A recent Federal Court ruling may make it more difficult for Canadian government officials to cancel someone’s NEXUS trusted traveler card for a minor infraction.
Federal Court Judge John Norris ruled late last month that the revocation of a Montreal man’s membership in the NEXUS Trusted Traveler Program for failing to declare some of the money that ‘he was carrying was unreasonable. Norris overturned the decision to cancel the card and ordered the matter to be “referred for reconsideration by another decision maker”.
Lawyer Cyndee Todgham Cherniak, who has argued the case, said the ruling means it now takes more than a small mistake for a person to lose a NEXUS card and the travel privileges that come with it.
“This will be critical because people make mistakes,” said Todgham Cherniak, lawyer at Toronto law firm LexSage. “People make minor mistakes at the border. They had no intention of making a mistake and they shouldn’t have their NEXUS card withdrawn.
Jacqueline Callin, spokesperson for the Canada Border Services Agency (CBSA), said the agency would not appeal the decision.
The CBSA estimates that 1.4 million of the 1.7 million NEXUS cardholders are Canadian citizens or permanent residents. Each year, hundreds of NEXUS cards owned by Canadians and Americans are revoked.
The case in question stems from an incident at Montreal airport in October 2019. Paul Abou Nassar, a frequent international business traveler, was waiting to board a flight to Vienna for a trip to China. When an officer from the Canada Border Services Agency approached him and asked him how much money he was carrying, Nassar said he had US $ 6,000.
When the officer asked to count the money, it totaled US $ 7,736 – which, considering the exchange rate at the time, totaled C $ 10,100.12. Under Canada’s rules on proceeds of crime, money laundering and terrorist financing, travelers must declare if they are carrying cash valued over $ 10,000.
The officer searched Nassar’s bag and found a € 1,450 envelope that Nassar said he left on a previous trip.
While there is no reason to suspect that the cash was the proceeds of crime or would be used to finance terrorism, the officer seized the money. The officials then returned the money to Nassar and fined him $ 250 for not reporting all the money he was carrying.
The agent seized Nassar’s NEXUS card and a month later learned that his NEXUS membership had been canceled. The notice informed Nassar that he had[traduction]”Violates the laws of the Customs and / or Immigration program” and was no longer eligible for the program, which requires members to be of good character.
Nassar demanded that the decision be reconsidered, saying it was “an honest mistake and oversight.” While the senior program adviser who reviewed the decision reduced Nassar’s period of ineligibility to two years from six, he did not overturn the revocation.
The judge said the currency violation alone was not enough to justify the dismissal and the adviser’s decision did not explain why Nassar’s violation of the rules meant he had the wrong one. morality required for the NEXUS program.
“More specifically, it was up to the decision maker to explain why an isolated and honest error by the applicant caused them to lose confidence that the applicant would comply with the program requirements in the future,” Norris wrote.
Todgham Cherniak said NEXUS cards are revoked more often than people realize.
“It’s a common occurrence,” she says. “People make mistakes at the border. They are not filling out their cards correctly. They are tired. They press the wrong buttons on the computer. “
Todgham Cherniak said she knew of cases where someone’s card was revoked because his wife had a muffin in her purse, because they forgot to report a minor purchase, or because the agent didn’t believe in the price someone actually paid for something.
Vancouver immigration attorney Richard Kurland agrees that some NEXUS card cancellations were arbitrary. He cited an incident in Toronto where someone’s card was canceled because sesame seeds on a bagel were a technical violation of Canadian agricultural rules.
Until now, Kurland said, CBSA officers had “full power and authority” to remove someone’s NEXUS card.
“Until then, the game was over if you were a NEXUS cardholder,” he said. “As a result of this case, you now have a real legitimate appeal and the right to be assessed so that you can retain the privileges of your NEXUS card. “
Kurland said those whose cards had been revoked for minor violations may reapply in light of the ruling.
“Attach a copy of the Federal Court decision or explain what happened the first time around and show that it is isolated, honest and not part of a pattern of conduct. “
Elizabeth Thompson can be reached at [email protected]