Nearly one of out six Canadians could be turned away from the United States because they used drugs at some point in their lives, and nearly 100 million Americans face the same prospect at the Canadian border. Under the immigration laws of both countries, persons who admit to past drug use or have a drug conviction can be excluded by the decision of the border guard they encounter and his immediate supervisors.
Fortunately for millions of North Americans, the laws are not enforceable if they have kept their past drug use to themselves and not left a record of it in print or online. But for the at least 17 million US citizens who have drug convictions and a smaller but still sizeable number of Canadians with drug convictions, such laws could lead to a rude awakening when arriving at the border.
How many people are actually turned back at the border for past drug use is unknown. US Customs and Border Protection Service officials could not provide a detailed breakdown of the 574 aliens deemed inadmissible on the average day. Nor were Canadian figures obtainable from Citizenship and Immigration Canada.
While such policies have been in place for years, they have been little known -- except for people who have found out the hard way. One of those people is Dr. Andrew Feldmar, a Vancouver, BC, psychiatrist, who had crossed the border on numerous occasions, only to be turned back last summer by a US Customs and Border Patrol (CBP) agent who googled his name and turned up an academic article in which he discussed taking LSD on two occasions nearly forty years ago.
An independent Canadian newspaper, The Tyee, picked up on the story last month, and since then it has been recounted in numerous publications, including a May 14 piece in the New York Times that was widely syndicated and appeared on numerous blogs. The Feldmar fiasco has led to renewed attention to the persecution of admitted drug users at the border under a policy that, if strictly enforced, would make hundreds of millions of people ineligible to enter the US.
The relevant section of US immigration law says that the US can exclude "aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in s. 102 of the Controlled Substances Act. An attempt or conspiracy to commit such a crime is included in this ground of exclusion."
"Drug violations or admissions of drug use fall under the controlled substances statutes and make people inadmissible under certain circumstances," said Mike Milne, a US Customs and Border Protection spokesman in Seattle. "It depends on the totality of the circumstances," he told Drug War Chronicle. "We don't treat marijuana differently from any other illicit drug," Milne added. "It's considered a prohibited substance."
But as the case of Dr. Feldmar shows, the "totality of the circumstances" is very open to interpretation. In Feldmar's case, two instances of ancient LSD use for research purposes outweighed his decades of solid citizenship and professional activity and the fact that he had previously entered the US without problem on multiple previous occasions.
"Denying a respected researcher like Dr. Feldmar entry into the county is just absurd," said Drug Policy Alliance executive director Ethan Nadelmann, whose organization has begun a campaign to undo the policy. "We have grave concerns about the impact this can have on researchers on drugs writing openly. And what about people coming here for a conference on methadone or on injection drug use and HIV? Many of these people are likely to have been drug users," he told the Chronicle. "Are we to exclude them now? We are also deeply concerned that these increasingly powerful databases make it possible to go back and dredge up anything you ever wrote or blogged or posted on a web page."
DPA is looking into what, if any, action could be taken in Congress to ameliorate the problem, but it is unlikely anything would happen this year. "100 million Americans have used an illegal drug at some point in their lives, and it's hard to find a presidential candidate who hasn't smoked pot; yet we're prohibiting people from other countries who have used drugs from visiting our country. It just doesn't make sense," said Bill Piper, DPA's director of national affairs. "Imagine if other countries adopted similar policies. Bill Clinton, Newt Gingrich, Michael Bloomberg, Bill Gates, Brad Pitt, Sam Donaldson and millions of other Americans wouldn't be able to travel."
Work in Congress is just getting underway, Piper told the Chronicle. "We just started our first round of lobbying congressional offices, talking to the staff of people on the judiciary and homeland security committees," he said. "People didn't know about this and were shocked at the policy; it just seemed unfair to them to punish people for things they'd written or things they had done in the past."
After educating key congressional staffers, said Piper, it will be on to phase two. "Right now, we trying to gauge how widespread is the interest in this, and then we'll probably go back for a second round of lobbying."
For people thinking about traveling to the US, CBP's Milne outlined what could happen in the event they are excluded. If a person is denied admission because of past drug use or convictions, said Milne, three possibilities present themselves. "In most cases, you can just withdraw your application for admission and turn around and walk away," he said. "Or you can choose to go before an immigration judge to adjudicate the issue. In that case, you would most likely remain in custody until the hearing," he said. "But if you make false statements during the course of your application [if you get caught denying past use or a conviction], you can be subject to extradited removal. In that case, we will document that something illegal took place on this attempt to enter, remove you from the country, and bar you from readmission for up to five years."
Milne could provide no statistics on the number of people turned away because of admitted drug use or drug convictions, but did say that of the 680,000 aliens who attempt to enter the country through ports of entry on any given day, about 575 are denied entry and 63 are arrested.
