Seek compromise with U.S. on cannabis at border, lawyers urge Ottawa
U.S. federal law continues to prohibit its sale, possession, production and distribution of cannabis
WASHINGTON – Canadians who take part in the legal cannabis industry find themselves facing deep potholes on the road to entering the United States – and immigration lawyers who specialize in border issues say the federal government needs to help them navigate a way through.
The U.S. Customs and Border Protection agency sent tremors through the country’s burgeoning cannabis sector last week with word that legalization in Canada won’t change the fact that American laws treat marijuana as a banned substance, and industry insiders as drug traffickers.
Despite the fact that some jurisdictions in North America permit the use of medical and recreational marijuana, U.S. federal law continues to prohibit its sale, possession, production and distribution, an agency spokesperson said in a statement.
“Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension,” the statement said.
‘Working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect a foreign national’s admissibility to the United States.”
The revelations, which are based on existing laws and policies and do not represent any change in how American border officials approach the issue of cannabis, were first reported last week by Politico Pro Canada, a division of the U.S. website Politico.
Lawyers with expertise in helping people cross the Canada-U.S. border say it should fall to Ottawa – not travellers who are taking part in a perfectly legal business enterprise – to help pave the way.
Henry Chang, a Toronto-based immigration lawyer with Blaney McMurtry who specializes in Canada-U.S. matters, says the two countries have consulted productively on immigration issues in the past during the presidency of Donald Trump, and this time should be no different.
“The best chance these individuals have is for the Canadian government to pressure the U.S. government to issue a policy directive saying that employees and investors in Canadian cannabis companies are not subject to the controlled substance trafficking bar,” Chang said.
A statement from the office of Border Security Minister Bill Blair offered little to suggest that the status quo would change any time soon – and appeared to place the onus on Canadian travellers to exercise caution and common sense.
“The United States has the sovereign jurisdiction to deal with people crossing the border into their country, just as we have the same powers for those entering into Canada,” it read.
“Previous use of cannabis, or any substance prohibited by U.S. federal laws, could mean that you are denied entry to the U.S. Involvement in the legal cannabis industry in Canada could also result in your being denied entry.
“Officials from the United States have said that they do not plan on changing their questions at primary inspection after cannabis is legalized in Canada. However, if a traveller gives them reason to be suspicious, their officers may ask further questions.”
While the U.S. Customs and Border Patrol agency insists it has no plans to ask any pot-specific questions without cause, Ottawa immigration lawyer Warren Creates said he fears some agents might find it a useful catch-all to deny admittance to anyone they decide shouldn’t be allowed in.
‘I’m guessing that if a U.S. border officer has some reason not to like the person in front of them who is being examined for entry – some reason – then that officer is more likely to ask the question, ‘Have you ever been a user of cannabis or been involved in the cannabis industry?’
“That question’s not going to be asked more now than before, so they say, but I think an officer faced with an unlikeable person who has not yet presented grounds for inadmissibility, the officer – having a toolbox of possible tools to use during an examination – would be more inclined to use that tool.”
Ultimately, only Canada’s federal government has the credibility and the negotiating heft to convince the U.S. to establish clear guidelines, Chang suggested.
“If Canada is going to legalize marijuana companies, it needs to ensure that employees of and investors in those companies are not given lifetime bans as controlled substance traffickers,” he said.
“I don’t think anyone else can do it.”