Immigration of a virus: Protecting health of Canadians at the border
Wednesday, February 05, 2020 @ 12:39 PM | By Carrie Wright and Jacqueline Bart
There are a number of ways that the executive branch of Canada’s government could institute a similar travel ban. In the immigration context, pursuant to s. 87.3 of the Immigration and Refugee Protection Act (IRPA), the minister of Immigration, Refugees and Citizenship has the authority to issue ministerial instructions refusing to process applications from foreign nationals who have lived in, travelled to or transited through a country affected by a communicable disease, such as those issued in October 2014 after the outbreak of the ebola virus.
However, in this case, Canada has chosen not to do so, electing to follow the advice of the World Health Organization not to impose travel restrictions on people from China.
Nevertheless, the Canadian government also recognizes its obligation to protect the health and safety of Canadians. There are various ways that entry of potentially infected persons are limited under both immigration and public health legislation, without resorting to a travel ban.
Medical inadmissibility under IRPA
Immigration officers are empowered by IRPA to prohibit entry to persons when, on a balance of probabilities, they are believed to pose a threat to the health of the Canadian public, pursuant to s. 38(1)(a) of the IRPA.
In conducting this assessment, s. 31 of the Immigration and Refugee Protection Regulations (IRPR) requires an offer to consider: a) any health or lab reports; b) the communicability of any disease that the foreign national is affected by or carries; and c) the impact that the disease could have on people living in Canada. Based on these factors, and the current knowledge available about the coronavirus, a positive diagnosis of the coronavirus on a medical examination would very likely be considered sufficient to support a finding of medical inadmissibility.
However, not all foreign nationals seeking temporary entry to Canada require a medical examination before entering Canada. Canada Border Services Agency (CBSA) officials are therefore also responsible for ensuring that those seeking entry at the port of entry are properly screened for potential medical inadmissibility.
Officers who are concerned about an individual’s admissibility can: require an individual to report for a medical examination as a condition of entry; consult with a health specialist and, where appropriate, refer the individual for a medical assessment or provide an opportunity for the person to withdraw their application; or, if absolutely necessary to complete an examination or if an officer believes that the person is an immediate public health or safety risk, an order to detain the person and an inadmissibility report may be issued.
Powers of CBSA officers under Quarantine Act
CBSA officers are also designated as screening officers under the Quarantine Act, administered by the Ministry of Health, to monitor the entry of persons at a Canadian port of entry who may present a danger to public health.
Travellers are required to answer any relevant questions and provide any available information to a screening officer and advise if there is reason to believe that they may have a communicable disease or have been in close proximity to a person with a communicable disease. CBSA officers can also take any “reasonable measure” for the purposes of preventing the introduction and spread of a communicable disease.
When a CBSA officer has reasonable grounds to suspect that a traveller has or might have a communicable disease or has recently been in close proximity to such a person, they must notify a quarantine officer (a designated medical professional) immediately, who will determine whether a traveller requires a full health assessment or a medical examination.
If, after a health assessment or a medical examination, a quarantine officer has reasonable grounds to suspect that the traveller has or might have a communicable disease or has recently been in close proximity to such a person, the quarantine officer can order the traveller to report to the public health authority, or comply with a treatment or any other measure to prevent the introduction and spread of the disease. Failure to comply can result in the issuance of an arrest warrant or detention, directing a peace officer to arrest the traveller and take them to a quarantine officer.
The lack of a travel ban does not imply that Canada is not taking its obligation to protect the health of its public seriously. Canada already has mechanisms in place that are used on a daily basis to prevent the introduction and spread of infectious diseases, and specific policies have been put in place utilizing these mechanisms to limit the spread of the coronavirus in Canada. No mechanism, not even a travel ban, can prevent the spread of a disease, but Canada’s existing structures can ensure that the risk to Canadians remains low.
Carrie Wright and Jacqueline Bart are partners at BARTLAW LLP Canadian Immigration. They can be reached at firstname.lastname@example.org or 416-601-1346.
Photo credit / Dr_Microbe ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.