This is the Standing Committee on Citizenship and Immigration, meeting number 30, on Monday, November 1, 2010. This meeting is televised and is pursuant to the order of reference of Thursday, September 23, 2010, Bill .
We have three sets witnesses in this panel. The first witness, Stéphane Handfield, appears as an individual.
Good afternoon to you, sir.
We have three representatives from the Canadian Bar Association: Michael Greene, who is a member of the national citizenship and immigration law section; Tamra L. Thomson, who is the director of legislation and law reform; and Chantal Arsenault, who is the chair of the national citizenship and immigration law section.
From the Law Society of Upper Canada, we have: Laurie Pawlitza, who is the treasurer; Malcolm Heins, who is the chief executive officer; and Sheena Weir, who is the manager of government relations.
Good afternoon to all of you.
Each group has up to seven minutes to make a presentation, and then there will be questions from the four caucuses present here today. We'll just take it in order.
Mr. Handfield, you have up to seven minutes to make a presentation.
:
Mr. Chair, members of the committee, thank you for inviting me to appear before you regarding Bill .
I have been a lawyer in Montreal for 18 years, and I served as a member of the Immigration and Refugee Board of Canada for 11 years. Immigration law makes up most of my practice. Practising law is a lawyer's domain. Immigration law is a field of law. Therefore, immigration law should be practised solely by lawyers, with the exception of notaries in Quebec.
The scope of activity of immigration counsellors should be limited to functions such as recruiting immigration applicants, gathering documentation and completing forms. Their activities should be overseen by a lawyer or notary, to ensure that the immigration applicant or foreigner receives proper advice. That would better protect people against fraud and other forms of abuse.
In the course of practising law, I have heard a number of disturbing stories involving immigration consultants. For example, an 80-year-old woman hired an immigration consultant to prepare and file her application for permanent residence in Canada on humanitarian grounds. After waiting several years and paying various fees, the woman learned from Citizenship and Immigration Canada that her application had never been filed. The consultant in question was arrested by the RCMP and taken to court on fraud charges.
There was another immigration applicant who, despite meeting the criteria for the skilled worker class, was advised by an immigration consultant to apply as an investor, so that the consultant could collect $50,000 in commission. Stories like that are a dime a dozen.
Situations like these have serious consequences for the people affected: their applications are denied, they are deported, they are separated from their families, they suffer financial losses, their lives are ruined. It is my position that Bill does not protect people from crooked immigration consultants who could claim that they were not compensated for their services.
Bill gives the body that would be responsible for immigration consultants numerous regulatory powers. That organization could be considered a professional body. The existing legal and regulatory framework in Quebec with respect to professional bodies can provide assurance of consultant oversight, which the federal framework cannot do. As a result, immigration consultants operating in Quebec should be overseen solely by the Quebec government. That would ensure that provincial jurisdiction is respected.
In short, only lawyers and notaries should be able to practise immigration law. If the government wishes to recognize immigration consultants, it should require them to work under the supervision of a lawyer. Furthermore, the body in charge of consultants should be regulated by Quebec.
In closing, I would point out that, according to Le Petit Larousse 2010, a consultant is defined as a specialist who gives detailed professional advice in his or her area of expertise, whereas a lawyer is an officer of the court who advises, assists and represents clients. A lawyer is trained to interpret complex laws and regulations, such as those in immigration law.
Thank you.
:
The Canadian Bar Association has always been committed to protecting the public interest, as well as the integrity of the immigration system. With that objective in mind, we have kept a very close eye on all developments related to consultants for many years now, releasing numerous briefs on the issue since 1995. We appreciate the opportunity to comment on Bill .
First of all, we stand together with all those who have already hailed the fact that the bill prohibits unregulated persons from representing immigration applicants at all stages of the process, even before the application is filed. Furthermore, the CBA has long been calling attention to that serious flaw in the current system. So we welcome this change.
The issue of who should be regulated and how is much more complex. The CBA has always maintained that only lawyers should be allowed to represent or advise someone in connection with a proceeding or application under the Immigration and Refugee Protection Act. Otherwise, it is our position that adequate representation of consultants is critical.
The whole idea of representation and advice is one of the cornerstones of Bill . Unfortunately, however, contrary to what we have been recommending since 1996, the bill does not set out a clear definition of the immigration services subject to regulation.
