[Recorded by Electronic Apparatus]
Tuesday, June 20, 1995
The Chairman: I'd like to welcome representatives from the Immigration and Refugee Board, Mr. Duquette and Mr. Palmer.
Without trying to put words in the mouths of any of my colleagues, we've been looking at the issue of the regulation of consultants. I think there's a consensus among the group that it's a pretty serious problem and a consensus seems to be building that we need to do something.
I know that the government and parliamentary committees have looked at the issue a number of times in the last 10 to 15 years. It's our hope that our report doesn't just become one of a series, and 15 years from now they won't look back and say ``they looked at that in 1995 and didn't do anything''.
We're anxious to hear your recommendations on what we can do to solve the problem. I know you know how a parliamentary committee works, so I'll just turn it over to you.
Mr. Philip Palmer (General Counsel, Legal Services (Ottawa), Immigration and Refugee Board): Thank you very much, Mr. Chairman. My name is Philip Palmer and I'm here today with Pierre Duquette, who is the assistant deputy chairperson for the refugee division in Montreal.
We don't have a formal presentation to put before you, so we thought we'd give some introductory remarks and a bit of the historic positioning of the Immigration and Refugee Board with respect to this question of the regulation of consultants. We think it's very opportune that you should be considering this matter at this time.
Mr. Duquette has a long experience in immigration law and is very familiar with how the situation has evolved in Quebec, where the situation is quite different from other parts of Canada. Perhaps his elaboration of that will help you formulate your own recommendations with respect to this matter.
The first thing to be said is that the immigration consultants are expressly authorized under the Immigration Act. Sections 30 and 69 of the Immigration Act state that a person can be represented by a barrister or solicitor or other counsel. We take that to mean virtually anybody, whether for remuneration or otherwise. So family members and representatives from non-governmental organizations often appear to assist persons who appear before the board. Immigration consultants are a sub-category of that broader class of counsel and are people who appear on behalf of somebody before the board for remuneration.
It should be said that our experience with reference to immigration consultants has varied widely. There are some excellent ones who appear before us in all of our divisions. They're very helpful: they elicit the facts; they prepare the documents carefully; they understand our procedures and assist us in the conduct of them. They are a very valuable resource to the people for whom they appear and are of great assistance to the board in the conduct of its work.
As you have heard, there is a large number of consultants who don't meet that kind of standard. They are a significant problem for the board and we fear for their clientele. Amongst the problems that have been highlighted are very sloppy preparation of documents in evidence and failure to comply with disclosure provisions with requirements that documents be filed. They often seem to be ignorant of our procedures. They very often have incomplete knowledge of the substantive law and therefore make misguided arguments that really aren't of assistance to either the board in making its determination or their clients.
We have others who don't understand the jurisdiction of the board. For instance, in the appeal division they file appeals where the board has no jurisdiction. The result is unnecessary procedures having to be taken to dismiss those appeals and clear that kind of backlog.
We also have problems of comportment. Problems have been identified with the failure of consultants to show a measure of respect for the board; I guess what you'd call showmanship perhaps, in trying to impress a client. But it very often has little to do with the substance of the case.
We also find that consultants, more so than lawyers, seek unnecessary adjournments, postpone cases and create problems in terms of the management of the board's volume. We have found at times that they are not completely frank and open with regard to their submissions before the board or their reasons for seeking adjournments or postponements of cases.
These are all problems of a fairly serious nature. They involve large investments of time, large amounts of down time for decision-makers, and unnecessary stress on staff. Of course there is also the situation where you have empty hearing rooms with a backlog of cases as a result of last minute postponements. So serious disruptive effects are certainly caused by a number of consultants who appear before us.
The experience of the board is that while it varies from region to region as to the seriousness of the problem and the degree to which consultants appear before the board, we nevertheless do feel that the regulation of consultants, in one form or another, would be an assistance to both the clientele, the immigrant community in this country, and the board in terms of the efficacy and efficiency of its procedures.
The board has always supported the regulation of immigrant consultants. Over the years we have participated in a number of initiatives and cooperated with the Canadian Bar Association, which at one time did a study of this. We have intervened with a number of provincial governments, particularly Ontario, which a number of years ago undertook a study of the potential licensing of immigration consultants as paralegals. Our former chair met with the then Attorney General of Ontario and the Law Society of Upper Canada to encourage them to proceed with the proposed licensing of immigration consultants.
So I think it's safe to say we have historically supported and continue to support some form of regulation of consultants. We think this would be salutary both for the public and for ourselves in terms of our ability to fulfil our mandate.
We have never favoured banning immigration consultants. I think we've always recognized that there may be a legitimate sphere within which consultants can and perhaps should operate. It seems to us this is a question where really an informed consumer is in a better position to make a choice perhaps than the government. But we certainly feel that the job done by immigration consultants can be done better and should be subject to some of the disciplines that, for instance, members of the bar are subject to when they appear before us as a tribunal.
We have never advocated any particular form of regulation either. The most common models of regulation involve either direct regulation through a governmental agency with a licensing and inspection scheme, or an indirect form of regulation through self-governing professional associations.
We are, I think, neutral as to which kind of scheme would be adopted. We would be more than willing to cooperate with any authority that was entrusted with the delivery of a regulatory scheme.
