Bill C-35 (Historical)

An Act to amend the Immigration and Refugee Protection Act

This enactment amends the Immigration and Refugee Protection Act to change the manner of regulating third parties in immigration processes. Among other things it
(a) creates a new offence by extending the prohibition against representing or advising persons for consideration — or offering to do so — to all stages in connection with a proceeding or application under that Act, including before a proceeding has been commenced or an application has been made, and provides for penalties in case of contravention;
(b) exempts from the prohibition
(i) members of a provincial law society or notaries of the Chambre des notaires du Québec, and students-at-law acting under their supervision,
(ii) any other members of a provincial law society or the Chambre des notaires du Québec, including a paralegal,
(iii) members of a body designated by the Minister of Citizenship and Immigration, and
(iv) entities, and persons acting on the entities’ behalf, acting in accordance with an agreement or arrangement with Her Majesty in right of Canada;
(c) extends the time for instituting certain proceedings by way of summary conviction from six months to 10 years;
(d) gives the Minister of Citizenship and Immigration the power to make transitional regulations in relation to the designation or revocation by the Minister of a body;
(e) provides for oversight by that Minister of a designated body through regulations requiring the body to provide information to allow the Minister to determine whether it governs its members in the public interest; and
(f) facilitates information sharing with regulatory bodies regarding the professional and ethical conduct of their members.

Immigration and Refugee Protection Act

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

Madam Speaker, I will not go into any more detail about titles, which I discussed at length in my speech. On the one hand, I believe it is insulting for other parliamentarians to be given a bill with a title that is nothing more than a base political marketing tool. On the other hand, it is insulting to the public. If the Conservative government sticks with this policy, it will backfire eventually. It might be able to get away with it once, twice, three times, maybe more, but eventually, people will realize that they are being taken for fools.

By giving people bogus titles, thinking that they will believe whatever it says, the government is telling voters that they are not smart enough to understand what a bill is about. Sooner or later, the Conservatives will pay the political price for taking things too far because they will lose what little credibility they have left. I think they should get rid of that policy.

The Liberals proposed an amendment that we supported to make penalties for immigration consultants harsher. In my opinion, however, efforts to deter undesirable activity will produce better results than sentence length. Sentences can be very harsh, but if they are never applied, they will not have a deterrent effect.

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Madam Speaker, when I was listening to the presentation from the member, I wondered how long he was going to prolong the discussion on the title of the bill. In fact, he went on so long that I was afraid he was going to convince another member of the House to stand and ask a question about the title of the bill, which is exactly what happened.

The title of the bill, quite frankly, is something that he may have wanted to spend 15 minutes talking about, but let us face it, what Canadians are concerned about is the content of a bill and its implementation. When the discussion came up about whether the bill was going to change its name, there was no problem from this government as to whether the bill was going to be in its present form or whether it was going to change. We accepted it with no problem. What is more important is the content of the bill, what it is about, who it speaks for, who it speaks against, what it will mean in terms of legislation.

My question may be a little longer than the answer we are going to need from the member. I would like to know, after we have gone through this process at committee, worked together and got this bill in its present form, if he and his party are going to stand on third reading and support this bill, get it through this House and get it off to the Senate. Yes or no?

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

Madam Speaker, of course, as I said during my speech, I will support this bill. I hope the Senate will study it very quickly. Anytime we manage to pass a bill unanimously in the House, it would be very inappropriate for the Senate to drag its feet and not pass it very quickly.

Now, since I received a second question on the title, I realize that the subject cannot be so innocent after all, because the parliamentary secretary asked a question about that. As I explained very clearly in my presentation, I used the opportunity to talk about it specifically because it was unanimous and there were not really any contentious issues left.

I completely agree with him on one point. What is important is the content of the bill, not the title. That is precisely why I asked the government to stop giving its bills bogus titles, which, in some cases, have nothing to do with the content of the bill.

As the parliamentary secretary said, if it is the content of the bill that matters, they should give their bills titles that reflect the content of the bill, instead of using political diversion tactics.

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

Madam Speaker, I want to ask specifically about the clause that deals with the situation in Quebec.