[English]
In our submission, we provide you with such a definition of acts that should only be performed by lawyers, whether or not we are willing or able to designate a body as per the proposed paragraph 91(2)(b). Lawyers have received formal education aimed at developing the ability to analyze and address legal complex issues.
Many issues in the immigration context involve not only immigration law, but other areas of law, such as administrative, criminal, constitutional, and human rights. Inadmissibility or validity of a foreign marriage are just two examples of issues that require a sophisticated legal analysis for a representative to be able to competently advise and draft documents for clients, rather than just memorizing manuals.
While we recommend that nobody be designated by proposed paragraph 91(2)(b) of the bill, and that consultants be allowed to act only under the supervision of lawyers, we also suggest in our submission improvements to the bill in the event our recommendation is not followed by this committee or by the government.
My colleague Michael Greene has been involved with this issue for many years now. I will therefore give him the floor to talk about how we hope to improve the bill.
:
I was the national chair during the passing of IRPA, so I've appeared in front of this committee a few times for different things over the years. I'm pleased this time to be in a situation where we actually applaud the government for the legislation. We think it has been long in coming. There was a gaping hole left in the previous scheme, where there was nothing to cover the unregulated consultants. We're very happy to see that the minister has acted and is proposing something that would close that hole.
Chantal has already said that what our consistent position has been over the years is that this is essentially giving legal services, and like any other area—criminal law, civil law, or family law—it should be restricted to those who are sufficiently trained in order to protect the public interest and the integrity of the immigration program. It should be restricted to lawyers and members of the Chambre des notaires du Québec.
In any event, it's possible that at this time the committee and the government are not willing to go that far. The government essentially has three choices: limit all immigration activity to lawyers; delineate which services should be done by lawyers and which could be done by consultants; or allow both consultants and lawyers to do the whole works.
If consultants are going to continue to be permitted to provide immigration services for remuneration, it's imperative that they be properly regulated. It is our submission that CSIC has not functioned to properly regulate and that the problems are inherently structural--they're not personality... But there are structural problems with the way it was set up and that needs to be corrected.
The main problem is a lack of accountability. The result is that the public interest is not protected. There isn't adequate enforcement of ethical, professional, and competence standards and something needs to be done about that.
We think there are some good mechanisms in the bill, but it doesn't go far enough.
The organization that is doing it--partly because of the structural problems--has become mired in allegations of financial impropriety, governance issues, and conflict within the organization. It needs oversight. It needs some kind of accountability to correct that.
The minister proposes to have the power to designate the organization, which is more or less what happened before. We're saying that there need to be some companion powers that go with that power to designate an organization in order to create effective accountability and oversight.
Specifically--and this is set out in more detail in our brief--there needs to be an explicit power to revoke that designation. We submit that there should be a regulatory power to create regulations setting out the conditions that should be considered and factored into such a decision to properly exercise that discretion.
We believe that CSIC brought up the concern about that power being used for political reasons, so they didn't want the minister to have that power. But we don't see an alternative to granting the minister not only that power, but more power. We see that it's likely they will end up in litigation, so you want to be very express about the power to revoke and the factors that must be considered, which would likely be the failure to protect the public interest or act in the public interest in their deliberations.
There are two powers given to the minister. One is the power to designate. The other is the power to compel the provision of information. There is no consequence for failing to provide that information, so we think that should be there.
We're also suggesting, as a companion to the power to revoke, that there should be a power to appoint a trustee to create a situation for the interim situation. Because you have quite a comprehensive structure right now. You have grandfathering provisions for transition. If things go awry with the board, you want to be able to send in a trustee to run the place and not necessarily throw out the baby with the bathwater.
You can have the structures remain in place at the same time as a trustee. We recommend who could be on that board and what kind of people could be trustees, as they could be right now for interim purposes.
Again, we applaud the government for this bill, but we think it doesn't go far enough.
:
Thank you. I'm the treasurer of the Law Society of Upper Canada, which is the elected head of the society.
I'd like to begin by saying that we very much welcome the minister's actions in introducing Bill . We're supportive of its aim, which is to protect the public. In particular, we're supportive of the expansion of the range of prohibited activities.
However, we are here to ask you to consider an amendment to the bill to exempt from the membership to CSIC the paralegals in Ontario who are regulated by the Law Society of Upper Canada.
