We have seen cases where the Canada Border Services Agency (“CBSA”) has taken away a Canadian citizen’s NEXUS card due to non-essential travel by the individual. In particular, where the Canadian citizen traveled by car to the United States for what the CBSA determined to be non-essential reasons, the CBSA officer at the land border crossing confiscated the person’s NEXUS card and the NEXUS membership was subsequently cancelled.  In both cases that we have recently seen, the Canadian citizen lived in Canada and worked in the United States.

The Government of Canada has imposed restrictions on foreigners traveling to Canada for non-essential reasons (e.g., shopping, vacationing, visiting family or a cottage), but has not passed any regulation prohibiting Canadians from traveling.  That being said, all levels of government in Canada (federal, provincial and municipal) have recommended that Canadians avoid foreign travel unless it is necessary. In other words, it in not illegal to travel during COVID-19 lock downs, it is merely not recommended.  Canadians returning to Canada after foreign travel (including the United States) must quarantine for 14 days.

Based on the current wording of the Presentation of Persons (2003) Regulations, the CBSA has no basis to revoke a NEXUS membership for reasons of non-essential travel.  The CBSA, acting as a delegate for the Minister of Public Safety and Emergency Preparedness, has authority under subsection 22(1) of of the Presentation of Persons (2003) Regulations to cancel or suspend a person’s NEXUS membership for the following limited reasons:

If the person

(a) no longer meets the requirements for the issuance of the authorization;

(b) has contravened the Act, the Customs Tariff, the Export and Import Permits Act or the Special Import Measures Act, or any regulations made under any of those Acts; or

(c) has provided information that was not true, accurate or complete for the purposes of obtaining an authorization.

Since there is no law prohibiting travel, the CBSA must be taking the position that the person no longer meets the requirements for issuing a NEXUS membership. Subsection 6.1(1) of the Presentation of Persons (2003) Regulations sets out the NEXUS eligibility requirements.  Paragraph 6.1(1)(a) and 5(1)(b) requires that the person be “of good character”, which is not a defined term.  What this means is that the CBSA must be taking the position that a Canadian who travels for non-essential purposes is not “of good character”.

We do not agree with the CBSA if this is their position.  Canadians and residents of Canada (and other persons who are otherwise eligible for NEXUS) may file an appeal of a NEXUS confiscation by the CBSA if the reason for the confiscation is that they have traveled during COVID-19 restrictions. Pursuant to section 23 of the Presentation of Persons (2003) Regulations, a person may request a review of a NEXUS confiscation/cancellation/suspension.

If you would like to file a NEXUS Request for Review, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. LexSage has posted many articles about NEXUS appeals on its website.

Here is a list of some of the articles:

How do I get my NEXUS Card reinstated when it is cancelled by the CBSA?

Can the CBSA confiscate my NEXUS Card if they smell cannabis in my car?

If you give the CBSA an incorrect value for a new puppy, it will be a costly mistake

What are the Top 10 Reasons for CBSA NEXUS Card Cancellations in 2020?