Court rules NEXUS cards can't be cancelled for minor rules infractions

A recent Federal Court decision could make it more difficult for Canadian government officials to cancel someone's NEXUS trusted-traveller card for a minor infraction.

Federal Court Justice John Norris ruled late last month that revoking a Montreal man's membership in the NEXUS trusted traveller program for neglecting to declare some of the cash he was carrying was unreasonable. Norris set aside the decision to cancel the card and ordered that the matter be "remitted for reconsideration by a different decision maker."

Lawyer Cyndee Todgham Cherniak, who pleaded the case, said the ruling means it now takes more than a minor error for someone to lose a NEXUS card and the travel privileges that come with it.

"That's going to be critical because people make mistakes," said Todgham Cherniak, a lawyer with the Toronto law firm LexSage. "People make minor mistakes at the border. They didn't intend to make a mistake and they shouldn't have their NEXUS cards taken away."

The Canada Border Services Agency (CBSA) does not plan to appeal the Federal Court decision.

"The Canada Border Services Agency is reviewing the ruling and will take it into consideration in the regular assessment of the program," said spokesperson Rebecca Purdy.

The CBSA estimates that 1.4 million of the 1.7 million NEXUS card holders are Canadian citizens or permanent residents. Each year, hundreds of NEXUS cards belonging to Canadians or Americans are revoked.

The case in question stems from an incident at Montreal's airport in October 2019. Paul Abou Nassar, a frequent international business traveller, was waiting to board a flight to Vienna for a trip to China. When a Canada Border Services Agency officer approached him and asked him how much cash he was carrying, Nassar said that he had $6,000 US.

When the officer asked to count the money, it totalled $7,736 US — which, given the exchange rate at the time, added up to $10,100.12 Cdn. Under Canada's Proceeds of Crime, Money Laundering and Terrorist Financing rules, travellers have to report if they are carrying cash worth more than $10,000.

The officer searched Nassar's bag and found an envelope with 1,450 Euros that Nassar said he had forgotten from a previous trip.

Although there was no reason to suspect the cash was the proceeds of a crime or would be used to finance terrorism, the officer seized the money. Officials later returned the money to Nassar and fined him $250 for not reporting all of the cash he was carrying.

The officer seized Nassar's NEXUS card and a month later he learned his NEXUS membership had been cancelled. The notice informed Nassar that he had "contravened customs and/or immigration program legislation" and was no longer eligible for the program, which requires that members be of good character.

Nassar asked that the decision be reviewed, 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, they didn't reverse the revocation.

The judge said the currency violation alone was not enough to justify the revocation and the adviser's decision failed to explain why Nassar's breach of the rules meant he lacked the good character required for the NEXUS program.

"Specifically, it was incumbent on the decision maker to explain why an isolated, honest mistake by the applicant had caused him 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 said. "People make mistakes at the border. They don't fill out their cards correctly. They're tired. They press the wrong buttons on the computer."

Todgham Cherniak said she knows of cases where someone's card was revoked because his wife had a muffin in her purse, because they forgot to declare a minor purchase or because the officer didn't believe the price someone actually paid for something.

Vancouver immigration lawyer Richard Kurland agrees some NEXUS card cancellations have been arbitrary. He cited an incident in Toronto where someone's card was cancelled because the sesame seeds on a bagel were a technical violation of Canadian agricultural rules.

Up to now, Kurland said, CBSA officers have had "full power and authority" to pull someone's NEXUS card.

"Until this case, it was game over if you were a NEXUS card holder," he said. "Because of this case, you now have a legitimate true appeal and the right to be assessed so that you can maintain your NEXUS card privileges."

Kurland said those whose cards have been revoked for minor violations could reapply in light of the ruling.

"Attach a copy of the federal court decision or explain what happened the first time and show it is isolated, honest and not part of a pattern of conduct."

Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca