[Recorded by Electronic Apparatus]
Thursday, June 22, 1995
The Acting Chairman (Mr. Dromisky): Now we can start. Thank you for coming this morning, everyone. We're operating on a reduced quorum for a subcommittee.
Pursuant to the Order of Reference from the Standing Committee on Citizenship and Immigration, we are continuing with our study of immigration consultants.
From the Department of Citizenship and Immigration we have Laura Chapman, director general, policy and program development.
Thank you very for coming and being so bright and cheery so early in the morning. It's nice to see, this being our last day here. People are practically exhausted and very anxious to terminate this whole process and get on with other duties in their constituencies.
Laura, you may have the floor now. Do you have a brief or not?
Ms Laura Chapman (Director General, Policy and Program Development, Department of Citizenship and Immigration): No.
The Acting Chairman (Mr. Dromisky): The process is that we listen to your presentation and then each party gets an allocated amount of time to ask questions. Thank you for appearing.
Ms Chapman: I won't make a lot of opening comments; I'll simply summarize my understanding of some of the issues that have been raised and some of the interests you may want to pursue.
One of the things I think you realize is that the department has been struggling with the issue of consultants for about 15 years. To me it seems like forever. The concern about this issue has considerably increased, and having the committee look at this issue and make concrete recommendations to the minister will be extremely helpful.
We have looked internally at some options. Among the options we've been looking at, in part as a result of some of the questions and issues you've been raising, is the possibility of federal licenser. One of the concerns we have about doing a federal licensing activity is that it really only deals with a very limited share of the total number of cases. The reason for this is that, constitutionally, any kind of general licensing is to be licensed by the province. We could only license under the terms of the Immigration Act, which would limit us to the cases in which there are tribunals. My understanding is that this would be roughly 8% of the total business of consultants. We are therefore concerned that if we were to get into this it might involve significant resources, but not address the root cause.
We also looked as well at the possibility - in fact, an earlier minister wrote to his provincial colleagues to suggest it - that the provinces might like to take this on and that it was an area of interest or concern to them. I don't know that any of the provinces were particularly impressed with the idea of regulating what they saw as an area that is primarily of concern to the federal government.
We have not pursued it with Quebec. We wrote to them at the time. For a variety of reasons we did not receive, to the best of my knowledge, any kind of report from them to the effect that they wanted to take it on. However, since it is the only province in which there is a significant responsibility for selection and therefore direct involvement with the client prior to arrival in Canada, it would seem to me that if any province would be interested in regulation, it might be Quebec. Currently, we have no expression of interest in regulating from any of the provinces, despite a letter from a previous minister.
We also looked at the possibility of having a self-regulating process, much the way lawyers have. This is an area where we would like to pursue the idea, because we can see a lot of advantages. Certainly it's consistent with the government's overall thrust of trying to reduce its costs but at the same time ensuring that there is value for money.
One of the possibilities we would like to pursue and on which we, and I am sure the minister, too, would very much like the advice of the committee is the possibility of some kind of self-regulating system, such as I believe you've received some briefs on.
What kinds of criteria would be appropriate? We're not sure. We have some general ideas. Among the ideas we have are some kind of a code of conduct or ethics, an effective and fair disciplinary process, some kind of an errors and omissions insurance fund, and non-discriminatory membership requirements. We would want to be clear that if people met the criteria we would not want them to be restricted on the basis of any arbitrary discriminatory thing... an educational program and some kind of government liaison. We're not really sure how all of that would work, but that's one of things the minister would appreciate advice on.
Mr. Mayfield (Cariboo - Chilcotin): Could you run through that list again?
Ms Chapman: Among the things we were considering is a code of conduct or ethics, an effective and fair disciplinary process, an errors and omissions insurance fund, a non-discriminatory membership requirement, an educational program or criteria for entry, and a government liaison program that would ensure there was a regular kind of reporting on process.
Mr. Mayfield: Thank you.
Ms Chapman: At this point it is probably best if I leave it to questions.
The Acting Chairman (Mr. Dromisky): Mr. Mayfield, do you have any further questioning?
Mr. Mayfield: As you well know, we heard of how flagrant some of the abuses can be and the obvious need for some kind of regulation to weed out these kinds of people who would do this.
What we heard before is that the difficulty for the federal government is that licensing is primarily or completely a provincial area of responsibility. I'm wondering if you in your department have given any thought to how provincial governments could be pushed in the direction of cooperating with this licensing process. What would be the advantages or disadvantages of the federal government department saying it would only deal with those who have been provincially licensed and then letting the provincial counsellors and consultants deal with their own provincial bodies to put in place a licensing program?
Ms Chapman: I think that's an interesting point. At this point we don't see ourselves as having much leverage with the provinces in this area. A context in which it might be negotiated would be in a federal-provincial immigration agreement. We have agreements with 7 of the 10 provinces, and we're in the process of negotiations with other provinces. So we could reopen the existing agreements, perhaps, and seek to negotiate, but we would have to negotiate with the provinces in order to do that because, as I say, we don't have much leverage from a federal point of view, at least not with the immigration program but maybe with the government at large...but I'm not sure how this would work.
I think, though, that efforts to interest the provinces in the past, by suggesting to them that we might pursue an approach such as you suggest, whereby we would only deal with people who were provincially regulated, led us to the conclusion that there would be inequitable access. So if the Province of Ontario, for example, were to decide that it was not going to license this group and that they were just going to stay out of the business, it would mean that anybody practising in Ontario would have no access.
To be straightforward about it, there are many consultants who are very competent and do very good work, so we would be putting a large group of people out of business who are serving the program very effectively. So I think that's one of the reservations we have about relying on the provinces when they don't have an interest.
If the committee had suggestions on how we might interest the provinces or about some kind of leverage that we could use with the provinces to encourage them in this area, we'd be very interested in that.
Mr. Mayfield: This type of licensing that we're discussing would not apply to lawyers who are regulated through their bar associations, would it?
Ms Chapman: No, it would not. We would continue to rely on the bar association to regulate them.
Mr. Mayfield: It seems to me we were told that in Quebec about 80% or 85% of those dealing with immigrant applications are already lawyers. It's a very high percentage. About only 5%, if I remember correctly, are consultants who are not lawyers. Do you know whether those numbers would be comparable in other provinces?
Ms Chapman: I'm not sure. My impression is that Quebec is somewhat different in this field. My impression - and it's only an impression - is that in Ontario, for example, it would not necessarily be the case...that there would in fact be a higher share of consultants. Since we've not had a registration either of the lawyers or of the consultants, I'm not sure we could come up with a number we would be confident in.
Mr. Mayfield: What problems would you run into if you went ahead with federal licensing as you mentioned, even though it would affect only a small number of those involved? I think you said they would only be involved with tribunal cases. Is that right?
Ms Chapman: Our impression is that this would be the only area where we could effectively...I have not yet read a legal opinion so I couldn't be certain of exactly what the limitations would be.
My clear impression, though, is that in Australia where they have gone to a federal licensing, what has happened is there have been significant costs associated with that licensing process to the government. Even the registration fees they have charged have been insufficient to cover the costs, and it has resulted in an increased demand for service from the consultants, from the government, with the result that this also adds costs. So in the end it's not cost-effective from the government's point of view.
On the other hand, it is also the case that we have some concerns that if we gave the good-housekeeping seal of approval to a particular consultant, we would have to do a very significant amount of research into this person and their activity. If we were to do that, it would be costly. If mistakes were made the repercussions of this for the government would have to be assessed. To what extent would the government be liable? I'm not sure if I'm using the right legal term. But to what extent would there be the charge against the government for its failure in this area? We haven't had a legal opinion on this yet, but I think we would have to think about it.
Mr. Assadourian (Don Valley North): It's good to see you again.
Ms Chapman: It's good to see you.
Mr. Assadourian: I want to share with you the fact that a few weeks ago I wrote a letter - maybe over a month ago - to the president of Seneca College asking him to consider the possibility of a course for consultants. I didn't receive any reply from him yet, but once I do receive something in writing I'll pass that information to you. It might be beneficial to the department to see what private enterprise thinks about the kinds of concerns we have. They might be able to suggest some solution that we as politicians or bureaucrats can't think of.
I was thinking more or less in terms of juralistic diplomas or certificates for the agent or salesperson they have. So I haven't received any reply from them yet, but once I do I will pass on the information to you.
I've raised this other issue a few times. They told me they were the wrong person to ask. You're the right person, I believe.
Ms Chapman: I hope so.
Mr. Assadourian: We'll find out in a few minutes.
A few years ago there used to be only a 500-plus backlog of immigrants and refugees, mostly from Portugal, I believe.
Ms Chapman: There was a large share from Portugal.
Mr. Assadourian: Based on that, Canada decided to put a new system in place so it could speed up the processing. Because of that they put new gadgets in the computers: you dial a number and press 1 if you want English service, press 2 if you want French service, and what have you.
Now, the minister told us the backlog is over. What a consultant charges is usually.... They make a phone call and they charge $200. They take you downtown with them, they charge you $500 or whatever.
If we reverse the system, go back to person-to-person contact and eliminate this computerized push-button service that we provide, is it possible that individuals who are so weak that they depend on these consultants will themselves go to the counter and ask the person behind the counter, ``What happened to my application? What did I do wrong?'' Maybe the person behind the table will say ``Okay, you did this. I have to make an X here.'' It would be cheaper for the users and we would also eliminate a big part of the consultants who are out there milking the people. Would that be something that you would consider?
Ms Chapman: Well, that's a very interesting suggestion. Unfortunately, our experience was that even when we had more face-to-face contact the consultants were very active. So I don't think we would be eliminating the problem. The cost of going back to face-to-face interaction would be extremely high. We have been able to reduce the cost of the immigration program to the taxpayer very significantly over the last five years. If we were to go back to a face-to-face contact instead of a mail-in, we would go back as well to the long line-ups that you will remember - people starting to line up at two o'clock in the morning in order to be served. Now there are people who are willing to do so. But there are also lots of people who are not, and they, in turn, go to consultants. So in a sense, on the one hand, the new mail-in procedure may encourage consultants. On the other hand, going back to face-to-face also can lead to consultants. At least, it certainly doesn't eliminate it and the costs associated with it are very significant.
In a sense, we are mixing two issues here. It's probably my fault for not clarifying it at the beginning - that is the distinction between people who are unscrupulous, as Mr. Mayfield pointed out, and people who overcharge, as Mr. Assadourian pointed out. I think it would be helpful to think about the two things separately.
In the case of people who overcharge, this is an idea that I've had and I don't know if it works. It seems to me that many of the organizations that we deal with, the NGOs, the service providers, and so on know a great deal about what's going on. If we could work with them to try to find some way of publishing or keeping up-to-date some information on what the rates are that various consultants charge, it would be a lot more difficult for a given consultant to basically fleece somebody. They would be in a position then that they would have information.
So if you were a part of the Indian community in Canada, you would know through your organization, or if you were in touch through the Canadian Council for Refugees or some other organization, you would have access to some kind of information that would be made available on which people were available to help you and what their charges might be.
As I say, that's an idea I've had. It seems to me that part of the problem is lack of information. People get hooked on the first person they meet or the guy who knows how to speak their language or the person who helped their friend, rather than having full information. If we could find a way of making the information available, I think that might help to address the problem of people who overcharge.