Currently, proposed subsection 91(2) of Bill exempts from CSIC the members of the provincial bars. Lawyers are exempted, as I understand it, because they are already regulated by law societies.
In Ontario, the Law Society of Upper Canada does not only regulate lawyers; since 2008, it has also had a fully operational regulatory structure for paralegals that mirrors the structure of regulation for lawyers. Currently we regulate 42,000 lawyers and 3,000 independent paralegals.
I should pause here to point out that the law societies are not like the bar associations. The operations of the associations, like the CBA, are quite different. Their membership is voluntary. Bar associations lobby in their members' interests. By contrast, the law society is a statutory body that's obliged to regulate in the public interest. To provide legal services as a paralegal in Ontario, you must be licensed as a paralegal.
Under the amendments to the Law Society Act, paralegals are permitted to provide legal services in a narrow scope of practice, which includes things such as small claims court and federal and provincial tribunals. Included in the legal services that paralegals who are licensed in Ontario can provide are immigration matters.
The difficulty the paralegals in Ontario face is that the Law Society Act requires that for them to provide legal services, they must be a member of the Law Society of Upper Canada. In addition to that, IRPA requires that they be a member of CSIC. In our view, the regulation of paralegals in Ontario by two regulatory bodies is unnecessary.
I'm going to mention a little bit about how we regulate paralegals in Ontario. When the regime was implemented in 2008, applicants who met certain criteria were grandparented, and they weren't required to have a certain college education. That phase has now passed.
Now paralegals providing legal services in Ontario can only be licensed if they have completed an accredited community college program. The law society accredits the programs. We've done extensive research into the competencies required, which we can discuss if questions are asked.
In addition to that, paralegals must satisfy other criteria. As with the lawyers we license, they must all be of good character. They must pass a licensing examination that tests different competencies than the competencies required under the accredited college programs. They are required, under those licensing exams, to focus on the issues of professional responsibility, ethics, and so on.
In addition, paralegals, once licensed, must abide by the paralegal rules of conduct, which are very similar to the lawyers' rules of professional conduct. If they handle and hold client funds, they must maintain a trust account. As with our lawyers, they are subject to spot audits of their books and records. Also, they must cooperate with reviews of their practices.
Beginning in January 2011, they will also be required to take 12 hours per year of continuing professional development education. They will be suspended from providing legal services--suspended from their practice, if you will--if they don't complete that education over the course of that year. They would be reinstated once they have completed it. To maintain a licence, they need to have insurance of $1 million--$2 million in the aggregate.
The law society also operates a compensation fund. If a client has been subject to dishonest action on the part of the paralegal, there is compensation provided by the law society; for example, in the instance of fraud.
The law society of course has an established discipline process. We discipline paralegals as well as lawyers in the event that there are issues with their conduct, competence, or capacity, and we also prosecute unauthorized practice.
In addition to that, with respect to the paralegal regime, we're required to report to the government. We reported in 2009 and have copies of the interim report about the paralegal licensing regime here with us today. We're also required to report again to the government in 2012.
In conclusion, the law society has been regulating the legal profession since 1797. We're Canada's oldest regulatory body. Our regime mirrors the lawyers' regime and, for these reasons, we're asking that Bill be amended to exempt the paralegals licensed by the Law Society of Upper Canada from the provisions of proposed subsection 91(1) in the same manner as our lawyer licensees are exempted.
We're happy to answer any questions.
Mr. Heins, our CEO, has been with the law society for much longer than I've been an elected treasurer, so Mr. Heins will doubtless be answering any questions you might have of the law society.
:
Let me deal with your first question. It's important, I think, that where a group of individuals or a profession has the authority to provide service there be a public and transparent complaint process. Indeed, that's what all of the regulatory bodies run across the country.
So in Ontario, if a member of the public has a complaint about a service they are receiving from a lawyer or a paralegal, they can contact the law society and we will investigate it. We triage it, depending on what it is. Most of them really are service-related matters, often just to do with some misunderstanding, so we will intercede and make sure that both the client and the lawyer understand each other.
On the more serious matters where we believe there has been wrongdoing, we investigate. That investigation becomes public when it's prosecuted, and there is a public record of the prosecution, the results, and whatever appeals take place. It's important to recognize, too, that in that process there is a right of appeal, both within the law society body and to the courts, potentially.
