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.

[Jason Kenney, Conservative, Minister of Citizenship]

Thank you, Chairman.

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 C-35. 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.

We intend to close loopholes currently exploited by unscrupulous representatives and improve the way in which immigration consultants are regulated.

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.

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.

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.

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 C-35 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.

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.

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.

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.

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 C-35 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.

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.

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.

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.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Thank you, Mr. Chair.

My question is for Mr. Handfield.

Mr. Handfield, thank you very much for taking the time to appear before our committee and assist us in our study on Bill C-35.

Do you believe that the disclosure of information relating to the ethical or professional conduct of immigration representatives to bodies responsible for governing or investigating that conduct will improve the effectiveness or the regulation of immigration representatives?

[Alice Wong, Conservative, Richmond, BC]

Thanks, Mr. Chair.

Thank you, ladies and gentlemen, for coming to the hearing today.

My questions are directed to the Canadian Bar Association. Any one of you can answer them. They are in two parts, so I will tell you the questions first, and you can then decide which one to answer first.

First of all, can you explain how law societies discipline their members? In our discussion earlier, a lot of you mentioned the fact that discipline is important to make sure that your members are following the rules. Why is this important? That's question number one. Second, how will improved information-sharing with the Canadian government, as Bill C-35 has suggested, strengthen this law society function?

Thank you very much for answering.

[Justin Trudeau, Liberal, Papineau, QC]

Would you see, then, a need to insert into a bill like Bill C-35 a recommendation or even an obligation that people who want to practise immigration law should be qualified specialists in immigration law? Or is that setting the bar higher than you feel is needed?

[Laurie Pawlitza, Treasurer, Law Society of Upper Canada]

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 C-35. 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 C-35 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 C-35 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.

[Chantal Arsenault, Chair, National Citizenship and Immigration Law Section, Canadian Bar Association]

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 C-35.

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 C-35. 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.

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.

[Stéphane Handfield, Lawyer, As an Individual]

Mr. Chair, members of the committee, thank you for inviting me to appear before you regarding Bill C-35.

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 C-35 does not protect people from crooked immigration consultants who could claim that they were not compensated for their services.

Bill C-35 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 Chair, Conservative, David Tilson]

Good afternoon.

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 C-35, An Act to amend the Immigration and Refugee Protection Act.

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.

[Joel E. Tencer]

Right, I agree. It's trite to say this, but they have to be registered. They have to meet the standards that I and Ms. Adam have met and that the rest of our 1,850 or so members have met. I don't see the jail or fine, but I don't have Bill C-35 in front of me. As long as it's there, that's important.

I think that maybe a government body should be set up, some investigative body that should try to find these unlicensed persons and have them charged. I would like to see the government take a very serious step in this direction. As I said, there are many people out there who didn't take any courses and who don't pay money. I think there should be more proactive work done by the government, by Immigration Canada, possibly, together with CSIC, to work against these unlicensed, unscrupulous people.

[Joel E. Tencer]

Thank you.

Your question, if I understand it, is about the difference between an unlicensed person and a licensed consultant. I think I've answered part of that. The unlicensed person takes advantage of vulnerable people who need to run away or want to immigrate to Canada. These unlicensed persons are not knowledgeable because they didn't study like we did. We paid money to take courses and to pass exams. We are at a certain level of knowledge and skill that these unlicensed persons cannot possibly have.

As for moneys and where our client's money goes, the bank accounts are regulated. These other people could take the money and run away and they've done that. It has been in the newspapers, in the media. We are licensed and therefore are held to a strict standard. None of us would have been licensed, Mr. Uppal, had we not proven to CSIC that we know the refugee law and the immigration law.

There are always complaints.... A disciplinary department is hanging over our heads, which is important for any professional body.

Our knowledge allows us to render a proper professional service, which I'm very proud of, because I am where I am today thanks to CSIC.

As I said, lawyers do not take immigration law in law school; I never did when I was there. I learned everything through seminars and conferences, as Ms. Adam has stated.

Therefore, an unlicensed person is now covered in this new legislation, Bill C-35 in that it's an offence for them to get involved with persons in the area of immigration and refugee law.

The only comment I want to add now is that I'd like to have some serious teeth put into this bill. Unlicensed persons who are caught practising immigration and refugee law ought to be strictly fined, with maybe even a jail term to deter them, because they're taking advantage of vulnerable people around the world who want to come to Canada.

[Josée Beaudin, Bloc, Saint-Lambert, QC]

The federal minister, under Bill C-35.

[Josée Beaudin, Bloc, Saint-Lambert, QC]

Several of us have mentioned the power given to the minister under this bill. In 2008, this committee made some recommendations. In the June 2008 report, it recommended that a new organization be created under a separate statute. Under Bill C-35, the organization would be under the direct authority of the minister. Don't you think that would give him too much power?

[Selin Deravedisyan-Adam]

There are a lot of changes in Quebec. Everyone who can work directly with the ministère de l'Immigration et des Communautés culturelles is going to have to make a mandatory declaration when they fill out the forms. There is a parallel with Bill C-35. I didn't come here just to criticize. The positive point is that anyone who advises another person will have to be a member in good standing of an organization. Quebec has already focused on this, and at its site we can see today that it does indeed talk about members in good standing of the CSIC. That is a positive point.

[Joel E. Tencer]

My answer to you, Mr. Oliphant, is the following: that's actually one of the comments I have on Bill C-35 and particularly on proposed subsection 91(5), where it says, of course, that the minister “may designate a body...”. Rather than the minister having this extraordinary power, it's my respectful submission that a body ought to be set up--or possibly in cabinet or with a committee of some sort--and they are the ones who should decide whether the society should continue--that is, CSIC--or a new regulatory body should be set up.

I'm not totally experienced in politics. It's not an area that I profess expertise in, but I believe that a certain body or cabinet, after discussions and meetings, ought to decide whether the society, CSIC, should continue or a new one should be appointed--

[Cobus (Jacobus) Kriek]

My intention was not to include the regulation of recruiters in Bill C-35. My intention was just to clearly identify what is the practice of immigration law or immigration law advice and to expand proposed section 91. I believe that recruitment is a function that should be dealt with by the provinces, not in federal legislation.

As for how to deal with overseas ghost agents practising immigration law, follow these two suggestions: have an intelligence system to follow those people and, once they enter Canada, prosecute them for their actions abroad. I think it would be very difficult for the Canadian government to go after these people right around the world. I don't think it's practical.