Last updated on June 1st, 2021
Last Updated on June 1, 2021 by Steven Meurrens
Anyone who travels frequently understands the benefits of NEXUS membership.
At airports, NEXUS members avoid long line-ups and save time using automated self-serve kiosks at eight designated Canadian international airports. The wait-times are much less than they are for non-NEXUS passengers. As well, NEXUS members are expedited through Canadian Air Transport Security Authority airport security screening lanes. This is the case even on domestic flights.
Those crossing the US-Canada border by land enjoy a quick and simplified entry process using dedicated lanes. Wait-times are generally a fraction of what they are for non-NEXUS members. It is not uncommon for the NEXUS lane(s) to be empty while the non-NEXUS lanes have wait-times exceeding one hour.
If you’ve never heard of NEXUS, you should read more about it on the CBSA website here.
Considering all the benefits which membership in NEXUS provides, it is understandable why people whose NEXUS membership applications are rejected often seek recourse, as do people who lose their NEXUS.
Regulation 6.1 of the Presentation of Persons (2003) Regulations, SOR/2003-323 provides that:
NEXUS program (air, land and marine)
6.1 The Minister may issue an authorization that is recognized in both Canada and the United States to a person, other than a commercial driver, to present themself in the alternative manners described in paragraph 11(a), subparagraph 11(d)(ii) and paragraph 11(e) if the person
(a) meets the requirements set out in paragraphs 5(1)(a) to (f), subject to subsection 5(2);
(a.1) [Repealed, SOR/2015-83, s. 7]
(b) has their eligibility to obtain an American authorization to present themself on arrival in the United States in the alternative manners described in paragraph 11(a), subparagraph 11(d)(ii) and paragraph 11(e) confirmed by the United States Department of Homeland Security; and
(c) provides a copy of their fingerprints and consents in writing to their use by the Minister for the purposes of identifying the person and performing background and criminal record checks on them.
(d) [Repealed, SOR/2006-154, s. 4]
Regulation 5(1) provides that:
5 (1) The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a) if the person
(i) a citizen or permanent resident of Canada,
(ii) a citizen or permanent resident of the United States, or
(iii) a citizen of another country and the following conditions are met:
(A) the person is a member of a program in that country that allows for an alternative manner of presentation to facilitate or expedite entry into that country, and
(B) Canada has a reciprocal arrangement with that country, entered into under paragraph 13(2)(a) of the Canada Border Services Agency Act, in respect of the alternative manner of presentation;
(b) is of good character;
(c) is not inadmissible to Canada under the Immigration and Refugee Protection Act or its regulations;
(d) provides their consent in writing to the use by the Minister of biometric data concerning the person for the purposes set out in section 6.3;
(e) has provided true, accurate and complete information in respect of their application for the authorization; and
(f) subject to subsection (2), has resided only in one or more of the following countries during the three-year period before the day on which the application was received and until the day on which the authorization is issued:
(i) Canada or the United States,
(ii) if the person is serving as a member of the American armed forces in a foreign country, that foreign country,
(iii) if the person is a family member of a person who is a member of the Canadian or American armed forces serving in a foreign country, that foreign country, or
(iv) if the person is a family member of a person who is serving at a Canadian or American diplomatic mission or consular post in a foreign country, that foreign country.
First Level Recourse Statistics
In 2011-12 (excluding Q4), there were 614 First Level Recourse appeals of NEXUS membership rejections. The cases were broken down as follows:
- Customs – 253
- Criminal – 158
- Immigration – 85
- Program Violations – 27
- Other – 91
Of the 614 cases, 118 were overturned. This 19% success rate represented a slight decline from the 2011 success rate of 22%.
Second Level Recourse Statistics
In 2011-12 (excluding Q4), there were 44 Second Level Recourse appeals of NEXUS membership rejections. The cases were broken down as follows:
- Customs – 17
- Criminal – 11
- Immigration – 6
- Program Violations – 6
- Other – 4
Of the 44 cases, 14 were overturned. This 31% success rate represented a slight decline from the 2011 success rate of 38%.
Why Are Overturns Successful?
There are several reasons why an initial decision by an officer to either reject an applicant’s membership in NEXUS or an officer’s decision to revoke an individual’s NEXUS card might be overturned. These include:
- Further analysis determining that there was no immigration violation. For example, under the NEXUS Strict Standard Policy, immigration violations must be recorded in the FOSS database for an individual to be denied membership in NEXUS;
- Seizure appealed successfully, therefore no customs violation (for this reason NEXUS appeals often occur concurrently with Customs Act violation appeals);
- Member inadvertently used NEXUS lane with a non-member passenger (this is very fact-driven”);
- Offence did not equate to a criminal conviction. For example, under the NEXUS Strict Standard Policy, a crime which is ten-years old prosecuted summarily does not necessarily result in a NEXUS violation;
- Client/member was acquitted of crime; and
- Applicant was listed as an associate on seizure, not principal.
Past Actions and Good Character
In Nassar v. Canada (Public Safety and Emergency Preparedness), 2021 FC 378, the Federal Court addressed the issue of whether non-compliance with NEXUS requirements should automatically lead to a determination that someone does not meet the good character requirement of NEXUS membership. Justice Norris held that it did not, noting that:
While past behaviour can be a reliable predictor of future behaviour, this is not always the case. People can and will change their behaviour in response to any number of different factors. All of the circumstances must be considered when determining how probative past behaviour is for how someone will behave in the future.
In the present case, after everything that has happened as a result of the mistake he made on October 28, 2019, one might expect the applicant to be much more careful in the future. There may still be a reasonable basis for the Senior Program Advisor to lack confidence that, in the future, the applicant would comply with all the requirements of the program but it was incumbent on him to explain what this was. The Senior Program Advisor had to explain why, despite the fact that it would be reasonable to expect the applicant to be much more careful about complying with the PCMLTFA and other laws relating to travellers in the future, he nevertheless lacked confidence that the applicant would do so. He had to provide at least some explanation of how he linked the applicant’s past behaviour to his future behaviour through the assessment of his character. There may be an explanation that provides a reasonable basis for the Senior Program Advisor’s conclusion but he did not provide it. Once again, it is not the Court’s role to speculate as to what it might be.