Too Much Discretion at the Border? Canadian Border Officials Prohibiting Family Members of Canadians from Entering Canada

May 2020

On March 18, 2020, the Canadian government invoked the rarely used Quarantine Act, creating an Order-In-Council (OIC) prohibiting foreign nationals from travelling to Canada by air. Within days, two new OICs were brought in to replace the initial version, one for those entering from the USA, and the other for all other travelers. Barriers to entering Canada were extended to any mode of travel, not just by air. Since then, OICs have been repeatedly repealed and replaced with newer versions. It has been incredibly challenging to keep on top of all the changes.

The original OIC made an exception for the immediate family members of Canadian citizens and permanent residents. However, subsequent OICs restricted the exception further. Travelers, even if immediate family members, cannot be entering Canada for an ‘optional or discretionary purpose, such as tourism, recreation or entertainment’.

Immigration to Canada is controlled by Immigration, Refugees and Citizenship Canada (IRCC), which implements the Immigration and Refugee Protection Act (IRPA) and Regulations. Canada’s borders are controlled by the Canada Border Services Agency (CBSA), who administers IRPA on behalf of IRCC concerning the entry of temporary residents and immigrants. CBSA follows IRCC guidelines concerning IRPA.

However, the OICs prohibiting entry to Canada were made under the Quarantine Act, not under IRPA. CBSA was not obligated to follow program delivery instructions set out by IRCC concerning the OICs.

In late April, IRCC published the following guidance concerning immediate family members:

…for foreign national immediate family member(s) (as per the definition in the Order in Council), to spend the pandemic period with their Canadian citizen family member so they can help to ensure each other’s health, safety and well-being (This section is specifically to allow for the reunification of family members where it would be beneficial to all parties, as the reunification of family members is a key point of the Order in Council. This allows for families to be together during this difficult time.)

Despite IRCC’s opinion, CBSA border officials have denied entry to many spouses of Canadians, including one of my clients who agreed to be interviewed by the CBC. The foreign national spouse and his pregnant Canadian wife wished to travel to Canada for fear of having to go to a hospital in the USA’s hardest hit COVID-19 region. They had arranged to quarantine in an apartment in her parents’ home in Ottawa.

Not only did CBSA prevent him from entering Canada, they also threated to give him an ‘exclusion order’ barring him from returning to Canada for one year if he tried to return to the border while travel restrictions were still in place. The reason given was that his travel to Canada was not ‘essential’.

The word ‘essential’ is not used in any version of the OICs. However, CBSA circulated instructions to all its border officials that any ‘non-essential’ travel was to be barred. CBSA refused to make these instructions public. It was only when a traveller appealed to the Federal Court that the instructions were released.

In the instructions, both caring for a pregnant family member and coming to Canada to attend the birth of one’s child ‘may be non-discretionary’. It is left to the individual border official to decide in the circumstance. In my client’s case, even though the border official could have let the couple in, that was not the decision that was made. It was also not the decision made in another heart wrenching case of a man who missed the birth of his son.

When specifically asked about my client’s denial of entry into Canada, Deputy Prime Minister, Chrystia Freeland was deferential to the border official, stating, ‘For our border agents I think we also have to remember that this is a unique situation…’. Prime Minister Justin Trudeau further stated that ‘This is a difficult situation. But every step of the way, we need to do what is necessary right now to keep Canadians safe’.

Unlike for police agencies in Canada, there is no independent oversight body which reviews the actions of CBSA border officials. Recent documents obtained by CBC detailed many abuses by officials, including harassment, use of inappropriate sexual language, and excessive force. Border officials act with almost impunity. The only way to challenge the decision of a border official is to ask the Federal Court to review the decision. If the Federal Court finds the decision ‘unreasonable’ a second border official will be asked to review the request for admittance to Canada. Sometimes a second or even third trip to the Federal Court is required before a positive decision is reached.

The Canadian Bar Association and others are calling on IRCC and CBSA to ensure their policies and instructions reflect the purpose of the Quarantine Act; to restrict the entry of those travelers who may contribute to a further spread of COVID-19 in Canada. Further, these policies must provide situational examples which are publicly available. Finally, the policies must be consistently followed by decision-makers at visa posts and ports-of-entries. May I also suggest that a father who has attended the birth of his child oversee drafting those policies.

Imagining a World without Borders In the Midst of a Global Pandemic

April 2020

This summer, I am scheduled to deliver a workshop at the Blue Skies Music Festival. I was so excited when my application was accepted. Workshop presenters are given a coveted camping pass. Unfortunately, like all summer events, the festival may have to cancel depending on whether the COVID-19 pandemic diminishes.