We have already cooperated on numerous occasions with both the bar and existing non-governmental agencies, and even with some of the professional consultant associations, in terms of making resources available to assist people in training and to understand our procedures and some of the substantive issues that have to be addressed in proceedings before us.
Rather than focusing on the form of regulation, I thought it might be useful to summarize for you the objectives that we feel any regulatory scheme should address. As we see it, the following are the principal areas that we would be concerned to see a regulatory scheme dealing with.
The first is with respect to competence, I think. I include there knowledge. Persons appearing before our board should have a demonstrated level of knowledge with reference to the law and procedures applicable to the cases in which they represent people for remuneration. That's critical to the soundness of the system. If they are unable to cope with the substantive matter on which their client's fate may rest, then that's extremely unfair both to the claimant and to the decision-makers, who are not being presented with the best case that the claimant or the appellant has to make before us.
It's important that there should be a general appreciation of the Canadian legal system and how immigration law relates to the general scheme of administrative law and of legal rights and determinations in this country.
Third, persons appearing before the board should have a knowledge of the judicial system and what remedies are available to persons who are not satisfied with the results of their cases. This is not a trivial matter. It's critical that people should know what sorts of deadlines are imposed, what sorts of jurisdiction the courts have to give relief, what kinds of relief can be sought. The failure to do that can lead people into very grave error and place them at considerable risk.
I think the second area is that of ethics. Persons appearing before the board should be bound by and measured against a code of conduct and ethics. We have found that very often it is in matters of comportment and truthfulness before the tribunal that consultants fall short of the standards that we find to be virtually uniformly respected by legal counsel. This is an area in which I think everybody I've spoken to within the board has signalled that there is a significant difference between the way in which some consultants practise and the way in which legal counsel practise before us.
Third, it is insufficient to have a code of conduct and initial training. That's one of the reasons why we think a mere registration scheme is unlikely to be effective. There needs to be an effective method of dealing with breaches of professional standards. A tribunal such as ours needs to signal that there's a problem in terms of what's happening before us. We are in a position where today we can write to a law society if a lawyer is misconducting themselves, misrepresenting themselves, or whatever, before us. There is no similar procedure for us to signal anybody with respect to the comportment of and conduct of immigration consultants.
Equally, of course - perhaps even more so - the clientele of the immigration consultants need an avenue of redress. It's critical that any scheme should have that.
Last is the area of training. We believe that no system of regulation will be effective if it fails to address the need for all professionals in the immigration area continually to update and improve their professional skills and knowledge. Again, this is an area in which the IRB has traditionally reached out to people active in this area and made itself and its staff available to assist in training, and I think this is absolutely critical to continued effective relations between the board and persons appearing before it.
I should signal to you that your deliberations on this matter are very timely. Perhaps they come at a critical time. There has been an overall increase in the workload of all of our divisions in the past year, year and a half, and that increase is continuing this year. In some divisions it's quite marked. In other divisions it's gradual, but overall the impact is significant.
At the same time, as you're aware, legal aid budgets have remained static or decreased. Therefore, the issue of representation before us is becoming critical. Legal aid is not available in respect to many cases that appear before our tribunal. In some provinces it's not available at all. In other cases it's increasingly less frequent that legal aid certificates are available.
With the governments committed to the reduction of deficits and the cutting of program spending, we can project that in future even fewer people appearing before us are likely to be represented by legal counsel. Of course, many of those people will then find that in the absence of legal aid availability, they may be forced to seek assistance from immigration consultants. Therefore, I think it's critical, to us and to that significant group of people, that we look hard at the questions of how best to address the problem of immigration consultants today.
I should say that the people who appear before our board are among the most vulnerable and easily exploitable persons who come into contact with our legal system. They come from other cultures, other countries, other judicial systems. They have little knowledge of how the systems operate and are therefore very much prey to the unscrupulous. Ensuring that these people have effective and honest representation is a challenge to our society as a whole, certainly to our legal system, and one that I think we should aspire to meet. I hope your work will issue in some fortunate results. Thank you.
The Chairman: Thank you very much.
Mr. Pierre Duquette (Assistant Deputy Chairperson, Convention Refugee Determination Division (Montreal), Immigration and Refugee Board): As Mr. Palmer explained earlier, I am assistant deputy chairperson of the Convention Refugee Determination Division located in Montreal.
A variety of past activities have allowed me to gain a clear understanding of the problem posed by consultants. I had been a lawyer with Legal Aid Services for almost 20 years before joining the Convention Refugee Determination Division. I also was president of the Immigration Section of the Canadian Bar Association, Quebec Division, for approximately ten years and one of the founders of an organization called AQAADI, which stands for the Association québécoise des avocats et avocates en droit de l'immigration. In that case, I was directly concerned with the practice of law.
Also, in late 1986 and early 1987, I acted as legal advisor to Minister Weiner who was at the time Minister of State for Immigration. This was during the period when consideration was being given to Bill C-55, which introduced major changes to the Immigration Act.
From my own knowledge of immigration matters, the consultant issue has always been very present. It was the subject of a report, which you are most certainly aware of, released in April of 1981 regarding unscrupulous consultants. The situation was an extremely urgent one in Quebec at the time, but has since become less and less urgent.
