Situations on the US border will only get worse after cannabis legalization

As the ink dries on the Cannabis Act, the public is starting to wonder what post-cannabis decriminalization Canada will be like. One question being asked is how will Canadians crossing over the border into the United States be treated after October 17, when recreational use of marijuana will be legal across Canada.

In the context of the policy of separating children from their parents in detention centres along the US-Mexico border, which has now ended, our neighbours to the south provided another reminder of how zealously they take protecting their borders. A French teenager who unwittingly crossed the US border while jogging along a beach in White Rock, BC, ended up spending two weeks in a detention centre after she was confronted by Immigration and Customs Enforcement officials.

Cedella Roman, 19, had been visiting her mother, who lives in White Rock. She was unfamiliar with the area and there were no signs informing her she was crossing into the States. Unable to prove her identity because she was not carrying any documents, she was arrested and taken to a detention centre 200km away, where she spent two weeks before being allowed to enter Canada again.

The amount of time the teen was detained and the accounts she gave to the media of the interrogation she received from the Americans may seem excessive but Canadians are likely to find they also receive similar treatment more frequently following the legalization of marijuana.

Why is marijuana legal in some states but not the entire country?

This is the situation: after October 17, Canadians will be allowed to smoke cannabis legally but it will still be a federally-controlled substance in the US. Marijuana is legal in some states, however, because the US border is governed by federal law and overseen by federal agents, smoking marijuana will still be treated as a federal crime.

“This will result in Black and other racial minority Canadians being singled out for interrogations.

US border officials will be able to exercise discretion about who they allow into their country and Canadians may find themselves banned, potentially for life, for admitting they have smoked pot. Those who admit smoking pot must apply for special waivers in order to ever visit the US. This has led to predictions that more Canadians will be denied entry as the US is likely to step up scrutiny at its borders.

Canadians may well be discouraged from admitting marijuana use following stories of people doing just that and receiving lengthy detentions. Last year, a German national living in Vancouver drove to Seattle. Marijuana is legal in the state of Washington so he bought and smoked some of it before heading home.  He naively thought he would be able to take it with him back across the border to Canada but the Canadian authorities at the border confiscated the marijuana and told him to go back into Washington for 24 hours so the effects of the cannabis would wear off. When he went back into Washington, however, the US border agents stopped him and he explained why he had been sent back. He was detained for four weeks by American authorities after admitting to smoking marijuana.

Situations such as these are likely to get worse once marijuana is legalized and US border agents have added reason to suspect Canadians coming into their country have smoked marijuana. They face the prospect of being subjected to questioning more frequently and even the prospect of lengthy detentions before being released back to Canada.

Implications for ethnic minorities

This will become a particular problem for racialized individuals and minorities. Not only are they disproportionately singled for carding by police in Canada, issues of racial profiling by police and agents of the US government have also been well documented in the US. This will result in Black and other racial minority Canadians being singled out for interrogations and having their travel disrupted more frequently.

Other grounds for refusing entry to the US

It is not just admitted marijuana use that is grounds to exclude someone from the US for life. Proven consumption of cannabis, such as a criminal conviction or drug-impaired driving conviction, can also prevent you from entering the country.

Bill C-46, which recently received Royal Assent in Canada, could also result in drivers being denied entry to the States. The highly controversial piece of legislation introduces new regulations around marijuana-impaired driving, such as setting per se limits on the amount of THC present in the body. The problem is, THC may remain in the body for several weeks after the drug is used. This means it is possible for someone to fail one of these tests even if they have not consumed cannabis recently. So a Canadian driver could potentially be convicted of drug-impaired driving without being impaired at the time of driving. One of these wrongful convictions could appear on a person’s criminal record so if a US border agent sees this they may decide to prevent that person from entering the country.

What to do if you are asked if you’ve ever smoked marijuana at the US border

With so much at risk, if you admit to smoking cannabis to a US border official, drivers may be tempted to lie and say no when asked if they have ever smoked pot. This is a bad idea as it could lead to much more serious consequences. The general consensus among immigration lawyers is that if you are questioned about your marijuana use, you should either decline to answer the question or choose to withdraw your application to enter the United States. You will likely be refused entry that day, which is inconvenient, but you will still be able to try again another day when a US border agent might choose not to ask that question. Under no circumstances incriminate yourself by saying you have smoked pot unless you want to be potentially banned from the States.

With the increased scrutiny Canadians crossing the border into the US will face after cannabis is decriminalized, it is more important than ever to challenge any marijuana-impaired driving convictions you may have on your record. It will only take once for an American border official to discover the convictions and ban you from entering.

We highly recommend you seek professional help to have any outstanding convictions expunged from your record.

At Acumen Law, we are adept at winning these sorts of cases and we can help you. We also offer legal services for immigration applications.

Contact us today for more information.

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