MACLEANS.CA – While on a trip to Washington state this past February, Vancouver residents Timo Hengge and his wife shared a joint before heading up the Space Needle in Seattle. The couple didn’t break any laws while there—it’s perfectly legal for those 21 and older to buy and smoke recreational marijuana in the state. But when they reached the Canada-U.S. border on their return to B.C., Hengge, a native of Germany who has yet to obtain his Canadian citizenship, soon found out he was in for a long journey back to their home in Vancouver—specifically, a four-week, 16,000-km ordeal of detention cells and an elaborate detour by way of Frankfurt.
All because he admitted to a few puffs of a joint.
“Most people in Canada don’t understand,” says Len Saunders, an immigration lawyer in Blaine, Wash. “If you come down and say you’re going to buy marijuana or that you’ve smoked it in the past, you will be banned for life.”
And it’s a problem that will become much more complicated for cross-border shoppers, family road trippers and traveling sports fans once the Liberal government legalizes recreational marijuana in mid-2018. As it stands, roughly 44 per cent of Canadians already admit to pollsters that they’ve smoked pot at least once in their lives. Once it is legal here, even more travelers who have gotten high in the past will face an uncomfortable and risky predicament when a U.S. Customs and Border Protection officer asks: Have you ever smoked marijuana?
Those who tell the truth will risk getting banned from America for life and must apply for special waivers in order to ever visit the U.S. Those who lie and are somehow caught could face an even worse predicament—the same lifetime ban, but no option to apply for a waiver for many years afterwards—which is why Saunders and other border experts strongly advise against lying. And so the border will increasingly present a Catch-22 for anyone who’s ever smoked up.
While Hengge isn’t Canadian, his cautionary tale shows exactly how far the U.S. will go to punish someone whose only crime was admitting to smoking pot.
Having recently moved to Vancouver with his Canadian wife, Hengge went to the U.S. in order to activate his working holiday visa, which involves leaving Canada and re-entering with the proper paperwork, a practice commonly known as flagpoling. The couple decided to make a day trip out of it.
Within minutes of crossing into America, “there was a big sign off the highway advertising joints,” Hengge says. “So we went there and bought some weed.”
They continued on towards Seattle, where the couple smoked a little, toured the city for a few hours, and then headed back north.
When Hengge and his wife got to the Canadian border, he explained to the officers that he wanted to activate his working holiday visa. “The officer asked if I had smoked any cannabis and I said yes,” Hengge explains. “Then he asked if I had any on me, and I said yes.”
Here’s where Hengge’s naivety comes in to play. Hengge, who is a medical marijuana user in Canada, says he thought he could keep the gram of weed he had legally bought in Washington, and admits he didn’t think of the repercussions at the border. As it turned out, Canadian authorities gave him no reason to be alarmed. While they confiscated the drugs and his driver’s license, they told him to come back 24 hours later, when the marijuana would be fully out of his system, and have his paperwork processed then.
Back at the U.S. border, however, a guard asked Hengge why he was returning so soon, and he explained that he’d smoked marijuana in Seattle and that Canadian authorities had told him to come back the next day. “I told them the truth,” Hengge says, “I assumed it’d be safe to do so because weed is legal in Washington.”
But Hengge was only partially right. Weed is legal in the state of Washington, but the U.S. border is governed by federal law—and smoking marijuana is a federal crime. “If he was Canadian, the Americans would say go back to Canada,” explains Mark Belanger, Hengge’s immigration lawyer. “But he isn’t Canadian. He technically doesn’t even have status in Canada because he hasn’t entered on his worker permit.” So while Hengge’s wife was sent back to Canada, Hengge was driven off to a detention center in Tacoma in handcuffs—“like I’m a murderer,” he says. He spent four weeks there without ever seeing a judge or the inside of a courtroom. Then in March, he was marched onto a plane and deported to Germany.
The story of one German trapped between two borders and shipped back across the Atlantic Ocean may be an extreme example, but it’s a lesson in how seriously American border guards take admissions of marijuana use. “If an individual uses marijuana in a nation in which it is considered legal, they can still be deemed inadmissible under the Immigration and Nationality Act,” explains U.S. Customs and Border Protection (CBP) spokesperson Jason Givens. “U.S. law provides that an alien who is determined to be a drug abuser or addict is inadmissible.”
