Pol­icy spurs de­bate about how to han­dle cus­toms of­fi­cers’ queries

Windsor Star - - NEWS - DOUG SCH­MIDT dschmidt@post­media.com twit­ter.com/schmidtc­ity

With Cana­dian le­gal­iza­tion just days away, U.S. Cus­toms and Bor­der Pro­tec­tion has bluntly warned Cana­di­ans who use pot that they can be re­fused en­try at the bor­der. Im­mi­gra­tion lawyers and politi­cians are among those who fore­see trou­bles to come for trav­ellers.

Stay out of our coun­try. That’s the blunt mes­sage from the United States to Cana­di­ans who have ever used mar­i­juana recre­ation­ally. It comes on the eve of le­gal­iza­tion north of the bor­der and a Sta­tis­tics Canada es­ti­mate of more than five mil­lion Cana­di­ans who will buy pot legally be­tween Wed­nes­day and the end of the year. For months, Cana­di­ans had sought clar­i­fi­ca­tion on how vis­i­tors might be treated at the bor­der. In late-Septem­ber, the U.S. Cus­toms and Bor­der Pro­tec­tion re­sponded with an un­am­bigu­ous pub­lic state­ment: Any­one even ad­mit­ting to hav­ing toked up at some point in their life “is in­ad­mis­si­ble to the United States.” Life­long green­house farmer Cole Cac­ciav­il­lani said he’s never con­sumed pot, but he’s the co­founder of Leam­ing­ton’s Aphria Inc., a li­censed and gov­ern­men­treg­u­lated pro­ducer of cannabis prod­ucts, and un­til just days ago he was at risk of be­ing banned from the U.S.

This week, U.S fed­eral au­thor­i­ties qui­etly tweaked a rule stat­ing that any­one in­volved in the mar­i­juana in­dus­try, in­clud­ing Aphria’s in­vestors and its al­most 500 work­ers, were to be treated no dif­fer­ently than drug traf­fick­ers. On Wed­nes­day, the agency ’s Septem­ber state­ment was “up­dated” to now per­mit those in­volved pro­fes­sion­ally in Canada’s le­gal mar­i­juana in­dus­try to en­ter the U.S., but only for “rea­sons un­re­lated to the mar­i­juana in­dus­try,” and only for those who have never tried the prod­uct.

De­spite what the law will soon be north of the bor­der, and de­spite the grow­ing num­ber of states south of the bor­der de­cid­ing to also le­gal­ize mar­i­juana, “the sale, pos­ses­sion, pro­duc­tion and dis­tri­bu­tion of mar­i­juana or the fa­cil­i­ta­tion of the afore­men­tioned re­main il­le­gal un­der U.S. fed­eral law,” ac­cord­ing to the U.S. Cus­toms and Bor­der Pro­tec­tion. A ma­jor­ity of U.S. states — 31, as well as Wash­ing­ton, D.C. — have le­gal­ized cannabis for medic­i­nal use, but Amer­i­can fed­eral law still lumps pot in the same cat­e­gory as heroin or crack. For those tasked with pro­tect­ing the U.S fron­tier, noth­ing changes at the bor­der when Canada le­gal­izes pot Oct. 17.

“Change the word from mar­i­juana to co­caine, and how’d you ex­pect those (Amer­i­can cus­toms) of­fi­cers to re­spond at the bor­der?” said U.S. im­mi­gra­tion lawyer Len Saun­ders. His Blaine, Wash., le­gal prac­tice, lo­cated just blocks from the busiest bor­der cross­ing south of Van­cou­ver is al­ready see­ing a boom in busi­ness as pot pasts catch up to a grow­ing num­ber of Cana­di­ans.

“Your govern­ment has failed to un­der­stand the con­se­quences on Cana­di­ans who cross the bor­der,” said Saun­ders, who vis­ited Ot­tawa last spring to ad­vise sen­a­tors of loom­ing po­ten­tial bor­der trou­bles fol­low­ing le­gal­iza­tion. “I warned them: ‘This is go­ing to get worse.’ ” The ad­vice from the prime min­is­ter and Ot­tawa’s fed­eral min­is­ters has been for trav­ellers to be hon­est in all their an­swers at the bor­der, but Saun­ders said Cana­di­ans an­swer­ing in the af­fir­ma­tive to any ques­tion about pre­vi­ous pot use face life­time bans on vis­it­ing the U.S.

