Issue notes: Special Joint Committee on the Declaration of Emergency—Invocation of the Emergencies Act (April 26, 2022)

Impacts of the Emergencies Act on CBSA operations

Prior to the invocation of the Emergency Act and coming-into-force of Emergency Measures Regulations

There were sustained disruptions and threats to trade, Canadians' ability to travel and the health and safety of CBSA employees. In addition to more wide spread outages and disruptions of shorter duration, four key ports of entry (POE) experienced multi-day closures: Ambassador Bridge, Coutts, Emerson and Pacific Highway.

These four POEs together represent approximately close to half of the total volume and value of Canada's commercial imports by land POEs.

Statistics from April 2021 to December 2021

Further, the CBSA did not have the legal authority to deny entry of foreign nationals coming to Canada based on the intent to participate in or facilitate public assemblies which could reasonably lead to a breach of the peace. Imported goods collected to support prohibited assemblies could not be detained at the border as their importation was not prohibited under the Criminal Code.

Results of the Emergency Act invocation and coming-into-force of the Emergency Measures Regulations

Removing of blockades and securing infrastructure

The Emergency Measures Regulations (EMR) expanded the authorities of police of jurisdiction and other authorized persons to secure and protect critical infrastructures such as POEs including onto roads leading into border crossings to prevent, disrupt and remove blockades.

A significant number of police actions targeted convoys seeking to blockade a POE. The existence of the EMR for use by police may have served as a deterrent for those planning to participate in the prohibited assemblies.

CBSA officers were not engaged in law enforcement activities that extended beyond their existing authorities at the POE.

Preventing entry

The CBSA required a specific and transparent authority to prohibit foreign nationals from entering Canada based solely on an intention to participate in or facilitate prohibited assemblies.

The new authorities allowed the prohibition on entry of foreign nationals who were seeking to participate in prohibited public assemblies and resulted in automatic imposition of conditions requiring compliance with regulations made under the EA on all temporary residents.

While the Regulations were in effect, the CBSA prohibited entry to has two foreign nationals under this authority. In addition, the public announcement of the EMR may have had a deterrent effect on some foreign nationals that would have otherwise travelled to participate in prohibited assemblies.

While no goods were detained while the EA was in effect, the Regulations enabled CBSA officers to detain goods that were collected in support of the prohibited assemblies and imported contrary to the Criminal Code.

Removal of the Emergency Measures Regulations authorities

On February 23, 2022, the declaration of a public order emergency was revoked and all authorities granted under the EMR ceased to have effect.

Although there continued to be minimal activities observed near some POEs after the EMR was revoked, there were no further impacts to POE operations and regular business resumed.

There have been no impacts to POE operations since the closure of the Pacific Highway POE on February 19, 2022.

Border management

Proposed response

The CBSA is mandated to facilitate the flow of legitimate people and goods, and also has a responsibility to protect its employees and facilities.

The CBSA works with police of jurisdiction to mitigate risks and threats to buildings, offices, travellers and its employees.

From the end of January to early March 2022, there were sustained disruptions and threats to commercial trade, Canadians' ability to travel and the health and safety of CBSA employees.

In addition to more wide spread outages and disruptions of shorter duration, four key border crossings experienced multi-day closures: Ambassador Bridge, Coutts, Emerson and Pacific Highway. These four crossings together represent close to half of the total volume and value of Canada's commercial imports by land ports of entry.

All ports of entry have now returned to normal processing, with the last remaining measures to secure trade corridors and port of entry accesses lifted on March 13, 2022 at the Ambassador bridge.

The declaration of a public order emergency under the Emergencies Act provided authority to CBSA officers to refuse entry to foreign nationals arriving in Canada who intended to facilitate or participate in a prohibited assembly.

Additionally, the Criminal Code prohibits the importation of goods obtained or derived from the commission of an offense, and under the Emergency Measures Regulations, it was an offense to collect goods in support of unlawful demonstrations. CBSA officers had the authorities to detain such goods.

Background

On February 14, 2022, the federal government declared a public order emergency. The Emergency Measures Regulations came into force on February 15, 2022. On February 23, 2022, the declaration of a public order emergency was revoked and all authorities granted under the Emergency Measures Regulations ceased to have effect. Furthermore, operational guidance to border services officers (BSOs) clarifying authorities under the Emergency Measures Regulations was rescinded on the same day.

