Masse sounds alarm over pot issues at border crossings

Masse sounds alarm over pot issues at border crossings
Canadian pot industry workers will be able to enter U.S. for pleasure travel
In a policy change made without fanfare Tuesday, U.S. Customs and Border Protection (CBP) now says Canadians who work in the legal cannabis industry here will be free to enter the United States.

It’s a major reversal of a position announced in late September, when a CBP statement on marijuana legalization in Canada said that “as marijuana continues to be a controlled substance under United States law, working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.”

"A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible," said the CBP in a statement posted to its website.

It now says that “a Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.”

There had been uncertainty over how Canadians in the industry would be treated at the border, and whether or not their connections to the sector could prevent them from entering America. Previously Canadians had been told that anyone with connections to the cannabis industry could face a lifetime ban from the U.S.

“It’s a 180-degree turnaround from their statement two weeks ago,” says Len Saunders, an immigration lawyer in Blaine, Wash.

“I think this is a best-case scenario. It should make the Canadian government a lot more comfortable knowing that Canadians doing this in Canada won’t be denied entry. It still tells Canadians they can’t get involved with the U.S. cannabis industry, and a lot of these big companies will be, but at least it protects Canadians doing it legally in Canada.”

"Canadians have to know that if they choose to do that they could be in serious jeopardy, so well have signs up, and therell be education materials, but well constantly remind Canadians that you cant take any amount of cannabis across the border into the United States," Blair said.

The ban potentially affected everybody involved in Canada’s legal cannabis industry, from retail workers to people involved in support activities like accounting.

In a revised policy, the American border agency has relaxed its stance on Canadians in the cannabis industry crossing the border. Canadian citizens working in the legal marijuana regime will not face issues entering the U.S. as long as theyre coming for personal, or non-work reasons.

In late September, B.C.s solicitor general Mike Farnworth pointed out that hundreds of provincial government employees involved in the legal cannabis industry in the province were in danger of being banned for life from entering the U.S.

READ MORE: Gov’t employees working in legal pot industry may be denied entry into U.S., says B.C. solicitor general

The statement cautions that Canadians can still be banned at the border for trying to enter the U.S. for reasons related to the American marijuana industry. Although legal in a growing number of states, medical and recreational cannabis are both still illegal under U.S. federal law.

In a prerecorded interview with Don Martin, host of CTVs Power Play, Minister of Border Security Bill Blair said that the government is grateful for the U.S. clarification.

Language barring “abusers” of drugs banned in the United States, including marijuana, remains in place. Any level of use of these drugs is considered abuse.”

The updated policy comes just under a week before recreational marijuana will be legalized across Canada, initiating a major societal shift.

On paper, this creates a situation where a cannabis store worker could be banned for using the pot that she is employed to sell — but not for actually selling it — but Saunders doesn’t think it will work that way.

In an emailed statement in September, Correa told StarMetro that resolving the issue of border bans on cannabis workers with any finality will require a change in law. Cannabis is currently a federally controlled substance in the United States, and immigration law has various regulations and restrictions on controlled substances and persons associated with them, he wrote. Determining what, exactly, needs to change and how, he continued, is what he and his staff were, at that time, working on.

“It’s literally a week before legalization, and the Americans finally have taken a common-sense approach.”

“Here they are, issuing statements that are vitally important to Canadians and the Canadian government, and you’d think the Canadian government would at least issue a press release and say ‘Hey, it’s not as bad as everyone was anticipating.”

Saunders — the immigration lawyer — was quick to point out that with federal agencies, it is always wisest to wait to see policy in practice before declaring victory. There is a good possibility, he said, that Canadians who legally use recreational cannabis will also be allowed free entry. Those people who are currently on record with CBP as having used cannabis pre-legalization, however, are by all indications still out of luck.

U.S. Customs and Border Protection says Canadian citizens working in the cannabis industry should be able to enter the U.S. for reasons unrelated to the marijuana industry.

Saunders — the immigration lawyer — was quick to point out that with federal agencies, it is always wisest to wait to see policy in practice before declaring victory. There is a good possibility, he said, that Canadians who legally use recreational cannabis will also be allowed free entry. Those people who are currently on record with CBP as having used cannabis pre-legalization, however, are by all indications still out of luck.