I'm going to try and explain the current situation in Quebec, because it is somewhat different from that in other provinces. It is important that you be aware of the situation in that province or region where the vast majority of potential refugees are currently making claims.
I am not suggesting any specific model or making recommendations as to what should be done. I simply want to describe the current situation.
As things now stand, approximately 95% of clients in Quebec are represented by a lawyer before the three IRB divisions. This is by far the highest percentage in Canada. Consultants represent a portion of the remaining 5%. Some people are represented by consultants, while others have no representation whatsoever, and do not wish to be represented.
As Mr. Palmer pointed out earlier, there are good consultants, just as there are bad lawyers. Generally speaking, however, I would say that the chance of being badly represented is less great if it's a lawyer representing the claimant, rather than a consultant.
What kind of problems do we now face and what are the potential solutions? Earlier,Mr. Palmer referred briefly to the problems, but I would like to be even more specific in addressing this issue.
I have firsthand experience with an extremely vulnerable client group, namely the people who come before the IRB, and I do not mean only refugees. In most cases, they are foreigners who haven't lived in Canada for long and have been given no references to help them find counsel. It's just as if you were to end up in a Third World country and be asked to find yourself a lawyer. Whom could you trust to help you find a lawyer? That's the problem these people are facing.
People tell them to retain the services of such and such an adviser because he's very good. But based on what criteria is he considered to be very good? There are no references in most cases, and it does happen that an adviser isn't good. In that case, the client suffers a great deal although unfortunately, complaints are extremely rare. Foreigners tend to be afraid to complain either to the police or even the Bar. They could file a complaint with the Bar, but they practically never do that. They're afraid that the difficult situation they're in may be aggravated further if they make a complaint.
I'm sure you all will agree that an error in this context can truly be catastrophic. If a mistake is made with respect to a refugee claim or if someone is mistakenly removed from Canada - I'm not saying these things happen often, but they do happen - the consequences can be extremely serious.
Based on our experience, consultants are not in a position to fully appreciate complex legal situations. Generally speaking, however, most lawyers, given their experience and their academic background, can understand and deal with difficult issues.
Legal matters are often extremely complex. Nowadays, a significant portion of the federal courts workload has to do with immigration and refugee matters. In recent years, the Federal Court has in fact considerably increased the number of justices precisely because of immigration matters. Decisions to appeal to a higher court often has to be made very quickly.
A judicial review application takes two weeks. So, you have to be in a position to identify the legal issue involved and follow the appropriate procedure. Everyone is not able to do it, and a consultant certainly is not. If the application has not been filed on the 16th day, it may be unfortunate, but in most cases, it is simply too late for the applicant.
In Quebec, and I think the same situation prevails everywhere else, we have three different categories of consultants. The first are people belonging to certain ethnic groups who have in a way become spokespersons for their fellow citizens and have thus taken on the responsibility of representing them. They're also people who are not necessarily born in a foreign country - very often they were, but not always - but who have a very developed business sense, realize that there are a lot money to be made in this area and, unfortunately, often end up making that kind of money. Most of the time, the latter finds most of their clients through ads in the newspapers. Their office remains open for several months or sometimes even several years, then all of a sudden, they simply disappear. Those kinds of consultants do a great deal of harm, particularly to their clients.
The third group, which is unfortunately the smallest of the three, is made up of serious consultants who do good work. I am only talking about the province of Quebec here, obviously, since I am not aware of the situation elsewhere in Canada. This third group is made up of consultants who have been acting as such for a long time and provide effective services. I am not talking about volunteers here.
Volunteers working with ethnic groups and associations that assist refugees all decided a number of years ago not to appear before administrative tribunals dealing with immigration matters because they consider it to be too dangerous, and they are right. This is a difficult area and the risks are indeed too great. They have therefore decided to allow lawyers to handle their cases.
As Mr. Palmer pointed out earlier, the solution, as far as consultants services are concerned, is to set up a type of professional organization that would be responsible for ensuring that its members had the appropriate skills and training and were subject to ethical and disciplinary standards. When I talk about training, I am obviously not talking about a two day course. To really provide proper training to someone in this area is far more complex. This professional organization would also have to consider the option of providing bonding or some type of insurance, as the various provincial law societies do, so that an injured party could eventually be reimbursed.
It is not up to me to tell you what kind of steps should be taken. However, I think it would be useful that I explain how the problem with consultants in Quebec receded over the years. It no longer is a problem, although it could become one.
In 1995, the problem was no more than a marginal one for a variety of reasons. First of all, I should mention the Ministry of Cultural Communities and Immigration and its policies. Because it has rather a long name, let's just call this ministry Immigration Quebec. In fact, that is the name given it most of the time. In the early 1980's, this ministry decided that no consultant would have access to its offices either in Quebec or abroad. When consultants said that they were mandated by a claimant or prospective immigrant, they were in the habit of communicating directly with the immigrant in question anyway. That policy was followed consistently. Therefore, consultants had a great deal of difficulty with Immigration Quebec in the course of the last 15 years and finally began to turn away from that field of activity.
Part of the work done by Immigration Quebec, the part that involved investors, could eventually have been profitable, but the consultants never managed to get their foot in the door, because Immigration Quebec would only deal with brokers accredited by the Securities Commission, which meant that consultants could do precious little.