The title for my workshop is to be ‘Imagine a World Without Borders’. I plan to discuss how the artificial creation of international borders has impacted individuals, families, and communities. The topic was inspired by heart wrenching stories from clients separated from their family members, from the advocacy work of No One is Illegal, and through my own work with the private sponsorship of refugees through the Refugee Sponsorship Support Program.

With increased international travel, globalization of supply chains, and the ability to communicate with ease from people all over the planet through the internet, it seemed as if we were moving closer to a world in which international borders were becoming less meaningful. COVID-19 has changed all of that. Currently, the Canadian government is limiting entry of foreign nationals. Exemptions are in place for a limited few, including holders of study permits, certain temporary foreign workers, and accompanying immediate family members of Canadian citizens and permanent residents.

Canadian citizens and permanent residents are also impacted by travel restrictions. The government began with an interim order that stated anyone showing symptoms of the virus could be denied boarding a flight to Canada. Then, the government invoked the Quarantine Act, requiring anyone entering Canada to self-isolate for 14 days after arrival, whether or not they were exhibiting symptoms.

To the furor of refugee advocates, the Canadian government abandoned a plan to quarantine refugee claimants upon arrival, and instead stated that refugees arriving from the US would be denied entry. The US has announced that it will send these refugees back to their countries of origin. Apparently, governments feel justified in ignoring their international obligations to protect refugees from persecution.

And yet, we have discovered just how dependent we are on migrants who travel from their homes seasonally to work on farms and in food processing. It is not just Canada that is feeling the pinch, but any country which relies on migrant labour. Canada is making it easier, not harder, for employers to bring in foreign workers for these industries.

In Canada, we are seeing not just international travel restrictions, but also the loss of the ability to travel to other provinces. There are several bridges to Quebec only minutes from my office; all have checkpoints manned by police prohibiting non-essential travel.

When a vaccine is available, how with the world look? Will we have become more insular, or will the retreat of the public health threat and lifting of travel restrictions create a desire to move to a more universal society? If you’re having trouble imaging how this could be a possibility, listen to this Ted Talk. Or come to my workshop. I’m scheduled for Saturday at 10:30am.

 

R.I.P. to the Handshake?

March 2020

I recently learned that the handshake is thought to originate in Medieval Europe. I’ve read slightly contradictory accounts of how it evolved.  My favourite version is that knights would shake the hand of others in an attempt to loosen any hidden weapons. Another source I found stated that it was a symbol of peace, showing that neither person was carrying a weapon.

In exploring the topic, I found modern references to the handshake that discussed it from a gendered perspective. If the measure of a man is in how strong his handshake is, where does that leave woman?

I have always found handshakes awkward. And don’t even get me started on cheek kisses. One kiss? Two? Three? Which side do you start on? Do you actually kiss someone’s cheek or just make a little noise? For someone who grew up in northern Ontario and isn’t very well travelled, I simply haven’t had enough exposure to the practice to fully understand the protocol.

Google ‘handshake’ today, and you’ll get an entirely new view. It is simply impossible to practice social distancing when using traditional greetings. Once the COVID-19 pandemic has passed, one wonders how many people will continue to use alternative forms of greeting.

We are truly in an unprecedented time. All regular routines have been disrupted. For those in the business of immigration law, changes have been coming by the hour. Yesterday, we were hearing from colleagues that a case processing centre in Sydney, Nova Scotia not been accepting couriered applications. We had sent a spousal sponsorship application that day, and our assistant was anxiously waiting for the delivery email from UPS. This morning she advised that the application had been successfully delivered. She noted the signature of the person who accepted the package. It had been signed, ‘COVID CODY’. I’m glad someone in the mailroom has maintained their sense of humour.

I have only praise for how Canadian government officials have been handling this crisis. Most public servants are working from home, many simultaneously caring for children not in daycare or school. I respect their efforts to make decisions, provide services, and communicate to all of us.

Immigrations, Refugees and Citizenship Canada has posted information to their website as follows:

Special measures to help temporary and permanent residents and applicants affected by the novel coronavirus (COVID‑19)

Novel Coronavirus (COVID-19) – Program delivery instructions

More Angst about the Parent and Grandparent Sponsorship Program - Is It Time to Expand the Concept of 'Family'?

January 2020

Well, January 1st came and went without the re-opening of the parent and grandparent sponsorship program. First, on December 16th, the government announced that details of the 2020 program would be ‘available soon’. Then, on December 30th, the government sent out a second announcement that opening of the program would be ‘postponed’. Further information will be available by April 1, 2020.