The agency updated its website Tuesday, providing a measure of clarity after a vague statement last month left the industry and investors facing uncertainty about travel of any kind to the U.S.

Canadian businesspeople or investors with ties to the American cannabis industry will still risk inadmissibility if those links are made apparent to CBP officers. Likewise, Canadians with criminal histories related to pre-legalization cannabis — or those who have admitted past cannabis use to CBP officers — will still be eligible for border bans.

That statement sparked weeks of confusion and rumours that those tied to the cannabis industry could face lifetime bans from the U.S.

Canadian businesspeople or investors with ties to the American cannabis industry will still risk inadmissibility if those links are made apparent to CBP officers. Likewise, Canadians with criminal histories related to pre-legalization cannabis — or those who have admitted past cannabis use to CBP officers — will still be eligible for border bans.

It read that "As marijuana continues to be a controlled substance under United States law, working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect admissibility to the U.S." 

It's been updated to say that for travel unrelated to the industry, these same people will "generally" be allowed into the U.S.

The CBP’s update comes following a September congressional letter — which quoted reporting from StarMetro as a source — from U.S. Rep. J. Luis. Correa to Secretary of Homeland Security Kirstjen Nielsen requesting clarification of the policy grounds on which Canadian cannabis workers were being denied entry to the U.S.

"A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S., however, if a traveller is found to be coming to the U.S. for a reason related to the marijuana industry, they may be deemed inadmissible," the statement reads.

With legalization just days away on Oct. 17, the statement provides some clarity for the thousands of Canadians now working in the cannabis industry who have been left wondering if they'll ever again be able to take their kids to Disneyland or flee Canadian winters for warmer U.S. destinations. 

A statement from Minister of Border Security and Organized Crime Reduction Bill Blair — who is also the current federal lead on the cannabis file — indicated he is aware of the CBP’s policy update. The statement, however, did not directly address the matter.

However, the updated statement makes no mention of whether Canadians who admit to having legally consumed cannabis on this side of the border may be turned away or face bans from entering the U.S.

“A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.,” the updated statement reads.

It does, however, make the point that anyone arriving in the U.S. who is found to be a drug abuser or who is convicted of violations of U.S. or foreign drug laws or regulations will be considered inadmissible.

“A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S.,” the updated statement reads.

Henry Chang, a partner at Toronto law firm Blaney McMurtry, said in an email to CBC this update is a "more reasonable" approach, but still leaves some uncertainties.

VANCOUVER—Canadians who work in the domestic cannabis industry will be allowed free entry to the United States according to an update made quietly on Tuesday to the U.S. Customs and Border Protection’s policy on cannabis and the border.

Chang, who specializes in cross-border issues, said it's unclear what activities would be considered unrelated to the marijuana industry, including whether going to a cannabis conference would be allowed, for example. 

"Overall, this is a step in the right direction but the line is still not clearly drawn yet."

Matt Maurer, a lawyer with Toronto firm Torkin Manes and vice-chair of the Cannabis Law Group, said he believes that while the update is helpful, it's worded to "give themselves some wiggle room." Phrases such as "will generally be admissible" allow room for interpretation, he said.

"I treat this as a pretty clear signal that if you work in the cannabis industry in Canada, and you're coming to the U.S. for reasons unrelated to your work, they're not going to have an issue with it, and they are going to let you in. Or they won't refuse you on that ground alone."

Border Security Minister Bill Blair told CBC News last month that although "possession of cannabis is legal in some U.S. states, cannabis remains illegal under U.S. federal law." He warned Canadians travelling south that they need to respect U.S. laws.

Although all sales of cannabis remain illegal under U.S. federal law, Maurer points out that as more U.S. states legalize cannabis at the state level, U.S. customs practices may continue to evolve.

In Michigan, Missouri, Utah and North Dakota voters will decide on various levels of marijuana legalization during the November midterm elections.

Recreational marijuana is currently legal under state law in nine states, while medical marijuana is legal in 30 states.

Brandie Weikle is a senior writer for CBC News based in Toronto. She's a long-time magazine and newspaper editor and podcast host with specialities in parenting and health. You can reach her at [email protected]

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