Ontario man fined $3.8K at land border crossing amid confusion over who's 'essential'
'Regular pattern of travel' now needed for cross-border travel to be deemed essential
As the head of a construction company that operates primarily in the U.S., Ron Rousse of Belle River, Ont., has had no issues crossing the Windsor-Detroit border for work, even during the pandemic.
But that changed Tuesday when he was fined $3,755 for failing to comply with the federal Quarantine Act.
Rousse, president of Roumann Construction Company, which is currently building a new grocery store in Michigan, says he normally crosses through the Windsor-Detroit Tunnel about once every two weeks — working from home whenever he can.
Tuesday marked his first trip across since new rules were implemented, requiring non-essential land travellers entering Canada to provide proof of a negative COVID-19 test.
The fine confused Rousse. He thought he was an essential worker and thus exempt.
But Rousse — who holds an E-2 visa allowing him to enter the U.S. for business purposes — was told by an officer with the Canada Border Services Agency (CBSA) that he was non-essential because he doesn't cross every day.
He says he was then pulled into secondary screening, where he was met by two officials with the Public Health Agency of Canada (PHAC) who backed up the officer's reasoning.
"That was the only reason given multiple times — that you're not essential because you don't cross every day," Rousse said.
He says he was given two options: get a test in the U.S. and return with a negative result, or quarantine in a Toronto hotel for two weeks.
"I refused because, in my mind, I'm an essential worker," he told CBC News. "I need to run my business in the United States."
Though construction workers may be considered essential, it's less clear whether that would apply to a higher-up like Rousse.
He says he was issued the $3,755 ticket by PHAC and sent on his way.
'Explicitly stated'
In a statement to CBC News, the CBSA said its officers "do not have the discretion" to exempt travellers from quarantine or testing, and that all rules are "explicitly stated within the Order in Council."
Frequency of crossing, it said, now affects whether one is exempt.
"The traveller must cross the border regularly to go to their normal place of employment and demonstrate a regular pattern of travel, which is generally defined as daily or weekly. The nature of their work does not impact this assessment."
PHAC says failure to present the required negative test result can lead to a $3,000 fine or criminal prosecution.
With "applicable victim fine surcharge and costs," Rousse's fine amounted to $3,755, PHAC said in a statement to CBC News.
In Rousse's case, going back to be tested and wait for the results would have added up to two days to what was intended to be a four-hour work visit.
WATCH | Definition of 'essential' confusing for many, lawyer says:
"What they are essentially requesting is to go over, get your test as soon as you cross the border, stay in a hotel for two nights and then come back with your negative test result," he said.
The federal government has, from the outset, posted definitions of essential work and essential travel, but this marks the first time that frequency of travel has mattered.
Not an isolated incident
Laurie Tannous, a lawyer and special adviser for the University of Windsor Cross-Border Institute, says since Monday, she's received about "15 to 20 calls" from various businesspeople who have faced situations similar to Rousse's.
"Everything seemed to be upended on Monday, and there were a series of incidents where Canadian citizens were refused entry for not having a negative PCR test on hand, although they were essential workers," Tannous said, adding that the CBSA's rationale was the same in all incidents.
WATCH | Rousse says fine was 'incorrect and immoral':
"The various officers at the ports advised these individuals that because they were not regular border-crossers, they would not be able to enter without having to go into quarantine."
This has caused a significant amount of "chaos and confusion" across all sectors, Tannous said.
She says the information disclosed to the public about what constitutes an essential worker is far too unclear. She says many companies consider certain of their employees to be essential — even if they aren't needed every single day or week.
Tannous says if the purpose of the rules is to limit the risk of COVID-19 crossing over from the U.S. into Canada, putting restrictions on some essential workers and not others could actually have the reverse effect and increase possible exposures.
"People are now saying, 'I'm going to go into the U.S every day to make sure that my permit is valid,'" she said. "It is counterintuitive if we're trying to prevent these border-crossers."
Rousse says his issue isn't whether he broke the rules but that the rules have changed and not been made clear.
"This whole thing was to stop leisure and to stop travel.... I've got employees depending on me," he said. "This has gone from regulating the traveller to attacking essential workers."
Rousse says he can afford to pay the fine, but he's acquired legal counsel to fight it so others don't go through the same hardship.
"There are multiple business owners in Windsor, some smaller, some larger, that are going to need access to their companies — and they're doing essential work in the United States," he said.
If crossing the border continues to be a problem, Rousse says he'll consider moving to the U.S. temporarily so he can continue running his business.
"You're preventing essential workers from making a living," he said. "We all need to put food on the table. We need to pay our bills. We need to work."
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