January 4, 2018 4:08 pm

Here’s how a U.S. federal marijuana crackdown could affect Canada

An employee of a newly legal cannabis store in California shows products to a customer on January 2, 2018. Despite what his T-shirt says, however, marijuana is still federally illegal in the U.S.

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On New Year’s Day, California became the latest — and most populous — U.S. state to legalize marijuana.

But the U.S. federal ban on marijuana hasn’t gone anywhere, though a delicate Obama-era truce between Washington and states that have legalized recreational cannabis prevented a crackdown — up until now.

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As Californians revelled in their new-found freedom, federal Attorney General Jeff Sessions, a diehard enemy of marijuana who has compared it to heroin, has signalled that the party may end before it’s really started, opening the door to a federal crackdown on legal marijuana in tolerant states.

READ MORE: U.S. overturns policy that lets legal pot flourish without federal investigation

So what will it be like for Canada, with full legalization of recreational pot, to live next to a big, powerful country whose government is more and more hostile to it (even as the American public gets more tolerant)?

There’s good news and bad news. First the good news:

READ MORE: Is a looming U.S. crackdown opening the way for Canadian cannabis companies?

It may open the way to Canada dominating the marijuana research industry internationally. 

Because recreational pot is still illegal in the U.S., lenders are edgy about giving marijuana businesses credit. If you lend a business millions of dollars, you need to be sure that U.S. marshals won’t show up with a warrant, and that your own profits won’t be defined as the proceeds of crime.

WATCH: Public Safety Minister Ralph Goodale told the media Thursday that the federal government will intervene if border crossings into the U.S. become more difficult due to marijuana legalization.

Last June, for example, a medical cannabis processing plant operating openly in Santa Rosa, Calif., was closed by police, who confiscated millions of dollars worth of machinery and arrested the owner.

READ MORE: Why Donald Trump could be the Canadian marijuana industry’s secret weapon

And in October, the TMX Group, the company that operates the Toronto Stock Exchange and the TSX Venture Exchange, warned that companies with business activities that violate U.S. federal law regarding marijuana could face delisting.

Canadian pot entrepreneurs have made the case that the logical place for a flourishing cannabis industry, especially expensive time-consuming research into new recreational and medical products, is Canada.

(Having said that, some investors apparently disagree — Canadian and American marijuana stocks both fell today on the U.S. news.)

WATCH: U.S. border guards have been barring Canadians from entering the States for answering “yes” to having used marijuana. Immigration lawyer Len Saunders spoke with Geoff Hastings on BC1 about what you should do if you are asked about your pot use.

READ MORE: TMX warns about U.S.-linked pot stocks, amid fears of Washington marijuana crackdown

But it could complicate crossing the border in several different ways. 

Sessions seems to be signalling a stricter application of existing law, not anything really new.

The zealous enforcement of existing U.S. marijuana laws at the Canada-U.S. border would make it a much more cumbersome and repressive place.

The world’s longest undefended border will have legal recreational pot sales on one side — in Quebec, to 18-year-olds, next door to states where the drinking age is 21 — and a grab bag of different rules, depending on the state, on the other side. Among border states, some, like Alaska and Washington, allow recreational cannabis and others don’t. Inevitably, the illicit flow of Canadian cannabis southward is going to make border crossings move sluggishly as border guards try to find smuggled pot.

Will that affect the flow of trade? One expert we talked to feared it might.

READ MORE: Legal marijuana in Canada could slow border crossings, expert fears

People with any history of consuming marijuana, even where it’s apparently legal, need to be very careful at the border. This has always been true, but strict enforcement of existing laws would raise the stakes.

The federal marijuana ban has meant that non-Americans have found themselves with lifetime bans from entering the United States for admitting smoking pot in places, like Colorado, where it was apparently legal. This has come as a surprise to people who didn’t think they were breaking the law, weren’t cued in any way that they might be breaking the law, then found themselves facing life-altering consequences for admitting breaking what turned out to be the law.

(Canadians banned from the U.S. can apply for a waiver allowing them to cross, but the process is cumbersome and expensive, and the application has to be restarted from scratch every few years for the rest of the person’s life.)

READ MORE: Non-Americans barred from U.S. for smoking pot — even in states where it’s legal

WATCH: An immigration lawyer is casting serious doubt on some federal government advice to be honest and admit to smoking marijuana if asked at the U.S. border.

After legalization, provinces will still regulate marijuana in a lot of ways. There will be provincial laws, like traffic laws, regulating things like public smoking, underage possession and home grows. Penalties will often be pretty small — Ontario’s maximum fine for 18-year-olds caught with pot, for example, is only $200, which can be written off by going to an educational program.

It’s clear that these penalties are meant as nudges rather than serious punishments. “Our purpose is not to punish our youth but to educate our youth,” provincial Attorney General Yasir Naqvi explained in November. 

However, lawyers warn, a provincial cannabis ticket — even a minor one where a teenager got out of paying any fine by attending a class — could bar someone from entering the U.S. for the rest of their lives.

READ MORE: Ontario’s busy traffic courts can’t cope with teens’ marijuana tickets, lawyers warn

That has the potential to throw provincial traffic courts, where you would dispute a pot ticket if you wanted to, into chaos. If admission to the U.S. was the issue, it might make complete sense to spend thousands of dollars on lawyer’s bills to dispute a $200 fine. Traffic courts will be forced to conduct complex drug trials which they’re not equipped to deal with, lawyers warn.

The core reason: not a penalty that their own government wants to impose, but one that a foreign government wants to impose for a minor offence committed here.

“Living next to you is in some ways like sleeping with an elephant,” Pierre Trudeau once told an American audience. “No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

This has been true in many areas, but the latest may turn out to be marijuana.


— With files from The Associated Press

© 2018 Global News, a division of Corus Entertainment Inc.

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