However, I think the case of unscrupulous consultants is a different matter, where the need to have some kind of disciplinary process or some kind of oversight becomes more important. I think that's where the issue of either a self-regulating organization or some kind of licenser becomes critical, because I'm not sure that we could regulate fees as effectively through a top-down approach as we could through some kind of information-sharing at the community level.
Mr. Mayfield: I find the possibilities you raise in this self-regulating process to be quite encouraging, without having thought very long or very far about it.
But before I get to that, I'd just like to ask a little bit more about the provinces. I have difficulty understanding why the provinces seem to be showing more willingness to become involved in the immigration process, as well as the refugee process perhaps. Yet they would not be willing to take at least some responsibility for the consultants.
For example, I believe the Province of British Columbia, which is my province, has entered into an agreement with the federal government or is approaching that. Have part of the conversations in that agreement had anything to do with consultant licensing?
Ms Chapman: They have not, as such. One of the things we've learned in our discussions with the provinces is that, in general, they are interested, in immigration, in how to maximize the economic and social benefits to the province from the immigration movement. They have considerably less interest in the grimier side of things.
They are quite happy, in fact, to leave that to the federal government. In fact, they resist very heavily any effort on our part to engage them in anything relating to enforcement, whether that's in the area of criminality or any way. Essentially, they see it as a tough job that would require some investment on their part. Most of the provinces, like the federal government, are in tight financial situations and don't see themselves getting into this area, which doesn't have a lot of intrinsic appeal.
Mr. Mayfield: Let's look at it a little bit from the other end, perhaps, at which the federal government is solely involved. I appreciate your sensitivity to the cost of this. As you raise it, you see that it's a whole new empire we're getting into.
Would it be possible to do something much simpler? The way I'm thinking of it now seems simple.
Consider those who would like to be consultants. Without being denied that possibility or opportunity, what if they were prepared to sign a statement with the Department of Citizenship and Immigration indicating that they will charge fairly and be scrupulous and fair in their dealings? They might have a little logo made by some designer, which they could put on the window. Their names might be on a list of those people who have agreed to deal fairly with immigrants. This list could be circulated.
If there is some question of their not living up to this agreement, their names would not be on the list; it would be removed. The reasons as to why they had been removed would be made in a public way.
Do you think something less formal, such as that, would be workable, Ms Chapman?
Ms Chapman: I think that would have some advantages in, as you say, its relative simplicity. We'd have to look at whether you'd want to have any other criteria. Would you want people to have had some kind of training, experience, or something to demonstrate that they have real ability in this area?
For the federal government to in effect publish a list of reputable consultants without having any of those kinds of entry requirements would be difficult. I'm not suggesting that we couldn't pursue that idea, but I would simply suggest that we might want to look at a few more criteria than those you suggested.
I think it would also require monitoring. It would require some sort of enforcement action on our part. That's probably what we would have to devote resources to.
In looking at the program as a whole, the idea of taking enforcement resources - this is currently directed towards the removal of criminals as a first priority and then subsequently directed to others who should be removed from this country - and putting them onto the enforcement of consultants and making sure that they do the right thing seems to be potentially costly. That is a concern I would have.
Certainly, if the committee felt that was a direction they'd like the minister to pursue, we could do an investigation of what the costs would be. We could look at whether there were any risks associated with that. My main concern would be whether or not we could ensure that both the entry onto the list and the removal from the list was controlled. That would be difficult.
Mr. Mayfield: I would like to clarify with the committee that these are not recommendations I'm making; these are possibilities that I'm lifting to examine. That's all they are. They are as fresh in my brain as anyone's, so I'd like the committee to be aware of that.
Mr. Knutson (Elgin - Norfolk): Following up from Mr. Mayfield's point, I don't think anyone is thinking that the federal government will actually take responsibility for licensing individuals.
A suggestion from OPIC, for example, is that, once we were satisfied that they had professional capabilities or that they were evolving fairly quickly towards that level, the stamp of approval would say that they could only do A, B, and C if they were members of a recognized professional association. They would be in one. Then it would be up to them to charge the fee and, first of all, to self-finance it.
They would already work to satisfy you, presumably, or the minister, or whomever, that the licensing or regulatory regime was such that it had standards, qualifications, ethics, discipline, and possibly insurance.
They're also of the opinion that if you did, then maybe in law you could affect only 10% or 20% - a minority - of the cases.
Consider the immigrant communities themselves when they went to someone to help them fill out a form. Even though they might legally not be required to go to a registered consultant, with the fact that there was a registry and a licensing body, the immigrants themselves would then buy into the process. You would end up solving far more of the problem than you might have thought you were going to solve if you just looked at it theoretically or on paper.
Can I just get your response?
Ms Chapman: We're very attracted to that idea. We're very attracted to, in a sense, a self-regulating organization for the following reasons.
First, we do believe that, in general, people who go into this business are not unscrupulous. Most people who go into this business, like most people who go into other businesses, are scrupulous, will serve the interests of the client, and will not overcharge.
So to start with the idea that we want to deal individually and monitor everybody is not appealing to us.
Mr. Knutson: Right. It's a non-starter.
Ms Chapman: It doesn't seem to us to make a great deal of sense, although, as Mr. Mayfield said, if we could find a simple model, maybe that would be helpful.
On the other hand, the proposal that OPIC has made, which we've been building on, is very attractive. That's because it's similar, in a sense, to the law society.
It's not as formalized, it is not as ``ritualistic'' perhaps, but it has many of the advantages, and so we're quite attracted to it.
I mentioned in some opening remarks that under the right set of circumstances, with a code of ethics, good disciplinary processes and so on, we could see this as being something that might well address a significant share of the problem. And as you say, as the community becomes aware that these individuals have some kind of status, that they have provided good service, I think in a sense the ``poor quality'' providers - the unscrupulous and those who overcharge - will lose business. So the market would indeed take care of it.
We'd have to work carefully with any groups that were going to become self-regulating to make sure they had all the necessary checks and balances in place. I'm not sure exactly what kind of relationship the federal government would have with them, what kind of a liaison we would need to have in order to make sure they were honouring their responsibilities.
Mr. Knutson: Maybe this committee could review it a year after it was put in place and monitor it for the first little while.
Ms Chapman: That would be an excellent suggestion. We would, I think, be quite comfortable with the idea that we would try something and we and others, in particular the committee, would monitor it so that we could then come back and ask how effective we were, whether it addressed any of the problem, some of the problem, a lot of the problem. That would be very effective.
Mr. Knutson: Are you the contact?
Ms Chapman: Brian Grant is the director of control and enforcement policy in my shop, and he is the key person on this file, but I am responsible overall, yes. So you can get in touch either with me or with Brian Grant.
Mr. Knutson: Okay. That's all. Thank you.
The Acting Chairman (Mr. Dromisky): Mr. Mayfield, do you have any further questions?
Mr. Mayfield: Yes, one or two more.
At least in my side of the discussion, I've been thinking about the situation within Canada. I believe, though, that there are consultants who are working on behalf of immigrants offshore in other countries. Would the problems be any greater or less severe in licensing or controlling or monitoring these consultants who deal with people applying to immigrate to Canada?
Ms Chapman: I think there are significant differences and on some problems would be fairly difficult. However, my sense is that if we were able to have some kind of self-regulating licensing within Canada, that would be a good starting point. We could then look at the possibility of having a similar kind of structure overseas. I'm not sure exactly how it would operate, but the same kind of principles would apply.
The idea that the market in time would recognize that having the stamp of approval from a particular licensing or regulating organization, perhaps in Canada, would mean that these people were not unscrupulous in general and would not overcharge. So I could see that as a possibility, but I would see that as more likely a second step in the process. For us to actually license people in another country is out of the question, so it would have to be some kind of self-regulating initiative.
Mr. Mayfield: Immigration officials should be able to take the initiative in deciding who they will deal with as consultants or who they will relate to or not relate to offshore. Is that not correct?
Ms Chapman: We've had some limited success in doing that, but it has been limited success.
We are not sure exactly of our legal rights in this area and again, I think we need a clearer sense of what we can and cannot do.
Certainly, we could exclude people from the premises in that it is Canadian property, but it's doubtful you'd want to go that far, because of the public relations aspect of it, such that a wrong judgment by an officer or a security person could create major problems in a country where we wanted to have good relations.
The Acting Chairman (Mr. Dromisky): I think we would have no control over the selling of knowledge in another country. Anyone very knowledgeable about our system and the process and the regulations could easily sell that if there is a market for it.
However, let's go back now. I believe Mr. Assadourian had a question.
Mr. Assadourian: A few months ago, someone brought to my attention at my riding office an ad for a consultant using the Canadian flag logo we have on government stationery, with the maple leaf and the bar there, and then saying he is is doing a good job and what have you. What would you do, in that case like that, where someone is promoting his business by using a Canadian government symbol?
Ms Chapman: At this stage, we don't do anything about that. I am not sure what we could do about it. I'd have to go back and think about that, Mr. Assadourian.
Mr. Assadourian: If I personally used the ensign -
Ms Chapman: Somebody is going to come to get you.
Mr. Assadourian: Why not the Government of Canada?
Ms Chapman: I think there is probably a process that would do that, but it would probably be under the federal identity program.
Mr. Assadourian: Which program?
Ms Chapman: The federal identity program, which I believe is -
Mr. Assadourian: Do you charge these individuals?
Ms Chapman: The immigration program wouldn't charge them, but there may be -
Mr. Assadourian: The RCMP would not go after them for misusing or abusing the symbol of Canada?
Ms Chapman: It's possible that a legal remedy may be available under the federal identity program, but I don't know of it and it's not something that the immigration program per se would be involved in. If there is legislation to limit the use of that identity or that symbol, we could bring it to the attention of the relevant area, but at this stage, I am not sure what the enforcement provisions are that relate to that. I'd be glad to look into it and get back to you.
Mr. Assadourian: Yes, would you, please?
The Acting Chairman (Mr. Dromisky): Do you want to ask a question?
Ms Margaret Young (Committee Researcher): Yes, please.
I'd like to put to you a couple of the other options that have been presented by the witnesses.
We've been urged by several groups and individuals to limit tribunal work to lawyers, tribunal work being representation before adjudicators representing refugee claimants and taking appeals before the Appeal Division. How would you respond to that suggestion?
Ms Chapman: I can understand why lawyers might suggest that, but I have to say that to the best of my knowledge, the representation that the people who choose to have consultants represent them receive is equal in quality to the representation that they receive from a lawyer - in general. There are good lawyers and there are less good lawyers, just as there are good consultants and less good consultants. On average, I would say that the representation from both groups is about equal.
So I'm not convinced of the value of that particular limitation. Indeed, I would argue that representation before a tribunal is one of the areas that is least likely to be subject to unscrupulous action because it's the most formal and most regulated, so the opportunities to behave unscrupulously are, I think, constrained.
Ms Young: The Quebec lawyers made a presentation, and as the first question pointed out, they don't have much of a consultant industry at all. They told us that the Quebec government does not permit remunerated consultants to appear before the Bureau de révision en immigration. That is, the Quebec government offices will only deal with lawyers or unpaid friends, NGO groups, that kind of thing.
