossings, including five very significant ones. Bill C-45 on marijuana may reduce the number of travellers and tourists crossing the border. In order for the right decisions to be made to facilitate border crossings before this bill is implemented, what would your recommendation be for our report? I think it would be better to create recommendations before the bill comes into force rather than to simply experience the consequences.
Mr. Dilkens: First and foremost, a significant amount needs to be spent on education and making sure people are informed so that they make legal and smart choices in what they do. There’s no doubt there’s confusion about what is allowed in each jurisdiction. It’s recreational here and medicinal there. Someone might be travelling between the city of Windsor, where medicinal and recreational is allowed, back into the State of Michigan, perhaps, where one might have a medicinal prescription. They may not understand that there’s a red line at the border where, regardless of what a state, a province, one country or one state does, there’s a completely different impact on decisions at that red line.
Sir, I would suggest a significant amount in education to be able to inform the travelling public of what to expect and what they can and cannot do.
Senator Dagenais: Thank you, mayor.
My last question is for Mr. Railton. When they appeared before the committee, several government representatives told us that they were working with their American counterparts to help them understand the effects of marijuana legalization. You have a great deal of experience in this field, and I would like to know if you believe that the American authorities will display open-mindedness regarding Canadians’ new right to consume marijuana. If you want my opinion, working very hard with the American authorities is not enough of a response. We need to know exactly, whether, on the American side, they are open to this change.
Mr. Railton: I appear here today as an individual and practising attorney, so I will respond with my own opinion. I want to emphasize that I don’t have any capacity to represent anyone else.
We’ve seen a sea change in marijuana legalization in my lifetime. When I was in college, the idea that even medical marijuana might be legalized was a fringe issue. Now, in the United States, over half the states have legalized marijuana in some capacity. Most of them are medical, but a growing number of states have, by voter initiative, passed legalization for recreational marijuana as well.
The federal government has not put a halt to that. In fact, in the recent budget bill, there’s an amendment that disallows prosecution in relation to medical marijuana activities. There is a growing change with regard to marijuana.
I think we’ll probably see some acceptance of the legalization, but what I fear is the arbitrary administration of law at the border.
From time to time I see this “I gotcha.” Both the people travelling across the border and the folks working at the border need guidance from the governments as to how exactly these issues will be handled.
It’s a fast-moving train. If you’re the border officer and you have limited guidance, what I hear from border officers is, “Well, we enforce federal law.” That’s what they say. But in practice 28 or 29 states, something to that effect, have legalized medical marijuana, and a growing number of states have passed recreational marijuana. There is a conflict of laws. This is one of the reasons I became interested in the subject besides just being a border attorney. There’s a justice issue here. I don’t like to see the arbitrary selection of people at the border. I don’t think it will become a huge issue, but we’ll have some growing pains if this bill goes forward.
Senator Gold: Thank you all for being here today. It’s certainly helping me understand the issues. I will start with the Canadian Trucking Alliance to make sure I understood your testimony, and then I have questions for the other witnesses.
Do I understand correctly that, first of all, the members of your association are subject to very stringent rules regarding drug use and impairment and that the legalization of cannabis in Canada won’t change the rules that apply to them in the conduct of their activities? That is to say, it may be legal, but they still can’t get high and drive your trucks.
Second, you would support even stronger rules to test for impairment among your drivers than currently are in place in Canada or may even be contemplated in other legislation the Senate is considering. Is that correct?
Mr. Blackham: Yes. It’s a tad more complicated, as you know reality often is. In the U.S., cannabis is a Schedule I drug, so effectively a Canadian truck driver who goes to the U.S. can’t use cannabis, whether it’s legal or not, for their job. There’s always the risk of being randomly tested. It basically can’t be in their system.
A domestic-only driver would be subject to the impaired driving laws of Canada, what’s in Bill C-46. Some provinces, in their provincial regimes, have gone to a zero-tolerance approach. Ontario is one. I think Quebec is taking a fairly strong approach as well; I’m less familiar with them. Having said that, not all provinces have indicated that yet.
Senator Gold: Right. But apart from what the criminal law may say, the rules of the trucking association and the companies make it clear that drivers can’t drive impaired.
Mr. Blackham: Everyone we represent has a zero-tolerance policy.
Senator Gold: That’s what I understood.