As the member knows, in Quebec there is the Quebec immigration law and then there is the federal immigration law. Right now the bill that is in front of us will have two types of immigration consultants, those who are legislated by the federal government and another type who are legislated by a provincial government, the Quebec government.

Originally I supported an exemption so that immigration consultants practising in Quebec would have one licensing body rather than two, however that did not pass, and as a result, immigrants getting services in Quebec might be slightly confused.

Perhaps the member can talk about whether that is acceptable or not.

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

Madam Speaker, the Bloc Québécois did propose an amendment to delegate all this responsibility to the Government of Quebec. I believed that it was fair and reasonable and that it was not a sovereignist vision because the Government of Quebec already has responsibilities that are delegated under the Canada-Quebec agreement. Therefore, in reality, the immigration system is different in Quebec than in the rest of Canada. I thought it was normal that this responsibility be delegated in its entirety to Quebec. By the way, this would have allowed the Government of Quebec to choose the Canadian organization or, if it so desired, to use another organization. For example, it could have created a professional body, and so forth. That was the spirit of the recommendation in the committee's report, which was adopted in 2008, if my memory serves me well. The Liberals supported us for a while. As we approached the vote, their support faded away, as is often the case. In the end, they once again abandoned Quebec and decided to support the government.

I would have liked our amendment to be adopted. That said, what is most important is that there not be two categories of consultants in Quebec. In that regard, the battle must still be waged. In addition to the issues of jurisdiction, we must always be mindful of the interests of consumers. When a consumer goes to an immigration consultant in Quebec, he wants the consultant to be able to advise him about all immigration possibilities, whether they come under the Government of Quebec or the Government of Canada.

Having said that, in general, after studying the entire bill and analyzing the arguments for and against, the Bloc Québécois will support this bill. That is an indication that it believes that there are more arguments for the bill than against. The Bloc hopes that the bill will be passed quickly by the Senate. There will be a necessary delay. One of the reasons why we agreed to have the bill fast-tracked through the House is because every day that Parliament delays implementing it, people continue to be potential victims of unscrupulous consultants.

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

Madam Speaker, all government services should be fast, fair and efficient. That should always include immigration services. People who use the service often do not necessarily know immigration laws very well and sometimes have language difficulties. That is why, ultimately, immigration regulations and laws should be transparent. They should be easy to understand. The decision-making process should be very clear and not appear to be arbitrary. Until then, a lot of immigrants will require some assistance. Some will have to go to immigration consultants or lawyers. We hope most will find they do not have the need to do so.

For the past many years, immigration consultants have not been regulated. The former Liberal government brought forward a bill a few years ago and set up a regulatory body. However, the regulatory body was not given the power to regulate properly. As a result, people could set up shop and call themselves immigration consultants without much knowledge of immigration laws or regulations. They could practise, but they did not need to be regulated and they were not breaking any law.

There are 2,000 immigration consultants who are licensed through one body and then there are another 2,000 immigration consultants practising who are not licensed. No one could really tell whether one group was better than the other group, or that any immigration consultants were breaking the laws.

In the last five years, only two or three people have been charged by the government for fraudulent behaviour. However, most people who have dealt with immigrants, whether at immigration offices or constituency offices of members of Parliament, have heard many horrifying experiences, where potential immigrants have been told that their applications have been submitted, but they have not. As a result, their brothers or sisters have grown too old to be considered under family class, or applications are completed in a way that is wrong. Many thousands of dollars later, because their applications have not been completed correctly, the potential immigrants have lost the opportunity to come to Canada or Canadians have been unable to bring their relatives to be united with them in Canada.

There are also other even more extreme cases where immigration consultants have taught people how lie and pretend to be refugees, clogging up the refugee system so genuine refugees have to wait for a long time before their cases are heard.

There are also cases where genuine refugees complete their application forms incorrectly. Some of them experienced torture overseas, but they were unable to describe it in a way that was satisfactory because of the wrong advice they received from consultants. As a result, some faced deportation, while others lost a lot of money.

