Tuesday, August 1, 2017
MAY 25, 2017 BY: CAMERON FRENCH
Immigration lawyers warn of border confusion and travel nightmares that may come with legalized pot and admitting use to a U.S. border guard.
Ross Rebagliati became a role model for countless Canadians when he won the inaugural gold medal for men's snowboarding at the 1998 Nagano Olympics. But Rebagliati is also a notable example of what could soon be an increasing cohort of Canadians: those banned from travelling to the United States because of admitted marijuana use.
Rebagliati's story is of course closely entwined with the marijuana debate: he was initially disqualified in Nagano after testing positive, then reinstated. And of course, Justin Trudeau's Liberals have pledged to legalize the substance next year.
Rebagliati's U.S. travel ban, however, was only recently reversed. And his lawyer, Len Saunders, says the march to legalization won't stop such incidents from happening; in fact, he expects it to make them more common.
The "pot issue" has been simmering for years, stemming from the fact that admitting an instance of past marijuana use to a U.S. border guard can get you permanently banned from entering the U.S., even if the use took place in a jurisdiction where marijuana use is legal.
"When the person admits to the essential elements of a controlled substance violation, then they're basically barred for life," says Saunders, who is based in Blaine, Washington.
According to Saunders, incidents of drug-related border bans have risen sharply since the state of Washington legalized recreational marijuana five years ago.
"Before, I would see these situations once or twice a month, and now I'm literally getting calls every day," he says.
'U.S. border marijuana hell'
The no-tolerance approach can be a shock to travellers who don't realize that they can be penalized for casually admitting use, and that the laws of the country they're leaving and the state they're entering don't factor into it at all.
This is because U.S. Customs and Border Protection is a federal agency, and therefore subject to federal laws that consider marijuana a schedule 1 controlled substance. So you can be entering Washington or other states, where pot is legal, and still get hung up at a border that plays by different rules.
This can lead to some truly confusing situations.
Mark Belanger, an immigration lawyer in Vancouver, had a recent client who went through the ringer of U.S. border marijuana hell.
The client, a German citizen who had recently moved to British Columbia with his German-Canadian wife, was required to leave Canada and re-enter to activate his workers' permit, and decided to spend the day in Seattle.
"What to they do when they're down there? They smoke some marijuana because it's legal," says Belanger.
When they returned to the border, Canadian officials detected marijuana on him and told him he wouldn't be allowed into Canada until the marijuana was out of his system. So the couple did a U-turn with the intention of staying overnight on the U.S. side.
But to do so required them to go through U.S. border controls, where officials asked why he had been turned away at the Canadian border. When he admitted the legal marijuana use, they banned him from entry there as well.
"He's a German national, and they can't send him back to Canada, so they put him in deportation proceedings. They arrest him, handcuff him, bring him down to Tacoma to the detention centre," says Belanger. "We were able to get him out in three weeks. That's fast, believe it or not."
Of course, Canadian citizens don't have to worry about being turned back at both the Canadian and U.S. borders, but they can be banned from U.S. travel, as is Belanger's client.
Typically, border officials will only ask about pot use if triggered by something, such as physical evidence, a conversational snippet, or something suggestive like a T-shirt with a cannabis leaf on it. Belanger says a group of teenagers crossing the border for a concert would also raise red flags and probing questions.
But the fear is that legalization of the drug in Canada could both prompt more aggressive questions from border guards and perhaps embolden Canadian travellers — unaware of the border rules — to admit to using it.
"The border officers are going to have more of a tendency to ask questions to Canadians when they know that it's legal," predicts Saunders.
Lying is not advised, as misleading a border official carries even stiffer penalties. Canadians do, however, have the option of withdrawing their application to enter the United States. Border officials may hassle you about it, but they will have to let you go. However, you will likely face questions about it the next time you try to cross.
And while a ban can usually be worked around by obtaining a waiver, as in Rebagliati's case, doing so is costly and requires hiring a lawyer. This means that both Saunders and Belanger expect their already busy schedules to become more crowded starting next year.
"This is a major problem on the horizon and I'm not entirely sure if the liberal government's thought it through," says Belanger.