Defining Essential Travel During the Pandemic

Like most countries around the world, Canada introduced early travel restrictions during the COVID-19 pandemic. These restrictions are necessary to limit the spread of the virus, and become increasingly important as new strains are being identified and also being brought into Canada.

In March 2020, the Canadian government began imposing restrictions on travel, initially to allow for citizens, permanent residents, international students on a valid study permit, transiting passengers, and temporary foreign workers, to enter the country.

By May 2020, foreigners who were exempt from the travel restrictions had to demonstrate that the purpose was for an essential reason. At that time, essential was defined as “non-optional” or “non-discretionary.” This definition has continued to be the working definition to this day.

However, during the Winter 2020 holidays, many Canadians were incensed by the revelation that several politicians, from many different political parties, had engaged in international travel.

Some of this travel by politicians was purely recreational. Others claimed it to be essential, in that they needed to visit a sick family member overseas, attend a funeral, or to conduct repairs on a foreign private property. Confusion abounds over what is essential and what is not, as there are many Canadians who could find essential reasons to reunite with loved ones or attend to some type of pressing matters.

The government’s current travel restrictions, exemptions and advice points out that new requirements of a negative COVID-19 test prior to boarding will be required as of Jan. 7, 2021 for all travelers 5 years of age or older.

Foreign nationals, who are not a Canadian citizen or permanent resident, are not able to enter Canada if they have COVID-19 symptoms. The exception to this is if they are a protected person under the Immigration and Refugee Protection Act.

On Aug. 20, 2020, the government introduced a specific Order in Council for travel from the U.S., pursuant to section 58 of the Quarantine Act. A similar Order was made on Aug. 30, 2020 for any other travel from any country other than the U.S. Given the high volume of traffic and trade between Canada and the U.S., a separate order relating to that country would be sensible in the circumstances.

Despite these orders, certain exemptions exist to these travel restrictions, specifically where the Chief Public Health Officer appointed under subsection 6‍(1) of the Public Health Agency of Canada Act determines a person does not pose a risk of significant harm to public health, or will provide an essential service while in Canada. Currently these class of persons providing an essential service include:

  • Technicians or specialists specified by a government, manufacturer, or company, as required to install, inspect, maintain or repair equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing);
  • Persons, including a captain, deckhand, observer, inspector, scientist, veterinarian and any other person supporting commercial or research open water aquaculture-related activities, who enter Canada for the purpose of carrying out aquaculture-related activities, including fishing, transporting fish to and from the aquaculture facility, treating fish for pests or pathogens, repairs, provisioning of aquaculture-related vessels or aquaculture facilities or exchange of crew and who proceed directly to an open water facility or vessel upon entry to Canada;
  • Officials of a foreign government, including border services officers, immigration enforcement officers, law enforcement and correctional officers, who are escorting individuals travelling to Canada or from Canada pursuant to a legal process such as deportation, extradition or international transfer of offenders; and
  • Officials of the Government of Canada, a provincial or a foreign government, including law enforcement, border enforcement, and immigration enforcement officers, who enter Canada for the purposes of law, border or immigration enforcement, or national security activities that support active investigations, ensure continuity of enforcement operations or activities, or transfer information or evidence pursuant to, or in support, of a legal process; and who are required to provide their services within 14 days of entry and have reasonable rationales for the immediacy of the work and the inability to plan for a 14 day quarantine.
    [emphasis added]

A further class of persons are exempt by the Chief Public Health Officer under a different Order regarding mandatory isolation on Nov. 29, 2020, as follows,