This terrible experience suffered by potential immigrants is not new. In the early eighties, I was an assistant to a member of Parliament, New Democrat Dan Heap. At that time, I worked with the Globe and Mail with Victor Malarek, an investigative journalist. We visited a few unscrupulous immigration consultants and were able to document all types of behaviour that was fraudulent.

In the eighties and nineties there was a huge uproar in the communities. People were saying that these consultants had to be regulated, yet through these years, it was never done properly.

I hope, with Bill C-35, we will finally get it done properly. I hope the minister will ensure that there is speedy implementation of the bill, that the regulator will be picked and that it will operate in a democratic, fair and open manner. I also hope the regulator will have the power to legislate and regulate all immigration consultants. If people choose to practise as immigration consultants, they will be unable to do so, if they proceed without the licensing of this body. It will be a criminal offence to do so.

Beyond that, legislation is just one piece of the puzzle. The other piece includes education of both Canadians and potential immigrants overseas. The third piece is enforcement of the law. Even after a regulator has been established and licensed, we need to ensure that the Canadian Border Services Agency, the RCMP, sometimes CSIS and immigration officers work together to go after people who act in a fraudulent manner. The regulator needs the power to do this.

The Canadian government also needs to provide the kind of human resources needed in order to ensure those who commit a criminal act will be brought to justice. If not, the legislation will unfortunately not be enforced.

As well, after the regulator has been established, there needs to be regular evaluation. There have to be audits and regular reporting so it is clear for Canadian taxpayers, immigrants, members of Parliament and the general public that this new regulatory body functions in a way that is open, transparent and fair.

I want to spend some time on the detail of the proposed legislation. I have made quite a few amendments to the bill, one of which deals with smugglers, traffickers and immigration consultants who give bad advice. Through this amendment, if people, be they smugglers or consultants, violate the immigration act, enforcement officers will now have 10 years to go after them. In the past, it was only six months. Therefore, it is much tougher and there will be more fines if convictions take place. Smugglers will face life sentences and/or $1 million in fines if they are convicted. The punishment to those who give bad advice, cheat or victimize refugees and immigrants is very steep, and that is a good change.

Another change is the minister will have the power to revoke a regulator's licence. If a regulator is not performing the duty it is supposed to perform, the minister will have the power to take its licence away, especially if it is not delivering good service.

Other changes that I have been assured will be implemented are as follows.

There is the provision that would require immigrants seeking immigration status of any kind or renewing status in Canada to disclose the use of a representative. This would enable immigration officers to check whether a representative was licensed or not.

An administrative change would be a published list of people who had been convicted or removed from the list of approved immigration consultants. This list would be published on the Citizenship and Immigration website. Potential overseas immigrants would be able to see which consultants were licensed, which ones had their licences revoked or had been fined or convicted.

There would be a one-stop shop kind of hotline for the public to report fraud with a lead team to investigate the tips from complaints on unscrupulous immigration consultants. Often it is very confusing for immigrants, especially if their language capacity is not perfect. They may not know whether they should go to the local police, the RCMP, the immigration officer, or CBSA and they may get bounced around. At the end of the day, an immigrant may get frustrated and not file a complaint. Then the immigration consultant would continue to exploit other people. With the hotline and information published on the website of CIC, the public will know how to report fraud.

Another area where there is agreement is on some companies operating in Beijing or New Delhi. A company in India will be advised that it cannot provide substantive immigration advice. It is assisting immigrants to process claims, but it should not act as consultants or lawyers. It is not its task and really should not be its function.

At the end of day, after these agreements, there were still a few changes I would have made, but they were never included in Bill C-35.

I would have preferred to have seen overseas employment recruiters included in the bill so they could be licensed as well. If they ended up behaving in a way that was unacceptable, then they could be charged.

I hoped that if potential immigrants were given terrible advice, they would have a chance to reapply if the immigration consultant was convicted. Also, the immigrant's removal from Canada would be stayed until the immigration consultant went to court and was convicted.