Again, I noticed something from the record that was pointed out by one of the members here who was questioning where someone would go ultimately with a CSIC complaint if there were a problem with how it was handled. On the information-sharing side of things, as I understand it, that was a problem because CSIC was a private body. I think the experience, and what this act is trying to rectify, is to give the authority to share what otherwise might be private information, i.e., the complaint information, with other public bodies.
We, on the other hand, as a regulatory body, don't have that constraint. So again, I think this is an attempt to rectify a problem created by reason of the fact that CSIC is not a regulatory body—or its predecessor would not be regulatory.
I am joined here by members of the public service from Citizenship and Immigration Canada who have assisted with the development of this important bill to crack down on crooked immigration consultants and to protect the people who dream of coming to Canada from exploitation by unscrupulous agents.
Mr. Chairman and colleagues, thank you for the invitation to speak to you about Bill . It would of course amend the Immigration and Refugee Protection Act to strengthen the rules governing representatives who charge a fee for immigration advice and representation.
[Translation]
We intend to close loopholes currently exploited by unscrupulous representatives and improve the way in which immigration consultants are regulated.
[English]
Taken together, the changes we propose would help protect vulnerable would-be immigrants, help safeguard our immigration system against fraud and abuse, and help ensure an efficient and fair system for those trying to get into Canada through legitimate means.
[Translation]
As we all know, Mr. Chair, immigration fraud happens around the world, and Canada is far from being the only country challenged by it. Some examples of fraudulent activity include bogus marriages, lying to an officer on an application form, and the use of fake documents, including fake marriage certificates, death certificates, travel itineraries and banking statements.
[English]
The problem we are tackling is large in scale and international in scope. The value of coming to Canada is frankly so great in the minds of so many that they are often willing to pay sometimes their life savings in cash to unscrupulous representatives, be they lawyers or consultants, with the false promise of obtaining visas to visit or move to Canada.
As you know, I spent a couple of weeks in September meeting with our international partners in Europe, India, China, the Philippines, and Australia to discuss ways we can work together to combat fraud, abuse, and wrongdoing in our immigration system.
[Translation]
Because large numbers of immigration consultants operate beyond our borders, I underscored the need for combined action to thwart fraud and various forms of exploitation by unscrupulous immigration agents and crooked consultants.
After all, the commission of fraud under Canada's immigration program is a crime that threatens the integrity of our immigration system, raises security concerns, wastes tax dollars, is unfair to those who do follow the rules, and adds to the processing time for legitimate applications.
Bill would amend IRPA so that only members in good standing of a provincial bar association, the Chambre des notaires du Québec or a body designated by the minister may represent or advise for a fee—or offer to do so—at any stage of a proceeding or the application process.
[English]
In short, Mr. Chairman, we propose to extend the prohibition on advice and representation to the pre-application period, or that period before an immigration proceeding begins. In so doing, we have created a new criminal offence, which would further deter those persons known as ghost consultants, who are not members of a recognized body.
As we all know, governing bodies are responsible for taking disciplinary action against their members in cases of misconduct. This includes the revocation of membership. A governing body for immigration consultants can, like other governing bodies, investigate the conduct of its members where there's a concern that a member has breached the terms of such membership. Provincial law societies use a similar process to look into complaints concerning their own members.
Protecting the integrity of immigration programs is principally the federal government's role, but because of their responsibility for consumer protection and the regulation of professions, the provinces and territories also play an important role in regulating the conduct of immigration consultants.
[Translation]
In this regard, Quebec's own recent amendments to its regulations recognize as an immigration consultant any member in good standing of the body designated under federal regulations.
Quebec's amendments also demonstrate a willingness to work closely with the federal government in the regulation of immigration consultants.
In addition, provinces raised no objections when we shared the changes to IRPA, proposed under this bill, with them during the course of federal-provincial consultations.
With respect to oversight of the governing body for immigration consultants, there are currently no mechanisms in IRPA that give the minister the authority to oversee the governing body.
[English]
The bill would provide the minister with the power, by regulation, to designate a body to govern immigration consultants and to establish measures to enhance the government's oversight of that designated body. Specifically, the designated body would be required to provide the minister with information for the purpose of assisting us and to evaluate whether it governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.