I found that interesting. This ties in with a suggestion that another group has made, which is for CICs in Canada and posts abroad to deal only with lawyers, for example, or unpaid counsel.
I'll ask my third question now, and you can address it at the same time. You spoke of the limited success that you had had abroad in controlling access, and I'd like to hear a bit more about what you tried and what success you did achieve. So that ties in with my second question about controlling access abroad. Why can't you just say we'll deal only with, for example, lawyers?
Ms Chapman: I guess it would be possible for us to say that we would deal only with lawyers. We have not yet received a legal opinion to the effect that this is possible, but my intuition would be that we probably could limit access.
My concern is why do you want to do it? Why is it important that it be a lawyer who represents you? It is in my mind the case that, as I said earlier, many consultants are as effective, as knowledgeable, and as competent in every way as many lawyers, so simply barring them from entry because they're consultants seems to me to be arbitrary and unnecessary.
In terms of overseas, we have basically in some cases asked that certain people not enter our premises, and to a large extent that's been respected.
The other thing is that I have a concern about so-called unpaid assistants; this is for two reasons. One is competence. I think I have more concern about somebody bringing their brother, sister, or friend in and expecting them to represent their interests than I do about most of the consultants, because most of the consultants, as I say, are quite knowledgeable. I have less assurance about the unpaid cases. The other thing is that I don't know what assurance we have that they are indeed unpaid. How would we know that this person or that person was not paid? Perhaps we wouldn't know directly or perhaps it would not be visible to us, but we would have no assurance. If I came into an inquiry and said, this is my friend for whom I am not paying for this, you have no way of assessing whether I am paying this individual or not. We would have to accept the person's word, and in the end I think the risk of unscrupulousness increases.
The Acting Chairman (Mr. Dromisky): Thank you very much. Are there any further questions from either side of the table? Since there aren't any, I thank you very much for your presentation. It was fruitful. Unfortunately, we didn't have the full committee here, but at least we had a quorum, and the records have been kept, so we will be able to share the information with the other members. Thank you very much, Ms Chapman.
Ms Chapman: Thank you very much.
Mr. Assadourian: Have a good summer.
The Chairman: I think we'll get started.
My name is Gar Knutson. I'm the chairman of the subcommittee. I'd like to welcome Mr. Sauvé and Mr. Goyette from the Quebec bar, who will give us their testimony on the issue of regulating the consultants industry.
Thank you, gentlemen, for coming. I don't know if you've appeared before a parliamentary committee before, but the normal routine is to speak for 15 or 20 minutes and then we will go around the table and ask questions.
I would expect that we will try to be done in 45 minutes, though if we need to go to noon, we will do that. We can go past the scheduled stopping time of 1 p.m. Don't feel rushed because of the late start.
Mr. Marc Sauvé (Legislative and Research Department, Barreau du Québec): Thank you very much, Mr. Chairman and members of the subcommittee.
First of all, allow me to introduce myself. My name is Marc Sauvé and I am a lawyer with the Service de la législation (legislation service) at the Barreau du Québec.
I am accompanied by Jean-Francois Goyette, a private sector lawyer specialized in immigration law who will be able to provide a more detailed response to some of your questions concerning immigration and the practices or situation in Quebec.
Without further delay, I would like to begin by telling you, in case you do not already know - though it would surprise me if you didn't already know this - that the Barreau du Québec is the professional corporation that governs the activities of lawyers in Quebec. There are more than 16,000 lawyers in Quebec. It is a professional corporation whose main responsibility is protecting the public, primarily by monitoring the way in which the profession is practised. So it is in light of this mandate to protect the public that you are to interpret our appearance here before you today.
I must however humbly admit that this is not a firm position that has been analyzed in detail by the Barreau. Instead, it represents our initial reflections on the issue of immigration consultants and the role that lawyers should play in order to protect the rights of people involved in the immigration process. So without any further delay, I'm going to move on to the main points of the Barreau's brief.
For the past several years, numerous consultants or advisors have been acting in Canada and abroad as intermediaries between potential immigrants and various immigration authorities. These consultants are called upon to prepare files and to represent the interests of foreigners who want to obtain immigrant status or citizenship. Often, these consultants charge exorbitant amounts of money to act in this capacity or to arrange placements in the country.
As I mentioned earlier, the main responsibility of the Barreau du Québec is to protect the public, and it is obviously very concerned that immigration consultants are not subjected to any mandatory code of ethics and that they offer no guarantee, especially in terms of training and liability insurance.
On that topic, I must point out a fact that concerns us. There are immigration lawyers who decide to let their professional title expire because they believe that belonging to a professional corporation is not very advantageous, but instead, more of a hindrance than anything else. They continue to do exactly the same work without being regulated. In our opinion, this problem must be dealt with.
More often than not, foreigners who want to obtain immigrant status are not aware of the laws that are in force in the country and of their right to be aided and represented by a lawyer. I think that it would be useful to give you an overview of the activities of these immigration consultants and then to take a look at the legislation which regulates professions, and the role of legal counsel.
The first topic is the nature of the work conducted by immigration consultants.
As part of his daily work, the immigration consultant is called upon to act or to provide advice, especially advice concerning the application of the Immigration Act to specific cases, or advice concerning the legal consequences of an offer of employment; he is called upon, as well, to prepare certain documents of a legal nature and provide advice concerning the application of labour standards or aspects of the tax system.
In addition, the immigration consultant may represent the potential immigrant before various quasi-judicial bodies and could be called upon to manage or to invest considerable sums of money. He can do this without any form of control or monitoring. For the Barreau du Québec, it is clear that this situation is dangerous for the public. We feel that the federal government should draw on the Quebec experience regarding the role of lawyers as representatives in the immigration process.
First of all, legislation governing professions in Quebec has a distinctive characteristic: the professional code. All professions in Quebec - and there are 40 or 41 of them - are subject to this parent legislation. Each profession is also governed by a specific Act. In the case of the barreau, it is the Bar Act.
Subsection 128(1) of the Bar Act states that various acts are the exclusive prerogative of the advocates, primarily giving legal advice and consultations and, with certain exceptions stated in the Act, to plead or act for others before any court. The word «court» is defined in the Bar Act as ``any organization sitting in Quebec and there exercising a judicial or quasi-judicial jurisdiction''.
What you have to keep in mind is the principle. The principle is that the advocate is entitled to represent others before the court. Of course, there are exceptions included in the Bar Act: certain administrative tribunals, including the Régie du logement, for example, and labour law bodies. There is also subparagraph 128(2)(a)(7), which states that it is possible for non-legal counsel to represent others before the Bureau de révision en immigration (immigration review body) in the case set out in section 31 of the Loi sur le ministère des Communautés culturelles et de l'Immigration.
In looking at section 31 of the Loi sur le ministère des Communautés culturelles et de l'Immigration, you realize that the possibility of representing others before this quasi-judicial body is very limited and restricted. The Quebec legislator decided that, not to make lawyers happy, but because it deemed that it was in the interest of the parties coming before the Bureau. Section 31 says:
In addition, the ministère des Communautés culturelles et de l'Immigration requires, in practice, that the person representing the claimant at the various administrative stages of the process be a member of the Bar. So except as indicated, lawyers practice exclusively in this area.
Why this area of exclusive practice? Because it involves guarantees. And what are these guarantees?
First, there is training. As you know, a university education in law is necessary to become a lawyer. In Quebec, three years of university training, one year at the École du barreau and six months of articling are necessary. The same guarantees with respect to training do not exist in the case of immigration consultants.
Secondly, ethics are a factor. Several members of this subcommittee are probably members of a bar association and therefore subjected to a code of ethics. You know that if offences are committed, the syndic can lodge a complaint with the syndic committee, and disbarring can result. Obviously, these rules do not apply to consultants.
Third, there is mandatory liability insurance. In Quebec, someone who practices must have liability insurance with a million dollars of coverage. Once again, this guarantee does not exist for people who deal with consultants. We also know that several consultants offer their services through a company. This way, they avoid their personal responsibilities, without the company being insured.
Fourth, there is a compensation fund. When a client deals with a lawyer who illegally appropriates his money, the client can turn to the professional corporation and claim an amount not exceeding $50,000 from the compensation fund. There again, this guarantee does not exist for people who deal with immigration consultants.
Fifth, there's conciliation and arbitration. Here again, there are regulations. If a client is dissatisfied or finds that the bill sent out by the lawyer is too high, he can always turn to the Office of the Syndic for conciliation and to request arbitration if need be.
Sixth, there are trust accounts. There are a series of rules in this respect and if you hold sums of money for others, you are subjected to them.
In summary, all regulations that are mandatory for lawyers are not mandatory for immigration consultants. We believe that lawyers are the professionals who are the most suited to adequately protect people's substantive and procedural rights.
In Quebec, only a lawyer can represent others before a court, except where specified in the Act. This principle of exclusive representation is generally accepted by all administrative tribunals, including the ministère des Communautés culturelles et de l'Immigration. We believe that the federal government, in its regulations or its legislation, could draw on the Quebec experience, specifically on section 31 of the Loi sur le ministère des Communautés culturelles et de l'Immigration, so that representation by non-legal counsel before the Immigration and Refugee Board be allowed only in certain specific and limited circumstances. We do not see why a person who is involved in the process should not be entitled to the same guarantees and to the same quality of service, whether they're before a provincial or a federal body.
We would be more than happy to submit more detailed comments and observations once the regulations have been tabled and published in the Canada Gazette.
Thank you very much. My expert and I are ready to answer your questions. I am not an expert in immigration law, but I'm lucky enough to be accompanied by someone who knows it very well and who can probably paint you a more concrete picture of the situation. Thank you very much.
The Chairman: Thank you. Mr. Goyette.
Mr. Jean-Francois Goyette (Association québécoise des avocats et avocates en droit de l'immigration): I would simply like to add something. I won't be very long.
Mr. Sauvé referred to the current situation in Quebec. Since the signing of the Cullen-Couture Agreement, there has been a procedure in Quebec which makes selection a provincial responsibility. In exercising this responsibility, the Quebec government has, in the Loi sur le ministère des Communautés culturelles et de l'Immigration, identified its preferences regarding its relationship with lawyers and consultants.
That was done at a certain time, and I think that when the decision was made, it was made with a view to harmonizing this tribunal with all other administrative tribunals in Quebec which have, as in section 31 which was pointed out to you, provisions relating to representation by legal counsel and by non-legal counsel, by people who are not lawyers.
In my view, Quebec has benefited from these provisions. Over the years, the Quebec system has allowed for representation which is in the interest of the public, and specifically in the interest of the people wishing to immigrate to Canada.
The legislative changes to the Immigration Act resulted in paragraph 114(1)(v) which you have undoubtedly heard about. It states that the government can legislate in the area of representation, particularly before administrative tribunals.
Personally, I know that there have been developments regarding paragraph 114(1)(v). At one point, there were consultations on draft regulations which included certain provisions similar to those found in section 31 of the Loi sur le ministère des Communautés culturelles et de l'Immigration, but I do not know what the status of these consultations is.
I believe, however, that the time is right for the government to make the necessary changes and that representation, at least representation before administrative tribunals, should be done by a lawyer who is a member of his provincial bar.
