Temporary Border Travel Restrictions – Details Announced as Canadian and US Governments Seek to Protect the Cross-Border Supply Chain

On March 16, 2020 the Canadian government announced that it would be closing the border to all non-residents and non-Canadians. The closure included a few exemptions, including an exemption for nationals of the United States. This led to speculation that a deal was being negotiated between Canada and the United States to close the border to at least certain types of travel.

Mid-week, this rumour was confirmed by the Canadian and US governments. Details of the plan were not announced, only that it would bar “non-essential” travel, and would go into effect on Friday, March 20, 2020 at midnight. The measures will be in place for 30 days, at which point they will be reviewed by both parties.

The Canadian and US governments issued a joint statement about the restriction, and certain further details about the agreement have since been released in an as-yet unpublished US Customs and Border Patrol rule. Official publication of the rule is scheduled to occur on March 24, 2020.

The Travel Restriction

At its essence, the deal consists of a ban on all “non-essential travel” between the two countries. The primary focus of the initiative is to restrict discretionary travel rather than restrict or strictly define essential travel. As Deputy Prime Minister Chrystia Freeland described it, they have taken a “negative list” approach by identifying travellers who are not permitted to cross the border, rather than those who are. Those travelling for tourism, leisure, or recreational reasons are not considered to be travelling for essential purposes. Accordingly, such travel is prohibited.

As contemplated by the two countries, essential travellers include but are not limited to:

• citizens and residents of the other country returning to their home;
• individuals travelling for medical purposes (that is, for procedures in the other country);
• individuals travelling to attend educational institutions (although we note that many universities have begun to cancel terms or switch to entirely online delivery models);
• individuals travelling to work in the other country (especially those individuals travelling to work in farming or agricultural industries);
• those travelling for emergency response/public health purposes (for example first responders crossing the border to provide emergency care);
• cross-border trade in goods (including truck drivers and rail freight conductors and staff);
• government and diplomatic personnel on official duties; and
• individuals engaged in military-related travel or operations.

In addition, travel across the border on reserve lands will continued unimpeded.

Neither the Canadian nor the US government has released any details regarding potential supplemental testing, self-isolation, or quarantine procedures that will apply to personnel engaged in trade across the border. However, companies should consider it likely that all truck drivers and rail freight personnel will be asked to self-isolate for up to 14 days following any trip across the border (with possible exemptions for persons continuing to be involved in the transport of goods back and forth across the border).

Finally, the Prime Minister of Canada has also announced that the parties have reached a temporary arrangement that effectively amends the safe third country agreement regarding refugees and asylum claimants. The impact of this agreement is to temporarily extend the agreement to the entire border, rather than being restricted to official ports of entry. As such, the Canadian authorities are turning back any migrant attempting to cross at a non-official entry point. According to a statement from the office of the Minister of Public Safety, persons attempting to cross the Canada-US border through irregular means will be detained by the RCMP and brought to the Canada Border Services Agency for processing, whereupon they will be returned to the United States Customs and Border Patrol.

Impact

The most important takeaway from the joint measures is that the careful work of the Canadian and US governments reflects their attempt to ensure that trade will continue to flow between the two countries during a closure of the border to discretionary traffic. The Canada-United States trade relationship is incredibly strong, and most companies on both sides of the border have highly integrated supply chains that could collapse if there was a full closure. By refraining from adopting a knee-jerk reaction to immediately close the border (as some have called for), both governments are seeking to keep this vital economic lifeline open while taking protective measures to battle the spread of the COVID-19 virus.

The partial closure of the world’s longest land border was always going to take incredible effort, collaboration and coordination as between the Canadian and US governments. This is all the more true given the volume of trade in goods that crosses the border daily, especially given the potential need to ship medical supplies, protective equipment and devices across the border (by way of example, Canada imports approximately 75% of its medical devices from the United States). Notably, although a number of other countries around the world – 24 nations to date – have implemented export controls on COVID-19-related equipment and supplies, no such controls have been announced as between Canada and the United States.

For businesses, there is as yet no immediate legal change for trade-related travel. However, we will continue to monitor the situation and provide updates if and when any further restrictions or documentation requirements are released.