VANCOUVER—An American lawyer is criticizing a long-held and unspoken convention allowing some Canadians to cross into the United States freely despite having publicly admitted to prior drug use while others are slapped with lifetime bans.
Under U.S. federal law, Canadian travellers who admit to using cannabis or other illicit substances are inadmissible to the United States. But this law has always been applied inconsistently, said Len Saunders, a Blaine, Wash.-based immigration lawyer.
“It’s this inconsistent application of the law that drives me crazy,” he said.
Margaret Trudeau, mother of Prime Minister Justin Trudeau, was allowed into the United States in 2016 for a state dinner with President Obama, despite having admitted in writing to having used cannabis. And that, Saunders said, is maddening.
Saunders, whose bread and butter is obtaining waivers for Canadians who receive lifetime bans after admitting to cannabis use at the border, said that based on how other Canadians are regularly treated, Mrs. Trudeau “should not have been allowed into the United States.”
Mrs. Trudeau, rather than being turned away at the border, was welcomed to the White House and lauded by President Obama for her work on raising awareness around mental health issues, which led to a standing ovation from the dinner guests.
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Canadian Olympian Ross Rebagliati, on the other hand, was deemed inadmissible to the United States after admitting on American late night television to past cannabis use, Saunders said.
The day after leaving Nagano, Japan, where the Olympics had been held, Rebagliati — who won a gold medal in snowboarding at the 1998 Winter Olympics and who is one of Saunders’ clients — admitted to past cannabis use during an interview on The Tonight Show with Jay Leno.
Years later, attempting to cross the border to attend the Winter Olympics in Salt Lake City, Rebagliati was told his past history of cannabis use made him inadmissible, and he was turned away. Like Mrs. Trudeau, Rebagliati had not admitted to using cannabis under questioning from the CBP. But unlike Mrs. Trudeau, Rebagliati’s public admission sealed his fate.
Only when a special letter of appeal was sent to the White House was he finally allowed in.
Sanho Tree, director of the Drug Policy Project at the Institute for Policy Studies in Washington, D.C., said that without comment from U.S. enforcement agencies, ascribing intent is speculative.
But by all appearances, he said, the situation Saunders describes is purely political.
Doling out lifetime bans to Canadians, he said, is a practice designed to be “as obnoxious as possible, but not to the point where it gets enough exposure that it causes blowback diplomatically.”
If politicians and their families started to receive the same treatment as average Canadians, Tree said, it could lead to questions from the Canadian government.
“And then they might point out that every U.S. president from 1993 until 2016 has consumed illicit drugs in quantities very often enough to trigger mandatory minimum sentences,” he added.
At a candidates’ forum in 1992, Bill Clinton admitted to smoking cannabis as a young man. In 2000, George W. Bush was surreptitiously taped referring to past drug use by his campaign biographer. And in 2007, as a presidential candidate, Barack Obama, referring to his past cannabis use, said, “I inhaled frequently. That was the point.”
Tree pointed out that reams of other American officials have admitted to drug use, including former New York City mayor Michael R. Bloomberg, former vice-president Al Gore and senator John Kerry.
Tree also noted that laws have always been applied unevenly.
“There’s discretion at every stage of law enforcement,” he said. “Otherwise they’d all be arresting jaywalkers.”
A spokesperson for the CBP said its officers enforce U.S. federal law, which states that use, possession or trafficking of cannabis is illegal.
“Determinations about admissibility (to the U.S. from Canada) are made on a case-by-case basis by a CBP officer based on the facts and circumstances known to the officer at the time,” the spokesperson said.
And although cannabis may be legal in a person’s home country — and may even be legal in the state to which they’re travelling — that thin strip of dirt at the border is under federal jurisdiction, and federal drug law supersedes local and foreign determinations.
But both Tree and Saunders, the immigration lawyer, said all bets are off as relations between the U.S. and Canada struggle to manage a peculiar confluence of differing drug policies and what Tree called the nativist policies of a new presidential administration.
Saunders, who believes legalization of cannabis is a laudable move, said that the embrace of legalization in Canada and states such as Washington has caused a ramping-up of border bans for Canadians.