As you know, Immigration Quebec is the department which chooses immigrants and issues what we call acceptance certificates to students and temporary workers. That does not happen in the other provinces.
There is also a second factor which explains why the number of consultants in Quebec has dwindled considerably, and that is the efforts expanded by the Quebec Bar, especially since 1989. On January 1 1989, Bill C-55 came into effect and everything that involved refugees came into the ambit of the legal field. The presence of a counselor in the hearing room became a virtual necessity, because those interviews did become hearings at that time. The Bar saw this as a source of work for young lawyers who were seeking new fields of activity with very little success at the time - that situation arose in Quebec before it did in Ontario.
The Bar set up professional training classes in immigration and encouraged all initiatives that served its purposes in this area. Consequently, as of 1989, there was a considerable increase in the number of lawyers with specialized training in immigration.
I don't know whether you remember that in the beginning of 1989, there were duty counsels, as we call them. The Quebec Bar was the only Bar in Canada to negotiate directly with immigration for those duty counsels and an agreement was signed in that regard. Thus, the Quebec Bar's intervention was important.
The third factor involves legal aid. Legal aid got involved in the refugee field. In fact, in the province of Quebec, legal aid has never really posed a problem. Virtually all economically disadvantaged persons had access to legal aid before 1989. Since 1989, anyone seeking refugee status, involved in an appeal or in an inquiry proceeding before an adjudicator has a right to legal aid. So, just about everyone is covered.
At this time in Quebec, legal aid is undergoing a major reform. A clear decision was made, however, that representation before administrative tribunals, including the IRB, will not be affected. Thus, legal aid lawyers will continue to appear before the IRB.
The fourth factor, groups that assist refugees, is very important. Since 1979, an umbrella group known as a concertation table gathered all of these refugee assistance organizations. The affiliated groups have had close ties with lawyers for a very long time and refer their clients to lawyers. None of those groups have dealt with consultants.
In conclusion, because of access to legal aid in Quebec, because claimants obviously prefer dealing with a lawyer who does not bill then rather than with a consultant who does, and because those who are not eligible for legal aid will tend to hire lawyers who have acquired solid immigration experience through legal aid, even those who pay use the services of lawyers rather than those of consultants. Because of Immigration Quebec's practices in the course of the past 15 years or so, consultants have just about been shut out of the field in Quebec. Thank you.
The Chairman: Thank you very much. We'll go to Mr. Nunez for 10 minutes.
Mr. Nunez (Bourassa): Thank you for your presentations. I would nevertheless have liked to have a text because what you have been saying is important.
My first question is for Mr. Palmer. Mr. Duquette said that in Quebec lawyers were involved in 95% of cases. So the problem posed by consultants is a minor one. Do you have any figures for the rest of Canada?
Mr. Palmer: I don't have numbers as such, but in the refugee division, a large number of claimants are represented by lawyers. It is mostly in the other division that one finds a large number of consultants.
Mr. Nunez: In which provinces are the problems involving consultants most serious? In which regions?
Mr. Palmer: Probably in Vancouver, in the appeals division, and, to a lesser degree, in Toronto; there are serious problems in Toronto as well.
Mr. Nunez: And how do the problems in Vancouver and Toronto differ?
Mr. Palmer: Sponsorship cases are the main issue, since legal aid is not available to those claimants in most cases. It is often less expensive to hire a consultant, or claimants are not familiar with the legal field and the availability of lawyers' services and they find representatives in their ethnic community. That is in general the solution they arrive at.
Mr. Nunez: In Quebec, there is a serious problem and professional associations come under provincial jurisdiction. How do you feel these constitutional problems can be resolved?
Mr. Palmer: I think it's possible to avoid the constitutional question, frankly. I don't think it's a critical one to resolve. I think the principal one is whether any level of government is prepared to address this question seriously and take action that is decisive to resolve these issues.
I think the federal government, for instance, could probably limit those authorized to appear before the IRB in a manner that ensured that those appearing before them were effectively regulated without the federal government itself directly regulating.
For instance, the Federal Court Act provides that members of the bars of the various provinces and territories and the professional corporations in Quebec may practice before it. That's an example where the federal government clearly has the authority to say who does and does not appear before its courts, yet where the effective regulation is in the hands of a body that is regulated or subject to provincial jurisdiction.
I don't think the constitutional question is a serious one if one wishes to act swiftly. It's a serious one if one doesn't want to act swiftly.
Mr. Nunez: But you are probably aware of the fact that the English-speaking provinces have not shown much interest in this area, whereas the Quebec Immigration Department, as Mr. Duquette just said, does have regulations.
Mr. Duquette: It is a policy, not a regulation.
Mr. Nunez: It is a policy?
Mr. Duquette: Yes.
Mr. Nunez: And to they exist in other provinces?
Mr. Palmer: As far as I know, there is no comparable policy in the other provinces, but neither are there provincial Departments of Immigration in the other provinces. That is unique to Quebec.
Mr. Nunez: As you said, the problem of a lack of knowledge or ethics is not unique to consultants, but can also be found among lawyers. Have there been any complaints about consultants by board members? There is no organization to turn to, but have there been any complaints on the part of the Commission about lawyers?
Mr. Palmer: Yes, there is. We have a procedure established for the conduct of complaints against members of the bar who appear before us.
