Cannabis and corporate travel


From the December 2018 print edition

Since the entry into force of An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (Bill C-45), Canadians are now allowed to possess and use cannabis. But what does this mean for corporate travellers and their organizations? Here are the answers to a few of the questions that may have crossed your mind since October 17.

Image: Angelica Yiacoupis

Is it legal to travel from one province to another with cannabis?
Yes, even on planes. As confirmed by Transport Minister Marc Garneau, “As long as the flight is domestic, then people are allowed to bring up to a certain quantity for their personal use.” However, you should note that most provinces have adopted specific legislation regarding cannabis that may be more stringent than Bill C-45. So you want to make sure to know the specifics of the law of the province you are travelling to.

Is it legal to take medical or recreational cannabis across the border?
No. Cannabis legalization has not changed any country’s border rules, including Canada. Taking cannabis—or any product containing cannabis—across Canada’s international borders is illegal, regardless of whether the product is for recreational or medical purposes. This rule applies whether you enter or exit Canada.

The only exception is if Health Canada has delivered an authorization allowing a person to travel with cannabis. Health Canada only delivers such authorization in very limited circumstances, for medical, scientific or industrial purposes. Therefore, unlike other medication, it is not enough to have a doctor’s prescription to be allowed to travel across international boarders with medical cannabis.

Is it legal to enter to Canada with cannabis purchased from places where it’s also legal (Netherlands or some US states)?
No. It is still illegal to cross Canada’s international borders with cannabis, even if the product originates from another jurisdiction where it is legal.

Can a traveller be banned to travel to the US if they have used cannabis legally since October 17?
Under the US laws, borders officers have the authority to ask any person who wants to enter in the US whether they have bought or used cannabis in the past, including since legalization. Officers do not routinely ask people about their cannabis use, but like before legalization, they do it randomly or, more likely, when something raises suspicion (behaviour, aroma, residue in a pocket).
While US border officials say that officers will make a distinction between whether a Canadian’s past cannabis use was before or after legalization, an officer can still decide to issue a ban when a person admits having used cannabis since legalization including, for example, if they believe the person may engage in the same activity while in the US (even in states where it is legal).

Can a traveller be banned from travelling to the US if they have purchased cannabis legally since October 17?
If a person purchased cannabis with his or her credit card, it is possible. Most Canadians’ credit card data is stored on US-based servers. Under the USA Patriot Act, US authorities have the authority to scrutinize that data without first obtaining a warrant (they need reasonable grounds, but it is a very subjective notion). If, in doing so, US authorities discover that a person has bought cannabis in Canada they may issue a ban against that person. As such, several experts recommends not using your credit card to buy cannabis product.

Can a person be banned from travelling to the US because he or she works or has made investments in the legal cannabis industry?
According to the most recent information, the answer is no. However, if a cannabis industry worker tries to enter the US for a work-related reason, it is very likely that he or she would be denied entry.

What should a person do when a customs officer asks them questions regarding cannabis use history?
If the borders officers of a country you want to enter, for example the US, ask questions regarding past use of cannabis—and you have used cannabis in the past—you should decline to answer their questions. Obviously, they’ll deny your entry that time. But they cannot issue a lifetime ban because you refuse to answer a question. However, admitting past use can lead to that result. So remember, it’s better to miss one meeting than never be able to go to a country again!

What obligations does my employer have toward me if I am arrested for cannabis possession at destination?
Except if your company’s policy or employment contract provide otherwise, your employer does not have any obligation to assist in such cases. All employees are expected to abide by the law of their own country and of the countries they are travelling to for business purposes, and if they fail to do so, their employer does not have the obligation to assist them.
If the company, or anybody else, wants to provide assistance, the first step is to contact the Canadian consular services, which will be able to provide some help.

What specific cannabis-related advice should I remember when travelling abroad?
Do not take it in, do not take it out! Even in countries where cannabis is legal, the law generally prohibits entering or leaving the country while transporting cannabis. Always abide by the law of the country you are travelling to. If you are asked about your past use and have indeed already used cannabis, it’s always better not to answer the question.

Arianne Bouchard is a lawyer in Dentons’ labour and employment group.