The looming border clash over Canadian marijuana

Canada’s national legalization of marijuana has put it at odds with the United States where, despite growing state-level legalization, marijuana remains strictly illegal at the federal level. It was inevitable that the different approaches to marijuana would create friction between the two countries. It appears increasingly likely that this friction will be felt most acutely at the border.

U.S. Customs and Border Protection (CBP) confirmed recently that Canada’s legalization of marijuana will not affect how the drug is viewed and treated at the border. Rather, senior CBP officials caution that the full panoply of potential legal consequences — criminal, immigration, and otherwise — remain on the table for those who are caught crossing with Canadian marijuana at the border.

{mosads}CBP’s position is understandable. Unless and until Congress acts to address the federal prohibition on marijuana, the drug remains strictly illegal under the federal Controlled Substances Act (CSA). CBP is doing its job to enforce the law, and it does not have the authority to create an exception to the CSA.

Yet, the current situation is rife with unpredictability, and the consequences for those caught between the countries’ differing marijuana policies can be severe. For American citizens with marijuana, U.S. border authorities will not deny them entry into the United States. But criminal prosecution remains on the table, as do financial penalties and, potentially, asset forfeiture of the car used in the “smuggling” event. It also seems quite likely that those caught with marijuana will not be eligible to participate in a CBP trusted traveler program such as Global Entry or NEXUS.

For Canadians, the situation is no better. Like an American, a Canadian caught by CBP with marijuana could face criminal prosecution. They could also be found inadmissible to the United States under U.S. immigration law, affecting over the long run their ability to come to the United States without receiving a waiver of inadmissibility. Should CBP actually dig into marijuana use by Canadians in Canada, a prospect that CBP acknowledges is possible, the number of Canadians facing admissibility issues could expand dramatically.

The impacts may extend beyond personal consequences to commercial operations. If a commercial truck driver, for example, is caught with marijuana at the border (or admits using it in Canada), will their employer face consequences such as smuggling penalties or even a threat to C-TPAT certification? Given the trading relationship between the United States and Canada, even small disruptions in the processing of cargo and commercial traffic at the border can have substantial economic effects.

In short, marijuana has the potential to gum up severely the U.S.-Canada border. Further injecting uncertainty is how the Trump administration will approach this issue. Attorney General Jeff Sessions, and apparently the White House itself, are hostile generally towards marijuana legalization. And at the border, the administration has pushed for a stiffening of security, most notably through its so-called “zero tolerance” policy of referring all illegal crossers at the southwest border for criminal prosecution. It is not improbable that the administration will take a zero-tolerance approach at the border to legalized Canadian marijuana. It would be a natural extension of the administration’s border security policy and consistent with its position on marijuana.

Congress seems unlikely to address this issue anytime soon, but the administration can take steps to address the uncertainty. First, the administration can explain clearly what its policy is going to be, in particular with respect to criminal prosecution. Historically, the federal government has not prosecuted low-level marijuana crimes. If the administration intends to take a different approach at the northern border, it should say so. Similarly, the administration should clarify if and how asset forfeiture will be applied, and the interplay of legalization with trusted traveler and shipper programs.

Second, although it is too soon to predict exactly what will occur at the border, the potential issues and consequences are serious enough that the two governments should proactively and jointly plan for them. Among the critical areas that require attention are coordinated public communication and messaging, in particular as people approach the border. Those coming into the United States need to understand unambiguously that it is illegal to cross the border with marijuana, and that message needs to be communicated and reinforced at the border itself. For its part, the U.S. government should communicate to those going into Canada that marijuana cannot be brought back — both at the border and with target populations who may be expected to engage in marijuana tourism.

Despite effective messaging, some people will still accidentally bring marijuana to the border. Authorities should consider offering them a safety valve such as the installation of dumping stations where people could securely and lawfully dispose of marijuana before entering the United States.

The United States and Canada should not approach this problem individually but, instead, through the lens of joint border management. Both countries and their citizens have a stake in this, and the countries should look for opportunities to collaborate to head off the issues that marijuana legalization in Canada will create at the border.

Nate Bruggeman, a partner at the consulting firm BorderWorks Advisors, LLC, held senior policy positions with the Department of Homeland Security and Customs and Border Protection during the Obama administration. He also has worked at the Colorado Department of Law, where he represented Colorado’s Marijuana Enforcement Division.