Mr. Nunez: And what have you done? I would like you to give me a concrete example.
Mr. Palmer: I couldn't give you specific figures. I would suppose there would be roughly four or five situations a year where the board actually applies to a law society, where it brings to the attention of a law society behaviour that the board considers to be unprofessional before it.
Mr. Nunez: Without mentioning any names, tell me what the complaint was about. What it a case of fraud? What was the problem?
Mr. Palmer: Oh, no, I've never seen one of that nature. It's normally a question of either having shown serious disrespect in front of the tribunal or having, for instance, either failed to appear or having appeared but having double booked themselves and sought an adjournment and caused that kind of a problem, which is unprofessional in a lawyer. Those are the natures of the problems we've encountered.
Mr. Nunez: And what sort of measures were taken by the bar?
Mr. Palmer: They have varied. There have been cases where they have given reprimands. There are other cases where they have investigated and said they didn't consider further action to be necessary. To my knowledge, there's never been disbarment resulting from a complaint we've brought.
Mr. Nunez: And where Quebec is concerned, Mr. Duquette, have any attempts been made to encourage consultants to police themselves?
Mr. Duquette: One organization was set up in the mid-eighties, I believe. It involved immigration matters, not refugee matters, and the obtaining of immigration permits. It had certain contacts with immigration Quebec, because most of their work was done there, but the members of that organization were received rather coldly. I believe the association no longer exists.
Mr. Nunez: You said that about 5% of claimants are represented by a consultant, or not represented at all. How many cases do those 5% represent?
Mr. Duquette: We are talking about everything that is dealt with by the IRB, adjudication, requests for refugee status, and appeals. I can talk about the requests for refugee status, because the volume of appeals is fairly low, in Montreal at least. Just to give you some idea of the numbers involved, there are about 50 members of the board in Montreal and only one of them deals with appeals.
On the adjudication side, I don't know the exact figures, but we deal with approximately 10,000 or 11,000 refugee status claims per year; the 5% I referred to would be 5% of that figure.
Mr. Nunez: Yes, but there is...
The Chairman: I need you to make this your last point.
Mr. Nunez: One witness we heard here said that the Immigration department and the IRB were in part responsible for the increase in the number of consultants because claimants find it so difficult to obtain information from public servants. Someone told us there was in fact no one to answer people's questions in Montreal and security guards are the ones who are telling people what to do, where to go, what forms to fill out. Is the IRB in part responsible for the situation?
Mr. Duquette: I think a clear distinction has to be drawn. The IRB is the tribunal that hears certain appeal cases, refugee claimant cases, adjudication cases and deportation cases. It is not the Immigration office. It is completely independent and is at arms' length from Immigration. If there are problems at Immigration, unfortunately, they cannot be discussed here. We are not experts on problems at Immigration.
Mr. Nunez: Thank you.
Mr. Mayfield (Cariboo - Chilcotin): Thank you very much, gentlemen, for your presentations. It's been most interesting. By way of clarification, I have a couple of questions to begin with.
Mr. Duquette, I believe you said that 95% of clients are represented by legal counsel in Quebec. Is that correct?
Mr. Duquette: Yes.
Mr. Mayfield: And about 5% by non-legally trained consultants?
Mr. Duquette: Yes, or they are not represented at all.
Mr. Mayfield: I just want to create a bit of a hypothetical scenario. Suppose someone has been involved extensively with immigration/refugee matters - perhaps an employee of the department - and has decided to go into private consultation. What would that person have to do to qualify to do this in Quebec? What kind of training, registration, and requirements would that person have to fulfil?
Mr. Duquette: With the actual, current legislation, nothing.
Mr. Mayfield: Nothing?
Mr. Duquette: They just have to open an office and say, ``I am a consultant''. This is the same thing in Ontario or anywhere else.
Mr. Mayfield: I'm wondering if either of you gentlemen have in mind recommendations concerning minimum standards for consultants. Are you suggesting that perhaps they should be legally trained people with law degrees? Should they have law degrees plus additional consulting courses? What kind of licensing requirements would you see if we're going to follow this path towards regulation? Do you have any specific thoughts or recommendations on those matters?
Mr. Palmer: Perhaps I can say a few words and Pierre can add some more.
You've got to look at a number of things. First, with regard to the work the consultants are doing, you've got to make a differentiation between appearing as counsel before one of the divisions of the IRB and assisting, for instance, immigrants. It's a very different process. One is to facilitate people through the administrative process, the selection of immigrants from overseas, obtaining the visas and permanent residence, etc., and taking them through the process.
Mr. Mayfield: Would you see this as being two separate streams through the training process?
Mr. Palmer: Virtually, and I would have thought that, for instance, an officer who had been in Immigration Canada would probably be able to give a course on the subject of how to do this.
However, when you're talking about the IRB, there you are dealing with significant legal issues, significant administrative law issues, significant procedural issues. There, certainly, I would think that legal training of some kind would be a prerequisite. I don't think it's necessary to have done a law degree to do that, but I do think it's necessary to have followed a course in immigration law and refugee law in order to represent people effectively. There are very large legal issues and there's a great deal of jurisprudence out there now. It requires some real study to master the basics of practising before the board.
