Former deputy PM calls on Ottawa to investigate U.S. cancellations of Canadian NEXUS cards
Numbers of cards being revoked by American officials "stunning," says John Manley
The former deputy prime minister who negotiated the NEXUS trusted traveller program with the United States says the Canadian government should ask the U.S. to examine the way the program's rules are being enforced.
John Manley said he was surprised to learn of how many NEXUS cards held by Canadians have been revoked by American officials, the reasons that prompted some of the revocations and the difficulty Canadians have been experiencing when they try to appeal the loss of their cards.
"It's stunning that the numbers are as great as they are and the exercise of the authority to cancel is being done in a manner that seems somewhat capricious and unjustified," Manley, who is a NEXUS card holder, told CBC News.
"That's terribly disappointing. It's certainly not what [former secretary of Homeland Security] Tom Ridge and I had in mind in ensuring that the program existed."
Apply pressure, says Manley
Manley, a former Liberal cabinet minister, said the Canadian government should take advantage of current American concerns about the Canadian border being closed to get the U.S. to improve its way it runs both the program and the appeal process.
"We subscribe with the U.S. to the principles of the rule of law and administrative law that requires that decisions be made that are not arbitrary and that can be reviewed," he said. "I think it would be only with pressure from Canada that the U.S. would change their procedures around this."
Public Safety Minister Bill Blair's office refused to comment, referring all questions to the Canada Border Services Agency (CBSA).
The CBSA told CBC News it has no jurisdiction over the actions of U.S. Customs and Border Protection (CBP) or its decisions about NEXUS members and couldn't speculate on why the U.S. government has revoked far more memberships than the Canadian government.
"Each agency operates pursuant to different national legislation and has independent assessment criteria, as well as access to different databases when determining a member's continued eligibility," said CBSA spokesperson Jacqueline Callin, who pointed out that fewer than 1 per cent of NEXUS cards have been revoked over the past five years.
Manley's comments came after CBC News reported that CBP has revoked the NEXUS trusted traveller cards of thousands of Canadians over the past five years — three times the number revoked by Canadian authorities.
The NEXUS trusted traveller program, announced in 2002, is run jointly by the CBSA and the CBP. It allows card holders to fast-track through customs and speed through airports. While many use the cards for cross-border travel, some card holders use it mainly for reducing wait times while travelling within Canada.
U.S. responsible for 77 per cent of revocations
The CBSA said there were 1.7 million NEXUS card holders as of May 2021. According to the CBP, 77 per cent of those with NEXUS cards are Canadian, while 21 per cent are American and 2 per cent fall into the category of "other".
According to numbers obtained by CBC News, while Americans make up less than a quarter of NEXUS members, American officials are responsible for 77 per cent of the NEXUS card revocations.
Canadian and American officials revoked 15,807 NEXUS cards between Jan. 1, 2016 and May 25, 2021. While the CBSA says it revoked 3,591 cards, representing 22 per cent of revocations, American CBP officials revoked 12,216 cards.
CBP spokesperson Rhonda Lawson said the service cannot say exactly how many of the cards the agency revoked were held by Canadians and how many were held by Americans.
She said that, overall, 70 per cent of the cards revoked by either the CBSA or the CBP were held by Canadians, 26 per cent of the revoked cards were held by Americans and 4 per cent of revoked cards were held by travellers who fell into the "other" category.
Cards revoked for minor violations, lawyers say
While some revocations are the result of serious violations of the rules, lawyers argue that some memberships have been revoked for minor violations or oversights — such as food forgotten in a purse, travellers going through the NEXUS line with grandchildren who didn't have NEXUS cards, or cases of mistaken identity.
Lawson said those whose cards are revoked, or whose applications are denied by American authorities, can appeal the decision to the Customs and Border Protection agency's ombudsman.
Lawyers, meanwhile, say that while Canada has an appeal process that works, the U.S. CBP ombudsman's office moved last year without leaving a forwarding address and its online portal for filing appeals is plagued by problems.
That's not good enough, said Manley.
"As a lawyer, I find the process of revoking these things without any ability to make your case to a responsible person whose decision can be reviewed if capricious is a big shortcoming, because it's no longer just a privilege," he said. "It's one of the things that makes the border function."
NEXUS more popular than expected: Manley
Manley said the NEXUS program has become more popular than officials anticipated when it was launched in a bid to pre-clear low-risk travellers and allow officials to concentrate on potential security threats.
"I don't think it was even in our minds that this would become such a core component and therefore you needed to build some legal structure around issuing it, but also fairness in revocation if it was called for," he said.
NDP deputy public safety critic Don Davies agrees there should be more transparency and more opportunity to appeal.
"Trusted travellers who have had their NEXUS cards revoked need to know that they were revoked for a good reason," he said. "And I think they are owed an explanation as to why their passes were revoked, and there needs to be some sort of timely and fair process for challenging that where there may be a valid reason for thinking that the revocation wasn't valid."
Davies said the Canadian government should take action.
"Because it is administered by both governments and because it is a systemic problem ... I think it requires a government-to-government systemic answer," he said.
Davies said he also wants the government to ensure that NEXUS memberships aren't being revoked because of someone's race or religion.
"There have been occasions where I think race and religion and assumptions about ethnicity and politics may be a factor in border decisions," he said. "And I think that is something that the Canadian government needs to investigate and make sure that's not the case here.
"It's one thing to have your NEXUS privileges revoked if there is a legitimate security concern. It's another if there is some sort of profiling that is being done that is not legitimate."
Conservative public safety critic Shannon Stubbs said Canadians whose NEXUS cards are revoked deserve guidance and a clear avenue to appeal the decision.
"Canada's Conservatives are calling on the Liberals to work collaboratively with their U.S. counterparts to ensure that there is a clear appeals process that respects the needs of cross-border communities, workers and all Canadian travellers," she said.
Elizabeth Thompson can be reached at firstname.lastname@example.org