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Canadian pot smokers not welcome at the border — U.S. Customs and Border Protection

Written by on October 15, 2018

Stay out of our country.

That’s the blunt message from the United States to Canadians who have ever used marijuana recreationally. It comes on the eve of legalization north of the border and a StatsCan estimate of more than five million Canadians who will buy pot legally between Wednesday and the end of the year.

For months, Canadians had sought clarification on how visitors might be treated at the border. In late-September, the U.S. Customs and Border Protection responded with an unambiguous public statement: anyone even admitting to having toked up at some point in their life “is inadmissible to the United States.”

Lifelong greenhouse farmer Cole Cacciavillani said he’s never consumed pot, but he’s the co-founder of Leamington’s Aphria Inc., a licensed and government-regulated producer of cannabis products, and until just days ago he was at risk of being banned from the U.S.

This week, U.S federal authorities quietly tweaked a rule stating that anyone involved in the marijuana industry, including Aphria’s investors and its almost 500 workers, were to be treated no differently than drug traffickers.

Cole Cacciavillani, co-founder of licensed marijuana grower Aphria Inc., is shown Sept. 19, 2018, in a part of a massive greenhouse expansion underway at the company’s Leamington operations. Dax Melmer / Windsor Star

On Wednesday, the agency’s September statement was “updated” to now permit those involved professionally in Canada’s legal marijuana industry to enter the U.S., but only for “reasons unrelated to the marijuana industry,” and only for those who have never tried the product.

Despite what the law will soon be north of the border, and despite the growing number of states south of the border deciding to also legalize marijuana, “the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law,” according to the U.S. Customs and Border Protection. A majority of U.S. states — 31, as well as Washington D.C. — have legalized cannabis for medicinal use, but American federal law still lumps pot in the same category as heroin or crack.

For those tasked with protecting the U.S frontier, nothing changes at the border when Canada legalizes pot Oct. 17.

“Change the word from marijuana to cocaine, and how’d you expect those (American customs) officers to respond at the border?” said U.S. immigration lawyer Len Saunders. His Blaine, Wash., legal practice, located just blocks from the busiest border crossing south of Vancouver, B.C., is already seeing a boom in business as pot pasts catch up to a growing number of Canadians.

“Your government has failed to understand the consequences on Canadians who cross the border,” said Saunders, who visited Ottawa last spring to advise senators of looming potential border troubles following legalization. “I warned them: ‘This is going to get worse.’”

The Ambassador Bridge and plaza is seen from the air on the American side on April 23, 2010. Tyler Brownbridge / Windsor Star

The advice from the prime minister and Ottawa’s federal ministers has been for travellers to be honest in all their answers at the border, but Saunders said Canadians answering in the affirmative to any question about previous pot use face lifetime bans on visiting the U.S.

“That’s the worst advice,” said Saunders, whose clients include Olympic gold medallist Ross Rebagliati. Lying and answering ‘no’ when asked is just as bad, he added, especially as U.S. Customs officers have the authority to go through a potential visitor’s cellphone or laptop and search that person’s internet profile and online social and financial transactions (Ontario, Canada’s biggest pot market, will only permit online pot purchases until at least next April).

Saunders, whose office is already getting one or two calls a day from Canadians deemed inadmissible at the border after admitting to previous pot use, advises travellers to simply not answer the question and accept being turned around on that particular day.

U.S. customs officers, said Saunders, are just “doing their jobs, enforcing federal immigration law.”

What happens after Oct. 17 is “definitely a concern,” said Aphria’s Cacciavillani, and it’s why Aphria had sought legal advice and been in discussions with government officials on both sides of the border, including the U.S. Embassy in Ottawa. Cacciavillani said he and his wife will continue to visit nearby Detroit to watch professional sports or to go out for dinner. “We’re not doing business in the U.S. — we’re not breaking any laws,” he said.

Always answer questions honestly at the border, said Cacciavillani.

But the advice is quite different from Leo Lucier, a long-time Windsor pot activist who hopes to launch a legit business once Ontario permits private retail sales next spring.

“If you want to cross the border — lie. I’d lie through my teeth, 100 per cent,” he said.

