COVID-19 UPDATE – March 20 2020

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Dear Clients;

The Following Statement was made by the Prime Minister’s Office:

March 20, 2020Ottawa, Ontario
The U.S.-Canada land border serves as an economic engine that supports over $2.4 billion dollars in daily trade. As a result of the COVID-19 pandemic, the United States and Canada are temporarily restricting all non-essential travel across its borders. In each of our countries, we are encouraging people to exercise caution by avoiding unnecessary contact with others. This collaborative and reciprocal measure is an extension of that prudent approach.“Non-essential” travel includes travel that is considered tourism or recreational in nature.
The United States and Canada recognize it is critical we preserve supply chains between both countries. These supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border. Supply chains, including trucking, will not be impacted by this new measure. Americans and Canadians also cross the land border every day to do essential work or for other urgent or essential reasons, and that travel will not be impacted.
This decision will be implemented on March 21, 2020, at which time the U.S. and Canada will temporarily restrict all non-essential travel across the U.S.-Canada land border. The measure will be in place for 30 days, at which point it will be reviewed by both parties.

The Prime Minister’s Office

Prime Minister Trudeau and our Minister of Public Safety Bill Blair have both just spoken to the Canadian public.  While they provided little in the way of new updates as to the new travel measures coming into force at the US Canadian border at midnight tonight, I will outline what we did learn today.   

Today we heard that these temporary measures will be put in place as part of a larger and more comprehensive strategy and that they will be in place for 30 days, after which the countries will conduct a review. While “non-essential” travel was described as travel that is considered tourism or recreational in nature, we were not given any specific guidance by Prime Minister Trudeau or Minister Blair as to the definition/criteria for essential travel.  We did learn some additional guidance from Foreign Minister Chrystia Freeland on this issue.   

I believe very important details continue to be negotiated by both US and Canadian administrations. It appears there is some agreement on certain workers being considered essential to both countries, namely health care workers and truck drivers delivering supply chain goods were specifically referenced.  However, it does not appear that any agreement has yet been reached to actually define essential travellers in hopes of coordinating a consistent continental response to these new border measures coming into force at the US/Canadian border.  It may also not be possible for a broad scope agreement on this specific issue to be reached.  We must consider other options here.

I suspect if no broad consensus is reached between Canada and the US on this issue, the alternative would be to leave it to each country to establish the necessary definition/criteria at its border.  This could present some unique challenges, but we will formulate a plan for our client’s to deal with the same, to the extent possible, as more information continues to become available.  Again, I reiterate that my efforts here are focused on the hopes of achieving a continental response coordinated by both the US and Canada.  The best way this can be accomplished is for both countries to reach an agreement as to the definition/criteria to be applied in determining who are essential travellers.  However, we will prepare for the possibility that both countries may ultimately establish their own definition and criteria, and how best to address the challenges that may arise from the same.   
As far as the most positive guidance provided on this issue today it came from Minister of Foreign Affairs Chrystia Freeland.  She made a very significant and telling statement in this regard.  Minister Freeland said “This is about a negative list approach as opposed to a positive list approach”.  This is consistent with the guidance we have received up and until present, where said guidance being offered has been focused on who is not allowed to cross the border [discretionary travel for recreation and tourism].   This further suggests it appears likely to be left to each country to determine in its own national interest what constitutes essential travel and who is allowed to cross the border.   

Again, there are certain areas where the US and Canada agree on this (ie: health care workers, truck drivers, etc).   Whether or not business travel is essential and whether or not travel is compassionate at present appear to be a matter of discretion at the POE.  However, Minister Freeland did indicate that those on valid study and work permits will be respected at the POE when seeking entry into Canada, with the proviso that they will be asked to self-quarantine for 14 days.  We are seeking further clarification on this statement just made by Minister Freeland.
So while both countries may publicly state that consistency in the implementation of these travel restrictions is essential, it may not be practical in all instances.    As stated by Minister Blair, exceptional circumstances will always be left to the discretion of border officers on both sides of the border to exercise compassion and discretion as they see fit.
It remains encouraging that both Prime Minister Justin Trudeau and President Donald Trump have announced a commitment to not disrupting the flow of essential goods and services on which Canadians and Americans depend on.  However, notwithstanding the degree of uncertainty that still remains as of the date and time of this update, these new border measures will begin in earnest at midnight tonight as Canada and the US continue to work out very crucial details surrounding the banning of non-essential travel and facilitating the entry of essential workers between the two countries.

It was also announced today that all irregular border crossings will be curtailed and will now result in the foreign national being directed back to the US.  They will not be referred to the Immigration and Refugee Board for processing.   This is a reciprocal measure with the US.  
We acknowledge the Government’s lack of clarity on certain aspects of the matter and that some issues remain very much in need of addressing.  However, we must remain positive and optimistic in light of these extraordinary circumstances.   We continue to press our Government officials for the answers our clients need and deserve.   We will continue to press them on how our border agents are going to distinguish between essential and non-essential travellers.  More details will come in the next update.  We appreciate your patience.  
As always, stay safe.   

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