In my view, not having any provisions governing the IRB at present is anachronistic. The IRB is an administrative tribunal, but the people who appear before it, whether it be in the status, appeals or arbitration section, must answer questions that will affect the rest of their lives, more perhaps than before any other administrative tribunal. In fact, the questions of law that are raised there are complex, most of the time, and require an unflagging attention as well as an important baggage of knowledge. I believe that it is of utmost importance that the problem of representation before the IRB be dealt with.
In addition, I feel that the federal Department of Immigration should draw on the Quebec experience in the areas of representation and of its mandate. As Mr. Sauvé pointed out, only practising bar members can be agents or represent clients or candidates for immigration before the Department of Immigration. The experience has been conclusive. It is now part of the legal culture and environment in Quebec. That is an important aspect to consider.
I also think that regulations would enable provinces to legislate in these areas according to their own needs. They could set up a corporation for consultants or any other body they deem necessary. This type of decision is a provincial responsibility and I believe that we must strive to respect to the province's traditions and legal environment. Thank you.
The Chairman: Mr. Nunez, do you want to go now or wait?
Mr. Nunez (Bourassa): I could go now, but I don't know if I will repeat some questions.
The Chairman: We can start with Mr. Mayfield and come back to you.
Mr. Nunez: Okay.
Mr. Mayfield: Thanks very much, Mr. Chairman. I'd like to apologize for not being here when I thought I might be.
The Chairman: It's all right. We started late anyway.
Mr. Mayfield: I'd like to thank you, gentlemen, for your presentation.
I think I understand that you believe only lawyers should be representing immigration applicants. It does raise the question in my mind of why you would be saying so forcefully that it should be entirely in the domain of the legal profession when in fact the consultation very frequently is not of a legal nature. There are many highly qualified consultants who are not lawyers and do an excellent job of showing immigration applicants through the procedures of making application, who to see and what information is necessary.
I would not argue against the validity of a lawyer, legal experience and legal knowledge when it's necessary, nor would I argue against the right of someone who wants to go to a lawyer if they choose to. But I'm a bit surprised at how adamant you are that only lawyers should represent immigration applicants. I'm wondering if you see any validity in qualified non-lawyers assisting people in their immigration application through this process.
Mr. Goyette: With your permission, Mr. Mayfield, we favour representation by lawyers because it is society's choice. It is not a question here just of immigration consultants. I know people who are not lawyers and who do an excellent job helping people who want to divorce. They advise them on the formalities, which, while not of a legal nature, may present thorny legal problems.
Therefore, you may perhaps be mistaken in thinking that we want to ensure that only lawyers make representations. Clearly, in the Quebec legal environment, most administrative tribunals permit free representation. In this context, the Quebec Bar would certainly not be against individuals, friends or relatives of an immigration applicant representing him or her before the Department of Immigration.
I have no difficulty believing that there are immigration consultants who are entirely competent in what they do, perhaps even more so than certain lawyers. However, since these people are not supervised, public protection becomes an issue.
I think it is up to the provinces to ensure control over immigration consultants, either through a corporation or in some other way.
We are not here to say that we are against the idea of a corporation or a professional body of consultants of some sort. I think everybody believes there is a need for it. However, in order for the Quebec Bar to express an opinion, the Quebec immigration consultants must express the desire to create, or propose some sort of professional association which may be discussed publicly.
Once again, Mr. Mayfield, I must say that we are absolutely not insisting on representation by lawyers alone. You are mistaken if you think this is the route we are advocating.
Mr. Mayfield: But without remuneration or compensation if you're not a lawyer, I believe you're suggesting. Is that correct?
Mr. Goyette: That is already the practice in administrative tribunals in Quebec. A number of administrative tribunals permit this sort of representation.
Mr. Mayfield: If I may interrupt you, sir, before my time is up, there are other things I'd like to raise as well. We have a very generous chairman, but....
It seems to me that if you're qualified to hang out a lawyer's shingle, you can represent an immigration applicant one day and defend someone for murder the next day, for example, as long as you can get the client into your office and convince him that you have something he's willing to pay for.
What I'm wondering is how we can provide regulations so that those people who are putting themselves forward to represent immigrant applicants are qualified to do so. We all know that some lawyers do work they're not qualified to do, even though they've been admitted to the bar.
Without arguing with you, I don't think that what you're suggesting covers all of the concerns we have. It's true that there are mechanisms within the bar associations to deal with those who are unscrupulous. Thank goodness for that. I'm concerned that if we have non-legal consultants, they would have the same kind of regulatory mechanism, whereby they would be called to account for inappropriate activity and behaviour.
It seems to me that what we're looking for are means of promoting those people whose main interest is the welfare of the client - the immigrant applicant or the refugee applicant - and to see them safely and expeditiously through the process without taking undue advantage of them.
I'm asking if you see any leeway in your argument for someone to make his living as an immigration consultant, if you will - someone who perhaps has spent 20 years in the department and knows the ropes thoroughly and has decided they would like to do it in a non-bureaucratic atmosphere. Do you not see a place for someone like that?
Mr. Goyette: I have no problem talking about monitoring immigration consultants. My premise is that monitoring is required, because there is none at the moment. Anyone can be an immigration consultant, anyone and his brother.
Mr. Mayfield: You're right.
Mr. Goyette: Under our legal system this monitoring issue is a provincial matter. If we are going to talk about it, a project has to be put forward. The people concerned, the consultants, have to present a project, they have to ask to be heard, and a discussion will be held.
I, personally, am not in a good position to speculate on a proposal for a professional body. At this point, I do not think that the Quebec Bar can take up a position on any sort of proposed professional body. The immigration consultants and the people you have described as being capable of making representations to Immigration have to apply for recognition within some sort of an organization. This can only be done if they collectively want such an arrangement and apply for one to the appropriate authorities.
I would add one last thing, Mr. Mayfield, if I may. In the Quebec Bar, and I am convinced this is true in all similar professional bodies in the rest of Canada, you do not just decide you are a lawyer specializing in murders any more than in immigration; you can't improvise.
Very clear professional ethics provisions - Mr. Sauvé can tell you about them - encourage or require a lawyer to turn down a case he is unable to defend due to its complexity or his own unfamiliarity with the law. I would never argue murder cases, because I have no experience in the matter. If someone accused of murder came to see me, I would refer them to a specialist in this area. If I failed to do so, I could be subject to sanctions by the Bar. This is how it works.
Mr. Mayfield: That's exactly the kind of scrupulous behaviour that we're looking for, which you're describing here.
I don't know whether I've used my time up or not, Mr. Chairman.
The Chairman: You are two minutes over.
Mr. Mayfield: Two minutes over. Would you like me to wait until next time?
The Chairman: Yes.
Mr. Mayfield: All right. I'd be happy to do that. Thank you very much.
Mr. Nunez: I apologize for my tardiness. This is the final day Parliament sits, and we have a lot of work. But I wanted to be here because we are keenly interested in the opinion of the Quebec Bar.
I do not know whether you have already done so in your statement, but I would ask you to explain the seriousness of this problem in Quebec. We questioned other witnesses, who told us that, with respect to the IRB, 95% of individuals were represented by lawyers and 5% were either represented by consultants or were not represented at all.
You said that the Bar had initiated proceedings against certain consultants. What happened in the case of these proceedings? Could you elaborate on that as well?
Mr. Sauvé: Absolutely. I can answer this question. First, I would say that the number of proceedings for illegal practice is limited. I checked with the biggest Bar, the Bar of Montreal - because the Bar is divided into sections - , and was told of four proceedings involving illegal practice.
Mr. Nunez: Since when?
Mr. Sauvé: In the past three or four years. These were proceedings against consultants who were acting as lawyers, that is who were claiming to be lawyers on their business cards or who identified themselves as individuals with the authority to give legal opinions. In short, there have been very few legal actions as such.
This may be comparable to the phenomenon of paralegals. I know that this business of paralegals is a significant phenomenon in English Canada, but there are practically none in Quebec. You will never see anyone in Quebec opening a private office to provide legal services directly to the public without being a member of the Bar or a notary. You will not see this sort of thing. This is not one of our practices. It is not part of our culture.
Obviously, the Bar would follow the matter closely if it did occur. The phenomenon does, however, exist in English Canada. The law society of Upper Canada, for example, had to oversee approximately 100 people who opened offices without being lawyers, without being members of the Bar, and offered legal services.
In Quebec, this phenomenon does not exist. This does not mean that we should ignore it. We are keeping a fairly close eye on it, because we feel that someone who lacks the proper training and does not provide the guarantees of a code of ethics constitutes a potential risk to the public.
Mr. Nunez: Could we also mention the fact that immigrants don't often complain? They probably do not complain a whole lot. They will not go before the Bar, given that you...
Mr. Sauvé: That is a factor. If you are deported, you are not there, you do not know the laws and you have no contacts. It is difficult under those circumstances to complain. The clientele of immigrants applying for immigrant status has been described as a specific and vulnerable clientele, vulnerable because it has no ties here. This group of people is not necessarily familiar with our habits and customs, our values and all of that. For a number of them, their physical and psychological integrity is at stake. They are prepared to do just about anything you can think of to obtain immigrant status. So they are delivered to consultants with their hands tied, so to speak. This is what I have heard, and I think it is fairly accurate.
Mr. Nunez: This phenomenon is not particularly serious in Quebec now, but how do you think it will evolve in the future?
There have been, for example, many cuts in the Department of Immigration and at all levels of the federal public administration, and people do not have the information they need in order to complete a form and obtain opinions and advice. Could this result in their going elsewhere?
Secondly, do you not think that, if legal aid becomes too restrictive in terms of legal representation, it could have an impact on immigrants? I do not know whether you have any information on the fees charged by lawyers and consultants. Have studies been done in this regard?
Mr. Goyette: I'm sorry, I did not understand the question.
Mr. Nunez: The last one? Assuming that it will cost more to consult a lawyer than to see a consultant, what will immigrants do if there are fewer legal aid representations in the future?
Mr. Goyette: Indeed, the question will arise. At the moment, in Quebec, most people who have to be represented before the IRB prefer to consult a lawyer.
If they are disadvantaged, they may be given legal aid. In the future, however, because of the limited number of authorized representations, it will be more difficult. And we will no doubt see people who might otherwise have drawn on legal aid preferring to see an immigration consultant, who does not provide the guarantees we mentioned earlier and who provides lower-quality services.
This is a major risk and one we are keeping an eye on, particularly at a time when significant cuts are to be expected.
Mr. Nunez: We heard many witnesses and most of them asked that they be governed by regulations. However, given that the regulation of professions is a matter of provincial jurisdiction, except for the provision in the Immigration Act, don't you see a constitutional problem arising from this?
Mr. Goyette: I don't think there's a constitutional problem here, because all those who came before you agreed that the regulation of professions was a matter of provincial jurisdiction.
The Chairman: Could I jump in on this question of highlighting the problem. We had testimony from the department that while Ontario, for example, or the other provinces want to be involved in immigration from the social policy point of view and the economic policy point of view, they don't want to get their hands dirty with enforcement, deportation, and regulating consultants. They don't want to deal with the issue. It's not the Constitution per se that's the problem. The problem is phoney consultants and our problem is - and I'm not talking about Quebec - that the provinces generally don't want to deal with it. That's the problem.
Mr. Goyette: Mr. Chairman, I fully understand the context you're describing.
