Would U.S. legalization solve Canadians’ border cannabis woes? Here’s why it might not

What led to a B.C. man being banned for life from the U.S. not long ago?

As his lawyer tells it, things started to go wrong when border guards at Sumas, Wash., south of Vancouver, found an Alcoholics Anonymous pamphlet in his car.

“The officer said, ‘So, you’re in the program?’” says Len Saunders, a Blaine, Wash., immigration lawyer.

“And he said, ‘Yes,’ and they said, ‘Have you ever used any controlled substance in the past?’ And he said, ‘As part of the program, I’m not allowed to lie. I have to be honest with people.’ So he said, ‘Yes, prior to me becoming sober, I did dabble in cannabis.’”

He was issued a lifetime ban from the United States on the spot.

But will situations like this end if the U.S. legalizes cannabis federally? The obvious answer would seem to be yes. However, lawyers warn that depending on how a law is written, Canadians could still find themselves banned from the U.S. for cannabis-related reasons despite it being fully legal on both sides of the border.

0:19 Past marijuana conviction could still prevent U.S. border crossing

Bills to federally legalize cannabis regularly come up in Congress. The most recent one takes the simple approach of just removing cannabis from a list of controlled substances, where it has been, in one form or another, since the 1930s. If passed, it would leave cannabis prohibition up to the states.

The proposal, and past ones like it, aren’t surprising. Forty U.S. states have some sort of legalization, and over 200,000 Americans have full-time jobs in the legal cannabis industry. Conservative politicians like John Boehner, once a Republican speaker of the House of Representatives, sit on the boards of cannabis companies like Acreage Holdings.

But the bill, and other recent versions, make no reference to who gets let into the United States — or not, as the case may be. That’s not surprising: of the various aspects of legalization that get discussed in the U.S., immigration has no profile at all, unlike Canada, where cannabis-related problems at the U.S. border get regular attention.

“It’s caught in the politics of the United States’ relationship to drugs,” says Toronto immigration lawyer Heather Segal. “It isn’t about immigration at all. They’re only talking about cannabis.”

Saunders agrees.

“Do Americans care about Canadians being denied entry? They don’t.”

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1:53 Jagmeet Singh calls on government to expunge criminal records for pot possession, not just pardon them

That, lawyers warn, raises the prospect of Canadians well into the future being handed potentially life-altering consequences for past cannabis use, despite it being legal on both sides of the border.

“It depends on how the law is written,” Segal says. “It’s going to come down to what the laws say and what actually you were convicted of.”

After a legalization bill passes, lawyers say three groups of people could still have trouble crossing into the U.S.: people who admit to using cannabis before it was legal, people with old Canadian possession convictions and people who already have a ban and may still need ask for waivers to cross for the rest of their lives.

“If someone has an old cannabis conviction in Canada, regardless of whether they have a pardon or not, at the time the offence happened it was illegal, and so they’re still inadmissible,” Saunders says.

“It changes going forward. You’re not going to see people being denied and barred for admitting to using cannabis (recently), but if you admit that you use cannabis prior to legalization, you will be barred, period.”

The federal ban doesn’t affect U.S. consumers much in legal states, though it does complicate life for the industry itself, which must contend with issues like lack of access to conventional banking.

The fact that cannabis is still federally illegal in legal states can ensnare unwary non-Americans. Shimon Avta, an Israeli agronomist living in Nevada, was deported in handcuffs last year the same day U.S. immigration officials found out he was working in a state-licenced growing facility.

Canadians unaware of the U.S. federal prohibition have been banned for life when trying to cross the border to do a sales demonstration of a marijuana bud trimming machine, or look at a Las Vegas growing facility they had made an investment in.