Mr. Mayfield: One law student, at least, said that this person intends to go into immigration law, specializing, because that's where the most money is for.... Well, he didn't say ``the least effort'', but I presume that has something to do with it.
Is there some thought that perhaps there should also be some regulation of fees or a fee structure? At least one of the stories we heard here about the money that's demanded is pretty outstanding, pretty surprising - disappointing, I might say.
Mr. Palmer: At the IRB, of course, we aren't privy to the relations between counsel and their client. I suppose we hear anecdotes and horror stories, as you do, that, by the time we hear them, are very often third or fourth hand, so we really can't speculate on that.
We haven't a fixed position on the question of regulation of fees. Clearly, I think we've heard of cases that we would regard as being unscrupulous and unconscionable, if true, but I don't think it's a matter on which the IRB as an organization has a particular view. That's really a question of the regulation, if you like, of an aspect of consumer rights, and I think that's really more a question for Immigration Canada or a provincial authority to look at.
Mr. Mayfield: The stories are pretty astounding when you hear some of them. They certainly add a skeleton and flesh to the more abstract things we tend to talk about.
Do you have any stories that come to you that demonstrate the need for the kind of regulation we're discussing?
Mr. Palmer: I don't personally have such stories. I know that in my conversations, particularly with members of the appeal division in Toronto and Vancouver, there was virtual outrage in the way they responded to what they feel to be the shortcomings, ethical and substantial, of some of the consultants that appear before them. They certainly feel that it's often an abusive situation and that it should be remedied.
Mr. Duquette: The question of fees is a problem, but the question of competency is more important. As I said before, we don't have that so much in Quebec, but there is something that is general knowledge, and this does not concern the IRB but does concern immigration.
There was a company in Montreal that worked for a few years charging $2,000 to change immigration status, which in fact is not too much. The real problem was that this company was doing nothing. After a few years of doing nothing, they had received quite a lot of money and they closed.
If you have a professional corporation like the bar but not necessarily the bar, there are always committees that could study the question of billing. They will scrutinize what work was done and if the fee is acceptable.
Without a corporation such as that, who will decide? Who will judge?
Mr. Mayfield: Can the IRB do anything to decide or control who will come into the hearing aides as a consultant or as a legal representative, or are IRB members pretty well required to accept who comes? If they are not - and I don't know the answer to this - able to control who comes to represent, would this require a change in the law?
Mr. Palmer: Our view is that, yes, it would require a change in the law. We have situations where certainly members feel they would like it if certain people did not appear before them again, but we feel, in our reading of the legislation, that that is not an option -
The Chairman: Which law?
Mr. Palmer: The Immigration Act. If somebody appears as counsel for somebody, then we must accept them if that's what the party wishes.
The Chairman: Would you like us to make that change?
Mr. Palmer: I'm not sure that we would be enthusiastic about that. It would require us to act as policemen, if you like, and I don't think it's really a role that is appropriate to us. We're an adjudicative tribunal. You may recall that the bar societies originated in the courts having an inherent jurisdiction to control who appeared before them, and you might have noticed that long ago the courts gave up controlling that and gave it to these law societies, professional corporations, I think for very good reason.
I think it would be a conflict for us to say that So-and-so has been a bad person and can't appear before us but So-and-so is a good person. It wouldn't be a healthy situation for board members to be placed in that position. It's a pretty invidious one. We'd certainly prefer that a third party be the person who determines whether a person shows the competence and comportment expected of a counsel before us.
Mr. Mayfield: Just thinking about perhaps the situation in a courtroom now, no one is suggesting that IRB members should be judges, but, by the same token, a judge has a fair degree of discretion in how he or she runs his or her courtroom. Do you think IRB members would benefit from a greater latitude of discretion?
Mr. Palmer: Judges have some extraordinary powers, but even a judge's power is very constrained in the sense that if a lawyer appeared before them and they felt that they were misconducting themselves the judge could hold them in contempt. But that's a pretty brutal power. They can complain in such a way that it comes to the notice of the law society, and that again throws one back in direct regulation of that conduct.
I think judges find themselves in the same position we do when they have parties before them who are perhaps being badly represented. The judges know they are resentful of the conduct of counsel. They feel their counsel is incompetent, but there are people there who have stories to tell and cases to be made and the judges' job is to adjudicate on that and try to ignore the conduct of the people before them, and I think that's largely what happens.
Frankly, I don't feel we would be in a greatly enhanced position if we could determine who appeared before us or who didn't.
Pierre, do you have any reflections on that?
Mr. Duquette: Yes, I would say, in a way, we are in a better position than judges. Before any tribunal, administrative or ordinary court, the choice of the counsel is up to the clients and not up to the judges or the administrative judges. Even if these people would rather do anything else than work with this counsel, the situation is like that. They have to suffer that for the day.
The judge in a normal court will listen to both parties in a case and wait until it is finished to make his decision. But the duty of a member on our board for refugees is to make an inquiry on the case and, I would even say, despite the counsel, decide if the person is a refugee or not. If the job is not well done by the counsel, the member has to try to see exactly what the case is and even bring in his own information on the case to determine whether the person is a refugee or not. So we are in fact in a better situation.
Mr. Mayfield: Without having it confirmed, I've heard that the new Ontario government is at least considering cutting legal aid payments to non-lawyers. Are you aware of anything along these lines and, more particularly, what effect would this have on the process the IRB is involved in?
