Citizenship and Immigration Committee on Nov. 15th, 2010

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

I would like to give my rationale for supporting this. This clarification is certainly not necessary, but I think it would be helpful. In my opinion, this prohibition has two parts to it. First of all, you have to give advice, and, second, you have to do it for consideration.

What happens if the person receiving the consideration is not the one providing the advice? Imagine a case where someone deals with a recruiter and pays that person. The recruiter could then go and hire a consultant. That would mean that the consultant would not necessarily be paid by the person receiving the advice. He would be, but only indirectly. He would be providing advice to a client for consideration, but that consideration would come from a third party.

Would a court of law consider that to be covered under the Act? Possibly, but I think it would be wise to state that going through a third person to provide indirect consideration is not what the framers of the legislation had in mind.

[The Chair, Conservative, David Tilson]

You still have the floor, Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Mr. Chair.

I understand the notion, but now there's a burden of proof. Let's say this piece ends up in court and there's a challenge on some apparent or alleged indirect advice. You're allowing into legislation the acceptance of something that isn't clear, because it indirectly has to be proven in a court of law. We're allowing it to indirectly exist, so there's some sort of cloud. Instead of saying “clearly and directly”, we're saying well, there's the potential.... That's a mistake in legislation, certainly in a clause like this. It allows for so many open-ended accusations to be levelled against almost anyone for anything that could be attributed to a mistake or a piece of advice.

It's like saying, “I told Thierry, who told Olivia, who told Robert that they could do this.” How are you supposed to prove something like that in a court of law? It's almost virtually impossible to do.

I would like to hear from our legal staff.

[The Chair, Conservative, David Tilson]

Ms. Ménard is next, and then Mr. Trudeau.

[Elaine Ménard, Legal Counsel, Legal Services, Department of Citizenship and Immigration]

Thank you, Mr. Chair.

I would like to point out that this is a mens rea offence. With the word “knowingly” it is a criminal offence, so the points raised are very valid indeed.

I would also like to point out wording that we find in the act currently, and I hope it may be helpful.

Section 127 is the provision dealing with misrepresentation. It states:

No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts

There may be a way to make it, “No person shall knowingly, directly or indirectly, represent”. But the concerns raised about evidence remain.

I wish to point out that it continues on. The evidence would have to still be in connection with a proceeding or application under the act.

[Rick Dykstra, Conservative, St. Catharines, ON]

If Ms. Chow is comfortable including that wording--it speaks specifically to an individual providing advice, directly or indirectly, specifically to a client--I think we'd be prepared to support that.

[The Chair, Conservative, David Tilson]

Are you putting a subamendment?

[Rick Dykstra, Conservative, St. Catharines, ON]

Yes. I am asking Ms. Chow if she'll accept that.

[The Chair, Conservative, David Tilson]

I need to know what wording you're suggesting.

[Rick Dykstra, Conservative, St. Catharines, ON]

It's the wording put by Ms. Ménard. It comes from the old piece of the act.

[The Chair, Conservative, David Tilson]

Perhaps you can help us. I'd like to hear what you have to say. Go ahead.

[Elaine Ménard]

It would say, “No person shall knowingly, directly or indirectly, represent or advise a person”, and it would continue, “with the proceeding or application under this Act”.

[The Chair, Conservative, David Tilson]

Mr. Trudeau is next, and then Mr. Wrzesnewskyj.

[Justin Trudeau, Liberal, Papineau, QC]

Whether we put the “directly or indirectly” after “advise a person” or before “represent or advise a person”, it doesn't change much. If the government is happier with that, I'm certainly open to it, if that's okay with Ms. Chow.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Yes.

[The Chair, Conservative, David Tilson]

Ms. Ménard, Mr. Wrzesnewskyj has a question.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

In legal terminology and the understanding of this law, could you explain what difference the addition of “directly” and “indirectly” will make as compared to the existing wording? What circumstances would that capture that otherwise would not be captured, if any?

[Elaine Ménard]

Of course there's always the caveat that it's for the court to interpret the wording. But I think the intention seems to be that it would be when someone indirectly...as was mentioned, A says to B, “advise potential immigrant C of the following”, without the first person, A, being the immigration consultant.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

So if I were to advise, not directly to the person but through another party, as it's written currently, the legislation would not have the capacity to have me charged. Is that correct?

[Elaine Ménard]

Whether or not the legislation has the capacity to have you charged would be based upon the facts of the case, as to whether you “knowingly” advised. It is difficult to say that if you did it by some means of communication whether or not there would be enough evidence to substantiate that.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

This is where I'd like some clarity. In the way the legislation is currently written, if I were to say “I'm not going to advise you, but this good fellow over here is going to provide the advice”, would that then preclude me from being charged?

[Elaine Ménard]

I'm sorry, could you repeat the question?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'm trying to get at the clarity.

I know what it means in terms of intent and speaking at committee. But in terms of the legal significance of inserting these new words, does this do something that the act would not have the capacity to do with the current wording? In legal terminology, if it doesn't specifically say “directly” and “indirectly”, does that mean I could commit a crime by having someone else provide that advice, as opposed to me directly giving the advice to the client?

[Elaine Ménard]

Thank you.

Mr. Chair, I think with the inclusion of the words “directly” or “indirectly” the court would interpret the provision more broadly.

If you do not have the word “indirectly”--and I think you asked whether it would be a crime--it may in fact not be a crime; I think the words “directly” and “indirectly” would broaden the provision.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

It would tighten the net.