Introduction

We previously reported on the COVID-19 testing requirement applicable to international passengers flying to Canada from another country (the “Air Testing Requirement”). We also reported on the recent changes to the Air Testing Requirement.

On February 9, 2021, Prime Minister Trudeau announced that a similar pre-entry COVID-19 testing requirement would be implemented at land ports of entry along the Canada-United States border, as of February 15, 2021. Once implemented, all travelers who wish to enter Canada through a land port of entry will be required to present evidence of a negative COVID-19 test performed on a specimen collected within 72 hours of entry (the “Land Testing Requirement”).

As in the case of the Air Testing Requirement, the Land Testing Requirement will not replace Canada’s existing COVID-19 travel restrictions or its 14-day self-quarantine requirement, both of which were previously implemented pursuant to the Quarantine Act. Rather, it will function as an additional layer of protection intended to support the preventative measures that are currently in place.

Specific details relating to the Land Testing Requirement have not been made available yet. However, it is expected that a new or revised Order-in-Council, issued pursuant to Section 58 of the Quarantine Act, will be published shortly.

Application and exemptions

Although specific details are not yet available, Prime Minister Trudeau indicated that the Land Testing Requirement would apply to travelers engaged in non-essential travel, such as returning “snowbirds.” Although Canada is effectively closed to non-essential (i.e., optional or discretionary) travel at this time, as a result of due to its existing COVID-19 travel restrictions, Canadian citizens and permanent residents may still enter by right, regardless of their reason for travelling abroad. 

On February 5, 2021, Public Safety Minister Bill Blair confirmed that the Land Testing Requirement would not apply to truckers, in order to ensure that supply chains, essential services, and support for critical infrastructure were not affected. However, he did not mention any other exemptions.

Nevertheless, it is logical to assume that the same exemptions recognized for the purposes of the Air Testing Requirement will also likely apply at the land ports of entry.  Although some exemptions are specific to air travel, the following exemptions will likely be recognized for the purposes of the Land Testing Requirement as well:

1. Children under the age of five;
2. A person or any person in a class of persons who, as determined by the Chief Public Health Officer (appointed under the Public Health Agency of Canada Act), will provide an essential service, if the person complies with any conditions imposed on them by the Chief Public Health Officer to minimize the risk of introduction or spread of COVID-19 (asymptomatic members of the Canadian Armed Forces (“CAF”) returning from mission essential travel are exempt from the Air Travel Requirement, as long as they adhere to the alternative testing and oversight measures required by CAF);
3. A person permitted to work in Canada as a provider of emergency services under Paragraph 186(t) of the Immigration and Refugee Protection Regulations and who enters Canada for the purpose of providing those services;
4. An emergency service provider, including a firefighter, peace officer, or paramedic, who returns to Canada after providing emergency services in a foreign country and who is required to provide their services within the first 14 days following their return to Canada;
5. An official of the Government of Canada or a foreign government, including a border services officer, immigration enforcement officer, law enforcement officer, or correctional officer, who is escorting individuals travelling to Canada or from Canada pursuant to a legal process such as the deportation, extradition or international transfer of an offender;
6. An official of the Government of Canada, the government of a province or a foreign government, including a border services officer, immigration enforcement officer, law enforcement officer or correctional officer, who:
   1. Enters Canada for the purposes of border, immigration or law enforcement, or national security activities, that support active investigations, ensure the continuity of enforcement operations or activities, or enable the transfer of information or evidence pursuant to or in support of a legal process, and
   1. Is required to provide their services within the first 14 days following their arrival in Canada; or
7. A person or any person in a class of persons whose presence in Canada, as determined by the Minister of Health, is in the national interest, if the person complies with any conditions imposed on them by that Minister to minimize the risk of introduction or spread of COVID-19.

Acceptable COVID-19 tests

In order to comply with the Air Testing Requirement, passengers must provide evidence of a qualifying COVID-19 molecular test; a complete list of accepted molecular tests can be found here. The list includes the following commonly-utilized COVID-19 tests:

1. Polymerase chain reaction (“PCR”); or
2. Reverse transcription loop-mediated isothermal amplification (“RT-LAMP”).

The less accurate antigen test (commonly known as a “rapid test”) is not considered a qualifying test for the purposes of the Air Testing Requirement. 

Although details regarding the Land Testing Requirement are not yet available, it is virtually certain that the same list of qualifying COVID-19 molecular tests used for the purposes of the Air Testing Requirement will apply at the land ports of entry as well. 

Required evidence

As we previously reported, the Air Testing Requirement was recently amended. Air travelers can now provide evidence that they have received either:

1. A negative result for a COVID-19 molecular test that was performed on a specimen that was collected no more than 72 hours before the aircraft’s initial scheduled departure time; or
2. A positive result for such a test that was performed on a specimen that was collected at least 14 days and no more than 90 days before the aircraft’s initial scheduled departure time.

In his February 9, 2021 announcement, Prime Minister Trudeau stated only that travellers crossing the land border would be required to show evidence of a negative COVID-19 test. He did not mention a positive test that was performed on a specimen collected 14 to 90 days prior to seeking entry. However, it seems likely that the Land Testing Requirement will also recognize this alternate evidence, since it is already considered acceptable for air travel. 

Consequences of non-compliance

Any foreign nationals who do not comply with the Land Testing Requirement will be refused admission to Canada. However, as mentioned above, Canadian citizens and permanent residents enter Canada by right.

Canadian citizens and permanent residents may still be prevented from boarding a flight to Canada from another country. In fact, the Air Testing Requirement requires airlines to refuse boarding to Canadian citizens and permanent residents who are unable to provide evidence of a qualifying COVID-19 test result. 

Of course, as Prime Minister Trudeau stated in his announcement, Canadian citizens and permanent residents cannot be denied entry to Canada at a land port of entry, because they are already on Canadian soil at that point. As a result, Canadian citizens and permanent residents who do not comply with the Land Testing Requirement will still be admitted to Canada at a land port of entry.

Nevertheless, Prime Minister Trudeau indicated that a Canadian citizen or permanent resident who fails to comply with the Land Testing Requirement could be subject to “severe penalties,” including fines of up to $3,000.00 CAD per person. He also indicated that new measures would be implemented to ensure extensive follow up by Health Canada, in order to ensure that travelers are being tested and complying with self-quarantine requirements.