Or as Belanger puts it: “It’s a violation of U.S. federal law. It doesn’t matter where you do it in the world.”
Leaving aside the question of whether a Canadian who occasionally uses marijuana should be considered a “drug abuser,” the CBP is silent on what alternative consequences exist to an automatic ban. Can a person can be fined instead? Or maybe sent back to Canada with nothing more than a warning? Two CBP spokespersons were unable to answer these questions, but Belanger says in his experience, the ban is applied all the time.
Those who do receive a lifetime ban do have options if they want to re-enter the U.S., but it involves a new level of border bureaucracy. A banned individual can apply to the U.S. government for a special travel waiver, which costs nearly $1,000—not including fees—and will need to be renewed after a few years. Experts say that in the past the vast majority of Canadians who applied for travel waivers after receiving a marijuana-related ban have had them approved.
However, Saunders says that is no longer a sure thing, pointing to the experience of one of his clients. Two years ago the client, a 20-year-old Albertan going to school in America, was crossing the border in Sweetgrass, Montana when a CBP officer asked him if he’d ever smoked pot before. The young Canadian told the truth—he had—unaware of the repercussions to come. “They took away his student visa for entry,” Saunders says.
Last year the man hired Saunders to help him apply for a travel waiver. But six months later, and for the first time in Saunders’s career, the man’s application was turned down. The news came coincidentally, and ironically, on April 20—an international day of celebration for cannabis culture.
“They are approving waivers for people with past criminal convictions—people who’ve broken the law—but they [won’t for] a 22-year-old Canadian who’s admitted the worst he’s done is smoke marijuana, which is legal in many U.S. states,” Saunders says. “It’s BS. That means every Canadian who’s ever smoked marijuana is now at risk.”
And that includes any Canadian who ever smokes weed even once, even if they wait until it’s legal in Canada.
“I’m coming to the the conclusion that I may be never able to enter the U.S. again, which is sad,” says the 22-year-old, who asked that his name not be used. “And for what? For admitting that I have smoked marijuana?”
The ban has also been a strain on his relationship, as he can no longer cross the border to visit his American girlfriend. “I’ve flown my girlfriend up once a month for the past two years,” he adds. “I don’t know what my girlfriend’s parents even think of me.”
The fact that Canadians are getting banned for life at the border for pot admissions is “ludicrous,” Public Safety Minister Ralph Goodale said last year. But when asked again about the issue at a press conference in April during the unveiling of the Liberal legislation to legalize cannabis, the minister was more diplomatic, saying: “The United States, of course, has the sovereign jurisdiction to deal with people crossing the border into their country, just as we have the same corresponding power for people crossing the border into Canada.”
It’s not that U.S. border guards will ask every Canadian about prior pot use, but there is a double standard among those who are asked and those who aren’t.
Justin Trudeau, for example, is technically inadmissible to the U.S. for admitting to smoking marijuana in the past. Even if Trudeau gets a pass on account of being Prime Minister, the same exception should not apply to his mom, Margaret Trudeau, who in 2002 said at a conference: “I took to marijuana like a duck to water.”
So how should a Canadian answer if a U.S. border guard ever asks about their marijuana use? Saunders recommends that Canadians politely refuse to answer the question. “Just say, ‘I’m not going to answer that question,’” he says. “The worst they can do is deny you entry, and then you try to cross again a month later.” And hopefully the next border officer won’t ask. It’s a hassle, Saunders admits, but better than the alternatives.
That’s advice Timo Hengge could have used. On March 13, the day he was deported back to Frankfurt, German police met him at the plane. When they heard his story, they could only shake their heads at his misfortune and wish him a safe trip back to Canada.
Hengge landed in Calgary the following day.
“I was really worried about a grumpy officer who would deny me entry into Canada,” Hengge remembers. “That was my biggest fear.” But not only did Canada process his working travel visa upon arrival, they never once asked about his American ordeal. However, there was one last snag.
Canada border officers confiscated the German sausage Hengge was carrying in his luggage.
Aaron Hutchins, Macleans.ca