The Chairman: May I just interrupt. You can only get legal aid if you're a lawyer. But the government may decide not to pay legal aid in a refugee case.
Mr. Mayfield: What effect would that have?
Mr. Palmer: This is a matter I briefly alluded to in my opening remarks and it's something we take very seriously. We have always been on record as supporting the provision of legal aid to persons appearing before the board, certainly in the refugee division and in other cases where detention and deportation from Canada could potentially result.
It would be very serious if legal aid were significantly more difficult to obtain and fewer people were represented before us. It would be a problem in terms of our having to compensate for the lack of counsel in terms of helping people make their cases. It would be more serious in terms of documents not being filed, people not knowing what sort of case they had to meet, how to establish their claim and what the elements of it were, not understanding the procedures, not appearing when scheduled, and this sort of thing that tends to happen when you have unrepresented claimants.
The other is that these same people, given the sort of legal risks associated with not being granted refugee status, would surely turn to immigration consultants as counsel. This would expand the problem that already exists in the refugee division in a much more significant way. I think that would be very unfortunate. We would certainly view regulation of immigration consultants as filling a gulf that may exist if legal aid is much more difficult to obtain.
Mr. Assadourian (Don Valley North): Could we have a copy of the study on consultants you mentioned that was made by the Ontario government?
Mr. Palmer: It's the Ianni report on paralegals that I think was made about 1989. If the committee doesn't have a copy I'll be glad to provide one.
Ms Margaret Young (Committee Researcher): If I remember well, there are only some segments of it that are actually relevant to consultants. It was about the whole field of paralegals in general. The Ianni report is mentioned in the overview paper I did, so perhaps you may want to have a look at that.
Mr. Assadourian: You mentioned there were a lot of problems with consultants and you said we should not remove the phrase ``other counsel'' when people are making a presentation. Can you elaborate on why you don't want to remove that phrase? What happens if you remove it?
There is a lot of business done with consultants on a cash basis. I know I have heard about a few in my riding. Do you know of any case where cash changed hands from consultants to officials in the department in return for favours? One specific consultant I know of was charged with second-degree murder and his daughter was charged with first-degree murder. It was in the newspapers. He was a consultant who drove a Mercedes. I think he is still a consultant.
Mr. Palmer: Your second question was so gripping I'm afraid it's the only one I have on my mind at the moment.
The Chairman: The first one was why don't we ban non-lawyers altogether.
Mr. Assadourian: It concerned the ``other counsel'' phrase.
Mr. Palmer: I think in some cases it's perhaps not tremendously necessary. For instance, in the sponsorship appeals before the appeal division there really aren't legal rights at issue. Nobody's going to be imprisoned as a result, or sent back to an area of danger or be deported from Canada. So the nature of the interests is significantly different depending upon the nature of the cases.
Very often in the appeal division, if it's a question of sponsorship, it is quite possible for other kinds of people to help, such as members of the community, members of NGOs, relatives, friends or people who are familiar enough with the situation. Sometimes it's a matter of going there and establishing that you have enough income to be able to sponsor a relative. I think you certainly want to consider whether the legal interests involved dictate that a lawyer be there, with all the attendant expense and procedure.
I think there is also a commitment on the part of the board to informality of procedure. We don't feel that our procedures themselves over the process should be so complex as to always dictate that a lawyer represent a client, certainly in a non-complex case, if that's the person's choice. On the other hand, most people wish to have somebody with them and we don't see there's really a problem if the person who appears with them is competent to deal with the problems that are likely to arise in making a particular claim.
I think we can all agree that certainly in the refugee division and the issues that are at stake, or where you're dealing with deportation proceedings, the likelihood is that a lawyer is the best kind of advocate, certainly where complex legal issues arise. It may not always be the case where the issues are less complex, but I think it certainly is important to be represented by somebody who at least has the capacity to recognize when they're getting out of their depth. A good professional in that circumstance then recommends that the person be represented by a specialist, somebody who is more competent than themselves.
As to your second question, I do not personally know of any situation in which any person in immigration or the IRB or any government agency has accepted cash from anybody in the course of their duties.
The Chairman: Or a money order.
Mr. Palmer: Or a money order, valuables, goods, fur coats. That would obviously be a corruption, and I'm not familiar with any case myself where that's happened.
Mr. Assadourian: This is my third and final question. Do you remember a few years ago when there was a backlog of 100,000 or so immigration cases? People were lining up on University Avenue in Toronto, trying to get into the immigration offices.
From that the government decided to come up with the electronic system and move the process to Vegreville and Mississauga. Now if you want to find out where your file is you have to dial and then push button one if you want English, button two for French, this button for your date of birth or social security number, whatever the case.
Now we don't have a backlog. Because of the backlog we have a lot more consultants than we actually need. Is it possible to go back to the old system of person-to-person contact between those who need the service and those who provide the service?
Most of the time when they come to my office they ask what happened to their file. I say you've only been here for two months; it takes time. They will probably be charged when they go to a consultant, but when they come to my office we don't charge them. That's one of the services we provide.
What I'm trying to say is if you go back to the old system, open up direct communication between those who provide the service and those who receive the service, would that eliminate in part the need for a consultant?