Upon further review of the bill, and in response to concerns raised by this committee--and I followed closely the deliberations of the committee and commend and thank you all for your active and very conscientious review--the government is now considering an amendment in this regard. The amendment would provide broader authority to enact regulations requiring the designated governing body to provide information to the government relating to its governance.
The government is also proposing the recognition of paralegals regulated by a law society; I believe that's an issue that's come up in hearings. By recognizing the ability of law societies to govern their membership in the public interest, such recognition could help would-be immigrants.
[Translation]
This bill is a comprehensive proposal to provide protection to vulnerable would-be immigrants by imposing criminal sanctions on unscrupulous representatives, enhancing oversight of the governing body for immigration consultants and improving information-sharing tools.
This is being done without the significant costs associated with the establishment of a governing body through stand-alone legislation, as suggested by some. A similar approach is expected to cost Australia approximately $20 million over four years, just as an example.
At the same time that Bill moves through the legislative process, a public selection process has been undertaken, as you know, under the existing legislation, to identify a governing body for recognition as the regulator of immigration consultants.
[English]
This committee's 2008 and 2009 reports on the issue pointed to a clear lack of public confidence in the body currently governing immigration consultants. This lack of public confidence poses a significant and immediate threat to the immigration program.
Public comments on the selection process were solicited in June and were followed by a call for submissions as published in the Canada Gazette last August. This open and transparent process is being undertaken to ensure that the body governing immigration consultants can effectively regulate its members, thus ensuring public confidence in the integrity of our overall immigration system.
A selection committee composed of officials from my department, other federal government organizations, and external experts will examine all complete submissions against the criteria listed in our published call for submissions. This selection committee will provide the minister with a recommendation as to which organization(s), if any, has or have demonstrated the necessary competencies. Any and all interested candidates are welcome to apply.
This ongoing public selection process, together with the legislative changes proposed in this bill, ensure, we believe, the most efficient and effective approach to strengthening the regulation of immigration consultants now and in the future.
[Translation]
In closing, as I have said before, most immigration representatives working in Canada are legitimate and ethical. But we must act against those who exploit and victimize would-be immigrants by charging them for bad advice, or who help them try to cheat their way into the country, thereby compromising the integrity of Canada's immigration program.
[English]
I invite the members of the committee to help us as we work together to crack down on crooked consultants and protect fairness for all applicants for immigration to Canada.
Thank you very much. I look forward to your questions.
:
Thank you for your very sensible comment and question. I understand that this has been the subject of the testimony and debate here.
I can assure you that when I was first presented with options for better regulation of the sector by the department, we looked at all options, including this model of a so-called statutory body, analogous, for example, to the law societies. We didn't discount anything. We are looking for the most effective and practical form of regulation. I think we're all agreed on that.
There are several reasons why we decided not to proceed with that model. Firstly, it would take a long time to put it in place, and we need a sound regulator in place following the selection process in the very near future. It would be very expensive, and that expense would work down to the public.
I think it's a false analogy to compare it to the law societies. There are thousands, if not tens of thousands, of lawyers. The law societies have existed for a century or longer. They have a well-developed body of expertise in governance. None of those things can be said of the consultant industry.
There are currently 1,600 members of CSIC. They typically don't have the same level of professional education as lawyers. There's not the same body of expertise. Basically, the government, funded by tax dollars, would have to be there for the first several years, setting up such an institution. One could argue that there would be certain advantages, but I think the costs outweigh the advantages.
I believe that the model we are proposing would allow, for example, for investigations under the amendments recently adopted by Parliament under the Not-for-profit Corporations Act. It would allow for complaints from members to be considered. So whatever marginal advantage could be gained by going to a statutory body would be significantly outweighed by the cost and the expense
Frankly, I'm not sure that we're talking about an industry that has the capacity to support an organization of that magnitude. When we look at the other professional bodies created by provincial statute, they have decades of experience, large memberships, and large revenue streams. None of those things can be said about the consultant industry.
:
The most frustrating part is that even if we have the best laws and enforcement domestically, we are limited in how we can affect the operation of unscrupulous agents abroad, where perhaps most of the exploitation occurs. That is why I've made a very deliberate effort, as part of our broader crackdown on unscrupulous consultants, to use our diplomatic leverage with foreign governments that are major source countries for immigration to Canada, to encourage them to adopt and enforce laws regulating the profession.
