Oh Cannabis: How Canada’s Legalization of Marijuana Will Impact Border Crossings

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Effective October 17, 2018, Canada has become the second country in the world to legalize marijuana. Canadian citizens may now possess, buy, use, grow and sell marijuana subject to regulation by the Canadian federal government and provincial governments.

Canada’s legalization of marijuana has the potential to create serious issues for Canadian citizens seeking to enter the U.S., as well as U.S. citizens seeking to return to the U.S. following a trip to Canada. 

Under U.S. federal law, marijuana is still considered an illegal Schedule 1 narcotic, along with heroin, LSD and ecstasy, despite the fact that some U.S. states have passed legislation legalizing marijuana. And U.S. Customs and Border Protection (CBP), the federal government agency charged with protecting the nation’s borders, has re-emphasized its commitment to enforce U.S. federal drug laws when inspecting individuals seeking entry to the U.S.

In its official statement on Canada’s legalization of marijuana and crossing the border, CBP confirmed that although some U.S. states have legalized marijuana for medical and/or recreational purposes,

“the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.”

What you need to know if you are a Canadian citizen seeking to enter the U.S.

  • It is illegal to bring any quantity of marijuana purchased legally in Canada into the U.S., even if you are flying to a U.S. state where marijuana is legal (like Colorado). Any individual caught trying to bring marijuana into the U.S. can be permanently denied admission to the U.S. and may be subject to seizure, fines and apprehension.

  • If you are determined by a CBP officer to be a drug abuser or addict based on personal marijuana use, you can be permanently denied admission to the U.S.

  • If you admit to having committed acts inside or outside the U.S. relating to marijuana (including use, possession, production or sale) which constitute the essential elements of a violation of U.S. controlled substance laws, you can be permanently denied admission to the U.S.

  • If you are determined by a CBP officer to be a drug trafficker or an illegal drug industry worker based on working in or facilitating the legal marijuana industry in Canada, you can be permanently denied admission to the U.S.

If you are permanently denied admission to the U.S., you may be able to seek a waiver in some, but not all, circumstances, but such waivers are typically very difficult to obtain.


What questions can you expect from a CBP officer if you are a Canadian seeking entry into the U.S.?

CBP officers have the authority to ask you any question they may believe will help to determine whether you are admissible to the U.S.  On the topic of marijuana, such questions could include:

  • Have you ever used, sold, grown or bought marijuana?

  • When is the last time you used marijuana?

  • How often do you use marijuana?

  • Are you bringing marijuana with you to the U.S.?

  • Do you plan to use marijuana in the U.S.?

  • Do you work in the legal marijuana industry in Canada?

  • Are you coming to the U.S. to use marijuana or attend marijuana industry events?

Any affirmative answers to any of these types of questions could result in you being permanently denied admission to the U.S.

Although CBP has suggested that it does not intend to ask every border crosser from Canada if they have used marijuana, they have indicated they may ask such questions if warranted under the circumstances, which could include noticing the scent of marijuana in your vehicle, seeing marijuana paraphernalia in your vehicle or anything else about your appearance that may suggest you are under the influence of marijuana, that you use marijuana or even that you support marijuana use (wearing a pro-marijuana t-shirt or hat when crossing the border is not advised). 

Furthermore, CBP officers can, and regularly do, ask questions about your occupation, and if the answers to such questions indicate that you work in the legal marijuana industry in Canada, your ability to enter the U.S. may be restricted.  Although CBP has suggested that a Canadian citizen who works in the legal marijuana industry in Canada who is coming to the U.S. for reasons unrelated to the marijuana industry will “generally be admissible to the U.S.,” they also note that travelers found to be coming to the U.S. for reasons related to the marijuana industry, may be denied entry.

Considering the Trump administration’s increasingly strict border policies, it is not wise to rely on any statements from CBP suggesting any degree of leniency in any area related to marijuana issues.  Rather, you should assume that CBP officers can, and will, take any and all actions they deem necessary to fulfill their stated obligation to enforce U.S. federal drug laws.
 

U.S. Citizens Traveling to Canada Need to Be Mindful When Crossing the Border Too

Although U.S. citizens entering Canada should not be subject to questioning by Canadian border officials about marijuana use, U.S. citizens must be aware that it is illegal to bring any quantity of marijuana purchased legally in Canada back into the U.S., even if you are flying to a U.S. state where marijuana is legal (like Colorado).  Attempting to bring marijuana into the U.S. could result in seizure, fines and/or apprehension. 

Furthermore, CBP has indicated that if it suspects a U.S. citizen border crosser is driving a vehicle under the influence of marijuana, they will coordinate a response with local police authorities.

And, finally, while CBP cannot legally prevent a U.S. citizen from returning home, they could seek to revoke a U.S. citizen’s NEXUS card (used to facilitate faster border crossings) if they admit to using marijuana while in Canada.

Final Thoughts

This is a very fluid situation and individuals crossing the U.S. border, both Canadian citizens and U.S. citizens, must remain mindful of the new complexities created by Canada’s legalization of marijuana.Ellis Porter will continue to monitor CBP’s enforcement policies as they evolve in the days and weeks to come and we will report on any new developments as they occur.