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What Are The Penalties For Violating The Closed U.S.-Canada Border Protocols During The COVID-19 Crisis?

 

On March 11, 2020, the World Health Organization declared that the COVID-19 outbreak was officially a pandemic as rates of infection rose significantly in the U.S. and across the world.  On March 13, 2020, President Donald Trump declared a national emergency in the United States.  Many other nations did the same including Canada, our neighbor to the north.  Beginning March 21, 2020, the United States and Canada agreed to close the border between their two nations for all but essential travel.  This closure has been extended several times by mutual agreement since then, most recently until September 21, 2020.  As the COVID-19 pandemic continues to rage and intensify, there appears to be no end in sight to the closure.  In fact, a recent July 2020 poll showed that 85% of Canadians want the border to remain closed until the end of the year due to the rise in coronavirus cases in the U.S.

The Canada-United States border is often referred to as the longest undefended international boundary in the world.  There are 5,525 miles of terrestrial frontier shared across land and water, including the Great Lakes region.  Michigan shares 721 miles of that border with the Canadian Province of Ontario, with almost all of it along Lake Superior, Lake Huron, St. Clair River, Lake St. Clair, Detroit River and Lake Erie.  There are a few opportunities to cross into Canada on foot or by motor vehicle at the Ambassador Bridge, Blue Water Bridge or in Sault St. Marie, but any other entry to Canada can be accomplished a short distance over water.

An accidental entry across the international border will not be tolerated.  For example, the Port Huron Float Down in Michigan attracts thousands of people on inflatable vessels or kayaks to float down the St. Clair River for a relaxing summer afternoon of drinking and partying.  In previous years, it was not uncommon for the current to drift several hundred of these “floaters” across the border into Canada, attracting possible arrests and fines due to the requirement to check in with a customs agent upon entry.  The same goes for any Canadians who drift across the international border to the United States without prior approval.  Unauthorized entry into the United States can lead to detainment and substantial fines.  You cannot argue “lack of intent” to get out of a border violation.

With the international border now closed until further notice due to the COVID-19 crisis, here are the penalties for violating the joint agreement between these countries.

UNAUTHORIZED ENTRY INTO CANADA

The government’s ability to restrict entry of foreign persons into Canada due to an outbreak of disease is governed by the Quarantine Act of 2005 passed by the Canadian Parliament.

Section 58 of the Quarantine Act permits the Governor in Council to “make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that:

  • (a) there is an outbreak of a communicable disease in a foreign country;
  • (b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
  • (c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
  • (d) no reasonable alternatives to prevent the introduction or spread of the disease are available.

Section 59 of the Quarantine Act also authorizes the Governor in Council to “make an order prohibiting or subjecting to any condition the importing of anything into Canada or any part of Canada, either generally or from any place named in the order, for any period that the Governor in Council considers necessary for the purpose of preventing the introduction or spread of a communicable disease in Canada.”

Section 71 of the Quarantine Act states that every person who violates Section 58 or 59 “is guilty of an offence and liable on summary conviction to a fine of not more than $750,000 or to imprisonment for a term of not more than six month, or to both.”

In Canada, “summary conviction” offences are less serious criminal crimes that are handled in an expedited manner.  The case is heard in provincial court before a judge and there is no right to a jury.  A person charged of this crime is typically not arrested but is given a notice to appear in court.   A person must be charged with a summary conviction offense within six months of the crime occurring, or else the statute of limitations will lapse, and the violation cannot be authorized.  Since Canada is a foreign country, you cannot bring your lawyer from the United States to represent you unless he or she is permitted to practice law in Canada and is familiar with the rules and procedures.

UNAUTHORIZED ENTRY INTO THE UNITED STATES

The United States also has quarantine laws that can be activated and put into effect to close international borders to prevent the spread of communicable diseases:

  • “Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.” 42 U.S.C. 265.
  • “Any person who violates any regulation prescribed under (42 U.S.C. 265)… shall be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.” 42 U.S.C. §271(a).

A person attempting to sneak into the United States and bypass the requirement to “immediately report his or her arrival and present himself or herself and all articles accompanying them for inspection to the customs officer at the customs facility designated for that crossing point” is liable for a civil penalty of $5,000.00 for the first violation and $10,000.00 for each subsequent violation.  19 U.S.C. §1459(f).  This penalty can be imposed in addition to the fines and imprisonment available under 42 U.S.C. §271(a).

Whether you are an American or Canadian resident, you have a responsibility to be aware of the locations of the international boundary between the two countries and govern yourselves accordingly.  Anyone who navigates the waters near the international boundary on a motor boat, canoe, kayak or even a flotation device must take care to learn the limits of where he or she can go to avoid the unintentional violation of local (or foreign) law.  The consequences are simply too great to toss caution into the wind.

If you have any questions about the U.S.-Canada border closures due to COVID-19 or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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