October 16, 2018 6:00 am
Updated: October 16, 2018 8:20 am

Will legal cannabis users be able to cross the U.S. border? ‘It’s anyone’s guess,’ lawyer says

As laws on marijuana relax on both sides of the U.S.-Canadian border, attitudes have hardened at the border itself.

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Last week, U.S. border officials quietly issued a statement saying that Canadians who work in the legal cannabis industry here will be free to enter the United States.

On the eve of legalization, though, U.S. immigration lawyers say they have no idea whether ordinary Canadians will be barred for life from entering the U.S. for legal marijuana use in this country.

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U.S. law certainly allows for it: non-Americans can be barred at the border for being “abusers” of drugs including marijuana, whether or not it was legal where it was consumed. (Any level of use, no matter how minor, is considered “abuse.”)

But what will actually happen?

“That’s the million-dollar question,” says Len Saunders, an immigration lawyer in Blaine, Wash. “At 12:01 on Wednesday, Oct. 17, if you purchase marijuana legally in Canada, and you admit it at a U.S. port of entry, will you be denied entry? I have not had a straight answer on that question.”

“Going forward, it’s anyone’s guess.”

WATCH: What Canadians need to know about recreational marijuana come legalization

A situation is possible where someone who makes a living selling cannabis could be banned not for that, but for using the pot they sell.

Under current laws, Canadians are routinely barred from the United States for admitting using marijuana in Canada, or for having a record for possession of marijuana.

Legalization may give Canadians a “false sense of security,” Saunders says,.

“I think it’s going to be business as usual at the border. I don’t think anything is going to change. I don’t think they’re going to care whether it’s legal or not in Canada from what I’ve seen, especially recently.”

People banned at the U.S. border can apply for a “waiver” to let them cross. But the process is time-consuming, expensive — the fee recently rose to US$930 and the process has to be started from scratch every few years for the rest of the person’s life. (It’s also intrusive — Global News talked to a Vancouver woman who had to get letters of reference from her employer and “stand-up citizens in the community” to get her waiver.)

Scott Railton, an immigration lawyer in Bellingham, Wash., is more optimistic. 

“I don’t think that they will try to find people inadmissible for having used cannabis in Canada when it is legal. But I’m speculating.”

WATCH: Smoke? Not in my condo building, please.

“I don’t think we have clear guidance from the agency about how they would handle that situation. It would be good to know how they are going to handle that specific question.”

There is precedent, of a sort — Canadians have been given lifetime bans for being medical marijuana users, despite having all the paperwork done correctly to use it legally in Canada.

“Possession and/or admission to the use of marijuana by an alien may result in the refusal of admission,” U.S. Customs and Border Protection spokesperson Stephanie Malin wrote in an email.

With no information, Saunders says, some unfortunate individual may find out what post-legalization policy is the hard way,

“I’m sure I’m going to find out, but there’s going to be a period of uncertainty over the first few days until the stories get out about what’s happening.”

WATCH: What are the penalties for driving high?

Railton and Saunders both said they thought the ban on Canadian marijuana workers was lifted because it didn’t have a solid basis in U.S. law. Personal use is a different matter.

We don’t know how many Canadians have been banned from the U.S. for using marijuana (we asked the Department of Homeland Security, and they refused to tell us.) But Railton and Saunders both said that enforcement seemed to be much stricter on the Pacific coast than in other regions.

“Practically speaking, the border seems a little thicker on the West Coast,” Railton says. “It depends on the port of entry. It does seem that some of these things happen out west a little more.”

WATCH: U.S. officials revising pot questions at border crossings

A Canadian who works in the cannabis industry, and needs a waiver, could end up in the weird situation of getting a reference from her employer, a cannabis company.

“As part of the waiver application, you have to show proof of current employment. You’ve been barred for life for smoking marijuana, but you’re getting a letter confirming employment from your cannabis employer? It doesn’t make sense.”

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