A recent survey found that many Canadian travellers are still unclear about the rules around cannabis — recreational or medicinal — and that has employment lawyers cautioning employers about employee habits, says John Dujay
With cannabis legalization a year-long reality and edibles now available, many Canadians are still hazy on travel rules around the drug, according to a new survey.
Many travellers are unclear on what and how much can be taken onboard a flight, and where — and that has employment lawyers cautioning employers.
“It would be prudent for employers to caution any of their employees who might be traveling to other countries, where the laws might be a little bit different, to ensure that they understand the laws of the workplace so they can avoid any kind of embarrassment or potential legal charges even, which could impact a lot of aspects of their life, the least of which is their employment here in Canada,” says Stephen Torscher, a partner at Miller Thomson in Calgary.
The survey found that half of Canadians think they will not face penalties if they are travelling with cannabis and their domestic flight is diverted to land in the U.S. This is not the case, says Responsible Cannabis Use (RCU), which surveyed 11,371 Canadians in November.
That scenario actually happened recently when an Air Canada flight from Toronto to Vancouver diverted for an emergency landing in Seattle and some passengers had cannabis on them, says Karina Karassev, COO of RCU.
“You will be fined if you land in the States. All the airlines, before legalization, issued their warning that they will not be personally liable: ‘You will be stranded there and it’s not our fault that we had to divert.’”
Almost one-third (30 per cent) of Canadians also believe they can cross the border with cannabis if they have medical cannabis authorization. But it is illegal to do so, says RCU, as the Canadian government forbids travellers from importing or exporting cannabis or using it for medical purposes abroad.
“[People think] ‘Hey, I can travel with my prescriptions across the border, liquid or non-liquid, as long as I’m under that 100-ml [rule for liquids]. I can take them with me because I need them,’” says Karassev. “The rules are no different for medical cannabis. Even if you have a full-on medical cannabis authorization and you’re doing everything by the book, you still cannot cross the border with medical cannabis.”
Encouragingly, nine in 10 of the survey respondents know it is illegal to cross the border with cannabis even when travelling between legalized regions such as British Columbia and California — although 12 per cent think they can bring cannabis into Canada because it’s legal in Canada, which is not allowed.
As for edible cannabis, 14 per cent of Canadians think they can consume edibles on an airplane, but just like alcohol, passengers cannot indulge with their own products.
For employers, this could present potential headaches from employees who travel for business or pleasure and wish to bring along cannabis, says Veronica Choy, a partner and business immigration lawyer at Miller Thomson in Calgary.
“Let’s just use the example of a company that puts out the policy and says, ‘Look, if you get caught with cannabis as you try to go to the United States for your vacation, for example, not even for work purposes, you potentially could be deemed inadmissible.’
“If that employee goes ahead and does it anyway and now can’t actually travel to the U.S., even though travel to the U.S. was part of their job in the first place, that could potentially lead to much bigger HR/employment ramifications, because they’ve now frustrated their own employment contract, which previously required them to be able to travel abroad.”
Travelling with cannabis to the U.S. is not only illegal, says Choy, but “the simple answer is, from a crossing-into-the-United-States perspective, anything that Canadians want to do with regards to cannabis should stop before the border: Don’t carry it across, don’t go across to consume, don’t go across to purchase, don’t go across to participate in the industry —period — because any of those could trigger inadmissibility, [which] basically means that you’re not allowed to go to the United States. And then you have to go through all sorts of hoops to try to get back in.”
Seizures of marijuana at the U.S. border went up considerably in the year after Canada legalized recreational cannabis, according to the CBC in January, citing figures provided by the U.S. Customs and Border Protection (CBP).
American officers seized 2,214 kg of marijuana at the border from travellers entering the U.S. between Nov. 1, 2018 and Oct. 31, 2019 — compared to 1,259 kg over the same period a year earlier — an increase in volume of about 75 per cent.
Workplace education on cannabis
As with a lot of cannabis-related topics, education can be a key tool for the employer, according to Daniel Safayeni, director of policy at the Ontario Chamber of Commerce and co-chair of the Ontario Cannabis Policy Council Toronto.
“[The survey results] underscore the need for improved cannabis literacies and policies around it in the workplace. It’s worth noting that, prior to legalization, folks were smoking cannabis and edibles were available through illicit channels. In many ways, legalization has simply brought these challenges to the forefront,” he says.
“What’s incumbent on industry and employers now is to ensure both their employees and employers are well enough educated around the rules around consumption in the workplace and that appropriate policies have been developed and clearly communicated to employees related to impairment and the potentially disciplinary measures that might come with that, and training managers on how to recognize signs of impairment or substance abuse and making sure that these issues are now coming to the forefront more comfortably rather than not being addressed at all.”
Employees who are considering travelling with cannabis should be forewarned, says Torscher, because “employers do have some power to issue discipline for conduct that happens outside of the workplace where it affects the reputation of the company.”
TRAVELLING WITH CANNABIS
48% of Canadians believe they won’t face penalties if they have cannabis and their domestic flight is diverted to the U.S.
30% believe they can cross the border with cannabis if they have medical cannabis authorization.
14 per cent think they can consume cannabis edibles on an airplane.
9 in 10 know it is illegal to cross the border with cannabis even when travelling between legalized regions.