Famed Dutch drug researcher Peter Cohen isn't taking the chance. "I will not try to enter the US anymore," said Cohen, who has done ground-breaking work on the (lack of) links between drug policies and drug use levels. "Imagine if they read my research!" he told the Chronicle. "I am dead serious. I will not risk being treated like a piece of dirt by US law enforcement people who are known the world over as brutes and idiots," he vowed.
"Just a few weeks ago, we had a story here of a young Dutch man who was in the US one day past his permit," Cohen continued. "They kept him imprisoned for weeks, and his stories about his treatment and his inaccessibility to lawyers and the Dutch embassy were just horrible. No, that is not for me."
A Canadian substance use and drug policy researcher who asked not to be identified told Drug War Chronicle that "border enforcement that focuses on either research into or past personal use of illicit substances directly impacts our ability to study our current approach towards drugs, and will likely stifle dialogue that might move us towards more evidence-based policies and practices." Not only are such policies "a violation of free speech and personal liberty rights on both sides of the border," he added, "stopping the flow of information on effective harm reduction practices in both Canada and the US could have a negative impact on the public health of both our nations."
The very fact that this prominent researcher requested anonymity proves the point that the policy has a silencing impact. "I'd rather not be quoted in this article although I believe that it's an important story," he said while noting that he has not run into problems at the US border, "because if the US has reduced its homeland security infrastructure to a simple Google search, I worry that it's just a matter of time before they start to hassle me as well, and being quoted in a story pointing out that I haven't yet been harassed or denied entry sounds like the best way to raise a red flag the next time I cross the border."
But the door at the US-Canadian border can be slammed shut by either side, and despite its reputation as a cannabis-friendly nation, border guards at Canadian points of entry are just as quick to turn you back as are the Americans. In fact, Canadian border guards may be even tougher than the Americans, especially for offenses like driving under the influence.
The Citizenship and Immigration Canada web site explains:
"Whether you are planning to visit, work, study or immigrate, if you have committed or been convicted of a criminal offence, you may be prohibited from entering Canada. Criminal offences include both minor and serious offences such as theft, assault, dangerous driving, driving while intoxicated and manslaughter, among others. For a complete list of criminal offences in Canada, please consult the Canadian Criminal Code. If you have juvenile convictions (convictions for crimes committed while under the age of 18), you are most likely not prohibited from entering Canada."
The one bit of good news is that a simple marijuana possession conviction probably won't keep an American out of Canada. Under Canadian law, possession of less than an ounce is a summary offense and does not constitute inadmissibility, said Vancouver immigration attorney Gordon Maynard.
Don't try to deny any criminal history, Maynard warned. "It is not a good idea to lie. The Ports of Entry have access to the NCIC database and can readily see any history of arrests, charges, court proceedings, convictions and incarceration in the database," he said. "Officers have this information even before they ask the questions. Failure to truthfully answer questions on any relevant matter, including criminality, constitutes misrepresentation and is a separate bar against entry and can include a two-year penalty against any further entry."
Still, Maynard told the Chronicle, you could be excluded even with a clean record. "You don't need a conviction to be inadmissible to Canada on criminal grounds," he said. "Pending charges, or an admission of prior criminal behavior, can be enough if the Canadian officer has reasonable grounds to believe that you have committed a criminal offense."
"I think this is one of the worst manifestations yet in the war on some drugs," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Law (NORML). "Keeping people out of the US because they once used a drug is absurd, but Canada does the same thing. Although Canada has historically hewed toward a more open and tolerant marijuana policy, has functionally decriminalized marijuana to some degree, allows medical marijuana, and lets farmers legally grow hemp, an American can be turned away if he has a marijuana or other drug conviction or has even publicly acknowledged his drug use."
Publicity over the Feldmar fiasco has the phones ringing off the wall at NORML, St. Pierre said. "We're getting lots of calls now from people with past convictions or people who have blogged or spoken publicly or appeared on TV or radio about their marijuana use," he noted. "This includes people who are NORML lawyers, as well as Dr. Lester Grinspoon. It's his birthday next month, and his family wanted to take him to Vancouver. Although he's never been convicted of any crime, he has admitted to using cannabis, so now the family is worried about whether he can even cross the border. This is a great concern," St. Pierre said.
It's also a personal concern for St. Pierre, who was born in Maine and has family on the Canadian side of the border. "I've acknowledged using cannabis on many, many occasions, so I don't know if they'll let me in," he said. "I'd like to go up there to see family, to go fishing, to go on educational junkets, but now I don't know."
Of course, not everyone has to worry about these laws. Admitted former drug users, such as David Cameron (head of the British Tory party), former Canadian Prime Minister Kim Campbell, the current Premieres of Quebec and Ontario, actors Colin Farrell and Pierce Brosnan, British billionaire Richard Branson (Virgin Air) and numerous musicians like Paul McCartney, Keith Richards and George Michael all seem to be able to get into either country at will. Similarly, Canada doesn't seem to have any problem with admitted former drug users like Bill Clinton and Al Gore.
Perhaps, as CBP spokesman Milne mused when asked about apparent differential enforcement, "Maybe they all got waivers." Perhaps not.
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