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 Since then, OICs have been repeatedly repealed and replaced with newer versions.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.

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