08/22/2016 01:20 EDT | Updated 08/22/2016 01:59 EDT

NEXUS And Trusted Traveller Programs Face Possible Overhaul

Sandy Huffaker via Getty Images
SAN YSIDRO, CA-, JUNE 1: A Customs and Border Protection agent checks ID's from motorists crossing into the United States from Mexico at the San Ysidro Port of Entry June 1, 2009 in San Ysidro, California. The Western Hemisphere Iniative (WHTI) was put into effect today at all Canadian and Mexican border crossings where visitors and residents must present an approved travel document when entering the U.S. at any land or sea ports of entry. These travel documents include a U.S. passport or passport card, as well as a Trusted Traveler Card (SENTRI, NEXUS or FAST) or an Enhanced Driver's License. (Photo by Sandy Huffaker/Getty Images)

The Canada Border Services Agency (CBSA) recently announced that it was proposing changes to its Trusted Traveller Programs (TTPs), which include CANPASS, Free and Secure Trade (FAST) and NEXUS. In furtherance of this proposal, CBSA intends to amend the Presentation of Persons (2003) Regulations (the "regulations"), which were implemented under the Canadian Customs Act.

Among other things, CBSA is proposing significant changes to the eligibility criteria. The current regulations only require applicants to be of "good moral character." Unfortunately, this term is not defined and it has sometimes resulted in inconsistent adjudications.

CBSA now wishes to replace the term "good moral character" with more specific eligibility criteria. Under the proposed rules, the following grounds (among others) would render an applicant ineligible to seek a NEXUS card:

  1. Failing to provide complete personal information, supporting documents and/or attend interviews (if required) with the Royal Canadian Mounted Police or the Canadian Security Intelligence Service will render an applicant ineligible.
  2. Unless the applicant has received a record suspension or pardon, one summary conviction (or two summary convictions arising out of a single occurrence) will render an applicant ineligible for 10 years, beginning after the end of the imposed sentence. In addition, an indictable offence (or multiple convictions, other than two summary convictions arising out of a single occurrence) will result in a lifetime ban. Finally, any convictions in relation to the following border enforcement priorities can result in a lifetime ban: (i) drugs and chemical precursors, obscenity and hate propaganda, endangered species, terrorism, kidnapping, child pornography or trafficking in persons/human smuggling; (ii) the importation, exportation or trafficking of alcohol and tobacco, currency, firearms and weapons; or (iii) the exportation of items on the Export Control List. All foreign convictions will be assessed by determining its Canadian equivalent under the Canadian Criminal Code.
  3. In the case of pending criminal charges (which would render the applicant ineligible if a conviction resulted) and any outstanding criminal warrants relating to such offenses, an applicant will be ineligible until a court decision is made on the charge(s)/warrant(s) or the warrant(s) have expired.
  4. Violations of program legislation (such as legislation and regulations administered or enforced by CBSA) can result in ineligibility. For example, multiple minor seizures would result in a ten-year ban and any contraventions in relation to the border enforcement priorities listed above would result in a lifetime ban.
  5. Where a person is required (i.e. by court order) to surrender their travel documents (such as a passport under the Family Orders and Agreements Enforcement Assistance Act), this person will also become ineligible for a NEXUS or FAST authorization (or their existing authorization may be suspended).

It should be mentioned that, although these proposed amendments may be significant for CANPASS or FAST participants, their effect on NEXUS participants may be less so. This is because NEXUS is a joint initiative of the United States and Canada. As a result, failure to satisfy the eligibility criteria of either country renders an applicant ineligible for NEXUS.

The NEXUS eligibility criteria used by United States Customs and Border Protection (USCBP) are already stricter in many ways than CBSA's proposed eligibility criteria. For example, CBSA's proposed criteria still allow an applicant who has been convicted of a criminal offence to remain eligible if they have received a Canadian Pardon or Record Suspension. However, USCBP does not recognize a Canadian Pardon or Record Suspension when considering an applicant's eligibility to participate in NEXUS.

The CBSA announcement states that it plans on updating its internal policies to reflect these amendments soon, long before the regulations are formally amended.

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