On July 19, 2016, the Canada Border Services Agency (“CBSA”) commenced a public consultation process with respect to the eligibility criteria to be applied when assessing “good character” of Trusted Traveler Programs applicants. (See Announcement) As an extension, the CBSA is also looking at when NEXUS membership may be cancelled or revoked as a result of an action that would make a person ineligible for NEXUS membership. The public consultation will take place between July 19, 2016 and August 19, 2016. Any one is permitted to provide comments.
At the end of the consultation process, the Governor-in-Council (the Trudeau Cabinet) will amend the Presentation of Persons (2003) Regulations made pursuant to the Customs Act. The CBSA issued a Notice to Stakeholders in which it proposed the repeal of the term “good character” and possible eligibility criteria that may be inserted as an amendment. The proposed eligibility criteria presented in the Notice to Stakeholders are:
- Failing to provide complete personal information, supporting documents and/or attend interviews with partner law enforcement and intelligence agencies (Royal Canadian Mounted Police/Canadian Security Intelligence Service), if required and associated with the assessment of eligibility and continued eligibility, could lead to the denial of an authorization as the CBSA will not be in a position to conduct all necessary checks and verifications for assessment of eligibility.
- Criminal convictions may render a person ineligible, unless they have received a pardon or record suspension. Indictable offences, or any criminal record of multiple convictions, will render the person ineligible for their lifetime (“lifetime ban”). One summary conviction, or two summary convictions arising out of a single occurrence, will have an ineligibility period of 10 years beginning after the end of the imposed sentence. In addition, convictions in relation to the following border enforcement priorities could result in a lifetime ban:
- drugs and chemical precursors, obscenity and hate propaganda, endangered species, terrorism, kidnapping, child pornography, or trafficking in persons/human smuggling;
- the importation, exportation or trafficking of alcohol and tobacco, currency, firearms and weapons; or
- the exportation of items on the Export Control List. All foreign convictions will be assessed against the current Criminal Code of Canada.
- For pending criminal charges for which a conviction would result in ineligibility, and outstanding criminal warrants, it is proposed that an application be denied until such time as a court decision is made on the charge(s)/warrant(s) or the warrant(s) are expired.
- Contraventions to program legislation (such as legislation and regulations administered or enforced by the CBSA) may result in ineligibility for a period of time for minor infractions or a lifetime ban for major infractions, as identified in policy and outlined in program terms and conditions. Multiple minor seizures within a 10-year period will result in a 10-year ineligibility period and any contraventions in relation to the border enforcement priorities listed above would render the person ineligible forever.
- National security concerns may render a person ineligible if there are sufficient grounds to suspect that the person constitutes a threat to the security of Canada as defined in Section 2 of the Canadian Security Intelligence Service Act. An authorization may be denied, revoked or suspended.
- Other security threats such as war crimes, crimes against humanity, and transnational crime such as trafficking of persons/human smuggling, money laundering, or terrorism financing are also grounds to deny, cancel or suspend an authorization.
- The Immigration and Refugee Protection Act authorizes the Minister of Immigration, Refugees and Citizenship Canada (IRCC) to declare a foreign national ineligible (who is otherwise admissible) to enter Canada for a period of up to three years based on public policy considerations, as outlined in s22.1(1) of the Immigration and Refugee Protection Act. The CBSA is proposing that persons declared ineligible to enter Canada by IRCC will also be ineligible for Trusted Traveller Programs.
- Where a person is required (e.g., by Court order) to surrender travel documents (such as a passport under the Family Orders and Agreements Enforcement Assistance Act), this person will also not be eligible for a NEXUS or FAST authorization (or an existing authorization may be suspended).
These specific high level negative behaviours requirements are an improvement over the present day ambiguous “good character” criteria. The CBSA currently uses the term “good character” to mean whatever it desires in order to justify a revocation/cancellation of a person’s NEXUS privileges. For example, the CBSA Recourse Directorate has suggested that a failure to declare over $10,000 would go to their “good character” even if they are only over by $5.00 (e.g. a person forgot to count coin) and it is the first error . The United States has suggested that a man who does not look through his wife’s purse for a single muffin is not of good character. The United States has suggested that a man with a much younger girlfriend is not of good character (I kid you not). If a CBSA officer disagrees with your characterization and calls you a liar, the officer may take away your NEXUS pass on the basis you are not of good character. I have seen many files that look like an officer having a bad day and using lack of “good character” as a reason to confiscate a NEXUS pass.
If you are interested in providing your views to the CBSA, please send all enquiries and comments regarding these proposed regulatory changes by email by August 19, 2016, 11:59 p.m. EDT to TTPpost-PVFpostes@cbsa-asfc.gc.ca.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at firstname.lastname@example.org. Alternatively, visit www.lexsage.com.