Cannabis and the Border: Your Privacy Rights

A significant issue that has arisen since the announcement of legalization of recreational cannabis in Canada has been cross-border travel. The United States government still considers cannabis to be an illegal drug, and those who admit to using cannabis and working in the cannabis industry face the potential of lifetime bans on entry into the United States.

Practically speaking, this means that if mom and dad admit to smoking pot, they may be prevented from taking the kids to Disneyland on the family vacation. Or a person who works at a dispensary may be denied entry and not permitted to travel to the United States for a medical procedure not available in Canada.

The consequences are significant and there is a lot that is unknown about how Canadian legal cannabis use will impact border travel.

Because marijuana is still considered an illegal drug throughout the United States, despite legalization in a select number of US states, Canadians who admit to smoking in marijuana or benefiting from the sale and production of cannabis are considered to be a potential risk to the United States.

The rationale for this is in the sovereignty of individual nations. The United States is entitled to pass laws as it sees fit, as is Canada. But where those laws conflict, like with marijuana, the sovereign state has the right to deny entry to those who violate their laws, even if it occurs outside the country. Remember too that the United States is the birthplace of the so-called “war on drugs” which seeks to prohibit all drugs. This makes American law enforcement more interested in preventing access to the United States by cannabis users, sellers, growers, and the like.

Typically, a border agent will ask a person questions to determine whether they are inadmissible. Questions about employment in the cannabis industry could be fatal to a request to enter the United States. But what about the use of recreational cannabis? American border guards retain the authority to deny entry to those who merely admit to using cannabis.

How will this be determined? The answer remains unclear.

One of the greatest concerns surrounding this issue has been the access of US Border Guards to Canadian information about the purchase and sale of recreational cannabis. Canadian registries of marijuana purchases have been rumoured to be potential sources used by federal border offices in the US to deny entry.

But a recent Supreme Court of Canada decision may make that more difficult.

Privacy rights over this type of information have been expanded recently in a case involving another leafy substance typically smoked for pleasure or ceremonial purposes: tobacco. The facts are largely unimportant. The British Columbia government sued tobacco companies for recovery of health care costs. In the course of the lawsuit, the tobacco companies sought production of health care records contained in provincial databases.

The Supreme Court of Canada determined that because those records are inherently private medical records they were exempt from disclosure.

The implications remain to be seen. It is not necessarily the case that US border guards will not have access to cannabis records. After all, the level of privacy one expects when crossing the border is very low. Moreover, because the issue of entry into a country relates to national security and the drug trade can be considered a security issue, the need to share this information may nevertheless prevail over privacy interests.

Indeed, implied limits on access to the information would likely mean that only those who seek entry into the United States are liable to have their data accessed. However, there is at least a foothold from which Canada can position itself to protect its citizens by denying access to this data.

And the case raises further implications for provinces and the country as they collect purchaser and user information and store it in provincial and national databases. If this information is capable of being accessed by American authorities, and the government is aware of the potential consequences, it may think twice about collecting or storing it at all.

After all, is it really necessary to keep this information when cannabis has become legal? We do not keep records of who purchases alcohol or when such purchase are made.

Inevitably, this decision by the top court will have an impact on how cannabis data is collected, stored, and accessed. And given the nature of the ruling, that impact will only be positive insofar as protecting the rights of Canadians.

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