Last Updated on January 1, 2014 by Steven Meurrens
As I have previously written about in this blog, there are numerous benefits to being a member in the NEXUS program. Membership in NEXUS enables people to save time through the use of automatic self-serve kiosks at airports, designated lanes at the land border, and expedited security procedures at airports. Indeed, on November 13, the Canadian Air Transport Security Authority started a pilot project featuring a new, expedited screening line for NEXUS members at the security screening checkpoint for flights to the U.S. in Terminal 1 at Toronto Pearson International Airport. NEXUS members who participate in this pilot are permitted to keep shoes, belts and light jackets on and leave laptops, large electronics, and compliant liquids, aerosols and gels in carry-on bags.
For many people, one of the frustrating things about the NEXUS program is that the Canada Border Services Agency (“CBSA“) website is very vague as to what may cause Canada to refuse someone’s NEXUS application. It states:
Canada’s Presentation of Persons (2003) Regulations, SOR/2003-323 (the “PoP Regulations“) are also not clear as to what may disqualify someone from being able to enrol in NEXUS. The Regulations state:
6. The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a), (b), (c) or (e) if the person:
(i) a permanent resident, within the meaning of the Immigration and Refugee Protection Act, or a Canadian citizen, or
(ii) a citizen or permanent resident of the United States;
(iii) [Repealed, SOR/2005-385, s. 6]
(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) has resided only in one or more of the following countries during the three-year period preceding the day on which the application was received:
(i) Canada or the United States, or
(ii) if the person is a citizen of Canada or the United States and is serving at a Canadian or American diplomatic mission or consular post in a foreign country, that foreign country.
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 6(a) to (f);
(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 ofidentifying the person and performing background and criminal record checks on them.
(d) [Repealed, SOR/2006-154, s. 4]
When I applied for my NEXUS membership, I wanted to certainty as to whether I qualified, and what exactly “good character” meant. The use of the word “may” on the CBSA website also puzzled me. I contacted the CBSA to enquire on the matter. Eventually, prior to me having to submit an Access to Information Act request, a very helpful CBSA officer provided me with a copy of the CBSA’s NEXUS Strict Standard Policy (the “NEXUS Policy“). The officer asked that I not publish the NEXUS Policy on this blog, and, I complied.
It appears that I was not alone in my confusion.
According to a recent In Focus on the CBSA website, the Standing Joint Committee for the Scrutiny of Regulations has requested greater clarity regarding the “good character” provision found in the PoP Regulations. The SJC has raised an issue with the term “good character” due to its ambiguity. As a result, the CBSA has developed a comprehensive list of eligibility criteria to be included in the PoP Regulations, which it is seeking feedback on. They largely mirror what currently already exists in the NEXUS Policy.
The new PoP Regulations will confirm that a NEXUS applicant cannot have a criminal conviction originating from within or outside of Canada. Exemptions include where an applicant has been pardoned and if they have been granted criminal rehabilitation by Citizenship and Immigration Canada in the case of criminal convictions outside of Canada.
The CBSA website further states that:
The policy intent on exemptions to having no criminal record or having a pardon is:
- A summary conviction or two summary convictions arising out of a single occurrence if five years have elapsed
- An indictable conviction punishable by less than 10 years if 10 years have elapsed
- An indictable conviction punishable by more than 10 years = lifetime ban
- Repeated convictions (except if two summary convictions arising out of a single occurrence) = lifetime ban
- Exception to the above: whether a summary or an indictable conviction, if related to border enforcement priorities = lifetime ban
- The period of time to elapse begins at the completion of the imposed sentence (e.g. time served, and/or end of probation, and/or payment of fine, etc.).
- As done when assessing admissibility to Canada, for the purposes of assessing eligibility to a TTP, foreign criminal conviction(s) will be equated with appropriate Canadian offences.
In cases of pending criminal charge(s), for which a conviction could result in ineligibility, or outstanding warrant(s), the Regulations would state that applications may be put on hold until a decision is made by a Court or until, in the case of outstanding warrant(s), they are no longer valid.
Compliance with program legislation:
The CBSA website states:
The CBSA administers and enforces more than 90 Acts, Regulations and international agreements on behalf of other government departments, also known as “program legislation” as identified in the Canada Border Services Agency Act. The new criteria would state that applicants must adhere to all provisions administered and/or enforced by the CBSA in the program legislation; however, depending on the nature/seriousness of an infraction, the enforcement action that resulted, or the length of time that has elapsed, the applicant may still be eligible to join a TTP.
For example, a seizure for lack of compliance with the Customs Act will require a period of six years to have elapsed before an applicant can be eligible for membership in any TTP.
Furthermore, if there are reasonable grounds to suspect that an applicant may be suborned to commit an act or to assist or abet a person to commit an act contrary to the provisions of program legislation administered and/or enforced by the CBSA, the Regulations would specify that the applicant may be ineligible for membership in a TTP.
That the Regulations (and hopefully the CBSA’s NEXUS website) will finally confirm that a Customs Act seizure violation will not affect NEXUS eligibility after six years is a welcome development, and will remove much uncertainty regarding program eligibility.
Not surprisingly, if there are reasonable grounds to suspect that an applicant made be involved with or associated with one or more of the following activities, the applicant will be ineligible for NEXUS membership:
- Terrorism; or
- Espionage and/or subversion; or
- War crimes and crimes against humanity; or
- Criminal organizations – organized or not; or
- Transnational crime such as smuggling and/or trafficking of persons and/or goods; or
- Money laundering and/or terrorism financing.
Finally, the CBSA website states:
In certain legal proceedings, a Court may order the surrender of an individual’s passport so that they cannot travel outside of the country. As NEXUS and FAST membership cards can sometimes be used as travel documents in lieu of a passport, to avoid conflict with such an order, if an applicant has a Court order to surrender his/her travel documents, he/she may be deemed ineligible for membership in the NEXUS or FAST programs.
A Note on the Americans
In reviewing the above, it is important to note that both Canada and the United States must approve NEXUS applications. There are slight variations in how each country determines admissibility (especially regarding criminality) that applicants should be aware of.
[UPDATE – DECEMBER 2, 2014]
The CBSA is once again seeking to update the regulations on largely the same terms as above.