And Canadians connected to the fledgling cannabis industry, or those who have used the
drug prior to legalization, may be barred for life from entering the U.S.
In British Columbia, there have already been incidents in which
workers connected to the cannabis industry were handed lifetime bans
when attempting to cross the border into America, according to the Toronto Star.
It’s expected to become an even bigger issue following official
legalization later this month, said Len Saunders, an immigration lawyer
based in Blaine, Wash.
“Guess what’s going to happen on Oct. 17? It is going to be a tidal wave of cases,” he said.
While using cannabis following legalization will not in itself
result in a lifetime ban, it could be the basis for a border agent to
press a traveller on her past history with the drug — which could result
in a ban if it was consumed while it was still an illegal substance,
If cannabis is found on the traveller’s person or vehicle, it
will be seized and a punitive fine and lifetime ban could be assessed
due to violations of controlled substance law, he said.
Companies involved in cannabis may even need to cease travel to
the U.S., or find employees with dual citizenship, as they face much
lesser penalties, according to Saunders.
“I’m telling HR departments ‘Be careful,’” he said. “Because I
think it’s a liability issue… it’s not the companies that get barred for
life, it’s the employees.”
Lack of guidance
To date, neither the U.S. or Canadian government have issued directives on this issue, said Saunders.
“Up to this point, it hasn’t changed,” he said. “It’s business
as usual at the border. There’s been no change in individuals being
deemed inadmissible to the United States over marijuana.”
In September, Prime Minister Justin Trudeau warned Canadians
that consuming cannabis could have consequences in terms of travel to
noting the government is working with American officials to ensure that
border crossings do not become a problem as a result of the change.
“I certainly won’t work to assume or impress upon the U.S. who they have to let in or not,” he said on CBC Manitoba.
“They have legalized marijuana in a number of their states and
we’re trying to make sure that travel between our two countries is not
A travel directive on the Canadian government’s website states:
“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
The government also warns against travelling to the U.S. with cannabis, as legal prosecution, fines or jail time could result.
In March, U.S. border ports from Washington to Minnesota were
instructed to tighten up on anyone directly or indirectly involved with
the cannabis industry, said Saunders.
“They’re either inadmissible under aiding and abetting the U.S.
drug industry, or reason to believe they’re involved with drugs, or
living off the avails,” he said.
“There are three separate sections of the Immigration and Nationality Act.”
Due to a lack of federal guidance, the instructions came from a
local field office in Seattle — not U.S. Customs and Border Protection
(CBP) headquarters in Washington, D.C., said Saunders.
“What they’ve done is they’ve overreached with the memo and applied it very, very broadly.”
That lack of national policy has allowed each port to determine
interpretation, said Henry Chang, partner at Blaney McMurtry in
“That leaves each individual port free to make up the rules as
they go along,” he said. “And we’re seeing a great difference between
ports right now. West coast ports, especially in the Vancouver area, are
American borders are governed by federal law, which supersedes
state law, said Jason Givens, a CBP public affairs specialist covering
the area of Minnesota, Montana, North Dakota, South Dakota and
“Although medical and recreational marijuana may be legal in
some U.S. states and Canada, the sale, possession, production and
distribution of marijuana, or the facilitation of the aforementioned,
remain illegal under U.S. federal law,” he said.
“CBP’s enforcement of the law will remain unchanged.
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
Admissibility determinations can be made by individual CBP officers, said Givens.
Legalization of recreational cannabis in Canada could
resultingly have a dramatic effect on business travel, said Lloyd Ament,
an immigration lawyer at Devry Smith Frank in Toronto.
“CBP American officers have a wide latitude of what they can ask and do, and there’s not that much control over them,” he said.
“You really have to be extremely careful.”
“We prefer to advise our clients to be cautious, prudent and
careful. The American border is fraught with all kinds of uncertainties
now — way beyond just cannabis — and this adds another wrinkle.”
Since discretion could vary between officers, it’s impossible to predict, said Ament.
“We have to assume that it’s zero tolerance,” he said. “At this
point, it’s an unknown, uncertain area where… it’s ‘Border crosser
beware — you have no rights, no guarantees.’”
“The border officers have tremendous power, tremendous
discretion, so all we’re telling everybody is ‘You’ve been forewarned.
Don’t assume that you can get away with anything.’”
It’s unlikely this issue is on the Canadian government’s agenda, especially with NAFTA renegotiations underway, he said.
“I can’t see this as being any much of a political advantage for them to push this at all.”
Canadians who have consumed cannabis post-legalization are
generally protected, but those who have used the drug prior to Oct. 17
could face penalties for criminal activity, according to Chang.
“Anything that you did prior to legalization was a criminal
act, and you are under the criminal controlled substance possession
ground,” he said.
“They really shouldn’t be going on a fishing expedition, but
I’ve seen it happen a lot of times where they’ll say, ‘Have you ever
been convicted of an offence? Have you ever smoked marijuana?’”
Travellers who fit the typical image associated with cannabis
usage will likely face random questions more often than well-dressed
executives, said Chang.
“(Border officers) profile people. They’re not supposed to, but it’s human nature,” he said.
“They’re not supposed to change any of the questions just because of legalization, but the issue could come up.”
Advice for HR, travellers
Employers that send workers across the U.S. border need to
communicate this issue to staff, as Oct. 17 may simply be the start of
an evolving issue, said Ament.
“With respect to the border, you’re saying, ‘Look, it’s an
uncertain area now. While (cannabis) might be legal here, it’s not
“We’re telling you, ‘You could be setting yourself up for
problems and if you really want more detail or information, (you)
probably should seek (your) own counsel.’”
HR could also advise travelling employees who have used
cannabis in the past to refrain from using it post-legalization in order
to avoid that line of questioning at the border, said Chang.
“People think — wrongly — that that just because it’s legal
here in Canada now, there’s no problem anymore. That’s just a total
HR should also remind employees that travelling with cannabis
and consuming it in legal states while on business are violations of
federal law, he said.
“Just because it’s legal under state law doesn’t mean it’s
legal for you as a foreign national to smoke marijuana in the U.S.,”
“You’re still violating federal law and that’s enough to give you a lifetime ban for being a controlled substance user.”
If questioned on the subject of past usage, refusing to respond
at the border may be the best way forward for Canadians, he said.
“If you know that answering will make you barred and lying will
make you barred, you don’t really have a way to win on this,” said
“It’s a problem no matter how you deal with it.”
“It’ll come up every single time until you address the issue,”
he said. “But at least you haven’t made an admission; at least you can
go consult with a lawyer and see if there’s some way to negotiate with
the port — not on the basis of the issue itself, but whether or not the
question was appropriate.”
The Canadian government may be required to clarify border rights to workers — including refusal to respond, said Saunders.
“What you do recreationally in Canada or in the United States… is none of their business,” he said.
“You could say nothing; nothing is better than telling them
you’re in the marijuana industry or you’ve smoked it. If you tell them
that, you will receive a lifetime ban.”
Appealing a lifetime travel ban from the U.S. border is not
easily done, but is possible by applying for temporary waivers at an
admissibility review office — though even that is becoming more
difficult, said Chang.
“In the old days, they would be actually quite fair,” he said.
“They’d look at it and they’d say, ‘We agree, we don’t think
you’re barred. We’re going to issue a letter saying that.’ But I think
the current environment, they’re more likely just to say, ‘We think
you’re barred. Here’s your waiver for one year.’”