My questions are to Your Worship, Mr. Dilkens, and also Mr. Railton. You made a point, which I think is important, about how important education is to the travellers about what the rules of the game are. But you also made the point — and the point was made by other witnesses — that the Canadian and American governments need to be seriously engaged in a conversation about the implications of legalization once it happens so that guidance is given to border officials and so the problems that you’ve raised are minimized. The problem with delay at the border is unpredictable, but it is a real problem. We appreciate that.
With regard to being asked about past drug use, that’s been a problem for some time, that one could be denied entry if one admitted to drug use in the past. When it’s legalized, we’ve heard testimony from immigration lawyer Lorne Waldman that Canada will be in a stronger position to make the case to its American counterparts that now that it’s legalized in Canada, to the extent these questions may be asked, they should no longer be asked and Canadians should not be barred from the United States for engaging in an activity that is legal in Canada.
Would you comment on whether Canada would be in a stronger position to ask its American counterparts to treat Canadian travellers appropriately after legalization, that we’re in a stronger position to make that case than we would be if cannabis remained illegal in Canada?
Mr. Dilkens: I would suggest that’s probably a correct analysis. I don’t think Rome is going to burn. The borders won’t completely clog up and stop, and things aren’t going to come to a grinding halt. As with any change or evolution in law, there has to be a period when everyone adapts, when we figure out what the new norm is on both sides of the border.
The answer to your question is yes, but from today until that norm takes hold, how do we advise people? How do we advise law-abiding people who have a prescription or who don’t smoke it until it’s legal? What do you tell them when they go for their NEXUS interview, which you have to do every few years, and they’re asked that question outright? I appreciate the question; it’s a very smart question.
When I look at the posture of the U.S. with respect to the Attorney General and the position that they seem to be taking, which is one that seems to be strengthening, at a federal level at least, against marijuana, it doesn’t seem to match what others would tell you when they say that 60 per cent of the U.S. population agrees that marijuana should be legalized. There seems to be a bit of a different posture taken at the federal level, and I think that’s where the danger point is for people who are crossing the border, including the travelling public who are maybe not as informed as they should be when they’re crossing into another country.
That’s an area of opportunity for our government to link arms with the U.S. government and say, “How do we handle this? Is it signage we can pay for? Are there amnesty bins? What is it we can do, at least in the short term until that new norm takes hold, to make sure we’re not making criminals out of otherwise law-abiding people?”
Mr. Railton: Anecdotally, I’ve heard that the agency may not look at present use once cannabis is legalized. The issue then would be whether they ask questions about past use when it was not legal in terms of the admission question.
So, senator, your question is with respect to the issue of admitting to the use of marijuana or cannabis. As I say, present use under a legalized Canada should not be a basis for inadmissibility. However, an admission to past use when it was not legal could be a basis for inadmissibility.
To cut to what I think is the question you’re presenting with regard to the attorney who spoke on this previously, would Canada be in a better position to ask CBP not to ask questions in this regard? My experience with CBP is that I don’t see CBP relinquishing any of its authority to ask what it needs to ask to conduct its duties to keep America safe as it sees fit. We see that in border-crossing issues related to searching media, such as phones, computers and electronic media like that. Even though that’s become a more delicate issue over the last decade, CBP does not give up its authority to do so, but it has issued additional guidelines for how searches will be done and whether a forensic search will be done versus a brief surface review of a device.
Taking the analogy of searching electronic media to the issue of cannabis, I think there’s a likelihood that CBP will not relinquish authority in that regard, but there will probably be a little bit of a softening of its posture with questions having to do with marijuana.
As long as the laws are on the books of the Immigration and Nationality Act, they will retain their authority to do what they need to do to conduct their searches. The U.S. Supreme Court says that CBP, in terms of search and seizure law and questioning, the interests of the border authorities are at the zenith for search. So there’s not a lot to restrict what CBP can ask if they are so inclined.
Senator McIntyre: My first question is to the trucking industry. Gentlemen, I draw your attention to two programs, NEXUS and FAST, Free and Secure Trade. How reliant is the trucking industry on those programs? From your perspective, what might be the impact of Bill C-45 on these programs, and does such an impact concern you?
Lak Shoan, Director, Policy and Industry Awareness Programs, Canadian Trucking Alliance: The FAST card is basically a NEXUS card for truck drivers. There are a lot of stringent requirements that truck drivers have to go through to get their FAST card. It’s often a precondition for many companies for being hired as a truck driver as well. If you’re a FAST driver, you get access to FAST lanes at various ports of entry, which significantly expedites you across the border as well.
