Will Canadians Receive Lifetime Bans From The U.S. For Legal Cannabis Use?

Written by Cassidy Patnoe, Law Clerk at Gleam Law, PLLC.

Canadians entering the United States may be looking at a lifetime ban if they admit to having smoked marijuana. Border agents have always had broad agency to deny entry to individuals crossing the United States/Canadian border and often ask travelers about their behaviors. According to the Department of Homeland Security (DHS), “a crime involving moral turpitude” may be grounds to deny entry to the U.S. Because marijuana remains federally illegal, Canadians who have used marijuana in the past year are able to be classified as drug abusers. Drug abuse may warrant a lifetime ban on entry into the U.S.

Bans on travelers for their past behaviors are not a new phenomenon. As Canada gears up to legalize marijuana for recreational purposes, the DHS is poised to increase their scrutiny of Canadian travelers. Canadian Public Safety Minister Ralph Goodale calls the interrogation of Canadians at the U.S. border over personal pot use a “ridiculous situation.” But, ridiculous or not, prior usage of marijuana can land individuals on a no-entry list. “If you’re crossing the border you’d be well advised to be forthright and honest in answering the questions of border officers…” Goodale recommends. “It is obviously critical to respect the border rules of the other country.”

Blacklisted Canadians who still wish to visit the United States can apply for an inadmissibility waiver, but each waiver costs $585 USD, can take up to a year to process, and are only valid for one, two, or five years. Furthermore, if the applicant is denied, they do not get their application fee back. An expensive and, if successful, temporary solution is not appealing and has led many Canadians to give up on visiting altogether. With a recent poll indicating that over a quarter of Canadians intend to use marijuana products after legalization, the number of “marijuana abusers” potentially facing a travel ban is going to rise sharply.

When legal purchases begin in Canada, the amount of user data that will be collected is likely to be enormous. Data linked to individuals, such as delivery addresses or credit card numbers, may end up in the hands of DHS and border agents, which could leave travelers in a tough spot: admit to the use of marijuana or lie, both of which are grounds to bar them from entry. As non-U.S. persons, Canadians are not afforded the protections of the fourth amendment. With this lack of protection and the wide reach of the PATRIOT Act, there is little to stop U.S. law enforcement from gathering and utilizing this data.

Nova Scotia intends to enter marijuana purchases into a centralized system that also tracks alcohol purchases. This essentially makes marijuana purchases indistinguishable from alcohol and may go a long way to keep Canadians’ data safe. However, other provinces have yet to decide how to handle credit card transactions or are leaving marijuana sales to private-sector retailers, which leaves the question of where the data will be stored unanswered.

Without any official statement or policy decision from the United States, it’s challenging to know how to approach the border. While the government of Canada has officially endorsed being truthful and cooperative, private citizens who have been detained and questioned for hours or banned from entry into the U.S. altogether often advocate for outright denial if questioned about past marijuana usage. Legally, the answer is unclear, but ultimately, some argue the correct answer might be not to say anything at all. Testifying in front of the Canadian Senate, immigration lawyer Len Saunders encouraged travelers to assert that any question about marijuana usage is “not a question [they] are bound to answer.” While refusal to answer the marijuana question may result in a denial to enter the U.S., it’s far less likely to result in a life-long ban.