However, since I am from Quebec, where the legal environment is different, the current situation seems anachronistic to me. What I expected from a reform of the Immigration Act was that it mention very clearly the responsibilities incumbent on the provinces with regard to the regulation of consultants. I'm sure that in such a case, Quebec would be able to handle the problem.
Coming from Quebec, I find it unfortunate that this issue cannot be settled simply because other provinces don't want to be responsible for regulation. It seems to me that this is a feeble excuse to avoid solving the problem.
Mr. Nunez: I've had conversations with people from Morocco, Portugal and other countries where the same problem exists, and they were wondering what Canada could do because it has no jurisdiction in foreign countries; there's only one contact point with these consultants, through the embassies. Therefore, what could we do to solve the problem?
Mr. Goyette: Right now, nothing. There's absolutely nothing we can do to take legal action against an immigration consultant working abroad, especially if he's taken the added precaution of incorporating.
However, what I can tell you is that if a member of the Bar did something that was contrary to our code of ethics, he or she could face serious sanctions and could even be disbarred.
It's important to know that if a lawyer commits an act that transgresses our code of ethics or of conduct, the bar association can request that he attend a hearing and impose disciplinary action, regardless of where that lawyer lives anywhere in the world. Mr. Sauvé could confirm this. This is important for public protection.
Mr. Nunez: Thank you. Merci.
The Chairman: I just have to determine when we need to conclude our discussion. The main factor is when you have to leave. What time do you have to leave?
Mr. Nunez: At 1:00 p.m.
The Chairman: The committee can stay longer, but we should move to the Canadian Bar Association, then. If you gentlemen want to stay and watch, you're most welcome.
Mr. Loney (Edmonton North): Mr. Chairman, I have a brief question I'd like to address to both the witnesses. Could you outline for the committee whether you have had any personal experiences in which immigration consultants have, in your view, performed work or given advice that was incompetent, over-priced, or fraudulent? Could you comment on what the consequences were for the client?
Mr. Goyette: I think that virtually all the immigration lawyers I know have had clients in their offices who either had their money taken or received bad advice.
There are a lot of horror stories in this connection. I know people who've spent up to $10,000 in Montreal. They dealt with a company that was to handle permanent residency applications and nothing was done within the deadline. It turned out that the company only existed on paper.
I witnessed a case where consultants had not taken the necessary steps to submit a sponsorship application. As you know, there was a time when you could sponsor children even if they were over 19 years of age. This changed three years ago. The age limit was lowered to 19. Now, all lawyers were aware that that change was imminent and that a moratorium would be imposed. Therefore applications for sponsoring children had to be submitted as soon as possible.
This was a family reunification case and these people had spent fabulous amounts of money. The situation was heart-rending. I knew that if this sponsorship was turned down, these people would be separated and it would be just about impossible for me to get them into Canada. I tried to explain what had happened to the Department of Immigration, but in vain. It was an intensely sad case because of the incompetence of the consultants.
Every time I've been a witness to a case of this type, I've recommended that the person sue the immigration consultant. But people have to want to do that; they have to feel confident enough. And yet that's difficult, because their status is uncertain and they would have to spend additional money.
However, when a lawyer has made those errors, I can either call him or her or call the syndic of the Quebec Bar.
In Quebec, when the syndic gets involved in professional issues, lawyers tend to reactrather fast.
The Chairman: In fairness to the next group, I want you to close.
Mr. Goyette: Merci.
The Chairman: Thank you very much. I'm sorry about the rush.
Let me begin by welcoming our representations from the Canadian Bar Association. I apologize for the change in starting times. I can stay until 2:15 p.m. so the committee will go ahead...and regardless of anyone else who has to leave...it's actually the researcher who is the most important person in hearing the evidence. She's the one who has to cull some consensus out of it. We'll have your record.
Ms Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you Mr. Chairman. The Canadian Bar Association is a national organization representing over 35,000 jurists, including lawyers, notaries, law teachers, students and judges across Canada.
With me today are four members of the national immigration law section. Dora Lam is the chair of the national section and a partner with the law firm of German, Fong, Albus and Lam in Calgary. Elizabeth Bryson chairs the B.C. branch immigration law section and is a partner in the law firm of Larson Bryson Boulton in Vancouver. Richard Kurlund is vice-chair of the Quebec branch of the immigration law section and editor-in-chief of Lexbase, which is a monthly periodical that summarizes immigration cases evolving from the Federal Court of Canada. Robin Seligman is second vice-chair of the Ontario branch immigration law section. She is a sole practitioner in Toronto and a certified specialist in immigration matters from the Law Society of Upper Canada.
Together these four members represent a good combination of what goes on in the country. They also bring a combined experience of over 30 years in dealing with all aspects of immigration practice.
A primary objective of the CBA is the improvement of the law and also the administration of justice. The comments we make today are made in this context, and we trust that the committee will find them useful in their deliberations.
You have received our brief and we've also given the clerk related documents that may provide further information to the persons drafting your report.
Ms Dora Lam (Chair, National Immigration Law Section, Canadian Bar Association): Mr. Chairman and members of the subcommittee, on behalf of the executive of the national section and also the branch chairs of British Columbia, northern and southern Alberta, Manitoba, Quebec, Ontario, Nova Scotia, and New Brunswick, I thank you for the opportunity to speak to you this afternoon.
Our national section covers all these provinces with immigration lawyers practising law inthat province.
Today I want to cut out our opening remarks to emphasize the point that we have two recommendations. The first recommendation that we would like to make is absolute prohibition of non-lawyers in the provision of advice and service in immigration matters. Immigration applications affect the future of the applicant, and a removal process has grave consequences for the person concerned.
It is that everybody can call themselves an immigration consultant. The public requires protection. It is embarrassing to the government, and it is also embarrassing to the people, when would-be immigrants are becoming victims of the immigration consultants. Later on we're going to give you some actual cases to support that.
The Chairman: We're familiar with the cases, if that helps.
Ms Lam: Right.
We also recommend that provincial law societies tighten up their legislation against the illegal practise of law by non-lawyers, and the federal government should take a proactive role in the education of would-be immigrants against immigration consultants.
It is not true that you can come to Canada and become a welfare recipient, and, later on, Robin will give you an example of an immigration consultant who encourages people to come into Canada as refugees and become welfare recipients. This is a fraud on the welfare system of Canada.
But we also have prepared for you, sir, an alternative. The alternative is to amend paragraph 114(1)(v) of the Immigration Act to cover other areas of providing immigration advice dealing with immigration applications and to redefine the word ``counsel'' in the Immigration Act to cover a member in good standing of the law society of a province and a licensed member in good standing under provincial legislation governing the licensing of immigration consultants.
We recommend that immigration consultants come forward with a proposal to establish one - one, not more - structured, self-governing body similar to...the Alberta Real Estate Agents' Licensing Act, and I have provided a copy of that act to the researcher.
This association of immigration consultants will govern all the immigration consultants carrying on business in the province. The association would provide for admission requirements, which would cover experience and education, and would attain a certain standard of competency in immigration matters.
This association should also provide an insurance and compensation fund, a code of ethics, and a complaint mechanism and set out offences, penalties, and the imposition of a licensing fee and special levy to cover the fund. This is important, because both the federal government and the provincial government are under fiscal restraints right now, and I do not think there should be resources available to assist the immigration consultants to set up this self-governing body.
Like the law society of every province, we pay a levy every year. We also contribute to the insurance fund. We do not require any funding from the government.
Even the legal aid system is being funded by the law society and is called the Law Foundation.
Our submission today is divided into six parts, and I'm not going to go into that, because it's all contained in the paper. But I will turn it over to Elizabeth, who is going to talk about actions taken against an immigration consultant by the Law Society of B.C.
Ms Elizabeth Bryson (Chair, Immigration Law Section, British Columbia Branch, Canadian Bar Association): This case, Mr. Chairman and members, is outlined in the brief, which has been supplied, and the pleadings in that action are also submitted in our supplementary brief.
The action has been taken by the Law Society of British Columbia against an immigration consultant who has been practising immigration law for a number of years in British Columbia. The law society views this to be a test case in British Columbia. This particular consultant was chosen to take action against because of repeated patterns of unscrupulous and unlawful behaviour.
The scope of the behaviour that the pleading outlined has been counselling refugee claimants to put forward false claims. On several occasions, he has advised clients that, unless they take his advice to put forward false claims, they will not succeed. He charges very large fees and at times does not follow through with providing any type of service. He advertises himself as a lawyer, and he lets all clients understand that he is a lawyer when in fact he is not a lawyer. He has a law degree from India, but he is not called to the bar in any jurisdiction within Canada. When he's asked the question directly, according to the pleadings, whether he is a lawyer in Canada, he responds that in fact he is a lawyer.
The Chairman: We're familiar with the horror stories that are out there. I wanted to give Mr. Nunez time to ask questions.
Ms Bryson: All right. Perhaps I could just say that the legislation within the province of British Columbia varies from legislation throughout Canada, and it is probably the most stringent in Canada against the prohibition of the practice of law by anyone who is not a member of the law society and licensed to be. On this basis, the law society has been able to succeed in obtaining an injunction against another individual who was engaged in the unauthorized practice of law and therefore believes it has a very strong case to prohibit anyone who is not a lawyer from practising law.
The Chairman: Right.
Ms Bryson: This, of course, pertains to the regulation of immigration consultants within Canada and whether it can in fact be stipulated that the provinces must regulate within the province.
The Chairman: Is there anything else you want to add before I...? Then we can come back to your presentation.
Ms Bryson: We can come back.
The Chairman: Mr. Nunez. You're going to say you have no questions after all of this, aren't you?
Mr. Nunez: First of all, thank you for your presentation as well as for your brief that I will read very carefully during my holidays. You exert great influence over the discussions that take place here in our Committee. Your documents are read with great attention.
Up until now, we have not had a general panorama of the gravity of the problem of consultants in Canada. Do any of you have figures for Canada? How many consultants are there?
Someone from OPIC in Ontario came to say that they are prepared to self-regulate. He also told us that there were lawyers within their association and that they had a code of ethics.
Therefore, could someone give us a general picture of the situation, namely the number of consultants in Canada, the number of lawyers who belong to these associations, the number of consultants who are members of ethnic communities, the number of consultants who are former public servants or former members of Parliament or legislative assemblies?
Mr. Richard Kurland (Vice-President, Immigration Law Section, Quebec Branch, Canadian Bar Association): I would be pleased to answer you, Mr. Nunez.
I contacted the RCMP to resolve this question.
In contacting the RCMP in Montreal, I'd like to express gratitude to the immigration and passport section located in Quebec. Quebec has the highest number of immigration consultants - between 175 to 200 consultants, according to the RCMP. There is no province with more consultants.
The difficulty in making a count, according to the RCMP, is that it is a floating population. The population extends domestically and internationally. Attempts were made via the Department of Citizenship and Immigration to precisely identify the number, as indicated in its data base systems, of the 1.1 million requests for immigration status annually.
Between 1% and 2% of all applicants are represented by lawyers. Unfortunately, the number of consultants is unknown, exactly because they lie in the background and there's no system in place to provide an accurate count. The best we could do was to go to the department and our law enforcement people.
