For the time being, at least, it appears the Government of Canada is standing firm on its one-size-fits-all approach to border security. In a series of inquiries dating back to the beginning of August, the All Point Bulletin (APB) was able to have most, if not all, of its questions answered regarding students attending B.C. schools and why some localities appear to have different policies. Some questions remain unresolved, chiefly why government workers such as those working for the Whatcom County Library System, a government entity, are unable to cross the border despite being explicitly exempted under the Canadian Order-in-Council 23-6e dated August 28, 2020.
A September 1 email from Eric Morrissette, chief of Media Relations, Communication and Public Affairs Branch serving Health Canada and the Public Health Agency of Canada (PHAC), stated the response was coordinated between PHAC and the Canada Border Services Agency (CBSA) and constituted the Government of Canada’s response. PHAC has responsibility over matters pertaining to the Quarantine Act while CBSA is responsible for putting PHAC policies and rules into effect at the border crossings.
The full exchange follows but, be warned, it’s heavy going … (Note: Canadian spellings for words such as traveller have been retained).
Q1. The OIC allows the entry of “a person who, as determined by the Chief Public Health Officer appointed under subsection 6(1) of the Public Health Agency of Canada Act, does not pose a risk of significant harm to public health.” How does someone go about asking the chief public health officer for a determination of that nature?
Under the Prohibition of Entry into Canada from the United States Order and the Prohibition of Entry into Canada from countries other than the United States Order, the Chief Public Health Officer of Canada has the authority to determine whether an individual who does not pose a risk of significant harm to public health is exempted from these Orders. Requests can be directed here.
Q2. In APB's original email (August 10) to you, APB referenced the previous policy as it pertained to residents living in Campobello, Point Roberts and Hyder, Alaska. This policy was explained to APB by senior CBSA spokesperson Rebecca Purdy who wrote on March 21, “Healthy, non-symptomatic individuals for whom crossing the border on a day-to-day basis is essential for work and daily life will still be permitted to cross the border.”
While the Northwest Angle and Lake of the Woods, Minnesota is not listed as one of those communities, it does find itself in the same situation; ie. separated from the rest of the United States (or Canada, in the case of Campobello). However, APB understands that the residents of the Northwest Angle are free to enter Canada into Manitoba and drive 45 miles to access the rest of Minnesota if they are able to provide proof of their residence. That being the case, can you please tell me why residents of the Northwest Angle are routinely allowed to transit through Canada to another part of the state while residents of Point Roberts aren’t and what the authority is that explains that difference in policy?
The Government of Canada’s approach to transit through Canada and entry to remain in Canada is applied consistently across the country.
Transit through Canada of asymptomatic foreign nationals for non-discretionary and non-optional purposes of travel is not restricted or prohibited. Only in circumstances where the purpose of transiting through Canada is explicitly for a discretionary or optional purpose would it be prohibited. This is consistent for those who are attempting to go to/from Point Roberts (WA), the Northwest Angle, Alaska, etc. The Government of Canada has applied the optional/discretionary purpose test to permit foreign nationals entry to Canada in order to transit directly to or from one point of the United States (U.S) to another point in the U.S. for reasons that would not be considered optional/discretionary if undertaken in Canada.
Some examples of non-discretionary travel purposes include, but are not limited to, economic services and supply chains; critical infrastructure support; health (immediate medical care), safety, and security; shopping for essential goods, such as medication or goods necessary to preserve the health and safety of an individual or family; and other activities at the discretion of the border services officer. Travel for the purposes of tourism, sightseeing, leisure (including accessing a secondary residence), entertainment or shopping for non-essential goods is considered discretionary.
Between April 3 and August 18, 2020, just under 29,000 entry passages were recorded for travellers entering Canada from Point Roberts, Washington, U.S. This is compared to less than 30 denials of entry into Canada of foreign nationals from Point Roberts from March 22 to August 17, 2020. (Ed. Note: This presumably refers to formal denials of entry as opposed to informal denials in which the traveler is simply told to turn around).