If truck drivers get their FAST card revoked, it is a significant penalty. Currently, if a FAST driver is caught bringing narcotics or drugs across the border, their FAST card could be revoked permanently. So there are severe consequences to that, definitely.
Senator McIntyre: Your Worship, you’ve indicated that the Canadian government needs to be proactive with American authorities. My understanding is that you recently met with the U.S. Consul General in Toronto, and at that time, you raised certain concerns with respect to the impact of marijuana legalization at the border.
Did the U.S. Consul General also raise his own concerns? If so, can you share those concerns with us?
Mr. Dilkens: Senator, I appreciate the question. Regarding the meeting I had with the Consul General, we were both aligned in terms of the messaging and the belief that this would cause, at least in the short and medium term, some delays at the border, that there would be a thickening, recognizing what the laws are in the U.S. and entering the U.S.
The lawyer from Washington talked about the way the laws are enforced and the laws that are on the books, and a lot of it comes down to discretion. You don’t always get an even-handed application or type of question, depending upon whom you’re talking to. You could talk to 50 different CBP officials and get a different line of questioning from very easy to very difficult under the same set of circumstances.
If the United States didn’t necessarily get rid of their policy to allow them to disallow folks who have consumed illegal drugs but had an equal application of that policy, that would go a long way to giving people some comfort in terms of how to deal with CBP officials when they cross the border.
Senator McIntyre: My final question is addressed to all the witnesses, and it has to do with the possibility of an agreement between Canada and the United States should Bill C-45 become law.
Gentlemen, is an agreement between Canada and the U.S. to protect Canadian travellers realistic, or is such an agreement unrealistic because marijuana will remain illegal under U.S. law?
Mr. Railton, would you like to go first?
Mr. Railton: I appreciate the question. There has to be continued communications between the two governments. One place to focus regarding that type of agreement might be with regard to Trusted Traveler inquiries. As Mayor Dilkens mentioned, if you apply for the NEXUS program, there are questions about controlled substance use. Any honest, law-abiding citizen of Canada might be conflicted about how to approach that question. They just might not know how to answer that question.
Frankly, these questions are tough not only for the people who are making applications for admission or for Trusted Traveler; they’re also tough for the officers. They’re sworn to uphold the law, and so they have a duty. It’s not like one rogue officer is causing problems. It’s a challenge sometimes for the officers regarding how to handle difficult issues like this, so they do have to use discretion.
There’s room for some kind of agreement, but I think it’s unlikely the United States government is going to do much as far as the Immigration and Nationality Act because immigration is such a large issue in the headlines on many fronts for the United States. We’ve seen a difficulty getting anything passed in Congress that makes a substantial change. So I wouldn’t expect that to happen in the short term.
The issue, however, from a statutory perception might be that cannabis is listed as a Schedule I controlled substance under the Controlled Substances Act. That listing has been questioned in recent years as to whether it should be taken off Schedule I and placed somewhere else. Schedule I, by definition, means it has no medical use, and there’s a high propensity for abuse. If cannabis were taken off Schedule I and otherwise controlled, that might be a solution to the situation.
Senator McIntyre: Does anyone else care to comment?
Mr. Blackham: I’ll take at least a portion of that, just to pick up where we left off.
At least in my conversations with my counterparts in the United States in trucking associations there and other employer groups that employ people in safety-sensitive positions, I’ve heard no indication from any of them that there’s a serious look at removing cannabis as a Schedule I substance. So from our point of view, there essentially can’t be any use of cannabis for Canadian commercial vehicle drivers going to the United States. So is there a need for any sort of agreement above and beyond that? I don’t know. I think it’s already pretty clear, but as far as the removal of cannabis, I’ve never heard that brought up.
Senator Boisvenu: I would like to apologize for my lateness. I needed some help with a backache, and it was not because of the slippery sidewalks in Ottawa and Gatineau.
I would like to thank our witnesses. Your statements were very interesting. Since we met with the American authorities, a week or two ago, we have noticed that the Canadian authorities admit despite themselves that the legalization of marijuana, as planned, represents a relatively high risk. Consider, for example, training our police forces. Minister Duclos admitted last weekend that it will take time to prepare our police forces so that they can administer effective roadside checks. This represents a significant risk both for consumers and for those who do not consume marijuana.
During our last visit to Washington, we also learned that there is not a great deal of communication with the upper management of the Canadian authorities. I think that the border agencies do communicate, but the higher ups do not seem to communicate very much to smooth out the difficulties between the two countries related to the legalization of marijuana.