“That’s the worst ad­vice,” said Saun­ders, whose clients in­clude Olympic gold medal­list Ross Re­bagliati.

Ly­ing and an­swer­ing “no” when asked is just as bad, he added, es­pe­cially as U.S. Cus­toms of­fi­cers have the author­ity to go through a po­ten­tial vis­i­tor’s cell­phone or lap­top and search that per­son’s in­ter­net pro­file and on­line so­cial and fi­nan­cial trans­ac­tions (On­tario, Canada’s big­gest pot mar­ket, will only per­mit on­line pot pur­chases un­til at least April). Saun­ders, whose of­fice is al­ready get­ting one or two calls a day from Cana­di­ans deemed in­ad­mis­si­ble at the bor­der af­ter ad­mit­ting to pre­vi­ous pot use, ad­vises trav­ellers to sim­ply not an­swer the ques­tion and ac­cept be­ing turned around on that par­tic­u­lar day.

U.S. cus­toms of­fi­cers, said Saun­ders, are just “do­ing their jobs, en­forc­ing fed­eral im­mi­gra­tion law.” What hap­pens af­ter Oct. 17 is “def­i­nitely a con­cern,” said Aphria’s Cac­ciav­il­lani, and it’s why Aphria had sought le­gal ad­vice and been in dis­cus­sions with govern­ment of­fi­cials on both sides of the bor­der, in­clud­ing the U.S. Em­bassy in Ot­tawa. Cac­ciav­il­lani said he and his wife will con­tinue to visit nearby De­troit to watch pro­fes­sional sports or to go out for din­ner. “We’re not do­ing busi­ness in the U.S. — we’re not break­ing any laws,” he said.

Al­ways an­swer ques­tions hon­estly at the bor­der, said Cac­ciav­il­lani. But the ad­vice is quite dif­fer­ent from Leo Lucier, a long­time Wind­sor pot ac­tivist who hopes to launch a le­git busi­ness once On­tario per­mits pri­vate re­tail sales next spring.

“If you want to cross the bor­der — lie. I’d lie through my teeth, 100 per cent,” he said.

While not an ad­vo­cate of pot use, long­time Wind­sor im­mi­gra­tion lawyer Drew Porter said there’s “com­mon sense” in the evolv­ing laws of Canada and in­di­vid­ual states, but it’s one that is “not rec­on­ciled” with cur­rent U.S. fed­eral law.

“There’s go­ing to be cul­tural prob­lems as a re­sult ... and it’s go­ing to be in our face here in Wind­sor and along the bor­der,” he said. “This has the po­ten­tial to be­come un­man­age­able,” said Porter. “It comes down to whether or not you’re asked the wrong ques­tion by CBP.”

While U.S. cus­toms agents have a duty to pro­tect their bor­der, and en­ter­ing that coun­try re­mains a priv­i­lege and not a right for for­eign trav­ellers, Porter de­scribed it as “overkill” when two young Cana­dian women he rep­re­sents were slapped with life­time bans to en­ter the U.S. af­ter ad­mit­ting they had once smoked pot.

It’s a sen­si­tive po­lit­i­cal is­sue. U.S. Cus­toms and Bor­der Pro­tec­tion of­fi­cials, as well as the of­fice of Bill Blair, Canada’s min­is­ter of bor­der se­cu­rity and or­ga­nized crime re­duc­tion, did not re­spond to re­peated re­quests for com­ment by Post­media News for this story. Last month, Blair told re­porters that Ot­tawa has been re­mind­ing Wash­ing­ton why Canada feels le­gal­iza­tion is “far more ef­fec­tive” at root­ing out crim­i­nal­ity in the mar­i­juana trade and that the coun­try has im­ple­mented a “strict reg­u­la­tory frame­work” for the pro­duc­tion and dis­tri­bu­tion of cannabis. But he also added that it’s not Canada’s place to “dic­tate or tell the United States or any other coun­try how they man­age their bor­der.”

How things play out in the near fu­ture could be acutely felt at the Wind­sor-De­troit bor­der, the busiest com­mer­cial cross­ing be­tween the two na­tions and where thou­sands of com­muters — more than 1,000 nurses among them — make the short daily hop to jobs in Michi­gan.

