In Kashefi v Canada Border Services Agency (2016 FC 1204), the Federal Court suggested that travellers going to the United States with their prescription drugs should verify whether their medication is a controlled drug. In the event that a traveller’s medication is a controlled drug, the traveller should be sure to keep the medication in its original pharmacy or hospital packaging, travel with less than a 30 day supply, and if entering Canada declare the medication to a customs officer.
The following general classes of prescription drugs are controlled:
- Most Painkillers
- Drugs for ADHD (eg. Adderall, Ritalin)
- Some anxiety disorder drugs (Benzodiazapines, such as Lorazepam)
- Drugs for insomnia (eg. Ambien)
- Anabolic steroids and their derivatives (eg. Prasterone – which could be prescribed for Anemia, Lupus, MS, Alzheimer’s disease)
- Any amphetamine (i.e, “speed,” and 1960s diet pills)
- Any barbiturate (i.e., tranquillizers)
In this case, the Applicant, Farzaneh Kashefi was travelling by car to the United States. She was denied entry to the US the Detroit/Windsor crossing, and was required to return to Canada. Upon returning she was searched by a Canadian Border Service Officer (“BSO”), who found two bottles of various pills with the prescription information removed from the labels of the bottles in Kashefi’s purse. Kashefi was arrested. Upon further analysis, the BSO determined that the pills were anti-inflamatories, anti-depressants, non-controlled pain-killers, laxatives, and lorazepam, which is a controlled drug. The lorazepam pills were seized, and not returned. In addition, Kashefi was required to pay $220 for the release of her car.
Kashefi objected to the seizure of her medication, providing a copy of her prescription, a doctor’s repeat authorization form, and her prescription refill history.
Her objection was reviewed by the Canadian Border Service Agency (“CBSA”), who affirmed the decision to seize Kashefi’s medication, contending that Kashefi was required to report the pills to the CBSA pursuant to section 12 of the Custom Act, regardless of their Canadian origin. The decision noted that although the lorazepam may have been obtained through prescription, the pills were not contained in the pharmacy packaging with appropriate labeling, and were not declared to the CBSA at the time of importation, contravening the provisions of the “Section 56 Class Exemption for Travellers Who are Importing or Exporting Prescription Drug Products Containing a Narcotic or a Controlled Drug.”
A key factor in the CBSA’s decision was that this was the second time that the CBSA had found Kashefi crossing the border with unidentified prescription pills. In 2012, upon returning from a trip to Nicaragua, she was subject to a CBSA enforcement action because she was found to be carrying 20 undeclared pills of prescription medication in an improperly marked container and without a valid prescription. While the Federal Court noted that the CBSA did not provide any records to substantiate the 2012 incident, it found that upon examination Kashefi effectively confirmed that the incident had occurred.
Upon judicial review, the Federal Court upheld the CBSA’s decision on that grounds that it was reasonable and supported with intelligible reasons.
Millar Kreklewetz LLP advises importers to Canada who find themselves involved in customs seizure and ascertained forfeiture situations, which can arise when high-value goods like jewelry, cars, boats, and other recreational vehicles, are improperly declared or valued at the border. Often, unbeknownst to the importer, these simple seizure situations can develop into more serious charges under the Criminal Code for infractions such as smuggling.
Please contact Millar Kreklewetz LLP if we can be of assistance with respect to matters such as those described above.