Sometimes, whether they are smugglers, traffickers or crooked consultants, they give bad advice and the victims end up being deported from Canada and are not given the chance to either report the fraud or testify in court. The smugglers, traffickers or crooked consultants end up getting away without being convicted in court and they end up preying on other people.

A stay of removal until the criminals are convicted is really important so the victims are protected. If not, others, unfortunately, will be victimized by these criminals.

Unfortunately, that did not get into Bill C-35. This bill also deals with the same section of the law that deals with traffickers and smugglers. I would prefer it if we could reverse the onus so that the smugglers would have to prove that they are innocent. However, that was not acceptable.

All in all, at the end of the day, Bill C-35 is a bill that I and the New Democratic Party of Canada support because it would provide a legislative framework to ensure that all immigration consultants practising in Canada must be licensed and it would tighten up the law so that hopefully there will be fewer immigrants being cheated and having their life destroyed by these crooks.

I hope there will be sufficient resources to ensure the enforcement of this bill so that in a few years from now we will not be coming back to the House yet one more time to try to fix this issue.

Ultimately, maybe five or ten years from now, if the industry has matured in a way to be able to set up an independent non-share corporation so that the body can be self-regulating and the minister or the Government of Canada would no longer have to regulate, that would be the way to go. Just like the Canadian Bar Association, the Law Society or other professional bodies of engineers or accountants, this immigration consultant industry would be able to independently regulate itself.

I have been persuaded that the time is not right yet. Eventually that would be the goal for this industry to practice, as an independent non-share corporation. In the meantime, I hope the minister will be wise and will pick the right kind of regulator that will be able to deliver the service in a most efficient, open and transparent manner.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Madam Speaker, one of the issues for me that stood out in this is the amount of concern with the regulations and the Immigration and Refugee Protection Act.

It talked about many of the stakeholders being concerned about the decision to change the regulatory body through regulation under the IRPA rather than through stand-alone legislation. The new body would still not have the same power to sanction immigration consultants who are not members nor have appropriate enforcement measurement powers, which is always the ongoing concern here with legislation that requires a tougher stand than what we currently have, no matter what type of malfeasance it is.

I would like to get the hon. member's reaction to the boards and stakeholder reactions. The Canadian Bar Association said that it would prefer that individuals offering immigration advice for remuneration be required to be a member of the Law Society but, if consultants are to be permitted, it is concerned that draft legislation does not give the regulatory body sufficient teeth or provide sufficient governance, accountability and protection.

I would like to get the hon. member's reaction on that, as well as on the ability to enforce this.

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

Madam Speaker, it is not surprising that the Canadian Bar Association would prefer anyone practising immigration law to be a lawyer. However, our amendment says that paralegals would be able to practice immigration law without being regulated by this body. That is a compromise.

I do not agree completely with the Canadian Bar Association that everyone giving advice on immigration matters needs to be a lawyer. There are very competent consultants who understand the law. They are able to fill in applications and give advice but they are not able to represent their clients in federal court, for example. If we are talking about legal matters in a court of law, then it would still be up to lawyers and not immigration consultants.

As to why this body would not be an independent corporation, I have been persuaded that it will take some time. If we look at the history of the Canadian Bar Association, it took quite a few years for the Canadian Bar Association to be formed. This immigration consultant industry is still relatively new. It would be helpful for the government to ensure that everyone practising is doing so in a way that is acceptable under Canadian law. Ultimately, when the industry matures to the extent that it can, an independent, non-share corporation can be established. The body could form itself. If the body is ready in two years from now, it will be able to regulate all immigration consultants. That day may come but we do not know when.

In the meantime, it is important that we have this regulation and this legislation in front of us.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I congratulate the hon. member for Trinity—Spadina for making some important amendments to this bill. It proves that she works well on the committee and is able to get a lot of positive improvements made to bills that she works on.

One of her amendments would increase the time that the government can go after smugglers and traffickers from a paltry six months to ten years. That really toughens up the legislation and makes us not only tough on crime but also smart on crime. I give her full credit for that.

She also got an amendment to allow the minister to revoke the regulator, which was important. She also got an amendment to require the disclosure of the use of representatives. She got an amendment to allow the publishing of a list of disciplined consultants. This is important for people when choosing a consultant. She also managed to get a hotline to report fraud. The member for Trinity—Spadina managed to make substantial amendments to the bill.

One amendment that she was unable to get through, which was equally important, was the inclusion of overseas employment recruiters. Two or three years ago, we had a situation in Manitoba involving an operator who is still in business. This situation presented a lot of problems. The individual was going overseas and bringing people from Germany to Canada under overseas employment contracts. He was constantly getting complaints from people who he brought over because he was taking advantage of their situation.

Would the member like to further comment on the fact that she was unable to get accepted what I think would have been an important amendment to this bill?

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

Madam Speaker, after committee members debated my amendment, they were able to tighten up some of the wording so that the intent now is that if people are giving advice overseas and they stand to gain something financially and are not performing their duties in the public interest, there would be a possibility of punishment.

I have a lot of experience in this area. I have seen cases where people were told that they had to pay $10,000 to employment recruiters overseas but when they arrived in Canada they discovered that the companies they were to work for were having financial difficulties. Sometimes they discovered that there were no jobs or that the jobs were paying half the amount they were promised. They ended up having to pay back the recruiters, which meant that they had to work for a year or so without getting much salary and since they pay enormous amounts of money to the recruiters.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, in subclause 91(5), there is an exception that would be provided by regulation. It states:

The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.

What other organizations, other than those that are exempt, have been given as examples of those that will not be covered by the act before us?

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

Madam Speaker, paralegals, for example, are already licensed by the provincial government. They will be exempt because there are already regulations that govern them and it is not necessary to licence those people.

[Paul Szabo, Liberal, Mississauga South, ON]

Madam Speaker, I want to speak to Bill C-35 because it affects all hon. members in the conduct of their work. It is probably one of the more sensitive and the more difficult areas. It deals with constituents who have matters dealing with immigration and even refugee issues.

Recently I have had a number of cases where people received bad information. They either did not provide true, full, plain and accurate information on a form or in representations, or there were some contradictions, and it was basically because of these so-called experts or advisers, many of whom are just people who are part of a particular community and say they have been through this before and know how to do it. It is a real tragedy when that happens, while someone with all the details on the table will be able to successfully complete an application, be considered and in fact be able to proceed with whatever proceeding is going on, or even with regard to things such as appeals.

This problem has been going on for so long that we have finally come to a bill that says, in proposed subsection 91(1):

Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person, for direct or indirect consideration — or offer to do so — in connection with a proceeding or application under this Act.

It is interesting that the words “directly or indirectly” were put in there, I assume for greater certainty, but even the reference in this subsection, “or offer to do so”. Even to offer to provide advice for money is an offence unless it is persons who are designated as not contravening because they are either lawyers, members of a law society, including paralegals, or members in good standing of a body designated under subsection 91(5).

I previously asked the question of the member for Trinity—Spadina with regard to subsection 91(5) and said I would like an example of someone who might be designated by the minister. She gave the example of a paralegal, which actually is already in subsection 91(2). So I still do not have that. I hope someone is going to be able to expand on that, because when it gives the minister, under regulations, the authority to designate a body whose members in good standing may represent or advise a person for consideration, or offer to do so, in connection with the act, that means that notwithstanding anything else that is in the bill, the regulation is going to provide presumably a list of others who may be designated.

As I have often said in this place, bills that come before us are tabled and at first reading they get a bill number, we have second reading debate on the document, and if it is passed, it goes to committee where we have witnesses and amendments can be proposed. Once it passes through committee, it will come back to this place, where we can amend the bill with report stage motions, particularly from members who are not otherwise engaged in the process of the committee work, and also where the committee had not considered any such suggestions already. Now we are at third reading, and after all of this and we are going to vote on the bill in a very short time, we still do not know what the regulations will say. That is always my question.

If we look at legislation and ask when does it come into force and it says it comes into force on a date fixed by Governor in Council, that basically means that even though we may pass it and it goes through the Senate and all the legislative steps, it does not come into force until the regulations are drafted and promulgated and in fact are gazetted. That basically means nobody knows when it will happen, and there are other areas in which regulations have to be made.