The Emergency Measures Regulations gave BSOs additional legislative authority to prevent foreign nationals from entering Canada for the purpose of participating in or facilitating prohibited public assemblies. As a result of these new authorities, a total of two foreign nationals were prohibited from entry by the CBSA while the Regulations were in force.

There were some limited exemptions to prohibiting entry. These were for specific classes of foreign nationals, including people registered under the Indian Act, and people protected under the Immigration and Refugee Protection Act. In addition, the Ministers of Immigration and Citizenship and Public Safety also had authority to grant exemptions to persons whose presence in Canada was in the national interest. No such Ministerial exemptions were given during the period when the Emergency Measures Regulations were in force. The invocation of the Emergencies Act did not change BSOs' existing authorities under the Immigration and Refugee Protection Act.

Ports of entry (POE) are secured as well as controlled areas. It is an offence to hinder the ability of a BSO while they carry out their work. In addition, anyone who creates a risk of imminent death or serious bodily harm to another person while wilfully or recklessly contravening the Emergencies Act or its regulations could be fined up to $1,000,000, imprisoned up to 3 years, or both.

During the Emergencies Act period, the Agency monitored changes in demand at identified alternate POEs and allocated resources, adjusted staffing levels and hours of service when needed at these POEs to minimize processing times and potential delays. This also allowed for the safety and security of the public and employees while supporting the continuous flow of legitimate goods and people.

Border impacts due to protest activity

Proposed response

On January 28, 2022, the CBSA began to experience significant impacts at some critical ports of entry as a result of protest activities and blockades resulting from the Freedom Convoy 2022 movement and its supporters.

Due to these activities, the CBSA issued Border Alerts to advise clients and stakeholders of service disruptions at four ports of entry: Pacific Highway in British Colombia, Coutts, Alberta, Emerson, Manitoba, and Ambassador Bridge in Windsor, Ontario.

These service disruptions caused major impacts to our country's ability to maintain critical supply chains. Operations resumed at all four ports of entry (POEs), the last one being Emerson, Manitoba, which began to see cross-border traffic on February 16, 2022.

The CBSA continuously monitors its operations and is ready to respond, with police of local jurisdiction if necessary, to any events impeding operations at ports of entry.

CBSA POEs are secure controlled areas that act as a shield for preserving border integrity. POE access must be blocked from anyone who is not seeking to cross the border.

As CBSA POE operations are dependent on the security of their access routes via highways, airports, rail and marine ports, it will be important in the future to ensure that the multiple jurisdictions (for example, provinces, municipalities, port authorities, law enforcement) have the tools and authorities readily available to ensure access routes remain open.

If pressed on CBSA authorities while the Emergencies Act was in effect

In response to the disruptions and their impacts, new Emergency Measures Regulations came into effect on February 15, 2022 under authority of the Emergencies Act. The Regulations were repealed on February 23, 2022.

The temporary regulations authorized CBSA officers to refuse entry to any foreign national entering Canada for the purpose of participating in or facilitating a prohibited public assembly.

In addition, any foreign national who was found to participate in such activities in Canada, and who was referred to the CBSA by local police, would have been subject to immigration enforcement.

CBSA officers were properly equipped with a number of existing and new authorities, including the Immigration and Refugee Protection Act, Customs Act, the Emergency Measures Regulations and the Quarantine Act Orders in Council to deny access to Canada to all foreign nationals who wish to disrupt our supply chains and economic recovery.

Background

On January 15, 2022, provisions of the COVID-19 Orders in Council (OIC) came into force which require mandatory vaccination for commercial truck drivers crossing the border. In response to these OICs, a protest movement began to emerge in Ottawa, which then spread to other key locations and port of entry (POEs) across Canada. These activities have had significant impacts to Canada's supply chains.

Protests at or near CBSA POEs caused significant operational impacts, particularly at the Coutts, Alberta, Emerson, Manitoba, and the Ambassador Bridge POEs. As a result of these protest activities, the following POEs were temporarily closed:

On February 14, 2022, the federal government declared a public order emergency. The Emergency Measures Regulations came into force on February 15, 2022. On February 23, 2022, the declaration of a public order emergency was revoked and all authorities granted under the Emergency Measures Regulations ceased to have effect. Furthermore, the Operational Bulletin to border services officers (BSO) clarifying authorities under the Emergency Measures Regulations was rescinded on the same day.