Mr. Nunez: Excellent answer. You probably know what was done abroad. How was the problem solved in Australia, in the United States or in other countries?
Ms Lam: I understand that, in Korea, there are immigration consultants being licensed by the government. So even if you are a lawyer from Canada, you cannot provide immigration advice or deal with immigration matters in Korea. You have to be licensed by the government. But Elizabeth will share with you how the U.S. system works.
Ms Bryson: The United States government has passed a regulation requiring anyone who wants to make representations, written or oral, respecting an immigration matter or who wants to appear before a court or administrative tribunal to register with the federal government. There's a particular form found in the briefing material called the G-28. A person who can represent a member of the public must be an attorney who is licensed to practise or an authorized representative of a non-profit public service group or a charitable or religious organization. The person must outline their qualifications in order to become a credited representative of this type of group.
Another person who might be able to represent a member of the public would be a person of good moral character, such as a minister - someone who is interested in the welfare of thatparticular being.
An idea we would like to propose is that this type of system be implemented for submissions to Canada, whether they be written or oral, or before any level of administrative tribunal or a court within Canada, and the person who is making any type of application must disclose the name of the person or organization who is representing or purporting to provide legal advice.
If that person does not belong to an organization that is licensed - i.e., a law society or the regulated immigration consultant forum - those representations would not be recognized by citizenship and immigration. That would be following this U.S. model.
Mr. Nunez: What do you think of immigrant defence organizations and of the refugees who provide advice or sometimes represent the candidates? Those people do not make money directly. Do you have a different opinion concerning the other consultants?
Mr. Kurland: The Quebec experience is that our system allows for gratuitous representation of parties before the immigration system, and I know from experience on behalf of the Canadian bar for Quebec section that there is no major NGO functioning within the Quebec territory that does not have the benefit of legal counsel to assist the NGO group. So not only does the system itself provide for a gratuitous assistance, but the bar stands behind the major NGOs to provide the legal assistance.
Mr. Nunez: Someone mentioned that there had been law suits against some consultants.
Has there been any lawsuit against lawyers specialized in immigration matters and for what reasons?
Ms Lam: I have done an extensive search through the public library in the last week, and I've come to some news clippings regarding lawyers such as Angie Codina and Constance Makatsu of Toronto. Both of them were disbarred for counselling clients to violate the Immigration Act. Disbarring is the ultimate sanction of the law society. This person would not be allowed to practise law.
The Chairman: He'll be allowed to consult, though.
Mr. Nunez: Yes.
Ms Lam: That's why I recommend that, if there is a self-regulating body of immigration consultants, it should set out in very specific terms who should be allowed to be a member. For instance, I would like to see that they could be a Canadian citizen or landed immigrant. I believe that would give us a presumption that, whatever they do, they would do it in the interests of Canada. You would not allow a lawyer in India who has never set foot in Canada to become a member of these provincial bodies and be an immigration consultant in New Delhi. One of the requirements would be a man with no criminal record. Maybe one of them could be a disbarred lawyer, unless it is so many years after being disbarred and also he has written an exam to certify that he passed. Then his ethics would have to be supported by a letter of reference, be it a disbarment based on negligence, incompetency, or lack of character.
Mr. Kurland: If I could add, regarding opposition in response to Mr. Nunez's question, there are many former employees of the Department of Citizenship and Immigration who, because of cutbacks, find themselves serving the public as immigration consultants.
It ought to be pointed out that many of these employees who serve only on local CICs - Canada Immigration Centres - or the inland service section have little or no experience with the rules, regulations, and guidelines applied by visa officers posted outside Canada. So there is a control necessary.
Ms Robin Seligman (Second Vice-Chair, Immigration Law Section, Ontario Branch, Canadian Bar Association): I would like to say that, in my own personal experience, I have a lot of people coming to me, and the first thing they say is that they spoke to a consultant who said he had inside contacts or he used to be a previous government employee. I see it almost weekly. The implication given to that person is that he has the inside edge; there's something going on and he has the contacts. This obviously appears to be something of a conflict, and it could not serve the government's best interests having this type of reputation being given out by these people.
Again, to confirm, there has to be some type of regulation or period in which they cannot act in that capacity.
Mr. Nunez: I have to leave, because we have a special caucus.
The Chairman: - to plot your strategy for the last day.
Let's assume, for the sake of argument, that, other than the Province of Quebec, provinces have shown a reluctance to get involved. So let's assume, for the sake of argument, that - say, Ontario - Mike Harris has other priorities and they're not going to do anything in Ontario. That's our hypothetical situation. What would you have us do to solve the problem that presumably is as bad in Toronto as it is in Vancouver?
Ms Lam: Having read some of the briefs before this committee and having spoken to other government officials, I think the problem of Ontario, Saskatchewan, or New Brunswick being very reluctant to take on the monitoring role to regulate immigration consultants in the provinces is based on resources. They want the federal government to bear the cost, because it's regarding the administration of a federal act - the Immigration Act of Canada.
If the immigration consultants are for profit or if they wanted to be recognized by the department, they have to come up with a proposal -
The Chairman: They've done that. They've presented us with a proposal.
Ms Lam: Okay. They have to come up with a proposal approved by the federal government. Then, by changing the wording in paragraph 114(1)(v), the definition of a counsel would be a counsel duly licensed under a provincial act.
The Chairman: But there is no provincial act in Ontario.
Ms Lam: I know. But then they would have to come up with a proposal to the provincial government.
The Chairman: I remember when I was in law school, a professor gave a hypothetical, and I changed his hypothetical and answered his question. He'd say, you didn't answer my hypothetical. My hypothetical is - let's assume for the sake of argument - that the provinces will do nothing.
Ms Lam: Then the immigration consultant cannot act in immigration matters.
The Chairman: We should exclude them altogether, then.
Ms Lam: Then the pressure would be on the lobby group to lobby the province to say, it's not going to cost you anything, we're going to have enough levy, and we're going to have a superintendent.
I'm from the province of Alberta. I've gone through two acts. One is the Alberta Real Estate Agents' Licensing Act, and it provides for an entrance exam, insurance, and a complaint mechanism. Also, when one person is being suspended, his service would be taken over by a person appointed by the superintendent.
Right now the situation we have with immigration consultants is, when they say they're going to retire, what happens to the files? Or if they are charged by the RCMP - All the clients would be left there, not being looked after.
Similarly, in the Law Society Act, if a person is sick, dies, goes into bankruptcy, or is de-listed - disbarred - there's another competent lawyer appointed to take over the practice in the interim.
The Chairman: What if we - Did you mention paragraph 114(1)(v)?
Ms Lam: Yes.
The Chairman: If we changed the wording, ``represented by a counsel approved by a provincial authority or with the province'' and we put in another ``and in cases where the province hasn't given the authority, approved by the federal government, and then the federal government approved the organization of professional immigration consultants'', assuming they met all these standards and they had the discipline and the education, would that work?
Ms Lam: I don't think a two-tier system would be economically feasible. It's either one or the other. I'm sure if they lobby hard enough, they would be able to do it.
Go back to the Alberta model. Based on the Real Estate Agents' Licensing Act, we also have another act that I have included in here. It's called the Licensing of Trades and Businesses Act. They don't even have to - We've drafted the legislation. They just have to draw up regulations and become part of it.
A funeral director -
The Chairman: I understand that. We have a different view on how willing the provinces are to license immigration consultants.
Ms Lam: It's money.
The Chairman: I don't know, because the immigration consultants have come to us and said: ``Here's a no-cost option. We'll charge the fees and pay for the whole thing; all you have to do is give us a stamp of approval and the legislation or the regulations.'' They admit it would only - because the federal government can license appearances only in front of the IRB and various other things - solve a certain amount of the problem. But they believe that, if they have that stamp of approval, the community of immigrants will recognize it and go to licensed consultants, even when they just want somebody to help them fill out a form or something that may not be legally under the licence. That, in their view, will help solve the lion's share of the problem.
Ms Lam: I think we have missed one point. The amendments we asked for in paragraph 114(1)(v) are not only to expand the coverage for the appearance before the tribunal and appeals action, but also to cover the provision of immigration advice and to deal with immigration applications. Then we go on to say the counsel can include a licensed immigration consultant under provincial legislation.
The Chairman: Okay, but staying with me for a second, assuming that there is no provincial - the provinces refuse to act. Let's just take that. Whether you agree with it or not, if you're right, then fine. There's no problem. The provinces enter into it and solve the problem, and that's great. I'm happy. The rest of us are happy. The Minister of Citizenship and Immigration's happy.
I'm just saying that's terrific, but let's look at the alternative. We have evidence, and they have enacted - The problem was identified a long time ago. We've had members of the Canadian Bar Association coming as individuals and saying it's an outrage that you people have been dealing with this.
There was a report when Lloyd Axworthy was the minister responsible; there's the Ianni report in Ontario. There are all kinds of people who have been saying for years and years, ``We have a committee that wants to do something, a minister who wants to do something, and a department that wants to do something.''
My question is, if we wanted to push the limit as far as we could - and let's assume the provinces aren't going to enter into the field and they don't have any particular appetite to object to our entering the field - we can test that - Again, I'm not talking about Quebec.
Ms Lam: Okay. Could somebody answer the constitution issue?
Mr. Kurland: At a practical level, not from the Quebec perspective, the key question is, will it work?
The Chairman: That's right.
Mr. Kurland: Frankly, it will work unless an individual tries to attack the system if it's in his or her self-interest. What self-interest could there be?
The Chairman: What's ``it'' in your mind?
Mr. Kurland: The accreditation of OPIC to serve as a representative in out-of-Canada immigration applications or in-Canada applications. If the provinces don't pick up the ball as Quebec has done, well, it's their concern.
Who is affected if an OPIC is licensed federally? If you're not an OPIC member, will you have an equality of access to the same services offered by the department? Here is the context, and it will take a quick 30 seconds.
The Chairman: Don't worry, we've got time.
Mr. Kurland: It's a strategic decision on the part of the Department of Citizenship and Immigration to hive off to the private sector the information component of the immigration system. It's cheaper to not have government employees inform specific clients about their specific files.
There is an information technology about to be introduced to allow password access to data bases holding file-specific information, and the intent here is to not only provide to the person concerned access to his electronic file, but also have an intermediary interface between the department and the individual.
The benefit is that if that intermediary, for argument's sake, is an OPIC member, they can be controlled by the department through a password system. So that's what this is about, in a strategic sense, in operational delivery. The benefit is that you can augment productivity on a file-by-file basis for the department; it's cheaper.
Does it resolve concerns about control? Not 100%. But if the OPIC member mismanages, either OPIC itself can go after them or the department can pull the password. That's really what we're discussing.
The question for public protection is, what are the standards of this new organization? The practical solution that's put forward by the bar, and I believe every provincial bar in Canada, is to have a lawyer engaged by an immigration consulting business to serve as a screen, as a control. If that consulting business fails, the lawyer is hoisted before the ethics committee.
The Chairman: Well, I gather there's -
Mr. Kurland: But leaving that point aside, I can see that's not going to be. The practical thing - will it work? The answer is, of course it will work -
The Chairman: The lawyers in Ontario haven't suggested - What you're saying is the consultants could continue to work as long as they work under some supervision of a lawyer.