As you know, in some of our source countries, such as India and China, there's a large industry of people who will facilitate applicants for visas or immigration to Canada. They often furnish them with counterfeit documents or really bad advice, and often the exploitation is done in a ham-fisted way.
I know of one case where an immigration consultant in Jalandhar, in the Punjab state of India, took at least a quarter of a million dollars from applicants for student visas. He submitted what clearly were ridiculously fraudulent applications on their behalf--like bad photocopies of bank statements--that he knew, presumably, our visa officers would detect. But he didn't care because he'd already taken the cash. So a rejection letter from CIC doesn't seem to hurt his business line. This is a real problem.
That's why I effectively lobbied the Indian government. I'm pleased to say they gave us a commitment that by the end of this year their cabinet will adopt and submit to the Lok Sabha, the Indian parliament, significant improvements to their emigration act for the regulation of consultants, with a specific focus on student recruiters.
I also raised the issue of enforcement. I have to say that some of the state police agencies, such as those in Maharashtra state and in the national capital region around Delhi, have been very helpful in working with our high commission officials in pursuing prosecutions.
I did raise this most forcefully with the first minister of Punjab. He committed to assign a director general of the state, together with the chief of police, to work directly with our consulate in enhancing cooperation on the prosecution of immigration violations.
I raised similar issues with and got similar positive responses from the Government of China.
:
So you've made a decision without having the facts and without knowing. You stated here when you used the example of Australia that $20 million would be the cost and you've said that would be exorbitant because you don't know the size of the industry. During our hearings, we have heard that the industry might in fact be worth close to a quarter of a billion dollars per year. This $20 million you cite in your opening statement is less than one per cent per year of that potential quarter of a billion dollars.
What's interesting is that you came up with this number of $20 million, yet your departmental officials—in fact, the acting director general of immigration, Sandra Harder—said at that time, on October 6, “I am probably not in a position to give you an exact number...”. So you've obviously done your homework on this.
I'd like a different number from you. Your parliamentary secretary during those same hearings said that the way you envision this body, this organization is going to need assistance, that the “actual costs or assistance”—and these are direct quotes from your parliamentary secretary—“that will be provided through the young life of the organization, certainly in the first two, three, four, or whatever number of years will be necessary to get it up and fully functioning and running”.
Ms. Catrina Tapley, your official, the associate assistant deputy minister, went on to say that “what's proposed for funding for that interim period, I think we've left it pretty open at this point.”
Ms. Harder then again went on to say, “At this point even saying that it may only be two or three years may be a shorter timeframe than we might be thinking of”.
Those are direct quotes. They're all saying that under the way you've envisioned this body and from what you've written in this legislation, they have no idea as to how many years it's going to need assistance from the government—two, three, four, five years.
Can you provide us a number now? You've provided us a number from Australia on the statutory body. What kind of interim funding have you budgeted for under the way you've envisioned the legislation? Do you have a number?
:
Thank you, Mr. Dykstra, for raising that question, because it is probably the most important issue with respect to the notion of creating a so-called statutory body. If we were to create a statutory body and that body were to relive the same kind of problematic issues that CSIC has, there would be no ability for the government to de-recognize that body.
This is a sector that has clearly had some challenges. The previous government, I think in good faith, created the structure in 2003 for the minister to designate a body. Serious concerns have been raised.
The government, upon the advice of this committee, has been able to act on those serious concerns by opening up the process for designation. If it were a statutory body and there were to be problems in terms of accountability either to its members or the general public, guess what? We would be out of luck. The organization would just continue to churn away, run by its executive.
I think that because this is an industry that does not have anything like the capacity of the law society in terms of experience, of funding, it is very important that we ensure in the public interest that if things go off the rails, the government can intervene and de-designate the body. That's what the model we propose in Bill allows for. It is the emergency escape hatch.
If the organization becomes guilty of self-dealing, of a failure to properly prosecute immigration crimes committed by its members, if it becomes unaccountable and ineffective, we can pull the plug on it under Bill . In fact, in the bill, there are enhanced or clarified powers to do so. That is a fundamental advantage we have in this model as opposed to the so-called statutory body.