The recent outbreak of political frankness when it comes to past marijuana use, while refreshing, is not without consequences. Political leaders who made such admissions, including three provincial premiers, the leaders of two national parties and the mayors of Toronto and London, Ont., may find, as thousands of Canadians have, that honesty may not be the best policy when trying to gain entry to the U.S. If you’ve ever been arrested for cannabis possession, or even admitted to puffing pot, Uncle Sam does not want you.
There are more than 60 grounds of inadmissibility under the U.S. Immigration and Nationality Act, including admitting to smoking marijuana, a crime of “moral turpitude,” says Thomas Schreiber, Chief Customs and Border Protection Officer at Blaine, Wash., in an email exchange with Maclean’s. He cites the relevant section: “any alien convicted of, or who admits having committed or who admits committing acts which constitute the essential elements of a violation of . . .any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . is inadmissible.”
That cuts quite a swath. Some 40 per cent of Canadians 15 or older admit to smoking marijuana in their lifetime, says a 2011 Health Canada survey. If a U.S. border agent asks any of those more than 10 million Canadians if they’ve ever used pot, and they answer honestly, they will be barred. Agents have no room for discretion, says Schreiber. “The law is very clear on matters of admissibility.”
More vulnerable are those who’ve been convicted, or even just arrested for possession, a record likely to pop up on a border service computer. That includes more than 462,000 Canadians arrested for pot possession since the Conservative government escalated the war on drugs in 2006. And even an agent’s cursory Google search will churn up the names of Liberal leader Justin Trudeau, NDP leader Thomas Mulcair, premiers Kathleen Wynne (Ontario) Brad Wall (Saskatchewan), and Darrell Dexter (Nova Scotia), and mayors Rob Ford (Toronto) and Joe Fontana (London). “I was a drummer in a rock band in the late ‘60s. What do you think I was doing?” Fontana said recently. “I didn’t exhale.”
“If it’s in a database somewhere the United States probably knows about it,” says Victoria lawyer Kirk Tousaw, whose clients include registered medical marijuana users, who are also barred from the U.S., although they can legally smoke in Canada. He advises his clients never to voluntarily admit to smoking pot, “but not to lie, of course, because that is a felony offence. Lying to a border guard, you can go to jail for five years.”
Schreiber says there is a range of penalities for making a false declaration. “Consequences may range from simple refusal of admission, to a multi-year ban on admission, a lifetime ban on admission or possible prosecution.” About 196,000 aliens were deemed inadmissible last year, but the number of those who were turned back for drug offences isn’t readily available. Those refused admission can apply through a U.S. embassy or consulate for a visa waiver which may be granted under some circumstances from the U.S. Department of State, says Schreiber. “Remember,” he said, “a criminal history is for life, even if the alien obtains a pardon in their home country.”
Tousaw applauds Canadian politicians for their honesty, saying people like Trudeau have helped open “an adult conversation” on legalization. “It’s a sticky situation,” Tousaw says. “I’m not saying that the U.S. is going to tell Justin Trudeau if he becomes prime minister of Canada he’s inadmissible. But if they don’t, there’s certainly a double standard at play.”