By Nina Kalirai
The legalization of cannabis isn’t as straight forward as many Canadians had hoped. There is now a growing concern of Canadians being slapped with a permanent ban from the United States, if they have any ties to cannabis, even though it is legal in Canada.
In this VIBE TALKS interview, Correspondent Nina Kalirai speaks with Leonard D.M. Saunders – Attorney at Law, Blaine Immigration Law Firm, Washington - USA. Leonard helps clarify what legalisation means for Canadians crossing the US border.
Nina: We now know that it’s not only Canadians who recreationally use cannabis that are going to be affected when trying to cross the U.S. border. Could you elaborate on who else can be affected when it comes to crossing the U.S. border and cannabis legalization?
Leonard: There’s a pretty wide range of Canadians who may be subject to being inadmissible to the United States, or denied entry for life. Barred for life. This is based upon involvement in cannabis. It doesn’t take just smoking marijuana to be barred, it’s anyone who is involved in the industry. This could be anyone from investors, such as major investors or small time investors, there’s no exact amount in the industry that will get you barred. It could be someone involved in selling marijuana for a private retail store, or government owned store in Ontario. It could go as far as barring the (Ontario) Premier, Doug Ford. They could deny him entry to the United States, based upon living off the avails or drug money because the province of Ontario is obviously going to be making profit off the sale of cannabis. Because Doug Ford is getting paid through government resources, technically he could be deemed inadmissible to the United States. There’s a wide range of individuals who could be denied entry to the U.S.
Nina: I recently read up on a story about someone who was manufacturing machines to a legal British Columbia cannabis producer and was permanently denied entry to the United States. Is there any idea on what the reasoning is behind permanently banning those who invest or manufacture products for legal cannabis companies?
Leonard: What the U.S. federal officers are doing is taking very old established immigration laws and basically barring Canadians based upon the number of different areas of the immigration and nationality act. They could be denied entry or barred based upon aiding and abetting, if they have any kind of indirect involvement in the industry. They could be denied based upon living off the avails, if they’re getting any sort of money from their sales of products to the cannabis industry. It doesn’t matter whether it’s legal or not. What the Americans are doing is looking at it as if it’s a Schedule 1 controlled substance federally in the U.S. Regardless or whether it’s legal in the United States, or Canadian province the Americans still consider it illegal. It could be investing. Someone investing is also aiding and abetting, if you’re making money living off the avails. Reason to believe that you’re involved in drug trafficking, if you’re involved in the sale or manufacture of cannabis. That could be a grounds of inadmissibility. There’s a really wide range of different grounds of inadmissibility under U.S immigration laws.
Nina: There’s a few different scenarios Canadians could come across. For example, if someone’s crossing the border from B.C. into Washington state, where cannabis is legal, can they still be denied entry?
Leonard: Absolutely. Where I sit right now in Northern Washington State, my office is about three blocks south of the Canadian border. There’s a cannabis store, literally within eyeshot of the U.S. border in Blaine. Since October 17, you have it legal on the North side of the border in British Columbia, it’s been legal on the South side for five or six years, it’s just that little thin line between the two that separates the two countries where it’s still considered a federal controlled substance and it’s illegal.
Nina: What would the procedure or questioning be like for crossing the border? Should you immediately own up to anything cannabis related that your involved with, for example people who recreationally use cannabis can be denied entry. Does that mean border agents will be asking everyone: Hey, do you smoke marijuana?
Leonard: Well, they don’t ask everybody entering the United States, but I’m assuming after October 17th they’re going to be asking the question more frequently, because they’re going to know that more Canadians are either involved in it through business or using it once it becomes legalized. The Canadian government has been telling Canadians to always tell the truth. What I’ve been advising Canadians is what their rights are. Their rights are they do not have to admit to a U.S. federal officer, when entering the United States, whether they’ve used marijuana in the past, whether it’s legal or not at the time in Canada or if they’re involved in the cannabis industry. The worst thing a Canadian can do is affirmatively answer that question, and self incriminate themselves and barring themselves for life if they give them any kind of information that they’re involved in cannabis. The best advice is to say nothing. You can’t lie, because if you lie to a U.S. officer and they find out, that’s also a lifetime bar.
"By telling the truth, like the Canadian government has said, you could be barring yourself for life."
If you lie, you could be barring yourself for life, so the best advice I could give somebody is they’re under no obligation to answer those questions, and if you don’t answer those questions you will probably be denied entry to the United States for not co-operating with an inspection, but a simple denied entry means you can go back the next day, a week later or a month later and seek entry and hopefully you’ll get a different officer who’s not as zealous on making sure that you admit to cannabis use or involvement.
Nina: Like you had just mentioned, it’s not just being denied entry into the United States but it’s a permanent ban. Is there anyway that Canadians can appeal that ban and what is the procedure like for that?
Leonard: There’s no actual appeal mechanisms but what Canadians can do if they do get barred for life, is they can apply for a waiver. The problem with the waiver is that it’s not a lifetime waiver. It’s a lifetime bar, but if you have to apply for a waiver, the longest you can get is five years. If you’ve never had one, they’ll issue you a one year, then maybe a three, then a five. The filing fees are USD 585, payable to the U.S government when you file the waiver. That’s on top of any legal fees, if you decide to hire an attorney, like myself. It’s basically this treadmill you have to go through every one, three or five years for the rest of your life because of a simple admission at a port of entry.
Nina: What precautions would you recommend Canadians who recreationally use, work for, or invest in cannabis take before crossing the U.S. border. You had mentioned for them to not say anything and just be turned away for that day and not for life, what other precautions would you suggest that they take?
Leonard: Definitely watch what’s on your cellphone. I’m assuming that most Canadians, if they purchase cannabis or they’re involved with the industry, they’re going to have online banking on their phones and those purchases or paychecks are going to be through their mobile apps for banking. If you go to a U.S. port of entry and an officer is suspicious of your activities in the cannabis industry, they could ask to see your phone. You’re under no obligation to give them your password, you have to give them the phone if they ask, but you don’t have to give them your password. If there’s any incriminating evidence of your past involvement with cannabis, I’m advising Canadians not to give out their password. The worst thing that could happen is a denied entry. They can keep your phone for five days, but then they have to give it back. You want to watch what you have on your cellphone, you want to watch what’s on your social media accounts like Facebook or LinkedIn - you just don’t want anything showing that you’re involved with cannabis in Canada.
Nina: Where can listeners go for more information on their rights when crossing the U.S. border?
Leonard: Well, there’s really nothing that publishes the rights of Canadians or other nationals at a U.S. port of entry. People should always co-operate but just be careful. At any point you could ask to withdraw your application for entry. They can’t arrest you, they can’t detain you indefinitely. They can’t do drug screening tests on you, they can’t do lie detector tests, so any kind of intimidation is purely that. I tell Canadians be firm and if you don’t feel comfortable with the line of questioning just tell the officer you are no longer interested in entering the United States that day.
For more information on what you need to know about cannabis click here.