As it relates to a foreign national who seeks to enter and remain in Canada from the U.S. (i.e. not transiting through Canada), not only does their purpose of travel need to be non-discretionary or non-optional, but they must also be able to comply with the requirement to quarantine based on their purpose of travel and intended length of stay if required to do so. Meaning that if they are not exempt from the requirement to quarantine based on their intended purpose of travel, they may be prohibited from entering Canada in accordance with OIC 2020-0565.
The Government of Canada will continue to ensure the concerns raised by U.S. communities are part of the ongoing discussions with regards to the Canada-U.S. travel restrictions.
Q3. Also, can you please tell APB if there is an official definition of “essential”? PHAC apparently believes work is essential while education is not. Typically, most people would consider education to be an essential activity so I’m hoping an official definition might provide clarification, if one exists.
The Emergency Order, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) (in effect since August 20, 2020), does not define “essential.” However, what is considered is whether travel into Canada is discretionary or non-discretionary (e.g., tourism, recreation).
Some examples of non-discretionary travel purposes include, but are not limited to: economic services and supply chains; critical infrastructure support; health (immediate medical care), safety, and security; shopping for essential goods, such as medication or goods necessary to preserve the health and safety of an individual or family; and other activities at the discretion of the border services officer.
Discretionary or optional travel include tourism/sightseeing, recreation, entertainment, social visits to friends and relatives who are not immediate family members, short term social visits to immediate family members, religious functions, shopping for non-essential goods, etc.
In some cases, entering Canada regularly to attend an individual’s normal place of education may be considered non-discretionary travel. However, although the purpose of travel to attend an educational institution may be non-discretionary/not-optional, as entering Canada for the purpose of attending school is not explicitly an exemption in the Mandatory Isolation Order in Council, the foreign national would be prohibited from entering in accordance with the Order in Council 2020-0565, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States). As they do not meet the respective standard of entry in full, they are prohibited from entering Canada.
Persons who must cross the border regularly (daily or weekly) to go to their normal place of employment are generally considered to be travelling for a non-discretionary purpose. This cohort of travellers are exempt from quarantine in accordance with the Mandatory Isolation Order in Council as having been designated as a class of persons whom the Chief Public Health Officer determines will provide an essential service. As they meet the standard of entry in full, they are eligible to be admitted into Canada.
Government representatives at the border are responsible for administering the Emergency Orders at Canada’s international ports of entry. The final decision rests with the Canada Border Service Agency (CBSA) officer at the time of entry, based on the information made available to them by the traveller when seeking entry. CBSA enforces the Orders in Council in accordance with the requirements prescribed within the Order. It is up to the traveller to demonstrate they meet the requirements to enter or stay in Canada.
Q4. Finally, employees of the Whatcom County Library System (which is part of the county government) have been unable to make regular deliveries of books (or returns) or to perform maintenance at the library in Point Roberts. These employees are based in the mainland part of the county. Library employees living in Point Roberts are unable to perform those functions in reverse. Again, most people would consider government functions to be an essential service. Please advise how your agency’s policy has determined that governmental activities do not qualify as essential services.
In order for a U.S citizen or other foreign national, who is not an immediate family member of a Canadian citizen or permanent resident, to enter Canada from the U.S:
If a foreign national does not meet the standard of entry in full, they are prohibited from entering.
Foreign national travellers need to be able to demonstrate when crossing the US-Canada Border that their reason for entering Canada is non-optional and non-discretionary in nature. If the foreign national cannot demonstrate clearly their purpose of travel is non-discretionary or non-optional they will not be permitted entry.
The final decision rests with the CBSA officer at the time of entry, based on the information made available to them by the traveller when seeking entry. CBSA enforces the Orders in Council in accordance with the requirements prescribed within the Order. It is up to the traveller to demonstrate they meet the requirements to enter or stay in Canada.