Marijuana legal woes for Canadians loom at U.S. border

No changes of U.S. federal law on marijuana appear on the horizon and that spells trouble for Windsorites crossing the border — even with looming legalization of cannabis on this side of the border.

Dave Battagello,

U.S. Customs and Border Protection officers stand at the U.S. side of the Detroit-Windsor Tunnel in this 2013 file photo. Trevor Wilhelm / Windsor Star

A Windsor immigration lawyer is calling on the U.S. government and its border officers to use common sense when dealing with Canadians entering the country once recreational marijuana becomes legal.

“The law hasn’t caught up with the times,” said Andrew Porter.

Hopefully, “rational minds will prevail” and there will be “balance on this” in regards to treatment at the border of personal cannabis consumption by Canadians, Porter said.

“Set the parameters on what is reasonable with today’s society.”

But the United States has no plans to change its marijuana laws federally and for now that spells trouble for Windsorites.

“The U.S. is addressing this on a state-by-state basis, but there is no indication they will adjust federal laws on marijuana,” Porter said.

For Canadians crossing the border — including up to 7,000 commuters per day — that presents a situation where “they will have to think twice on how they present themselves at the U.S. port of entry,” he said.

Federal law as it stands must be followed by U.S. Customs and Border Protection officers stationed at the Ambassador Bridge and Windsor-Detroit tunnel.

The U.S. is addressing this on a state-by-state basis, but there is no indication they will adjust federal laws on marijuana.

Marijuana use under U.S. federal law remains a “crime” and any conviction or admission of use can result in U.S. inadmissibility, Porter said.

“You are obligated to tell the truth in response to questions put to you,” he said. “You would hope they take a moderate approach and not be aggressive on what is inconsequential use or consumption.”

The Senate has scheduled a final vote on Bill C-45 by June 7 to fit with a commitment made by the federal government to legalize recreational marijuana later this summer.

There has been some last-minute lobbying to delay the vote in Ottawa because many issues remain unresolved, including potential troubles while crossing the border into the U.S.

A U.S. Customs and Border Protection officer’s patch is pictured in this 2015 file photo. Joe Raedle / Getty Images

U.S. border officers have been briefed on the pending Canadian legislation and the potential issues it will raise at the border. There have been attempts to ensure front-line officers are consistent in terms of what questions they ask visitors entering the U.S. and how they are treated.

U.S. Customs officers often use their discretion when questioning travellers to determine admissibility and whether criminal enforcement is necessary, but remain responsible for enforcing federal laws in the U.S., said Dave Long, spokesman for U.S. Customs and Border Protection on Thursday.

“Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana all remain illegal under U.S. federal law,” he said.

“Consequently, crossing the border or arriving at a U.S. port of entry with marijuana is prohibited and may result in seizure, fines, and apprehension.”

U.S. customs officers are “the nation’s first line of defence in preventing the illegal importation of narcotics, including marijuana,” Long said.

“U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law,” he said.

If a Customs officer suspects a traveler of driving a vehicle under the influence of marijuana, they “will coordinate a response with the proper local authorities,” Long said.

“CBP’s mission to prevent this illegal importation will remain unchanged,” he said.

Given that stance and federal penalties as they stand in the U.S. for marijuana, admission of use by Canadians could result in inadmissibility, Porter said.

“You would then have to get a waiver and have to (repeatedly) apply for (renewals) the rest of your life,” he said.

Porter referenced a recent case where two local women were chatting with a U.S. customs officer at primary inspection while crossing into Detroit when he suddenly noticed there was a small portion of marijuana in a bag.

“They were written up for use of marijuana, refused entry for an unlawful substance,” Porter said.

They each have since been required to apply for a waiver to enter the U.S. Those waivers can vary in length depending on each individual circumstance with a maximum duration of five years, Porter said.

The application cost for a waiver is $585.

“When you apply it’s onerous and time consuming,” he said. “If you are a registered nurse or student, your life can be turned upside down for telling the truth. It’s a natural Catch 22. When the (U.S.
marijuana federal legislation was created) it was a different time.”