Proposed Amendments to Regulations Affecting Trusted Traveller Programs - What Could This Mean For Future Applicants?

On July 19, 2016 the CBSA issued a notice to its stakeholders to propose amendments to the trusted Traveller program. Here's a brief overview of the notice:

To strengthen the integrity of the CBSA's Trusted Traveller Programs, the CBSA is conducting a public consultation to make the following amendments to the Presentation of Persons (2003) Regulations under the Customs Act:

  • Provide specific eligibility criteria to replace the "good character" provision found in the Regulations to provide a stronger legal basis to reject an applicant or cancel an existing membership.
  • Clarify the three-year residency requirement for Canadian/U.S. permanent residents.
  • Specify what goods are allowed or prohibited for members using Trusted Traveller Programs services.
  • Outline circumstances that could lead to suspension, warnings and/or cancellation of their authorization.

Seemingly, the most interesting proposal is the eligibility criteria to replace "good character" with a stronger legal basis to reject an applicant or cancel an existing membership. In the past, the trusted Traveller program has always been a zero tolerance program, in that if there was any reason to deny, that denial would be implemented. However, my personal experience in assisting individuals with appeals of their nexus denials, has been that there is some variance within the application of that rule. Our office has been able to successfully obtain approvals for individuals with a criminal history, for example. The new regulations proposed in detail to apply the following test:

The CBSA is proposing to repeal the term "good character" within the PoP and replace it with eligibility criteria described below:

  • Failing to provide complete personal information, supporting documents and/or attend interviews with partner law enforcement and intelligence agencies (Royal Canadian Mounted Police/Canadian Security Intelligence Service), if required and associated with the assessment of eligibility and continued eligibility, could lead to the denial of an authorization as the CBSA will not be in a position to conduct all necessary checks and verifications for assessment of eligibility.
  • Criminal convictions may render a person ineligible, unless they have received a pardon or record suspension. Indictable offences, or any criminal record of multiple convictions, will render the person ineligible for their lifetime ("lifetime ban"). One summary conviction, or two summary convictions arising out of a single occurrence, will have an ineligibility period of 10 years beginning after the end of the imposed sentence. In addition, convictions in relation to the following border enforcement priorities could result in a lifetime ban:
    • drugs and chemical precursors, obscenity and hate propaganda, endangered species, terrorism, kidnapping, child pornography, or trafficking in persons/human smuggling;
    • the importation, exportation or trafficking of alcohol and tobacco, currency, firearms and weapons; or
    • the exportation of items on the Export Control List. All foreign convictions will be assessed against the current Criminal Code of Canada.
  • For pending criminal charges for which a conviction would result in ineligibility, and outstanding criminal warrants, it is proposed that an application be denied until such time as a court decision is made on the charge(s)/warrant(s) or the warrant(s) are expired.
  • Contraventions to program legislation (such as legislation and regulations administered or enforced by the CBSA) may result in ineligibility for a period of time for minor infractions or a lifetime ban for major infractions, as identified in policy and outlined in program terms and conditions. Multiple minor seizures within a 10-year period will result in a 10-year ineligibility period and any contraventions in relation to the border enforcement priorities listed above would render the person ineligible forever.
  • National security concerns may render a person ineligible if there are sufficient grounds to suspect that the person constitutes a threat to the security of Canada as defined in Section 2 of the Canadian Security Intelligence Service Act. An authorization may be denied, revoked or suspended.
  • Other security threats such as war crimes, crimes against humanity, and transnational crime such as trafficking of persons/human smuggling, money laundering, or terrorism financing are also grounds to deny, cancel or suspend an authorization.
  • The Immigration and Refugee Protection Act authorizes the Minister of Immigration, Refugees and Citizenship Canada (IRCC) to declare a foreign national ineligible (who is otherwise admissible) to enter Canada for a period of up to three years based on public policy considerations, as outlined in s22.1(1) of the Immigration and Refugee Protection Act. The CBSA is proposing that persons declared ineligible to enter Canada by IRCC will also be ineligible for Trusted Traveller Programs.
  • Where a person is required (e.g., by Court order) to surrender travel documents (such as a passport under the Family Orders and Agreements Enforcement Assistance Act), this person will also not be eligible for a NEXUS or FAST authorization (or an existing authorization may be suspended).

The proposed amendment would seem to take away much of the officer discretion currently afforded. Whether this turns out to be of benefit to individuals with borderline applications, remains to be seen and will be interesting. Of particular importance, is the language about criminal convictions rendering a person ineligible, unless they have received a pardon or record suspension. Receiving a Canadian pardon is a double-edged sword when it comes to US immigration purposes, as a pardon is not recognized by US CBP. In fact, it is fairly common knowledge within the US immigration community that the Canadian Pardons office notifies US CBP of every individual that applies for a pardon in Canada, on a monthly basis. Since US CBP doesn't recognize Canadian pardons as a basis of expunging a criminal record and thereby allowing an individual who would otherwise be inadmissible into the United States, the effect is that Canadians trying to avoid a finding of inadmissibility into the United States, are actually notifying US CBP of their inadmissibility.

It will be interesting to see how these proposed changes play out in everyday practice and in their application. Stay tuned for further updates by visiting our blog on a regular basis, as we will provide as much information as possible, when it becomes available.

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