Legal pot poses problems for some Canadians

By Pat Grubb

If Blaine immigration attorney Len Saunders is sure of one thing, it is this: Canada’s forthcoming nationwide legalization of marijuana on October 17 is going to mean lots of business for U.S. immigration attorneys.

Recent proclamations coming out of Washington, D.C. have done nothing to make him think that U.S. Customs and Border Protection (CBP) authorities are going to take a commonsense approach to Canadian travelers who admit to having used or been involved in the marijuana business up north.

“On Friday, [CBP] finally issued a statement on what their policy will be in light of Canada’s legalization of marijuana,” Saunders said. The September 21 statement advised that “Canada’s legalization of marijuana will not change CBP’s enforcement of United States laws regarding controlled substances [...] Although medical and recreational marijuana may be legal in some U.S. states and Canada, the sale, possession, production and distribution of marijuana remain illegal under U.S. federal law. Crossing the border or arriving at a U.S. port of entry in violation of this law may result in seizure, fines and/or arrest and impact admissibility.”

Furthermore, anyone who admits to having used marijuana is inadmissible while anyone who works in the legal marijuana industry in the U.S. or Canada could be ruled inadmissible to the country. A U.S. state department foreign affairs manual opinion issued in April clarified that whether or not a controlled substance is legal under a state or foreign law is not relevant to its illegality under

U.S. federal law.

“Originally, I thought the government was going to take a hands-off approach to people who use cannabis legally or are involved in the business, but these recent statements indicate that’s not going to happen. I think they’re going to take a much more diligent approach to whether Canadians are admissible,” Saunders said. “As we get closer to the date, the authorities are getting more and more harsh. It’s going to be far-reaching – it could involve a government employee working in a cannabis store all the way up to the B.C. premier; technically, John Horgan is living off the avails of marijuana after October 17 under these overly broad interpretations of old immigration laws.”

Saunders noted that the federal government was being inconsistent with the enforcement of federal laws. “If they’re going to enforce the letter of the law, why aren’t they going after state sales?” he asked. “They’re focusing on foreigners when it’s happening here in the states. I hate to say it but I kind of feel sorry for the officers at the border. Most of them live in Washington state where it’s legal and they have to bar Canadians who admit to using it or being in the business. It puts the officers into a very difficult position.”

Tough border enforcement could have implications than just those Canadians who find themselves with a lifetime ban for activities considered legal north of the border and in many U.S. states. “There’s got to be a chilling effect on economies like Blaine. There will be fewer people having their packages sent here, buying gas in the local stations – it’s got to have an effect. This inconsistency is to no one’s benefit other than immigration attorneys.”

Saunders said he is usually interviewed about twice a day, mostly by Canadian media outlets, but the issue is receiving more and more interest by national American publications; the LA Times interviewed him a couple of days ago. “Nobody knows what’s going to happen. People need to be prepared for a broad interpretation. This is going to affect people’s trips to Hawaii, trips to see the Seahawks,” he warned.

Saunders was critical of the Canadian government’s approach to the international ramifications of cannabis legalization. “The government’s focus has been on people bringing marijuana into the U.S. or into Canada. People know that, it’s not rocket science. People know that you can’t take it across the border. What they don’t understand is admitting it or being in the business will result in being banned from the states for life. All the government has to do is follow the money trail.”

Saunders pointed out that buying marijuana in the states is a cash transaction but once it is legal across Canada, purchasers will use their credit or debit cards to make a buy. All a CBP officer will need to do is to look at bank transactions on a border crosser’s smartphone to discover activity that would lead to a ban.

“The Canadian government never thought out these issues. Marijuana is a controlled substance; they might as well have legalized cocaine. They should have worked this out a couple of years ago. If they couldn’t have reached an agreement with the U.S., perhaps they shouldn’t have legalized it,” he said.

As for informing Canadians about cross-border concerns, Saunders said, “Their worst advice was advising Canadians to tell the truth at the border, advice that could lead to lifetime bans.” Saunders said while he would never counsel a client to lie to border officials, he did point out that no one has an obligation to incriminate themselves.

“At any point, you can withdraw your application to enter the country,” he said. “If you are interrogated and they tell you that you have to tell the truth or they will give you a blood test, they can’t do that. If they tell you they’re going to administer a lie detector test, they can’t do it. If they say they’re going to charge you with a criminal offense for not answering questions, they can’t do that. Eventually, they’ll release you after making you wait a long time and release you to go north. The worse thing you can do is to follow the Canadian government’s advice and tell the truth because that will result in a lifetime bar. If you lie and they find out, it’s a lifetime bar. It’s better to just say nothing and return another day.”

Asked what he expected to happen on October 17, Saunders said he expected hordes of news organizations to show up at the border, longer lines and more people being sent into secondary inspection. He also doesn’t expect to be going on vacation anytime soon.

“I’m going to be going 24/7 for the foreseeable future,” he predicted.