My concern is that we have been having a debate on a bill that would do something and we have provided within the bill those who will not be committing an offence, but we have this regulation that would also exempt others at the discretion of the minister. I do not know whether that includes the YMCA or other social service agencies, something such as that, that may deal with the public.

The wording here is kind of interesting. Even to offer to provide service for direct or indirect compensation or benefit would constitute an offence under this.

I used to do the audit of a number of agencies, such as the Malton Community Council and immigration consulting services of Peel. These are organizations that do not fall under the legal ambit. I assume that the Canadian Society of Immigration Consultants itself may in fact be providing services to people. I do not know whether they are going to be included as well.

It leaves us in the situation, which we have been in so many other cases, where the legislation in its intent is clear, but the details with regard to the principal persons who would be authorized or who have been, as put here, committing an offence or a contravention of the section are still unknown. We still do not know who these others are.

That little hole means that until this bill becomes law and the regulations are there, people are going to continue to do this. This is a problem in terms of people providing bad advice, which has very serious consequences on the lives of people who may very well find themselves taken out of Canada and sent back to the country from which they came, for any proceeding under this act, for people who are giving information.

I think every member of Parliament in this place could give an example of where individuals had relied on bad advice from people who represented themselves as knowing how the system worked. Once a person's file gets that little black mark on the top corner, the flag, that means that not only is that person's situation jaundiced and possibly dead, but it may also mean that other family members would be involved. People desperately want to do it right. They want to become Canadians. They want to be in Canada, and they rely on someone who unscrupulously provides them with information that is not correct, either because they are not properly trained or up to date on the law, or in fact maybe they simply want to get money from people who trust them. This happens far too often.

I am not sure whether bills such as this ought not to be also accompanied by a commitment by the government to educate the public. We can pass laws here every day, but if people do not realize that there is a serious concern about unscrupulous people out there who are giving bad advice and charging a lot of money for it, I wonder when the government is going to tell people that they can go to their members of Parliament first.

There are experienced people in the constituency offices of members of Parliament, who have been through the process many times. They have seen some of the ugly stories where people have blown it because they relied on those who were not properly informed about the law or the processes, the number of people who have been told not to disclose the fact that they have a child who is staying with somebody back home somewhere, and they are told that will be taken care of later. Something such as that would be a terrible blow to anybody's chances of being successful in an appeal or whatever it might be.

We get these situations. It was probably the first critical issue that I dealt with when I became a member of Parliament some 17 years ago, to have people come and see me who already find themselves with some problem and not understanding why they have to provide this, that or the other thing, or they are being questioned why something was not done and they do not know what to do now. Sometimes, at that point, it is too late.

It goes also to the fact that when members of Parliament get elected and come to this place, most members do not realize that their offices are going to become, for all intents and purposes, consultancies for immigration, refugee, citizenship and visa issues. It is a very complicated area, yet the House provides absolutely no orientation on it. Basically we have to survive and just struggle as much as we can. But experienced members have experienced staff and they can do very helpful work. If people are not confident there, they still certainly can go and get other advice, but even something as simple as making a mistake on an application can in fact jeopardize the success of any action that might be taken by a person covered under this act .

We need to spend some time, because most members will know that even if our offices were to contact citizenship and immigration, often there are difficulties even getting quick answers on certain things. There are often long delays in getting responses to requests for the status of certain things. The saddest day in a constituency office is undoubtedly when we have bad news for people because mistakes were made when they relied on others.

I hope that this is a good step and that the regulations will in fact be appropriate and not leave a little window open for those who may want to take advantage of it, because there are several regulations here. We will have to wait until they are promulgated to see what the government has in mind, but I would caution people and encourage the government, once this bill is passed, to publicly announce this bill and what it does and to encourage people not to be too quick to rely on the advice of those who are not properly trained or knowledgeable about the laws of Canada. They do change, and it can make a difference to a person's entire life.

[The Deputy Speaker, Andrew Scheer]

Is the House ready for the question?

[Some hon. members]

Question.