  • Persons in the trade or transportation sector who are important for the movement of goods or people, including truck drivers and crew members on any aircraft, shipping vessel or train, and that cross the border while performing their duties or for the purpose of performing their duties;
  • Persons who must cross the border regularly to go to their normal place of employment, including critical infrastructure workers (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing), provided they do not directly care for persons 65 years of age or older within the first 14 days after their entry to Canada;
  • Technicians or specialists specified by a government, manufacturer, or company, who enter Canada as required for the purpose of maintaining, repairing, installing or inspecting equipment necessary to support critical infrastructure (Energy and Utilities, Information and Communication Technologies, Finance, Health, Food, Water, Transportation, Safety, Government and Manufacturing) and are required to provide their services within 14 days of their entry to Canada and have reasonable rationales for the immediacy of the work and the inability to plan for a 14 day quarantine;
  • Persons, including a captain, deckhand, observer, inspector, scientist, veterinarian and any other person supporting commercial or research open water aquaculture-related activities, who enter Canada for the purpose of carrying out aquaculture-related activities, who enter Canada for the purpose of carrying out aquaculture-related activities, including fishing, transporting fish to and from the aquaculture facility, treating fish for pests or pathogens, repairs, provisioning of aquaculture-related vessels or aquaculture facilities or exchange of crew and who proceed directly to an open water facility or vessel upon entry to Canada;
  • Emergency service providers, including firefighters, peace officers, and paramedics, who return from providing such services in another country and are required to provide their services within 14 days of their return to Canada;
  • Commercial conveyance operators repatriating human remains into Canada;
  • Officials of the Government of Canada or a foreign government, including border services officers, immigration enforcement officers, law enforcement and correctional officers, who are escorting individuals travelling to Canada or from Canada pursuant to a legal process such as deportation, extradition or international transfer of offenders;
  • Officials of the Government of Canada, a provincial or a foreign government, including law enforcement, border enforcement, and immigration enforcement officers, who enter Canada for the purposes of law, border or immigration enforcement, or national security activities that support active investigations, ensure continuity of enforcement operations or activities, or transfer information or evidence pursuant to, or in support, of a legal process; and who are required to provide their services within 14 days of entry and have reasonable rationales for the immediacy of the work and the inability to plan for a 14 day quarantine; and
  • Members of a crew for any conveyance who are re-entering Canada after having left to undertake mandatory training relating to the operation of a conveyance, and who are required by their employer to return to work as members of a crew on a conveyance within 14 days of their return to Canada.
    [emphasis added]

Government officials such as politicians who are not travelling for business purposes in the interest of the state would not fall under this class.

Some of these directives have already been litigated, in other contexts.

In United Steelworkers Local 2251 v Algoma Steel Inc., in an arbitration of a dual Canadian-American citizen working in Canada, but living on the American border. His children, who lived in Canada, were not able to cross the border with him when in his care and control. The arbitrator concluded that the mandatory quarantine requirements of the employer, which were based on these policies, were unreasonable in the circumstances.

In Schuyler Farms Limited v Nesathurai, the Health Services and Appeal Review Board reviewed an order made by the Medical Officer of Health of Haldimand Norfolk Health Unit for all employees and seasons workers, pursuant to s. 22 of the Health Protection and Promotion Act.

The county has a significant agricultural component, and the highest number of migrant workers per capita in all of Ontario. However, no other Health Unit in Ontario had issued a similar order, which imposed a limit on the number of people in a bunkhouse during an isolation period. The Vice-Chair stated the importance of the issues,

35. It is a matter of public knowledge that we are living through the worst pandemic since the 1918 Spanish flu, with 6.66 million confirmed cases and 393,000 deaths worldwide and 392 confirmed cases and 31 deaths in HNC, at the time of writing this decision…

 

53. The central issue in contention is the requirement contained in the Self- Isolation Plan Checklist which limits the occupancy of a bunkhouse to a maximum of three MFWs.

The Vice-Chair did not agree with the position of the Medical Officer of Health,

56. With respect, the Board finds the Respondent’s position that it is not possible to have more than 3 MFWs self-isolate in a bunkhouse regardless of its design, size, layout and amenities to be unreasonable. The explanation given was that there are various points in the bunkhouse which make it difficult to maintain the required social distancing, including the washroom, the stairway and entrance and exit points.

