Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canadians Living In Border Cities at Risk for NEXUS Pass Confiscations

Many Canadians who live in border cities (such as Windsor, Niagara Falls) are more likely to have a NEXUS pass.  Many Canadians who live in border cities work in the United States and travel back and forth across the border on a daily basis.  Given that individuals are human and humans make mistakes, the Canadians who travel more frequently are more likely (merely due to frequency of cross border travel) to be randomly selected for a secondary inspection by the Canada Border Services Agency (“CBSA”). Canadians who live in border cities and have NEXUS privileges are at risk of having their NEXUS pass confiscated if they forget to declare U.S. goods in their vehicle (whether it is a gift or a purchase).

I have received more calls recently from individuals living in border cities who have had a NEXUS pass confiscated for a failure to declare goods within their $50 daily exemption limit.  The Windsor-Detroit tunnel/Ambassador Bridge and the Rainbow Bridge border crossings are common ports of entry for the application of a zero-tolerance policy.  Any little mistake is treated as an infraction.  This is why I declare a half eaten chocolate bar.

The CBSA have indicated they have a zero tolerance policy and may confiscate a NEXUS pass for even the most minor failure to declare goods.  I have seen that the CBSA has confiscated a NEXUS pass for as little as a failure to declare the purchase of $13.00 worth of goods.  This person works in the United States and after a long day with a mind full of other things had a momentary memory lapse that he/she picked up an inexpensive item that day.

I have seen the CBSA confiscate a NEXUS pass for a failure to declare a tank of gas ($75.00) purchased near the border.  This person works in the United States and was almost out of gas on his/her way home and filled up on the U.S. side to avoid running out of gas in a border line up.

There does not seem to be a reasonable approach at the border in some cases.  Travelers are not given the benefit of the doubt by the border officer.   The border officer does not look to see whether a person has a history of reporting and paying duties and taxes (there is an assumption that they have breached customs laws regularly and were finally caught).  The goods are seized, higher levels of penalties are imposed because the NEXUS pass holder is a “trusted traveler” who has breached the CBSA’s trust, and the NEXUS pass is confiscated.

The traveler is informed that he/she may file an appeal of the penalties and the confiscation of the NEXUS pass.  However, there is little guidance available on how to file an appeal, what is the process, and how long will it take.

The process is:

1)      The traveler must appeal the penalty within 90 days of the seizure and penalty.  This letter goes to the CBSA Resource Directorate in Ottawa; and

2)      The traveler must appeal the confiscation of the NEXUS pass by writing to the NEXUS program in Fort Erie within 30 days of a letter from the NEXUS program concerning the confiscation of the NEXUS pass (but they cannot provide an answer until the Recourse Directorate finishes its review).

The CBSA Recourse Directorate will send a letter acknowledging receipt of the appeal (actually called a request for redetermination).  The Recourse Directorate will obtain the border officers’ reports (usually the primary officer and the secondary officer who seized the goods write reports).  The Recourse Directorate will provide a preliminary view and the border officers’ reports to the traveler/appellant and allow them an opportunity to file additional information (usually within 30 days).  If the traveler/appellant sends additional information, the Recourse Directorate may make a decision based on that information or may provide it to the primary and secondary officers for additional comments.  If the primary or secondary officer writes a supplemental report, the Recourse Directorate may provide it to the traveler/appellant for additional comments. So, it may take four letters to fully present your side of the story.  Based on my experience, this process may take as little as a few weeks or longer than a year – there is no way to speed up the process (besides being quickly to respond to requests for information and providing complete information about customs compliance history).

If the Recourse Directorate allows the appeal, it is common that the NEXUS program will return the NEXUS pass because the customs infraction is overturned.  However, there have been cases where the NEXUS program does not overturn the confiscation.  If the Recourse Directorate reduces the penalties but continues to take the position that a customs law has been broken, the NEXUS program can go either way.  If the Recourse Directorate does not allow the appeal and does not reduce the penalty, there is a very low probability that the NEXUS privileges will be reinstated.

I have seen individuals in NEXUS purgatory for over 6 years.  Even after 6 years, the CBSA has rejected applications for the reissuance of a NEXUS pass.  While the time between secondary inspections may lengthen, the computers still have the record of the customs infraction.

My recommendation is to be organized and report purchases. Pay duties and taxes on overages and keep those records to show customs compliance if and when you have a memory lapse.  When you buy something, put a post-it note on your NEXUS pass to indicate you have something to declare.  Keep declaration forms in your car and fill them out when you purchase anything outside Canada.   If you cannot remember the value of the goods, DO NOT guess – say you forget and have to look at the receipt. 

If you get into trouble for failure to declare and your NEXUS privileges have been taken away, seek legal advice.  I have seen too many draft letters (and actual letters sent to the CBSA) that are not written well.  Many letters complain about the CBSA officers’ actions and do not explain the momentary memory lapse. Some letters restate the accusation of the officer rather than focussing the factual evidence on a history of compliance.

For assistance, please call Cyndee Todgham Cherniak at 416-389-8999.

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