Under the EMR and their application, when examining foreign nationals seeking entry to Canada, the CBSA was authorized to prohibit entry to those entering Canada to participate in or facilitate a prohibited public assembly. At the POE, those foreign nationals would have been refused entry and directed back to the United States. In Canada, foreign nationals who were identified and referred to the CBSA by police for contravening the Emergencies Act would have been subject to appropriate immigration enforcement, including removal from Canada.

Under the EMR, BSOs at primary encountering foreign nationals entering Canada for the purposes of participating in public assemblies were instructed to refer such persons to secondary for confirmation of their eligibility to enter Canada. Guidance was provided to BSOs on the prohibition on travel by foreign nationals contained in the regulations. BSOs exercised these authorities on two occasions, prohibiting entry to two foreign nationals who returned to the United States.

BSOs were also instructed to exercise enhanced vigilance and closely examine travellers to ensure the requirements issued by the Public Health Agency of Canada under the Quarantine Act were met and individuals were seeking to enter Canada for a lawful purpose.

The CBSA, in concert with law enforcement partners and in close consultation with United States Customs and Border Protection at the local and regional levels, adjusted operations as the threat environment changed. The CBSA embedded management representatives within the law enforcement incident command structure where activities were underway or planned. The CBSA shared all available intelligence with its partners and took the appropriate steps to enhance vigilance at POEs through increased examinations and increasing physical security of offices.

Although all of the CBSA's impacted POEs have now re-opened, the CBSA continues to adjust operations as the threat environment changes in collaboration with law enforcement partners and in close consultation with U.S. Customs and Border Protection at the local and regional levels.

The CBSA embedded management representatives within the law enforcement incident command structure where unlawful protests were underway or were planned. The CBSA shared all available intelligence with our partners and took the appropriate steps to enhance vigilance at POEs through increased examinations and increased physical security of offices.

The CBSA strengthened its collaboration with other public safety partners and continued working with its law enforcement partners to manage the impacts of the prohibited assemblies on the international movement of travel and trade. There remains an ongoing vulnerability at our highest risk POEs.

In order to prevent those engaging in unlawful assemblies from hindering international trade, the CBSA and local officials took concrete steps to harden POE operations and the associated trade corridors leading to and from them. This included deployment of temporary infrastructures security measures as needed based on the threat environment.

In addition to authorities under the Immigration and Refugee Protection Act, the Customs Act, the Criminal Code and the previous EMR while it was in effect, CBSA officers have regulatory authorities to administer the current Orders in Council (OICs) made pursuant to section 58 of the Quarantine Act. The OICs prohibit all non-exempted foreign nationals from entry to Canada if they do not meet the definition of fully vaccinated persons, which includes requirements to undergo suitable pre-arrival COVID-19 testing, and, in many cases, on-arrival or in-Canada testing. Foreign nationals entering from the United States who are so prohibited from entry pursuant to the OICs are immediately directed back to the United States.

Current COVID-19 border measures

Proposed response

The Government continues to refine its border measures to help Canada transition towards a more sustainable framework for long-term management of COVID-19 at our borders.

On April 1, 2022, Canada will remove the pre-entry test requirement for fully vaccinated travellers. Pre-entry testing requirements are not changing for partially-vaccinated, or unvaccinated travellers who are currently permitted to enter Canada.

These new changes are in addition to the changes that took effect on March 1, 2022 that include allowing the use of rapid antigen tests, under certain parameters, to satisfy pre-arrival testing requirements for those who require a negative test for entry.

The adjustments to Canada's border measures are made possible by a number of factors, including Canada's high vaccination rate, the increasing availability and use of rapid tests to detect infection, and growing domestic availability of treatments for COVID-19.

Background

The Government of Canada's phased approach to easing border measures was developed to meet specific public health criteria and is based on scientific evidence and the public health situation in Canada and around the world.

Changes on April 1, 2022

On March 17, 2022 the Government of Canada announced that pre-arrival tests would no longer be required for fully vaccinated travellers. Pre-entry testing requirements are not changing for partially-vaccinated or unvaccinated travellers who are currently allowed to travel to Canada.

Unless otherwise exempt, all travellers 5 years of age or over who do not qualify as fully vaccinated must continue to provide proof of an accepted type of pre-entry COVID-19 test result:

• a valid negative antigen test, administered or observed by an accredited lab or testing provider, taken outside of Canada no more than one day before their initially scheduled flight departure time or their arrival at the land border or marine port of entry
• a valid negative molecular test taken no more than 72 hours before their initially scheduled flight departure time or their arrival at the land border or marine port of entry
• a previous positive molecular test taken at least 10 calendar days and no more than 180 calendar days before their initially scheduled flight departure time or their arrival at the land border or marine port of entry

Changes on March 1, 2022

Starting on March 1, 2022, a series of changes to Canada's border measures came into effect.

Allowing Rapid Antigen Testing as an accepted form of pre-arrival COVID-19 testing

Travellers required to present a negative COVID-19 test result will now have the option of using an antigen test result (taken the day prior to their scheduled flight or arrival at the land border or marine port of entry) or a molecular test result (taken no more than 72 hours before their scheduled flight or arrival at the land border or marine port of entry).

Unless otherwise exempt, all travellers 5 years of age or older must provide proof of an accepted type of pre-entry COVID-19 test result:

• a valid negative antigen test result taken the day prior to their scheduled flight or arrival at the land border or marine port of entry
• a valid negative molecular test result taken no more than 72 hours before their scheduled flight or arrival at the land border or marine port of entry
• a previous positive molecular test result taken at least 10 calendar days and no more than 180 calendar days before entering Canada

To be valid, the COVID-19 antigen test must be authorized by the country in which it was purchased and must be administered by a laboratory, healthcare entity or telehealth service.

Whether using molecular or antigen tests, travellers must continue to attest in ArriveCAN that they have proof of a valid test result in their possession and must present a copy to air carriers and to border services officers upon request.

A negative COVID-19 test (molecular or antigen) or positive COVID-19 molecular test must be verified by airlines to board a plane to Canada. Travellers who fail to provide proof will be denied boarding, regardless of their nationality.

Foreign nationals who arrive at the border without the valid information may be denied entry. Travellers with right of entry would be allowed to enter Canada but may face a fine.

Mandatory randomized testing for fully vaccinated arrivals from all countries

Fully vaccinated travellers arriving to Canada from any country will not need to take a COVID-19 molecular test on arrival, unless selected for mandatory randomized testing.

If selected for mandatory randomized testing, travellers will not be required to quarantine while awaiting their test result.

Modified quarantine for children under 12 who aren't fully vaccinated and are travelling with vaccinated adults

Children under 12 years old who are not fully vaccinated, travelling with fully vaccinated parents and other eligible adults, or have a medical contraindication to vaccination, will continue to be exempt from quarantine, without any prescribed conditions limiting their activities.

Children will no longer be subject to additional conditions. This means, for example, they no longer need to wait 14 days before attending school, camp or daycare. They will also no longer be subject to testing and other specific requirements, regardless of their vaccination status.

These children may be selected for mandatory random testing upon arrival; however, they will not be required to quarantine while awaiting the Day 1 test result.

Parents should also check with local public health authority, school or daycare on additional post-travel requirements. Many jurisdictions across Canada have recently reduced their isolation and quarantine periods. If there is a discrepancy between federal requirements and those outlined by your province, territory or community, you are required to follow to the more stringent requirement.

National Interest Exemptions

The Minister of Public Safety has extended National Interest Exemptions from the prohibition on entry for the following cohorts of travellers who would otherwise fall under the new measures, until March 31.

• Fully-vaccinated foreign national crew members (including truck drivers) who failed to provide mandatory information through ArriveCAN
• US Customs and Border Protection (CBP) Officers who are unvaccinated or failed to submit mandatory information through ArriveCAN and are transiting through Canada to their place of work or a work location (this cohort will also require an NIE quarantine and on arrival testing)
• Unvaccinated persons who enter Canada, for the purpose of transiting to and from Alaska for non-discretionary purposes