Canadian Cannabis Legalization: Considerations at the U.S. Border for Canadian Nationals and U.S. Employers

In October 2018, the recreational possession and use of cannabis became legal throughout Canada pursuant to The Cannabis Act. While the people and state legislatures of 10 U.S. states have similarly moved to legalize the recreational use of cannabis, it still remains a Schedule I controlled substance under U.S. federal law. Thus, because the laws and rules governing immigration benefits and border crossings into the U.S. exist at the federal level, even the possession of marijuana continues to be unlawful as pertains to foreign nationals seeking to enter the country. In the wake of this major shift in legal framework for our neighbors to the north, it is critical that U.S. employers and Canadian nationals be aware of the rules at the border and be smart about their interactions with U.S. Customs and Border Protection ("CBP") officials. To date, CBP has issued only one statement on this issue, in which it took the following position: "A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. However, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible." In this article, we offer some background information, considerations and tips to keep in mind when deciding on whether to send a particular individual into the U.S. for business purposes and what types of questions may be posed by a CBP officer.

By way of background, CBP officers screen and inspect all foreign nationals entering the United States at authorized ports of entry to determine that they have authorization to enter and that they will otherwise comply with the terms of the person's visa classification and the laws of the U.S. CBP officers enjoy nearly unfettered discretion when it comes to admitting persons into the country and it can be quite difficult to challenge their decisions. Moreover, CBP officers are trained to look for suspicious conduct or information and may even use certain tactics in an attempt to elicit incriminating information from a person that presents herself for inspection and admission into the U.S. Therefore, it is important that visitors be smart, alert and savvy when engaging with a CBP officer. They should answer questions succinctly and truthfully. To emphasize, lying or misrepresenting to CBP can have very serious immigration consequences, including not being allowed into the U.S. and potentially jeopardizing the individual's eligibility for future immigration benefits and visas.

Below are some suggestions for employees traveling to the U.S.:

While it may seem obvious, it warrants emphasis: the individual may have absolutely no cannabis or paraphernalia on her person or in her car. This includes socio-political t-shirts, bumper stickers and the like, as these may serve to give a reason to suspect marijuana use or possession and will certainly set the wrong tone.
Be aware of your social media content, as CBP officers can attempt to access social media and may even confiscate electronic devices and attempt to gain access that way (you do not have to give them passwords, but it does not mean that they may not try and could retain your device for a period of time even after letting you go).
CBP officers may use certain tactics to elicit incriminating information: despite what an officer may say, they cannot drug test you on the spot; they cannot detain you indefinitely; and they cannot administer a lie detector test.

Below are some sample scenarios at the U.S.-Canada border and considerations:

The most likely way an issue would arise is direct and straight forward: The CBP officer asks if the person has ever smoked or does smoke marijuana. The individual answers 'yes.' The CBP officer then denies her entry on the basis that they now have reason to believe that the person will violate the laws of the U.S. once they are admitted because, from a U.S. legal perspective, the person has confirmed that they have engaged in illicit activity and, thus, might do so once inside the U.S. Importantly, this would not likely result in a permanent bar to entry, but it could be recorded in the CBP database and could render future attempts to enter the country problematic.
Bars to entry into the U.S.: If there is a formal finding of inadmissibility based on criminal grounds (e.g., drug trafficking or prior drug conviction or admitting to having committed acts that constituted a crime at the time of commission), the individual could become subject to a bar to reentry into the U.S.
- One way this could play out is that a CBP officer could get the individual to explicitly admit to having smoked marijuana before it was legalized in Canada (i.e., pre-October 2018). Through the right line of questioning that gets the person to admit to having committed the elements of the statute prohibiting marijuana possession/use in effect at the time of the conduct and appraisal of that law, the individual would then be deemed inadmissible (as having committed a drug crime) and would not be allowed into the U.S. unless and until they obtain an approved 'waiver of inadmissibility.'

In light of the foregoing, employers should use their judgment in considering whom to send for cross-border work engagements. If you believe an employee may have an issue or is not sophisticated enough to appropriately engage with the CBP officer, our attorneys can work with you in advance to best navigate the complexities of the U.S. immigration law system and find an appropriate solution.