Internal documents show CBSA scenarios to decide who gets across the border — and who doesn't

Internal documents obtained by CBC/Radio-Canada give insight into how Canadian border officials are deciding who to let into the country —  and who to turn away — during the COVID-19 pandemic.

Several Canadian families have told CBC News of the heartbreak they have experienced being separated due to restrictions at the Canada-U.S. border.

Among them are a young Canadian woman who has to organize the family's move to another city on her own because her American husband was not allowed to enter Canada; a Canadian man in his 50s who suffers from panic attacks and has been forced to live without the support of his American spouse since March 25; and a pregnant Canadian woman whose American husband was banned from crossing the border.

Some Americans have been denied entry at the border even though the Order in Council issued by the federal government on March 26 that was in effect at the time stipulated that immediate family members of Canadian citizens and permanent residents were allowed to enter Canada unless "the purpose of their trip is optional or discretionary, such as tourism, recreation or entertainment."

Internal documents from the Canada Border Services Agency (CBSA) illustrate how border agents arrived at their decisions about what is essential travel and is "discretionary/optional."

62 scenarios

One of the internal CBSA documents contains a list of 62 different scenarios. The fictitious cases are considered plausible to occur at the border and include individual circumstances an officer must take into account when making a decision about who can and cannot cross into the country.

Some of the scenarios involving family reunification have nuances and exceptions: many have the notation "dependent/depends on circumstances." A specific detail can sometimes mean the difference between someone allowed entry into the country or being refused, according to explanations within the document.

Here are some of the scenarios, and the reasons CBSA may or may not allow entry:

• Foreign national coming to Canada to temporarily reside with spouse or immediate family during the pandemic: CBSA says it considers circumstances such as whether the individual is trying to avoid the pandemic in the U.S. or trying to ensure their partner's health and well-being.
• Coming to visit Canadian spouse during days off: CBSA deems this non-essential/discretionary.
• Coming to be a caregiver for a Canadian family member (pregnancy, disabilities or elderly): CBSA says it considers factors such as whether there are other options for caring for the family member.
• Coming to Canada for the birth of a child: CBSA says it takes into account factors such as Canadian hospital restrictions on visitation, which may prohibit a visitor who has travelled outside the country in the past 14 days.
• A spouse or child crossing the border with a truck driver transporting essential goods may be admitted if they have no other way home or if they are a co-driver, but may be turned away if they do have alternate ways to return home.

A lack of clear guidelines can lead to arbitrary decisions, says Negar Achtari, an immigration lawyer in Ottawa who read over the various scenarios.

"Quite a few of these scenarios fall into the 'it depends' category, which means that ultimately the interpretation of the situation is up to the border officer," she said in a French-language interview. "So a person travelling to Canada has no guarantee, cannot know if they are going to be admitted."

She said simple and clear directives are necessary for both border officers and travellers to be able to navigate the current conditions, and she wants family reunification to be recognized as a valid reason for essential travel. 

When contacted by CBC/Radio-Canada, the CBSA did not address the issue of interpretation of the guidelines but said that agents are acting to stem the spread of the virus. 

"Border services officers at Canada's international ports of entry apply additional measures required at the border to prevent the spread of serious communicable diseases in Canada," CBSA wrote in a statement to Radio-Canada.

Possible changes coming

Last week, Prime Minister Justin Trudeau said he was considering easing the rules at the U.S. border to allow immediate family members to reconnect.

WATCH | Trudeau questioned about the U.S border and family reunification

Trudeau questioned about the U.S border and family reunification

5 years ago

Duration 1:45

Prime Minister Justin Trudeau spoke with reporters on Friday.

"We have been looking at ways at perhaps allowing close family members — children, spouses or parents of Canadian citizens or permanent residents — to be able to reunite under strict conditions through a slight modification of the directives for the Canadian Border Services Agency."

However, Trudeau acknowledged that the proposed relaxation of the rules wasn't welcomed by all provinces. 

For now, the Canada-U.S. border remains closed to non-essential travel until June 21.

Read the CBSA's document of sample scenarios for determining entry from the U.S.