Banned at the border: A cautionary tale for the age of legal cannabis

Border nightmare even for casual pot users With just hours until pot becomes legal in Canada, the substance remains illegal in much of the U.S. and even causal use can land Canadians crossing the border in big trouble.

Julie could be your mother, your sister or your friend. She’s married and semi-retired, with three children, two grandchildren and a family dog.

But the 57-year-old doesn’t want to use her last name, show her face, or be more specific about where she lives than somewhere in B.C.'s Lower Mainland.

And it’s not because of the embarrassment she says she still feels after U.S. authorities permanently barred her from crossing the border last year.

“I’m scared of the repercussions that could possibly happen if (U.S. border agents) find out who I am,” Julie says, admitting she had second thoughts about doing an interview. “They treated me like a criminal over something that happened so long ago.”

This story begins in 1982. Julie was in her early 20s and she’d been out at a bar with a friend. She remembers being in the car. She remembers a police officer asking them to get out, searching her purse, and finding roughly two joints worth of pot. She remembers getting a ticket.

“I didn’t get arrested,” Julie recalls. “I got reprimanded not to do it again, and I left the courthouse.”

Fast forward to 2017. Julie’s daughter was attending college in the U.S., and Julie was making a routine drive down to see her, with her dog in tow. She was in the Nexus lane at the Pacific Highway Crossing when the U.S. Customs & Border Protection agent in the booth sent her inside.

“I was thinking they wanted to see documents about the dog,” Julie said. Instead, after being quizzed about her trip, she got a question she wasn’t prepared for.

‘Have you ever been arrested?’ the agent asked her. “I didn’t even really think, it just came out. I said yes,” Julie said, in what she called a “blonde moment.”

It didn’t matter that she was never arrested or never charged. Julie had opened the door, and before she could stop herself, told the agent she had been cited for marijuana possession.

Julie found herself in an interview room. She found herself giving a sworn statement. And then she found herself stripped of her Nexus card, handed a pile of paperwork, and told she was being kicked out the U.S., permanently.

“I even said to them, 'You’re penalizing me for something that happened over 30 years ago?'”

“And they said?” I asked her.

“It’s my job.”

Border expert: You can’t be too prepared

Under the Peace Arch, near the inscription that reads, “May These Gates Never Be Closed,” we meet Len Saunders, an immigration lawyer and dual citizen who’s handled at least 3,000 cases involving border bans, many no different from Julie’s.

“Julie could be anybody,” he says. “It makes me very sympathetic, because these are good people.”

Saunders has been operating just across the line in Blaine, Washington for nearly 20 years. Since his clients often can’t travel south to meet him, he often meets them here, on the grassy lawn, between the Canadian and American flag flowerbeds – a strip that’s neither here or nor there, where everyone is still welcome. He’s become the defacto expert for Canadians suffering border woes and we’re here to get some advice.

Saunders doesn’t mince words: “You’re playing with fire if you’re entering the U.S. border with anything cannabis related.”

And it’s not just a joint that can cause trouble. From Apple Wallet purchase records on your phone, to T-shirts and hats with cannabis logos, to business cards from licensed marijuana producers considered legal in Canada, “you’re basically serving yourself up on a silver platter for the officers to find that information.”

The trouble, Saunders says, is the U.S. policy itself. And while the language is bureaucratic, and enforcement depends on the individual officer, when read rigorously, it basically boils down to this:

While marijuana is legal in some states, including Washington State, it remains illegal under federal law, which covers the entire U.S. border, whether you cross it at Aldergrove or at YVR. Cannabis is also considered a Schedule 1 drug, the same classification awarded to heroin, and one step up from cocaine.

Any Canadian (or other foreign national) at the border can be permanently banned from entering the U.S. if they’re determined to be a drug abuser or addict. Furthermore, they can also be banned if they have a marijuana conviction or simply admit to breaking U.S. law, for example, by smoking or possessing marijuana, as Julie admitted she had back in 1982.

“How long before that [policy] changes?” I ask. “I may be retired at that point,” Saunders says.

And with legalization across Canada, he thinks the number of Canadians caught up in a policy he calls “ridiculous” will only increase.

Don’t bring this, don’t say that

Saunders says there are a few big mistakes the average Canadian might make when heading south. And being prepared, he says, starts with having a plan before you get to the border. Here’s some of what he advises.

Smartphones: Remove anything that could potentially associate you with cannabis. That includes, but is not limited to photos, stock tickers, credit card purchase alerts and banking apps. “Sanitize” your social media profiles. Leaving your phone at home could be seen as a red flag. Consider having a second phone for U.S. trips.

Luggage, vehicles and clothing: Avoid clothing or accessories that a border officer might associate with marijuana. Make sure there’s no cannabis residue on your person, luggage or vehicle.

For industry workers and investors: While the U.S. says it will now generally admit those working or investing in the legal cannabis industry in Canada, the change only applies to those travelling to the U.S. for pleasure, not business. And it does not apply for Canadians investing in the marijuana industry in the United States. Saunders still advises leaving business cards and anything that connects you to cannabis companies at home, as it could open you up to further questions.

Never lie: Lying to a U.S. border officer is a fast track to a permanent ban. But Saunders says there are times when instead of telling the truth, you’re better off keeping your mouth shut. “Just say, 'I don’t feel comfortable answering that question.'” You’ll be photographed, fingerprinted and sent back to Canada, Saunders says, but you can try your luck with another officer, another day.

Permanent stamp of shame

It’s a sunny autumn afternoon. The maples are bright red. But it’s chilly in the shade as Julie and I walk along the screen of scraggly looking trees that mark the border.

She exhales in an epic sigh. Even looking at the small obelisk marking the line brings back bad memories, she tells me, and feelings of frustration, embarrassment and shame.

“I have to seriously think about whether I want to cross it or not,” Julie says. “It’s one of those things that happens to someone else, not you.”

With Saunders’ help, Julie now has what’s known as a U.S. travel waiver, a process that cost her thousands of dollars, which has to be renewed, and which still doesn’t guarantee she can cross. She’s already had one bad experience with a border officer she says gave her a hard time.

“I’m not telling people to be dishonest by any means,” Julie explains. But “by being completely honest, you’re going to create a lot of problems for yourself.”

“Would you tell the truth again?” I ask.

“Absolutely,” she says.