My questions are for Mr. Jonathan Blackham and perhaps the mayor as well. Given this uncertainty and lack of preparation — Mayor, you will doubtless experience this with the police forces in your municipality soon — would it not be better to put off legalization for some time to ensure that the trucking industry will be ready to manage both its internal and external problems? Trucks that have already transported marijuana inside Canada may cross into the United States and be inspected using dogs and other tools. Would it not be more sensible to put off legalization so that municipalities, provincial governments, and industries such as trucking, which are very important for the Canadian economy, can be ready to manage the problems that we’re increasingly anticipating since we have been talking about this subject?
Mr. Blackham: The Canadian Trucking Alliance, as an organization, has no sort of moral view on whether or not cannabis should be legalized. It is very much in our interest to make sure that the Canadian trucking industry is, however, protected and that all the necessary things that need to be in place are in place and all the necessary conversations that need to take place do take place.
I think one point you raise is very interesting. In my comments I focused mostly on the driver, but of course that’s only half of the equation in trucking. There’s also the equipment. For that question, I can think of two things the industry could potentially do to help mitigate that. I don’t know if either of them is a particularly good solution.
One would be to perhaps restrict the equipment that’s used domestically in the transportation of cannabis from also being used to cross the border. Having said that, we’re not really in the business of restricting equipment in our industry, so I don’t know if that’s such a favourable solution for us.
The second would be that it’s very standard for trucking companies to clean out and sanitize their equipment, particularly after food or agricultural products are transported. Certainly, I could see companies taking proactive steps to thoroughly clean and sanitize the trailers afterwards, but to what degree does that dissipates the residue or the smell? I imagine these dogs and these detection methods at the border are quite sophisticated, so that in itself may not be a solution either.
To your overall question, I will say that we, like everybody in this room, do have concerns about legalization and its impact on our industry. There’s sort of the great unknown, but in terms of whether this needs to be delayed, that’s beyond something I could comment on.
Mr. Dilkens: Thank you for the question. Let me preface what I’m going to say by saying that the legalization of marijuana is a fairly enlightened move. I think we’ve made criminals out of many otherwise law-abiding citizens for many years, and moving forward in this regard is not a difficult thing for a lot of people to overcome in their minds.
The difficulty we’re experiencing at the municipal level, at least in Ontario, is the speed at which this is coming and the ability for us to ramp up and get all of the folks trained, especially on the policing side, that need to have training to be able to deal with what we know is coming.
Frankly, I’m not sure when this will be legalized, but we’re already in mid-April now, and as I understand, just from a month ago, the training of all the police officers with respect to field sobriety in this regard requires folks to fly in from Toronto to do the training, and that still hasn’t been developed yet. You would say that’s a provincial or a city issue, but in fact it’s a big part of the system and how we’re going to handle what’s coming to us.
There’s that old saying where the feds have the jurisdiction, the provinces have the money and the cities have the problem. From a municipal perspective, what we’re anticipating are the social problems that will come from the legalization of cannabis. It’s not that we’re trying to stop it from happening; it’s that we need the time to be able to get the right people trained and to get everyone up to speed to be able to handle what we expect to happen when it’s finally legalized.
Senator Griffin: I think my question is for Mr. Railton. Do you think that Bill C-45 will have an impact on the implementation of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and in the United States?
Mr. Railton: Yes, it could, to some extent. I would reckon that to some extent it could affect the situation of consular processing, which I mentioned in my earlier comments, where there’s a form of pre-clearance when people make application for visas. At the consular processing stage, the consular officer can ask all sorts of questions, and the denial of a visa is not really subject to appeal.
The concerns with pre-clearance, as I understand them, are how long somebody might be interviewed for and the possibility for something called expedited removal to occur. Right now, if you go to a port of entry and you do something that could trigger expedited removal, that is fundamentally because you are on U.S. soil when you do that act that triggers expedited removal.
My understanding with the pre-clearance is that a person could go to the airport and now be subject to expedited removal based on the way things are changed. I am not completely up to speed on how far along that is.
Senator Griffin: Thank you for your answer. I don’t know if anybody else has comments on that question on pre-clearance and the impact that Bill C-45 will have on it. I guess not, thank you.
Senator Jaffer: I want to come back to you, Mr. Railton. I also used to be an immigration lawyer. When changes come through, one of the things that happen is there are many discussions with authorities to see how things are going to go along. You may not want to share publicly my question and I respect that, but have you had discussions with U.S. authorities about how they are going to view legalization of cannabis in Canada?
