Legalizing pot won’t help at U.S. border: immigration lawyer

Blanket pardons might not be coming for past marijuana conviction

The Trudeau government has pledged to legalize marijuana in the spring, but anyone who’s been convicted of a pot-related crime won’t be off the hook right away.

A federal task force on legalization recommended this week to allow storefront and mail-order sales of marijuana to people 18 years old and up, and to not sell it alongside cigarettes or alcohol.

But just the federal Liberals, it said little about how the government should go about pardoning those who’ve been convicted of possession, trafficking, or production or marijuana, and more, once marijuana is made legal.

“The impact of being arrested and convicted for simple cannabis possession offences has serious ramifications,” it reads. “The stigma of arrest, and the possibility of having a criminal record, are life-long consequences.”

Possession of marijuana is a federal offence under the Controlled Substances Act. A first conviction can lead to fines of up to $1,000, six months in jail or both. It can also lead to a criminal record.

Currently, people convicted of possession of up to 30 grams of marijuana can apply for a pardon, or record suspension, five years after they complete their sentence.

Federal Public Safety Ministry press secretary Scott Bardley said Friday there is no change to that expected at this time.

Workarounds

Even if a pardon is granted, it still might not help those wanting to cross the Canada-U.S. border.

Alexander, a middle-aged man from the Lower Mainland who declined to provide his last name, was arrested for marijuana possession for getting caught with 1.5 grams of marijuana in his apartment in 1980.

“I had enough on me to make make maybe three joints,” he said.

He received a conditional discharge – meaning that after he served out his probation and completed his community service, he’d no longer have a criminal record.

Alexander thought the matter was finished and didn’t have any problem crossing the border until a customs agent questioned him at the Osoyoos crossing a few years later.

“I was honest – I said I got caught with a gram and a half of pot in Canada.”

He was banned from entering the U.S. for more than a decade until a landmark court case in 2001 permitted entry into certain states.

But then, just weeks before Alexander and his now-wife were set to get married in New York City five years ago, he was again denied entry while trying to head south.

“That’s when we went to Len and he got me the waiver,” Alexander said.

Leonard Saunders, an immigration lawyer in Blaine, said a pardon from the Canadian government doesn’t mean anything to U.S. border security.

“Any individual who’s not American who has a criminal conviction for a crime involving moral turpitude or controlled substances can be denied entry,” said Saunders. “A pardon will change nothing.”

Even mentioning past marijuana usage at the border can get you a permanent denial to the U.S. – unless you get a waiver, Saunders said.

Alexander has one that will last him through to 2021.

Issues south of the border

Legalization advocate Dana Larsen has a similar story from about 20 years ago.

“They asked me at the border if I’d ever used marijuana and I foolishly said that I had in the past. That got me banned for the rest of my life,” said Larsen. “I haven’t tried to appeal it because I’m still involved in the marijuana culture and I figured if I brought them more information about myself it would only reaffirm their decision.”

Larsen said he knows many others who’ve faced the same fate and is also concerned that even if Canada legalizes marijuana is legalized, it won’t affect anyone travelling to the U.S.

“If you’re a Canadian, even with legal marijuana in Canada, if they ask you if you’ve used marijuana and you say yes, they can ban you,” he said. “If you have a previous conviction for a cannabis offence of any kind, that will also get you banned from the U.S. forever.”

He doesn’t see a way to solve that north of the border.

“Other than putting political pressure on the American government, there’s not a lot Canada can do to change American policy,” he said, noting that there’s a certain irony to being denied entry to the United States at a border between two jurisdictions where marijuana is legal. That’s because marijuana is still illegal under federal law in the U.S.

“That’s probably going to be one of the last things to change. I do not see the Trump administration making cross-border access for marijuana smokers a high priority.”

Canada Marijuana Legalization Taskforce

 

 

@katslepian

katya.slepian@bpdigital.ca

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