57. The Board finds that the requirement of a maximum of 3 MFWs per bunkhouse is arbitrary and does not take into account the specifics of each bunkhouse. There was no convincing reason given as to why there is a limit of 3 MFWs to a bunkhouse. The Board notes that the Section 22 Order requires that a self-isolation plan be approved which enables PHU staff to identify and consider the specifics of each bunkhouse and use their public health expertise to make a determination as to how many MFWs would be allowed. The requirement of approval of a self-isolation plan by PHU prior to allowing entry of MFWs to Canada serves to decrease or limit the risk of transmission to MFWs as it puts in place a mechanism to provide appropriate accommodation for MFWs in advance of their entry to Canada.

58. The Respondent indicated that the limit of a maximum of 3 MFWs per bunkhouse goes to the heart of the practice of medicine and public health practice, making judgements that balance competing priorities being a core skill for a public health physician. The Respondent was, however unable to provide a concrete reason for why he chose the number “3” per bunkhouse…

Further elucidation as to the nature of essential services can be found from a list created by Public Health Canada. This list is informed by the 2009 National Strategy for Critical Infrastructure, which were themselves built on An Emergency Management Framework for Canada (albeit an earlier edition). Pandemics are specifically considered in this framework as a risk to the critical infrastructure of Canada.

Government officials are included on this list, but only when operating in an official capacity on government business. This framework also references provincial and territorial designations of essential services, which were also enacted during the pandemic.

Finally, there are restrictions to boarding a plane which emerge from the Aeronautics Act, including a July 13, 2020 Interim Order requiring air carriers to provide certain notifications, impose health checks and screenings, and in some cases refusing boarding for symptomatic travelers. However, these restrictions are temporary, and not a barrier to travel generally, unless the traveler is a foreign national.

Worth emphasizing is that these restrictions by the government, and the exemptions by the Chief Public Health Officer, only apply to foreign nationals. In other words, Canadian citizens and permanent residents are technically allowed in law to leave and enter the country as they wish. The government has chosen to rely on a mandatory quarantine, rather than a mandatory ban on travel.

This might appear to be a strange position for the government to take, given the nature of the threat we are all facing. The government is likely concerned about a s. 6 Charter challenge in restricting the movement of citizens and permanent residents.

The Court in Divito v. Canada (Public Safety and Emergency Preparedness) confirmed the this right should be interpreted generously, consistent with mobility rights as stated in art. 12 of the International Covenant on Civil and Political Rights. This right only applies to citizens, and extending it more broadly has been rejected in cases such as Solis v. Canada and Canada (Minister of Employment and Immigration) v. Chiarelli.

The Court in Divito succinctly explained the right as follows,

[18] …There are three rights found in s. 6(1) : the right to enter, remain in, and leave Canada….

The Court also confirmed in United States of America v. Cotroni; United States of America v. El Zein that the main purpose of this provision is to prevent against exile and banishment, but extends beyond those powers as well. The reasonable limits in the Charter saved the government action in this case, and would likely apply in a similar manner during the pandemic if quarantines and discouraging travel prove ineffective.

The other provisions in s. 6 relate to inter-provincial travel, but this applies to both citizens and permanent residents. Limitations have also been provided on these rights in several cases, for example related to the definition of residence for social benefits in Irshad (Litigation Guardian of) v. Ontario (Minister of Health).

One province responded to the pandemic by restricting domestic travel across its border. The Chief Medical Officer of Health of Newfoundland and Labrador issued two orders pursuant to s. 28(1)(h) of the Public Health Protection and Promotion Act.

When the province denied a resident of Nova Scotia to attend the funeral of her mother in Newfoundland, she challenged this action in Taylor v Newfoundland and Labrador on the basis that it infringed her s. 6 Charter mobility rights.

Although this was not an administrative review of the health decision, the court found that s. 6(1) mobility rights included the right to move within Canada,

[356] Canada is a unified federation, not a series of republics. We are one people with one common country. The right to traverse Canada thus gives Canadian citizenship its true meaning and prevents artificial barriers from being erected between the provinces (Malartic, at para. 40). In this manner the country may not be “converted into a number of enclaves and the ‘union’ which the original provinces sought and obtained disrupted.” (Rand, J. in Winner, at para. 119, as quoted with approval in Black).