Saunders said he now hears from Canadians seeking waivers for inadmissibility because of cannabis at least once or twice a week — up from one or two cases per year 15 years ago.
He attributes this partly to the legalization of cannabis in Washington, which has stirred CBP officers to pay much closer attention to the possibility of cannabis tourism.
CBP officers are Blaine residents, Saunders said. They see Canadian licence plates in dispensary parking lots, and pay attention to the signs in the windows of those shops that say, “Canadians welcome.”
And while Saunders feels CBP officers are good people who are simply doing their jobs, he also believes the hostility of the current presidential administration to drug use means there is a possibility the two-tiered tradition that has long protected politically-connected individuals from receiving bans may be eroding.
U.S. Attorney General Jeff Sessions, he pointed out, has gone on record saying that good people don’t use marijuana. President Trump, meanwhile, has amped up sentencing for opioid traffickers, and flirted publicly with the idea of the death penalty as a fitting punishment for drug dealers.
With cannabis legalization set to take effect in Canada on Oct. 17, Saunders predicts a “wild west” at the border, with an exponential increase in the number of Canadians deemed inadmissible to the U.S.
And ironically, he said, this could cause trouble for Prime Minister Trudeau himself. In 2013 Trudeau admitted he had smoked marijuana in the past and while he was an MP.
As Prime Minister, Trudeau currently enjoys diplomatic immunity, meaning he is safe from lawsuits and criminal prosecution in his host country.
But Saunders believes he may be a target once he returns to civilian life — adding it might take a former top-tier politician experiencing the persecution so often levelled at average Canadians to spur the federal government into doing something about border bans.
The U.S. Department of State’s guide for enforcement of diplomatic and consular immunity states, “Criminal immunity expires upon the termination of the diplomatic or consular tour of the individual enjoying immunity. Therefore, obtaining an indictment, information or arrest warrant could lay the basis for a prosecution at a later date. e.g.: If the diplomat returns to the United States at a later date in a private capacity.”
Trudeau’s past and public admission of cannabis use — combined with the Trump administration’s visceral condemnation of his personal character as a political matter of course — means he would be an ideal target for inadmissibility, said Saunders. Such a development, while unprecedented, would both brazenly demonstrate the extent of American power and would send a strong message to Canadian travellers that Canada’s leadership as the first G-7 country to legalize cannabis is not without consequences.
Tree agreed that relations between the two countries has entered a kind of great unknown. And the idea that a Canadian prime minister could be targeted for future inadmissibility by the U.S. federal government, said Tree, while speculative, is not outside the realm of possibilities given what he called the “walling off of America.”
The Trump administration’s explicit animus for drug use and drug users, said Tree, could very well lead to emboldened directives for U.S. enforcement agencies, which would see action being taken that would have been unheard of under previous administrations — the travel ban being one prime example.
“These are not globalists or internationalists,” Tree said. “They couldn’t care less about our most important alliances.”
The U.S. Department of Justice declined a request for interview or comment, and the CBP likewise refused to answer questions on what the future might hold along the border.
Saunders, however, said that perhaps even more troubling than the number of Canadian travellers being slapped with lifetime bans is the advice being given to Canadian travellers by federal politicians who are, as lawmakers and diplomats, ostensibly immune to persecution.
Speaking to members of the House of Commons public safety committee in May, federal Public Safety Minister Ralph Goodale urged Canadians to answer questions at the border truthfully.
“I just think that’s garbage,” Saunders said. “I’m not telling people to lie, but I’m telling them what their rights are.”
Canadians who are questioned at the border regarding cannabis use should know they have the right to withdraw their request to enter, he said. The worst that can happen in that case is a person has a “lookout” put on their file, and may at some later date be questioned further.
And because border officers have the right to search travellers’ digital devices, they should be cleared of incriminating data, he said, or better yet, left at home.
The federal government’s failure to advise Canadians of the lifetime implications of telling the truth at the border, he added, is deeply irresponsible.
“Mr. Trudeau,” he said, “you be honest (at the border) too. Let’s see what happens after you’re prime minister.”