Mr. Railton: None that I can recall specifically. I have had discussions about state legalization on different panels I’ve served on along the way, but I don’t recall any discussion where somebody said this is what is going to happen.
I have heard anecdotally, as I’ve mentioned a couple of times so far, that present use of cannabis in Canada will not be a violation of the criminal bases for inadmissibility under the Immigration and Nationality Act. The question would be if the line of inquiry went to past use where it was a violation of a controlled substance law.
For instance, I’ve seen the case where somebody who does not use cannabis has been in an interview and secondary inspection at a port of entry and they admitted to using cannabis after they were the age of 18, somewhere between ages 19 and 21, and that was deemed as sufficient admission of a violation of past use and made that person inadmissible.
Those are the kinds of situations that I feel are a bit arbitrary. It may or may not be the fault of the officer. The line of query went that way, and once they hear these things, they must decide how they’re going to exercise discretion. They may be in a room with other officers, and that may put pressure on them as well. Anecdotally, all I’ve heard is that present use would not be a basis for criminal inadmissibility.
That’s why I frame my comments about inadmissibility. Immigration law is complicated and involves health-related grounds, national security grounds, trafficking grounds, which is also criminality but a different statute, as well as misrepresentation, which does seem to come up sometimes in this type of Q and A situation.
Senator Dagenais: I have a question for the mayor of Windsor, Mr. Dilkens. My colleague Senator Boisvenu raised the issue of police training. I am a former police officer, and I used breathalyzers. These devices cost municipalities money. In order to use them, police officers must be trained as qualified technicians and regularly update their certification. To date, no device has been officially approved. As you mentioned, the federal government transfers the responsibility to the provincial governments, which then pass it on to the municipalities. Have you received funding to cover the costs for officer training? Once the devices are approved, you will have to seek financial assistance to buy them. This will be expensive, both in Ontario and elsewhere in Canada.
Mr. Dilkens: Senator, we have not received any money with respect to this. We just worked out a framework with the Association of Municipalities of Ontario. We worked out a framework with the provincial government. It’s anticipated that the excise tax revenue given to the Province of Ontario from the federal government will be somewhere around $40 million. For a province our size, it’s likely — I could probably say absolutely — not enough to cover the costs associated with the rollout of this program with this legislation. So the province doesn’t have the money. They understand the situation we’re in.
The question your colleague asked not too long ago was with respect to the delay of the implementation of this legislation. Certainly any timing that would give us an opportunity to at least catch up and be prepared instead of playing catch-up after the fact I think would be very appropriate and appreciated by those who are on the ground in municipalities that will have to deal with the issues that cities necessarily have to deal with in this type of legislation.
Senator Dagenais: Are your police officers currently trained to find traces of drugs in the bloodstream?
Mr. Dilkens: Not that I’m aware of.
Senator Boisvenu: My question is for Mr. Blackham. Do you have any data on the number of truckers who have committed an offence related to marijuana consumption and who have been intercepted at the American border?
Mr. Blackham: A usage, as in they’ve been caught by a random test in the workplace, or is this more of a trafficking —
Senator Boisvenu: Either for having transported marijuana from Canada to the United States, or for having consumed marijuana shortly before crossing the border. Do you have any data on the number of offences that truckers who are members of your association have committed in recent years? This would give us an idea of the scope of the problem in order to determine whether it is likely to worsen in the long term.
Mr. Blackham: Yes, I understand the question. We don’t internally in CTA keep those kinds of numbers. That would be beyond what we can do. However, through surveying provincial data on crash statistics and fatalities where they test you post-mortem to see if you were under the influence, in truck drivers, the instance is very low. It’s much lower than the rest of the motoring public by a class of vehicle where we are better.
Having said that, the consequences of a commercial driver being under the influence, whether it’s cannabis or alcohol or something else, are far greater, at least in our view, than perhaps others. In that sense, although the number of instances is probably lower, we at least as an industry feel we have a greater responsibility than perhaps others to ensure that we are safe and that we are operating completely sober and not under the influence of any substances. It’s part of the reason why we’re looking to have random testing included for the Canadian driver population as well.
The Chair: Gentlemen, I’d like to take this opportunity to thank you very much for your contribution to our committee. It has been most helpful. Particularly to our American colleague, thank you for joining us. It’s much appreciated having a perspective from the other side of the border. Thank you very much.