Canada: What Canadian Corporate Counsel Should Know About The NEXUS Program

Last Updated: June 8 2016
Article by Cyndee Todgham Cherniak

Many Canadian corporate counsel are members in the NEXUS Program and rely on their NEXUS Membership Card to by-pass long airport security lines (on international and domestic flights) and to use shorter lines at customs clearance. The NEXUS Membership Card is a valuable asset because it saves time.

The article canvasses some of the issues about which in-house counsel should know:

1. Know The Rules

The NEXUS Program has 4 main Rules:

Rule 1 – Don't breach the rules of the program (e.g., do not use a NEXUS lane if you are traveling with people who do not have a NEXUS Membership, always bring your passport, do not use the NEXUS lane if you have commercial goods, etc.).

Rule 2 – Know all customs and immigration laws and never make a mistake.

Rule 3 – Do not get arrested, charged or convicted of anything.

Rule 4 – Let the Canada Border Services Agency ("CBSA") look at/in your computer, iPhone, Blackberry, smart phone, briefcase, wallet, suitcase, etc. if asked. The CBSA has authority under Subsection 99(1) of the Customs Act to examine any "goods" imported by a traveler. The term "goods" is defined in the Customs Act to include "any document in any form".

2. Don't Get Complacent About the Rules

However, when travelers get complacent, things can go wrong. For example, if a traveler declares an amount that is lower than the value of the goods purchased and acquired abroad (which includes gifts, promotional items given at conferences or meetings, the soaps and coffee from hotel rooms, etc.), then the CBSA may take the position that there has been a contravention under subsection 12(1) of the Customs Act. If a traveler returns to Canada with a carton of cigarettes (and a few left over in an unfinished packages and indicated he/she did not exceed his/her exemption limit, the CBSA may take the position that the person underreported or made a false statement. This often happens when travelers return with more alcohol than the amount permitted or when the business travel did nto exceed 48 hours. When a NEXUS traveler makes a mistake, the CBSA will raise the level of penalty on the basis that the NEXUS Cardholder should know all the rules and should know better.

3. No One is Entitled By Law To Be Accepted Into NEXUS

Since the NEXUS Program is discretionary, no person is entitled to be accepted into the NEXUS Program. The rules relating to eligibility are set out in the Presentation of Persons (2003) Regulations, SOR 2003/323, as amended (the "Regulations"). The Regulations do not set out rules of entitlement and do not say if a person meets certain conditions, he/she will automatically be accepted into the NEXUS Program. The Minister of Public Safety and Emergency Preparedness (Canada) (the "Minister") and the U.S. Secretary of Homeland Security may reject any application for any reason.

4. Once Accepted into NEXUS, the Minister Cannot Revoke A Membership Without Reasons

Once a person has been accepted into the NEXUS Program and is authorized to present himself/herself using alternative methods of reporting, the Minister (or a CBSA officer, as the Minister's delegate) should not revoke NEXUS authorization unless the individual has breached section 22 of the Regulations or the rules of the NEXUS Program.

Section 22 of the Regulations states that the Minister may suspend or cancel a NEXUS authorization if a person (a) no longer meets the requirements of the authorization; (b) has contravened the Customs Tariff, the Export and Import Permits Act, or the Special Import Measures Act, or any regulations made under any of those Acts, or (c) has provided information that was not true, accurate or complete for the purposes of obtaining an authorization.

There are also rules of the NEXUS Program (such as, all persons in a vehicle must have NEXUS memberships if the driver uses the NEXUS lane, do not use NEXUS (lane or kiosk) if commercial goods are to be declared, etc.).

That being said, a person may have a disagreement with a CBSA officer and the officer may exercise his/her discretion to cancel a membership. If the person believes that the officer does not have a legal basis for cancelling a NEXUS authorization, the person may file an appeal with the CBSA NEXUS Program Redress Committee. However, if the basis for the cancellation relates to an infraction of any border law, the underlying infraction must be appealed and overturned before the NEXUS appeal will be considered. A request for a decision may be filed with the CBSA Recourse Directorate pursuant to the Customs Act. The appeals processes takes time and the individual cannot use the expedited customs clearance while the appeal in under consideration.

5. After A NEXUS Program Membership is Cancelled, An Individual May Be Sent To Secondary CBSA Inspection More Frequently

Individuals complain about the extra screening more than any other consequence of NEXUS cancellation/revocation, including the inconvenience and wasted time in secondary CBSA inspection (which can take hours). In a business climate where time is money, there is a cost to not having a valid NEXUS card.

Individuals who have committed a border law contravention are flagged in the CBSA database for extra screening. The individual will not know when he/she will be selected by the CBSA for secondary inspection. This is how the CBSA keeps travelers honest.

6. If An Individual's NEXUS Membership Is Cancelled for Canada-US, the Individual May Not Be Accepted in the Canada-UK Registered Traveler Program

Canadians are now being accepted in the UK Registered Traveler Program, which is like the NEXUS Program. However, I have clients who have not been able to successfully apply to the UK Program due to a contravention on their record.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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