This weekend, an opinion piece in CBC got me thinking: what happens to Canadians who want to seek entry into the United States but are marijuana users, after marijuana is legal?
The Government has not anticipated the host of problems that legalization will pose for cross-border travellers. And while use of marijuana is a ground to exclude entry into the United States, my greater concern is how driving-related marijuana offences recorded on the driving record will impact those seeking entry into the United States.
Currently, every province is considering how it will address the problem of drug-impaired driving once legalization is complete. In British Columbia, the Government has hinted at the likelihood of a further roadside prohibition scheme to address the so-called problem of drug-impaired driving. Leaving aside the fact that drug-impaired driving is both already an issue and already addressed in legislation, making all of this really a non-issue, an expanded roadside prohibition scheme will have devastating consequences of the type the alcohol-impaired schemes do not.
There are already well-documented examples of individuals who have been refused entry to the United States on the basis of a single 24-Hour Prohibition for drugs. In those cases, the officer only has to have reasonable grounds to believe a person is impaired by drugs. Actual impairment is irrelevant. You can read more on the dispute process for a 24-Hour Prohibition for drugs in my blog entry about it. But what will become of those individuals who receive the more nefarious roadside prohibition currently in the works?
The greatest concern is the ability of a driver to dispute the prohibition. The current roadside prohibition scheme for alcohol places a burden on the driver to prove why the prohibition should not have been issued. However, it also does so in a context with no access to disclosure other than a police report, no ability to cross-examine, no power to compel evidence, and a timeline to submit the case that is excessively short and prevents gathering of relevant material using the Government’s FOI process. All of this is supposedly justified (though also the subject of a constitutional challenge) by the importance of road safety.
That’s all well and good when it comes to alcohol, which is lawful in the United States and not a ground for automatic exclusion. But when it comes to drugs, the situation becomes far more complex. And drivers who are served with an immediate prohibition that they cannot properly challenge due to an ill-conceived and overly limiting review process may find themselves facing permanent travel bans to the United States.
I hope that when the Government does unveil whatever mechanism it has in the works to combat drug-impaired driving it considers how far-reaching the consequences for drug-related “convictions” or driving record entries are. And while a roadside prohibition may not be an offence, the ultimate effect is as significant as one. A permanent black mark on someone’s driving record that impacts and forecloses employment opportunities, travel opportunities, and volunteering.
Can we trust the Government to protect our interests when it comes to recording non-criminal, administrative events of suspected marijuana impaired driving? Can we trust the Government to ensure that Canadians are treated fairly and not blacklisted because of the opinion of the police officer.
If we look at the mechanisms already in place to combat drug-impaired driving it would appear that the answer is a resounding no.
And that should have us all concerned.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.