The fleeting infringement on her mobility rights, as she was allowed to enter after a few days, was still justified by s. 1. There was a very obvious pressing and substantial objective of promoting health, which was rationally connected to evidence provided that travel restrictions were an effective means of containing the spread, as explained by the Chief Medical Officer of Health for the province,

The intent of the travel restrictions was not to prevent people from returning to the province if they were unemployed, intending to work in Newfoundland and Labrador, or returning to take care of a loved one. The intent is to prevent those that do not need to travel to Newfoundland and Labrador during the pandemic. The travel ban will help prevent the unnecessary spread of the disease by tourist or seasonal vacationers that may be carrying the virus from entering the province by controlling importation. Furthermore, travel itself is a high-risk activity for the transmission of COVID-19. Non-essential travel places Newfoundland and Labrador at greater risk of those unknowingly carrying the virus to the province as well as those unknowingly catching the virus while travelling to the province.
[emphasis in the original]

After reviewing some of the alternatives, this was also minimally impairing, in that it may have created mental anguish to the daughter, but there was a compelling collective benefit to the pollution that must prevail to combat a virulent and potentially fatal disease. Attending a funeral in this case was not an essential reason for travel.

Interestingly enough, the court also found that it was within the province’s constitutional jurisdiction over matters of a local and public nature,

[290] In the public health response to COVID-19 there is plenty of room for both levels of government. Indeed, for the sake of the common good an effective public health response demands the cooperative participation of each.

[291] To this end, amongst other measures, the federal government has used its emergency quarantine power to limit international travel across Canada’s border and to impose restrictions on those who enter.

[292] At the same time, the epidemiology of the disease is different in different areas of the country. Local variations in geography, population vulnerability, health care capacity, resources (human and monetary) and COVID-19 prevalence in the jurisdiction, as compared to other jurisdictions, have necessitated localized responses to the control of the virus. The decision of this province to do so by restricting the domestic travel of persons across its border is quintessentially a local response to a local situation. Put another way, the challenge posed by COVID-19 has both a national and local dimension, and the localized dimension does not admit of a national response. In responding to the pandemic the federal government cannot be all things to all people.

This finding is crucial, especially in light of some premiers attempting to blame the federal government for any increase in cases due to international travel. It is also an issue that will likely be examined in other similar cases launched elsewhere in Canada, invoking s. 6 rights.

Outside of these cases, Canadians who choose to travel internationally and return for non-essential reasons need to be actively discouraged from doing so, even if the law does not prevent them from doing so. The government’s messaging in this regard is deliberately encouraging, and referred to as advisories. Without these decisions, we risk the health of all Canadians.

When it is the politicians, who are the ones responsible for making these rules and setting the examples for all Canadians, that are travelling internationally for non-essential reasons, those unnecessary risks to the public are even more concerning. That is not a legal consideration, but it certainly is a moral and ethical one.

Daisy Fancourt explains in The Guardian,

Compliance has been one of the most misunderstood and misrepresented concepts of this pandemic. During the first wave of the virus back in the spring, there was concern that a lengthy lockdown would lead to “behavioural fatigue” and diminishing compliance with social restrictions. In fact, “behavioural fatigue” was not a scientific concept but a political one, neither supported by research from previous epidemics nor by data that subsequently emerged from our lockdown… During emergencies, humans are actually primed to act in the collective interest…

But the message from the government about adherence also changed… During lockdown the message on compliance was clear: social restrictions were vital to stop the spread of the virus, so everyone had to play their part; no excuses, no exemptions. But… if you could find a loophole in the rules, it somehow became acceptable (and defensible) to break them. The enemy changed from being the virus itself to being the measures designed to curb the virus…

Trust is crucial, as research has shown that it is one of the largest behavioural predictors of compliance during this pandemic: larger than mental health, belief in the health service or numerous other factors. As humans, we need to trust our authorities if we are to follow what they tell us to do.

Trust in politicians may be a lofty goal, even in non-pandemic times. But it is in those times when we experience the most difficult challenges that we expect that leadership rise to meet those majestic expectations. They don’t even have to travel far to do it.

Comments

  1. If it is true that in times of crisis people show their true colours/colors. Can we fault our politicians for revealing their authentic selves?

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