The Canada Border Services Agency (“CBSA”) may confiscate, revoke or cancel a NEXUS Membership for a number of reasons, such as (1) a breach of a customs law (e.g., undervaluation or not declaring goods purchased or acquired outside Canada), (2) a breach of an immigration law (e.g., working in Canada without a proper visa), (3) a breach of a NEXUS Program rule (e.g., using the NEXUS lane with a person in the vehicle without NEXUS approval, having commercial goods in a vehicle when you used the NEXUS lane, failure to update information of your NEXUS file after a new passport is issued or you have moved, etc.), (4) a determination of ineligibility (e.g., criminal charges are laid), or (5) a determination that the information of a NEXUS application or renewal is false (e.g., no mention of a past customs violation).
NEXUS Card holders may discover that a “disagreement” with the CBSA upon re-entering Canada results in the immediate (on the spot) confiscation of their NEXUS Membership Card or they may receive a letter in the mail after the fact informing that their NEXUS privileges have been cancelled and they can no longer use their NEXUS Card.
A NEXUS Card is a valuable asset to a business traveler and a desired benefit for a frequent traveler. When a NEXUS Card is cancelled unfairly, the aggrieved individual should appeal. We have helped many people convince the CBSA to reinstate their NEXUS privileges when the CBSA was wrong to end their participation in the NEXUS Program.
An informal and administrative appeal process (called a “review”) has been established in Canada — but it is not a quick process. As a result, until the review is completed and the CBSA reinstates and returns a person’s NEXUS Card, the business person/individual/traveler must use the snail lines (instead of the fast NEXUS automated kiosks).
If your NEXUS pass is confiscated or cancelled by the CBSA. Americans (and U.S. residents) and Canadians (and Canadian residents) are entitled to utilize the regulatory review process contained in the Presentation of Persons (2003) Regulations. According to section 23 of the Regulations, a person must file the request for review within 30 days. However, the CBSA has administratively permitted an extension of that time period to 90 days. The NEXUS cancellation letters attach a notification of the administrative adjustment, which was made because the limitation period for a request for a decision of a seizure under section 129 of the Customs Act is 90 days. If the letter is silent, there was an administrative statement by the CBSA. If you cannot locate it, make sure to file your request for review as quickly as possible.
To request a review, the person whose NEXUS Membership was cancelled writes (or asks knowledgeable counsel to write) a letter to the NEXUS Program via the Recourse Directorate. This letter must include a date of birth, NEXUS Membership Number, passport number or other information to permit the CBSA NEXUS Program to identify the traveler. Can you image how difficult it would be for the CBSA to find the information about John Smith if a NEXUS Membership Number of a specific unhappy John Smith is not provided?
What NEXUS pass holders are not told is that when the NEXUS Membership is cancelled due to a customs infraction or failure to declare currency, they MUST appeal the merits of the “disagreement” (for example, the under-declaration of goods acquired outside Canada) before the CBSA will restate the NEXUS privileges. The CBSA Recourse Directorate must decide that the contravention was not warranted before they will even consider the NEXUS request for a review. There is a statutory scheme for appeals of enforcement actions taken by the CBSA at the border. This process takes time. The appeal on valuation, classification and/or origin issues (called a “request for re-determination”) is filed with the CBSA Recourse Directorate. Generally speaking, the CBSA Recourse Directorate appeal process is objective.
We recently have had a number of successes appealing CBSA enforcement actions taken at the border, such as:
- CBSA accusations that the traveler undervaluation of goods purchased or acquired outside Canada;
- CBSA accusations that a traveler failed to declare goods acquired or received outside Canada;
- CBSA accusations that a traveler failed to declare a luxury purse purchased on a previous trip outside Canada and that had been previously undeclared upon return to Canada;
- CBSA accusations that a U.S traveler to Canada failed to declare goods to be left in Canada;
- CBSA accusations that the traveler presented a false invoice;
- CBSA accusations that a traveler should have declared alcohol purchased at a Canadian duty free store prior to travel to the United States that are returned to Canada;
- CBSA accusations that a traveler was not within his/her exemption for cigarettes or alcohol and failed to check the appropriate box;
- CBSA accusations that a traveler failed to check the right box to declare a pet;
- CBSA accusations that a traveler failed to declare restricted food products;
- CBSA accusations that a traveler failed to report currency over $CDN 10,000;
- CBSA accusations that a person failed to provide truthful information to the CBSA.