Mr. Kurland: The same way a nurse works under a doctor. Doctors do the diagnostic work and the nurses execute the instructions.
The Chairman: We had Frank Marrocco and OPIC at the table and they're not recommending that. Mendel Green is not recommending that. Matas isn't recommending that; he's from Montreal, right?
Mr. Kurland: Manitoba.
The Chairman: Sorry. And who's the other? Waldman, Lorne Waldman?
Mr. Kurland: Toronto.
The Chairman: He didn't recommend that, did he? No.
Ms Lam: Robin has something to add.
Ms Seligman: I was just going to add that obviously the position is prohibition, with the alternative knowing that prohibition is not necessarily the popular response. If you're going, hopefully there will be some type of regulation. It has to have some effect.
The problem is the public is being damaged terribly by these consultants. I have a lot of practical examples of people coming in, almost on a daily basis, telling me they got ripped off by a consultant. I hear of the problems they've encountered and the years and money they've wasted. When they were perfectly qualified to make a normal application overseas, they sat in the refugee system for five to seven years collecting welfare because they weren't told they were allowed to get a work permit. They were told they weren't allowed to work and they could sit on welfare and it wouldn't affect them.
There has to be a minimum standard. Not even a minimum; there has to be a standard that the public deserves.
The Chairman: We understand that. We've been dealing with this.
The frustration is we basically want to deliver to the minister three plans. If the provinces cooperate, here's what you should do. If some of the provinces cooperate, here's what you should do. If Ontario doesn't cooperate - and it represents 40% or 60% or whatever it is of the problem - here is our federal government response. It won't solve the problem entirely, but it will aggressively address as much as we possibly can within the rule of law.
Rightly or wrongly, the deputy minister has said there's not a lot of appetite at the provincial level to deal with this issue. Maybe he's wrong and it should be tested, but let's assume for the sake of argument it is true, at least in Ontario. What would you do if you were the Minister of Citizenship and Immigration?
Everybody understands standards, discipline, and insurance, whether it's the real estate board or the law societies. We're well into that discussion. But how far can we go?
Ms Bryson: I believe you're talking about a real, practical problem here, which can only be looked at in light of the constitutional implications. I believe your question is on whether the federal government can attempt to impose regulation for immigration consultants and on what the reaction would be throughout Canada by the various provinces.
The Chairman: I'm also suggesting that the federal government might take some risks and push right to the limit. Reasonable people can differ as to what the limit is.
Someone off-handedly suggested that we're dealing with immigration law, so notwithstanding that the licensing of professional bodies is provincial jurisdiction, we have overlap. I guess the Supreme Court at some point has to look at the pith and substance test.
I haven't been in law school for 20 years; I don't know what's evolved since. I'm certainly not an expert. I know people around the table have opinions as to how far it can go. I just want to know.
Ms Bryson: In my discussions with counsel respecting the British Columbia position, based on the British Columbia Legal Profession Act, there would be a very good challenge against any federal imposition of regulation for immigration consultants. That's because the B.C. legislation is very specific and prohibits the practice of law by anyone unless specified within the Legal Profession Act, unless that person is a lawyer or is acting without expectation of any remuneration.
The Chairman: Yet you have consultants in British Columbia.
Ms Bryson: We do have consultants.
The Chairman: Operating legally?
Ms Bryson: No, they are not authorized to practise law.
The Chairman: No, but they're authorized to help people fill out forms and -
Ms Bryson: No. You see, our provincial legislation defines the practice of law quite specifically, and it includes drafting any type of document and providing legal advice. It is the opinion of counsel from the law society that filling out a form is not simply filling out a form; it is proffering legal advice, because one must take the form and apply an analysis of the law in order to be able to fill out the form properly.
An analogy would be a conveyancing secretary within a law firm, who for maybe 10 years fills out the conveyancing forms. That person is not really applying the law. That person is helping to fill out the form, but it's still under the supervision of a lawyer. It's the same as saying the person can fill out forms. You must fill out the form in the context of the very complex Immigration Act, the regulations, and all the policy.
In our opinion, every action taken to assist a member of the public is practising law.
The Chairman: So B.C. has its solution.
Ms Bryson: Yes: to prohibit anyone but a lawyer from practising law. That, I think, is the challenge the federal government would face in attempting to provide comprehensive national regulations.
The Chairman: We've been working until 1 o'clock every day for the last two weeks, so if I'm a little slow here, forgive me. All of the consultants in British Columbia who aren't lawyers are acting illegally.
Ms Bryson: Yes. They're engaged in the unauthorized practice of law.
The Chairman: So if there's a problem in British Columbia, the federal government can say in good conscience that it's not its fault.
Ms Bryson: However, the issue arises as to whether the federal government has the authority to impose regulations over practitioners of law within the province of British Columbia. That would be subject to challenge.
The Chairman: Rightly or wrongly, we're assuming lawyers do a good job and are not the problem. That's part of the discussions. We're not interested in touching lawyers.
But my question is, then, if there are hundreds or thousands of people in British Columbia ripping off immigrants, Sergio Marchi can rest easy at night and say he doesn't need to do anything because British Columbia has already taken appropriate action and they should be enforcing their own law. Basically it's not our business.
Ms Bryson: That is a stance that could be taken by the minister.
In the province of British Columbia, there are currently seven or eight consultants who have been requested by the law society to cease and desist in the unauthorized practice of law. Those letters went out just a few days ago. If those people do not comply and sign undertakings to cease, the law society will take action and seek injunctions against them.
The law society has obtained injunctions against a number of organizations that practise law on an unauthorized basis. We have included the statistics within our briefing materials. These injunctions have been obtained against notary publics who have practised beyond the scope allowed in the Notaries Act, against real estate agents who provide immigration advice, and against people of the tax profession who provide advice on an unauthorized basis.
To summarize, yes, the B.C. position is quite clear, and Mr. Marchi could rely on the fact that we are taking and would continue to take action within the purview of immigration law.
The Chairman: That's going to solve it, as much as it humanly can be solved.
Ms Bryson: Yes. However, bear in mind that there are hundreds of immigration consultants acting, and, thinking of the public protection issue, there are people who are being abused until action can be taken against all of these unethical consultants.
The Chairman: But it's not Ottawa's job to do that.
Ms Bryson: No.
Mr. Kurland: There is a job for Ottawa regarding the extraterritorial application of the proposed policy. That ought to be reflected in any amendment. It would allow the province, by virtue of the signed agreement, to enforce its provincial law extraterritorially, in a round-about way, if it's present in the federal.
The Chairman: Are you saying someone in Hong Kong should be a member of the B.C. bar?
Mr. Kurland: I'm saying that someone in Hong Kong should be subject to the definition of ``counsel'' in the Canadian Immigration Act in his or her access to Canadian services at the Hong Kong High Commission.
Ms Lam: For your reference, I have in the brief submitted a look at the legal profession act in British Columbia, just like Ms Bryson was setting out, and also in Alberta and Ontario. The standard in different provinces is not the same.
For instance, in Ontario, as long as you do not hold yourself out as a lawyer, then it's okay to practise immigration consultation work. I do not see Ontario having any cases. Maybe Robin would shed some light on that, but different provinces have different rules in regard to the practice of law. So the amendment to your section 114 could stand, except in the province of B.C.
The Chairman: Again, I'm staying up late, but I think we've heard from the gentleman in the back that Quebec is quite capable of solving the problem on its own, and now I'm hearing B.C. is quite capable of solving it on its own. Does Ontario want to talk here?
Ms Seligman: I think Ontario was lacking in this area. It may be one of the provinces that is probably most abused, because I think the highest number of immigrants go to Ontario.
With respect to regulation, the law society has had little bite, if anything, in terms of enforcing and prosecuting these people. What happens constantly is these people will put on their letterhead, ``Specialist in Immigration Law'' and ``LLB'' beside their name. That does not mean you're holding yourself out as a barrister and solicitor. Therefore, the law society will not get involved, even though they have information that these people are telling people they really are lawyers. They're not necessarily saying where they're lawyers from, or what their backgrounds are, but definitely the impression to these unsuspecting individuals is that these people are qualified and are lawyers.
Unfortunately, what happens regularly is these people are frightened. A lot of them are in Canada illegally and too shy to do anything about it. Therefore, the law society says, can you get a group together who will testify against these people? That's a problem. Everybody knows it exists, but it's hard to get the law society to spend the funds and the resources when you can't get people to come forward to say, yes, this happened to me. It happens all the time.
The Chairman: Well, that's why we're here.
Ms Seligman: I wanted to point out something as well. Mr. Kurland mentioned dealing with the federal government handling overseas issues. Just yesterday I was sent from Israel, actually, from a businessman who I've spoken to - These are ads in the Russian language. They're published in Israel for the recent immigrant Russian community who has been granted immigrant status in Israel.
It encourages them to come to Canada for $1,000 or different rates, apparently low rates, to come and collect welfare in Canada. This person has been attempting to tell people that this not the way to do it, that they should make proper applications. They're saying, why should we spend more money when we can just get on a plane, spend $1,000, and collect welfare? Apparently, there have been pamphlets published in these places that tell people exactly how to basically milk the system.
This is being promoted overseas, not only in Israel. That's one example, in Israel. But it's being done in many countries.
One very simple practical solution could be the Government of Canada taking a proactive stance in promoting proper information in these particular countries. Put an ad in the paper saying this is what a convention refugee means and state the definition, just daily basic stuff that wouldn't even cost that much money, just as an interim solution to try to stop this misinformation that could lead to thousands of people showing up thinking they're allowed to come here and go on welfare.
It's a big money issue, too.
The Chairman: It is, and the reason I'm nodding is because you're not the first to tell us this.
Ms Seligman: I've been hearing it for a long time but, coincidentally, this arrived in the mail. These are many ads from different Russian newspapers that are promoting the collecting of welfare in Canada.
The Chairman: Back to my main point -
Ms Seligman: The provinces have to do something, or somebody has to fund it. It has to get done. I don't think it's an answer to the public to say we don't want to do it; it's too much money. The down side in not doing anything about it is an economic issue as well. There is the money there. If you stop these people from abusing the system, you'll have money.
The Chairman: Let's assume Ontario doesn't do anything. What would you do?
Ms Seligman: I would be happy to see the federal government do something. It's better than nothing.
The Chairman: What is the extent? What's the limit of the something? You've got Quebec in the back row and B.C. to your left.
Ms Seligman: You must regulate them somehow to have some ethical standards. OPIC, apparently, has no entrance requirements. You fill out an application form and pay your fee and you're a member. That's not good enough.
The Chairman: They tell us differently.
Ms Seligman: I don't have their application form, but that's what I've been advised. I may be incorrect in that area, but I don't think whatever standards they have are very rigorous. I don't think there are any educational requirements. There is no continuing legal education requirement. A lot of them have absolutely zero training in the legal profession or in immigration law, so there have to be educational requirements.
The Chairman: Do you know Frank Marrocco?
Ms Seligman: I have met his partner, Goslett.
Mr. Marrocco is a respected party who, I believe, practises as a consultant, but he is a lawyer. I will not say anything to discredit him. But he is not the standard that these consultants are at; they are not at his level. If everybody were at his level, we wouldn't be here.
The Chairman: I may ask you to come back and have him in the room and we'll see what develops.
Mr. Kurland: Have other policy tools been explored, such as money?
