Update: On March 18, 2020, Prime Minister Trudeau announced that Canada and the United States had agreed to temporarily close the Canada-US border to non-essential travel, in order to preserve “critical” supply chains between the two countries. President Trump also announced this temporary closure in a tweet on March 18, 2020. Prime Minister Trudeau confirmed that travel for the purposes of recreation and tourism will be prohibited. Both Prime Minister Trudeau and President Trump have also stated that trade will not be affected. However, very little details have been provided regarding what will be considered essential travel. It is also not known at this time whether this measure will apply only to the land ports of entry or if it will modify the existing air travel ban that is already in effect.
Introduction
On March 16, 2020, Prime Minister Trudeau announced that Canada would be barring the entry of all travellers, other than Canadian citizens and Canadian permanent residents, in response to the 2019 Novel Coronavirus (COVID-19) outbreak. He also mentioned that the travel ban would become effective on March 18, 2020. During his press conference, the Prime Minister also mentioned that there would be some exceptions for air crew, diplomats, immediate family members of citizens and (at least for now) United States citizens. However, very few details were available at that time.
On March 17, 2020, Transport Canada issued a formal notice relating to the travel ban (the Transport Canada Notice), which has provided further clarification on a number of issues. A summary of this guidance appears below.
Banning the entry of foreign nationals by air from all countries except the United States
According to the Transport Canada Notice, the travel ban is effective as of Wednesday, March 18, at 12:00 p.m. (noon) Eastern Daylight Time. It also confirms that the travel ban will not apply to air crews, travellers transiting to a third country, Canadian permanent residents, diplomats, or immediate family members of Canadian citizens.
The Transport Canada Notice does not specifically refer to an exemption for United States citizens even though the Prime Minister made clear during the press conference that United States citizens would be exempt from the travel ban, at least for now. It is possible that the Transport Canada Notice may be amended to specifically exempt United States citizens. However, as the travel ban currently reads, it instead exempts foreign nationals (including United States citizens) who are traveling from the United States, under certain conditions.
Many immigration experts believed that the travel ban would be imposed under the authority of the Immigration and Refugee Protection Act (IRPA), and would apply to travel by both air and land. However, the Transport Canada Notice makes clear that the travel ban is being implemented under the authority of the Aeronautics Act. This is significant because the Aeronautics Act applies only to air travel and does not apply to land ports of entry.
The Transport Canada Notice states that, pursuant to the Aeronautics Act, the Minister of Transport will require air carriers on flights to Canada to deny boarding to any passenger who is not a Canadian citizen or Canadian permanent resident, and has resided in any country other than the US in the last 14 days. It also states that, for practical purposes, the denial of boarding would apply to:
- All foreign nationals on flights to Canada other than trans-border flights, and
- Any foreign national on a trans-border flight who has resided outside the US and Canada in the last 14 days.
Finally, it also states that travellers cannot board a plane to Canada if they have been outside of Canada or the United States in the last 14 days, unless they are Canadian citizens, Canadian permanent residents, or in transit to a 3rd country.
Based on the Transport Canada Notice, it would appear as though the following rules will apply:
- The travel ban will apply to all foreign nationals (unless otherwise exempted) who are travelling to Canada on an international flight.
- The travel ban will apply to all foreign nationals (unless otherwise exempted) who are travelling to Canada on a trans-border flight (i.e., between the United States and Canada) if they have been outside the United States and Canada within the last 14 days. In other words, a foreign national travelling to Canada on a trans-border flight who has been residing in the United States and/or Canada during the last 14 days would not actually be subject to the travel ban (unless they show symptoms of COVID-19).
- The travel ban will not apply to foreign nationals who are merely transiting Canada on their way to some other country.
- As the Aeronautics Act does not apply to the land ports of entry, the travel ban does not appear to apply at the Canada-US border, at least for now. Nevertheless, it is uncertain whether Canada Border Services Agency (CBSA) officers have received any formal guidance regarding the travel ban. As a result, some CBSA officers may believe that they are required to enforce the travel ban at the land ports of entry.
The above interpretation appears to be corroborated by the statement that appears on the website of the Public Health Agency of Canada (PHAC). It clearly states that, as of March 18, 2020, the Government of Canada will ban foreign nationals from all countries except the United States from entering Canada.
Preventing symptomatic passengers from boarding a plane to Canada
According to the Transport Canada Notice, the Minister of Transport will also require air operators to prevent any traveller who is showing symptoms of COVID-19 (regardless of their citizenship status) to be denied boarding any international flight to Canada (including a trans-border flight). In other words, even a Canadian citizen attempting to return to Canada from any foreign destination (including the United States), and who is showing symptoms consistent with COVID-19, will not be permitted to board their flight.
Air operators will be required to do a basic health assessment of all air travellers before they board the flight based on guidance from PHAC. This would include the operator asking simple health questions, looking for visible signs of illness prior to boarding, and possibly referring the traveller for a further medical assessment.
If the traveller presents COVID-19 symptoms, the air carrier will be required to deny boarding to the traveller for a period of 14 days (the traveller will then need to demonstrate that he or she is no longer symptomatic) or until a medical certificate (confirming that the patient does not carry the virus) is presented.
Airlines will be asked to begin implementing this measure immediately and must have it in place by no later than 12:01 a.m. Eastern Daylight Time on March 19, 2020. However, this measure will not apply to flights carrying only cargo (i.e., no passengers or non-crew).
Consolidation of international inbound flights to four major hubs
According to the Transport Canada Notice, all international inbound flights to Canada will be redirected to one of four major Canadian airports, which have implemented additional health screening procedures. The four designated airports are:
- Vancouver International Airport;
- Calgary International Airport;
- Toronto Pearson International Airport; and
- Montréal Pierre Elliott Trudeau International Airport.
This measure is effective as of 12:01 a.m. Eastern Daylight Time on March 18, 2020. However, direct flights from the United States, from sun destinations, such as Mexico and the Caribbean, and from St. Pierre-et-Miquelon are exempt from this measure. They will continue to operate on their regular routes and will land at their original Canadian destinations.
Conclusion
Although the Government of Canada has implemented the above measures in order to limit the spread of COVID-19, they do not appear to restrict trans-border air travel from the United States (unless a passenger is symptomatic, in which case they will be denied boarding). In addition, since the Aeronautics Act applies only to air travel, the travel ban does not appear to apply to foreign nationals who enter Canada at a land port of entry along the Canada-US border, at least for now.
Of course, as this is a quickly evolving situation, it is entirely possible that the Government of Canada will implement a similar rule that applies to the land ports of entry shortly, perhaps under the authority of IRPA. In addition, as CBSA has not yet received any formal guidance regarding the travel ban, some officers may believe that they are required to enforce the travel ban at the land ports of entry.
If a similar rule is later implemented at the land ports of entry, it is unknown whether CBSA will apply the travel ban only to foreign nationals who:
- Have been outside the United States or Canada in the last 14 days; or
- Present symptoms consistent with COVID-19.
However, this would be consistent with the restrictions that have been imposed on foreign nationals flying to Canada from the United States.
For more information, please contact Henry J. Chang or Helen Park.
This post was originally published on dentons.com.