Where the appeal has merit, the CBSA Recourse Directorate is generally fair.
If the CBSA confiscates a NEXUS Card on the basis of the above infractions or similar accusations, it is important to file 2 appeals. One appeal is filed with the NEXUS Program and is in respect of the cancellation of the NEXUS privileges. The second appeal is the appeal on the merits of the customs infraction. Consideration of the NEXUS review will be deferred until after the appeal on the merits of the customs enforcement action.
The appeal must set out the facts, details concerning the dispute and the reasons for the appeal. The appeal should include any and all relevant documents concerning the “disagreement”. Evidence is important. For example, if the CBSA has accused the traveler of not declaring goods on a previous occasion, evidence of the prior importation and declaration of the goods is important. This is why individuals should keep receipts and all Casual Goods Accounting Documents (a CBSA document provided by the CBSA cashier after payment) showing payment to the CBSA. What evidence is relevant depends upon the reasons for the NEXUS confiscation.
What you write in a NEXUS request for a review and the appeal of the underlying infraction is very important. How you present your version of the events is important. The seizing officer (that is the CBSA Officer who took the enforcement action against you) will get a copy of your appeal letter and will be allowed to provide comments and additional evidence. So, what is written, how it is written, the words chosen, the tone of the letter, etc. are all very important.
After the appeals are filed, the CBSA, Recourse Directorate will send a copy of the CBSA Officer’s notes on the day in question relating to the “disagreement”. The CBSA, Recourse Directorate will give you 30 days to file additional information after receiving the notes. If your letter of appeal is very divergent from the CBSA Officer’s version of the events, you will have a problem in explaining those differences.
We have noticed that the CBSA Officer’s notes on the day of the “disagreement” may be brief and may be open to interpretation. In some cases, the notes are straight-forward. In some cases the CBSA Officer’s notes are brief and at other times the notes can be a number of pages. In some cases the CBSA Officer’s notes support the travelers version of the events. At other times, the CBSA Officer’s version is very different (and they are not always accurate). In some cases the CBSA Officer makes errors in the notes, which can be used to overturn the enforcement action. If the CBSA Recourse Directorate cannot tell from the CBSA Officer’s notes what happened, the benefit of the doubt will be given to the traveler. We have successfully presented the facts in the original letter that are accepted by the Recourse Directorate where the CBSA Officer’s notes are much less clear. In many cases, the decision comes down to the CBSA Officer’s notes and the additional evidence presented in the appeal letter.
You will have the opportunity to provide comments concerning the contents of the CBSA Officer’s notes. You may need to ask for additional documents from the CBSA. Every case is different and there is not a form letter response. It is important to respond to CBSA Officer’s notes if there is something important to point out to the Recourse Directorate.. Not responding can result in the CBSA Recourse Directorate making an unfavourable decision that the enforcement action was warranted. We have seen many situations where individuals appeal without assistance and not properly respond to correspondence from the CBSA Recourse Directorate in a timely manner.
If the CBSA Recourse Directorate decides that the enforment action is warranted, you will have to file two legal proceedings with the Federal Court:
- A notice of application for judicial review of the NEXUS Membership Cancellation within 30 days of the CBSA Recourse Directorate letter; and
- A notice of action appealing the merits of the enforcement action.
These are expensive and long processes that could result in the judge awarding costs against you. Therefore, it is important to present your best case from the start in the request for re-determination/request for decision and the request for a review.
It is not a simple and quick process to appeal a confiscation of a NEXUS pass. If you require assistance from a lawyer because the NEXUS privileges are important to you, please contact Cyndee Todgham Cherniak at 416-307-4168. More information about NEXUS confiscations and appeals is posted on the LexSage website. Also review our Guidance on “What Can I Do If My NEXUS Card Is Confiscated By The CBSA“.