The Chairman: They're into money.
Mr. Kurland: Precisely. There's a necessary interface between the Department of Citizenship and Immigration with the settlement services and the province of Ontario, provincially and municipally. And if it becomes Mr. Marchi's policy to tie to the transfer of funds or to the support of the provincial services related to new immigrants to Ontario the provision that they set up some regulation for their local consultants, that would go a long way, rather than where we are today.
The Chairman: Yes. I'll put that to Mr. Marchi and Mr. Harder and see what they say.
Ms Bryson: Has the point been addressed at all that as paragraph 114(1)(v) only permits the governor to make regulations but there are in fact no regulations, that in fact immigration consultants are not permitted to practise law and that's the status quo?
The Chairman: They're not permitted to practise law, that's true.
Ms Bryson: Right. I just wanted to query whether that is clear.
The Chairman: It's clear that they're not permitted to practise law.
Mr. Kurland: There is another resource that is available. There's a $4 million annual budget for the communications strategy unit within NHQ of the Department of Citizenship and Immigration. Surely, resources there can be used to raise a media campaign that would focus attention on the Province of Ontario and its responsibilities in this domain.
The Chairman: Yes. I'll just give you my 2c. worth as a solid member of the back-bench. Provincial-federal jurisdiction or relations are not something that are dealt with in isolation. It may well be that someone might come along and say we don't want to tick Ontario off because we need an agreement on the GST.
Ms Lam: I have to say something about OPIC. OPIC could be a good start, but it is only a voluntary organization; it does not have any sanction mechanism. I read the transcript and it said, okay, one member is charging too much and they wanted him to refund two-thirds of it and the member resigned from the association. But the member continues to practise immigration law. There is no sanction.
The Chairman: Right. That's because they're coming to us and saying, we need some authority, and I think I've heard you say that the federal government doesn't have the authority, they really should go to the province.
Ms Lam: Because of the carrying on of business.
Ms Bryson: Each province has licensing bodies that regulate the practice of law and regulate the people who are practising law and the number that belongs to the Canadian Bar Association is, I believe, 37,000 lawyers or advocates in Canada.
Looking at the transcript of the OPIC presentation, it appears they have 100 members who have voluntarily joined that organization. Yet we know there are many hundreds who have not seen fit to submit themselves to the direction of that organization, and it leads one to the question: given that there is a comprehensive regulatory process in place, why impose an additional level of regulatory process when lawyers are already regulated fully? If a person wishes to practise law, why do they not become qualified to do so within the jurisdiction in which they wish to practise?
The Chairman: I am not sure if we aren't going around in circles. If they want to practise law, they have to be a lawyer. That's true anywhere in Canada. The province or the Law Society of Upper Canada - I don't know - presumably interprets what it means to practise law. It is their business to do that. It's not my business as a federal MP to tell the Law Society of Upper Canada that they should reinterpret what this consultant is doing. That's up to the Law Society of Upper Canada. If they are delinquent in that, that's a problem. We don't have any authority over the federal government. We certainly don't have any authority over the Law Society of Upper Canada. They take their direction from the province or from their membership.
While Mr. Marchi might have some leverage with the province, he doesn't have any with the Law Society of Upper Canada, at least none that comes to mind. Yes, they -
Ms Bryson: If I could just point out the historical basis, once again, within the province of British Columbia, since I am most familiar with that, notaries are allowed to engage in a limited area of the practice of law and that is the drawing up of simple wills where no trusts are involved. They are allowed to do conveyances, to attest and protest documents for people.
Now, the historical basis of having notaries was because 100 years ago there were very few lawyers within the province of British Columbia. In order to allow the members of the public to have limited access for certain requisite areas of law, notaries were allowed to practise. There is a limit to the number of notaries public. The notaries put forth a proposal that found the area of practice that was...not approved. It was actually denied within the province of British Columbia.
Other historical bases for allowing other representatives, say, in the United States to make representation before courts or tribunals is because they may be non-profit organizations or friends who have the interest of that particular person. For immigration consultants wishing to engage in the practice of law, should those considerations, the historical considerations, be borne in mind when thinking about attempting to regulate them?
One of the individuals within the transcript that I read indicated that there are enough lawyers. This is the reason for adjournments within the Immigration and Refugee Board. Our experience in the province of British Columbia is that this is not the reason for adjournment. The reason is that there are not enough resources within the Immigration and Refugee Board to hear all the cases within a very timely manner. Lawyers are constantly attempting to get cases heard much more quickly than they actually are. There are many lawyers who practise. Our bar has about 250 immigration lawyers and organizations registered.
Mr. Kurland: Take a look at this point and think like a politician; it will benefit the chair. Assuming -
The Chairman: A governor, not a politician. You don't want to think like a politician.
Mr. Kurland: - Mr. Marchi appears to be doing something about the immigration consultant file and goes ahead and legislates... positive public perception. If it's struck down for constitutional reasons, it would also place the ball squarely at the feet of the Province of Ontario.
The Chairman: Yes.
Mr. Kurland: So really he has everything to gain by doing this. Just one note in the context of today, please contact the CBA to ensure that the case, if there is a case, that challenges the law emanates from the province of Ontario rather than from another jurisdiction.
The Chairman: I am not sure how we manipulate -
Mr. Kurland: These things can be done, seen and unseen.
The Chairman: I'll just let the researcher, if you don't mind, ask some questions.
Ms Young: I am intrigued by your position in B.C. Really, the profession of immigration consultant equals the practice of law and is therefore unauthorized unless you are a lawyer. I wanted to explore a little bit more with you the cases that you say are...obviously, this is a developing area and your law society is only beginning to take action.
You mentioned one case in detail. You said that the consultant had a law degree from India, but nothing from Canada, and was holding himself out to be a lawyer, advertised as such and said he was a lawyer.
That seems to me to be a clear-cut case across the country of unauthorized practice. I don't think you would have any difficulty, assuming all the facts could be proved as stated, in Ontario proving that it was an unauthorized practice of law.
I wanted to explore a little bit more with you your other point that seven or eight consultants had received cease and desist orders. Were any of those people in the situation...? It seems to me, in order to really test your case, at least one of those people would have to be a scrupulous consultant, giving advice, filling out forms, about whom no complaints had been made, perhaps taking sponsorship cases to the appeal division, or refugee cases, but not necessarily, in order to test your hypothesis that immigration consulting is the unauthorized practice of law. What can you tell me about any of those seven or eight cases?
Ms Bryson: Let me just have a moment.
I am looking at the memorandum of June 20, 1995, from the staff lawyer of the Law Society of British Columbia addressed to myself. It summarizes the cases. Complaints had been received by the law society, generally about advertisements, immigration consultants advertising that they would do immigration appeal work and child adoption work.
The unauthorized practice committee of the law society took the position that this is a willingness to engage in the unauthorized practice of law. Secondly, that these principals were advertising their qualifications as lawyers in India and offering to give advice about legal problems involving Indian law. People who purport to provide advice about foreign law must be registered within the province of British Columbia and these people were not.
The law society wrote to these individuals when it decided they could not advertise Indian legal qualifications or offer to give advice about foreign law unless they became licensed as foreign legal consultants under the law society rules. They were asked to sign undertakings and covenants to cease and desist in the unauthorized practice of law.
Statistically, to date, there was one consent order obtained in the area of immigration practice and one injunction. I don't have the actual case summaries about those particular cases, but if you wish, I could provide those to you. So I cannot tell you the scope of the unauthorized practice there.
Ms Young: I guess my comment would be that the case would remain unproven, given that here you have one or more individuals who were holding themselves out as legal specialists, albeit offshore, and you have special regulations regarding that under the law society act, or whatever it's called. Again, that's a very much narrower area than saying that all immigration consulting is the unauthorized practice of law. Again, I would question it. That seems to me to be an open question at this point. Maybe some of the other cases took a broader brush.
Ms Bryson: The position would be that the practice of immigration law by a non-lawyer is the unauthorized practice of law. The law society has chosen to take action against people who are clearly violating the legal profession act or are engaged in unscrupulous and unethical practices in order to establish precedents that will stand in the future.
The law society is only really starting to take action, and this is why there is no long historical basis that we can draw upon.
The Chairman: We're trying to wrap this up by November. Ms Seligman, what I'm thinking is that perhaps the immigration law section of the Ontario branch can take my hypothetical...assuming Mike Harris doesn't do anything. Because if I'm clear on the B.C. position, the the answer is easy - just put the consultants out of business whether it be an ex-department official who is doing a good job or someone who isn't working under the supervision of a lawyer. Is that fair?
Ms Seligman: This would be the position unless regulations were passed that authorized immigration consultants, specifically, to practise law.
The Chairman: By the provincial government?
Ms Seligman: Yes, by the provincial government.
The Chairman: So that's the B.C. answer. Is that the Quebec answer as well?
Mr. Kurland: Speaking for the Quebec section, we're a member of the same bar and we have the same answer.
Ms Lam: As for the Alberta position, I think the Province of Alberta has always wanted to have a federal-Alberta immigration agreement, and it could be part of it. We already have an existing licensing mechanism of business and trade and we would consider the practice of immigration consultant as constituting carrying on business in the province. They could come under the licensing regulation of the trade and business act.
Ms Thomson: Mr. Chairman, I should note that while the various members of the Canadian Bar Association immigration law section are very competent to interpret the law within their various provinces, they do not of course represent the regulating body within their province.
The Chairman: I understand that.
Ms Thomson: Just for the record, you heard from the Barreau du Québec, and I understand you have invited other law societies to appear before you. I should just make it clear that in terms of how the Law Society of Upper Canada, for example, would approach this matter, it should come from them and not be taken as the position of the Canadian Bar Association.
The Chairman: We'll subpoena some benchers.
Ms Thomson: Go for it.
Ms Seligman: I might also add that none of this will affect the people overseas who are acting unscrupulously and promoting...so you still have that umbrella group that hovers around and causes extensive damage and puts forth a very negative image of the Canadian government and the Canadian public...which is important.
The Chairman: You don't mind if we tell the benchers that you said we could subpoena them?
Ms Lam: I have one thing to add. It is difficult to bring an action against an immigration consultant afterwards, because most of the time the plaintiff would not be in Canada, if they had been successful, and it would be very costly. That is why you do not see that many cases of civil actions in Canada against these immigration consultants by clients who failed to get immigration status.
I have a case involving a young 24-year-old female student who was made to invest $100,000 Canadian to become an entrepreneur in Edmonton. That was in 1993, and now it's 1995 and she's still not an immigrant. She has to go back to Hong Kong and she couldn't get her money back. I wrote her a demand letter to the consultant and also searched through the registry...and it's only a shell company. Even with an action brought and a judgment granted, there is no assurance she'll get her money back. So civil action as a remedy afterwards is not as good as a proactive approach by the government.
The Chairman: By some governments, but not this one apparently.
Ms Lam: That's right. I think the federal and provincial governments have to work together.
The Chairman: I think then we'll be in touch as it evolves and maybe we can touch base again in the fall. Clearly, I think what you're recommending, what OPIC has recommended, and what the department seems to be...there's not a fit yet.
Thank you very much for coming, and I apologize again for starting late. I hope you found the experience worth while.
The meeting is adjourned to the call of the chair.