This has the potential to become unmanageable

While not an advocate of pot use, long-time Windsor immigration lawyer Drew Porter said there’s “common sense” in the evolving laws of Canada and individual states, but it’s one that is “not reconciled” with current U.S. federal law.

“There’s going to be cultural problems as a result … and it’s going to be in our face here in Windsor and along the border,” he said.

“This has the potential to become unmanageable,” said Porter. “It comes down to whether or not you’re asked the wrong question by CBP.”

While U.S. customs agents have a duty to protect their border, and entering that country remains a privilege and not a right for foreign travellers, Porter described it as “overkill” when two young Canadian women he represents were slapped with lifetime bans to enter the U.S. after admitting they’d once smoked pot.

It’s a sensitive political issue. U.S. Customs and Border Protection officials, as well as the office of Bill Blair, Canada’s Minister of Border Security and Organized Crime Reduction, did not respond to repeated requests for comment by Postmedia News for this story.

The tunnel plaza on the American side is pictured on Aug. 15, 2011. Tyler Brownbridge / Windsor Star

Last month, Blair told reporters that Ottawa has been reminding Washington why Canada feels legalization is “far more effective” at rooting out criminality in the marijuana trade and that the country has implemented a “strict regulatory framework” for the production and distribution of cannabis. But he also added that it’s not Canada’s place to “dictate or tell the United States or any other country how they manage their border.”

How things play out in the near future could be acutely felt at the Windsor-Detroit border, the busiest commercial crossing between the two nations and where thousands of commuters — more than 1,000 medical nurses among them — make the short daily hop to jobs in Michigan.

“If you’re a cross-border commuter, you’re going to have to weigh the importance of your livelihood versus your use of marijuana,” said Justin Falconer of Workforce WindsorEssex.

Our advice to members — know your risk tolerance. What is legal transportation in Canada may be grounds for denial to cross the border.

“Totally unacceptable,” is how Windsor West MP Brian Masse describes the current situation and the vulnerability of Canadians at the border. The NDP’s former Canada-U.S. relations critic called on the two nations Thursday to have “an adult conversation” on cannabis and the border.

Trucking companies, which transport about 70 per cent of the $600 billion in annual goods traded between the two countries, are also nervously watching the border.

“It’s a significant issue — this policy has the potential to be disruptive,” said Stephen Laskowski, president of the Canadian Trucking Alliance. His organization, representing 4,500 companies, has also been in talks with high-ranking U.S. and Canadian officials and is seeking legal opinions.

In this June 12, 2018, photo, trucks cross the Ambassador Bridge from Windsor into Detroit. Paul Sancya / AP

“It’s a significant issue — this policy has the potential to be disruptive,” said Stephen Laskowski, president of the Canadian Trucking Alliance. His organization, representing 4,500 companies, has also been in talks with high-ranking U.S. and Canadian officials and is seeking legal opinions.

Transporting supplies, equipment, material and marijuana for Canada’s new and rapidly expanding cannabis sector could effectively bar a trucking company from doing cross-border business, said Laskowski.

“Our advice to members — know your risk tolerance. What is legal transportation in Canada may be grounds for denial to cross the border,” he said.

Last year, Canadians made more than 42 million same-day or overnight trips to the United States.

Wanting to be able to return to the U.S. after being deemed inadmissible can be an expensive, lengthy and even embarrassing affair.

The application filing fee is US$585 and must be renewed every one to five years. Porter said the process itself can take up to eight months, the applicant has to go to the border and submit to fingerprinting for the FBI.

U.S. border officers stand guard at the mouth of the Detroit-Windsor tunnel. Trevor Wilhelm / Windsor Star

It means the loss of Nexus traveling privileges, “awkward or embarrassing questions” during future border stops, and, for those with work permits in the U.S., the loss of such documentation and the need to reapply. Porter won’t say what his fees are, but Saunders said his clients are looking at up to US$2,500 in legal fees.

“There are criminal record checks and you need to supply references — that can be awkward when you have to tell friends,” said Saunders.

And all of it can be triggered by a simple question by a border guard.