Mr. Palmer: Happily, that's an area I don't feel competent to comment on. I understand that Mr. Harder, who is the Deputy Minister of Immigration and is responsible for overseeing the operations of that department, will be appearing before you. That's directly his bailiwick.
The Chairman: No, he doesn't have time, so we're meeting Laura Chapman. We're still trying to arrange a meeting with him.
Mr. Palmer: I see. My misunderstanding.
I'm afraid I'm not able to comment. Pierre, I don't know if you can comment on that from your experience.
Mr. Duquette: In fact, I think we could say we're happy it's not our problem really; this is immigration and citizenship, and this is not our department at all. We have nothing to do with Vegreville or with the immigration offices. As Philip has answered, somebody will be here to discuss that later on.
The Chairman: Hopefully, if we can schedule it in this week.
Mr. Assadourian: Thank you.
The Chairman: Do you want to re-ask your question in terms of dealing with the refugee board? I think the point of it is whether there is a way to provide better information to the public.
Mr. Assadourian: That would eliminate the need for a consultant. That was the point I was trying to make, not to get involved in Vegreville or anything else.
Mr. Duquette: We don't have this problem in IRB. The possibility of a client or his lawyer having good information concerning his or her file is there. There is no problem. Any lawyer or any client can call the office to find out what is happening with the file. It will be very easy. They can come to the office; there is always a person to meet. This is not a machine, as you said. We are not at that point for the moment.
Mr. Dromisky (Thunder Bay - Atikokan): My concerns have already been addressed. I have a very serious concern related to the hypocrisy that goes on and the cheating and the greed that motivates and directs people to take on responsibilities to guide people and fleece them as much as they possibly can under the guise of being helpful.
The Chairman: You're not talking about members of Parliament, are you?
Mr. Dromisky: No; consultants.
I don't know how we're going to solve this problem, but something has to be done to prevent this kind of pattern from flourishing and continuing. Whether the federal government grabs the bull by the horn and says it is going to make sure there are only qualified people providing services for the people who require them and works out some kind of program in cooperation with the province.... Something must be done.
I don't know what kinds of powers you have. Can you gather information about the kind of guidance consultants are providing for their clients? Is that permissible for you under the law?
Mr. Palmer: It really is not. We see sort of the product of it before us in the hearing-room. We have serious concerns at times, but of course we don't know what they've told their clients and what their clients have told them. They have something like solicitor-client privilege, certainly, with respect to their counsel. We're not the best placed to have that information.
Mr. Dromisky: I'm concerned not only about the time factor. We're playing with the lives of a lot of people, and it's costing the individuals a lot of money. Also, in the long run it costs the taxpayers a tremendous amount of money. I think it's time we grabbed the bull by the horns and did something about it.
Mr. Palmer: Perhaps one point is worth making. We tend to ignore it, or to phrase the issue somewhat differently at different times. One aspect of it is really an abuse of a power relationship. When you hire a consultant to counsel you, to act as your counsel, you invest that person with an enormous amount of moral authority and moral power over you. Some consultants have systematically abused the power they hold over the individuals they represent. That's perhaps what I find most reprehensible and what I think most dictates to us at the board that this problem should be addressed sooner rather than later. The gravity of it and the damage it can do are significant.
The Chairman: I have heard that members of the board have actually refused entry to certain consultants, who haven't been allowed to appear, and it hasn't been challenged.
Mr. Palmer: That might be the key to it. Actually, somebody mentioned to me that a certain consultant was told that they were persona non grata and not to appear again, and they might in fact have acted on that advice. If the consultant had insisted on his legal rights, then I'm not sure that at law we would have been sustained in that.
The Chairman: Your testimony has suggested that it's not something you want to get into the habit of doing.
Mr. Palmer: I don't think it would be healthy.
The Chairman: Do you mind if the researcher asks a question?
Mr. Palmer: No. Certainly.
Ms Young: In the context of legal aid possibly being reduced in various provinces, the suggestion was made that this could tend to send people to consultants rather than to lawyers. It seems to me that this would be the case only if consultants charged less than lawyers. We've heard about some of the exorbitant fees they charge, but do you have any informal or anecdotal knowledge about consultants in fact on average charging less for their services when appearing before the board?
Mr. Palmer: It varies enormously, and what we have is purely anecdotal. I have the impression that there is a number of kinds of consultants. There are some of them who are very serious. Very often they are people who were legal practitioners in their countries of origin and who have a real sense of professional responsibility. They charge modest and competitive fees and deliver a service. I think they are the sort of people who would naturally draw clients.
Most of the exorbitant fees I hear about tend to be charged by people who are promising or guaranteeing some kind of result or some influence or ability to sway either the department or the IRB. I don't think we see much of those people before the refugee division or in deportation cases. I think it does tend to occur in the area of family sponsorship, and possibly in overseas applications and so on.
Pierre, perhaps you....
Mr. Duquette: Yes. In the representation before the IRB in the province of Quebec, with the lawyers and consultants I know, I would say that if legal aid were not provided for a certain number of cases it would not be more expensive with a lawyer than with a consultant. It would probably be the same.
The Chairman: Is that it?
Thank you very much for your time, gentlemen. We appreciate your input. Hopefully we've got the bull by the horns and will be able to make a contribution to actually solving the problem.