“If you’re a cross-bor­der com­muter, you’re go­ing to have to weigh the im­por­tance of your liveli­hood ver­sus your use of mar­i­juana,” said Justin Fal­coner of Work­force Wind­sorEs­sex. “To­tally un­ac­cept­able,” is how Wind­sor West MP Brian Masse de­scribes the cur­rent sit­u­a­tion and the vul­ner­a­bil­ity of Cana­di­ans at the bor­der.

The NDP’s for­mer Canada-U.S. re­la­tions critic called on the two na­tions Thurs­day to have “an adult con­ver­sa­tion” on cannabis and the bor­der.

Truck­ing com­pa­nies, which trans­port about 70 per cent of the $600 bil­lion in an­nual goods traded be­tween the two coun­tries, are also ner­vously watch­ing the bor­der.

“It’s a sig­nif­i­cant is­sue — this pol­icy has the po­ten­tial to be dis­rup­tive,” said Stephen Laskowski, pres­i­dent of the Cana­dian Truck­ing Al­liance.

His or­ga­ni­za­tion, rep­re­sent­ing 4,500 com­pa­nies, has also been in talks with high-rank­ing U.S. and Cana­dian of­fi­cials and is seek­ing le­gal opin­ions. Trans­port­ing sup­plies, equip­ment, ma­te­rial and mar­i­juana for Canada’s new and rapidly ex­pand­ing cannabis sec­tor could ef­fec­tively bar a truck­ing com­pany from do­ing cross-bor­der busi­ness, said Laskowski.

“Our ad­vice to mem­bers — know your risk tol­er­ance. What is le­gal trans­porta­tion in Canada may be grounds for de­nial to cross the bor­der,” he said.

Last year, Cana­di­ans made more than 42 mil­lion same-day or overnight trips to the United States. Want­ing to be able to re­turn to the U.S. af­ter be­ing deemed in­ad­mis­si­ble can be an ex­pen­sive, lengthy and even em­bar­rass­ing af­fair.

The ap­pli­ca­tion fil­ing fee is US$585 and must be re­newed ev­ery one to five years. Porter said the process it­self can take up to eight months, the ap­pli­cant has to go to the bor­der and sub­mit to fin­ger­print­ing for the FBI.

It means the loss of Nexus trav­el­ling priv­i­leges, “awk­ward or em­bar­rass­ing ques­tions” dur­ing fu­ture bor­der stops, and, for those with work per­mits in the U.S., the loss of such doc­u­men­ta­tion and the need to reap­ply.

Porter won’t say what his fees are, but Saun­ders said his clients are look­ing at up to US$2,500 in le­gal fees.

“There are crim­i­nal record checks and you need to sup­ply ref­er­ences — that can be awk­ward when you have to tell friends,” said Saun­ders.

And all of it can be trig­gered by a sim­ple ques­tion by a bor­der guard. “It’s not silly — it’s scary in my mind, the over­reach­ing power of bor­der of­fi­cers,” he said.

The Amer­i­can courts don’t ap­pear to be tak­ing the same strict stance as U.S. Cus­toms and Bor­der Pro­tec­tion.

Costs, lost time and has­sles aside, Saun­ders said al­most none of his Cana­dian clients have their ap­pli­ca­tions for travel re­in­state­ment de­nied.

“They’re every­day Cana­di­ans — 99 per cent of my mar­i­juana cases get ap­proved,” said Saun­ders.



Wind­sor pot ac­tivist Leo Lucier, shown next to his gi­ant pot plants at a friend’s back­yard in Amher­st­burg, says Cana­dian trav­ellers shouldn’t read­ily ad­mit to U.S. bor­der of­fi­cials hav­ing ever con­sumed cannabis. Oth­ers urge hon­esty, even if it could mean be­ing barred en­try and even get­ting life­time bans from vis­it­ing the U.S.


Aphria Inc. co-founder Cole Cac­ciav­il­lani, shown at the firm’s Leam­ing­ton site, says he’s never con­sumed pot but is wor­ried about what hap­pens af­ter Oct. 17 when recre­ational weed is le­gal­ized in Canada.


How things play out with the pot use of vis­i­tors could be acutely felt at the busy Wind­sor-De­troit bor­der.

Brian Masse


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