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.

[Terence Young, Conservative, Oakville, ON]

Thank you, Chair.

Thank you, gentlemen, for coming here today. We really appreciate you taking the time.

My first question is for Mr. Qayyum. In your report, you say you support the provisions of Bill C-35 to “close legal loopholes that have enabled ghost agents to thrive”, that for too long, these disreputable individuals have exploited these loopholes to take advantage of people. In fact, we know that ghost agents have caused a lot of human misery. Lord knows if they pay their fair share of income tax or what else they do. Then you expressed concern a little bit later that the regulatory review has cast a shadow over the profession, endangering the livelihood of fellows who work hard to provide service.

But my conclusion, based on my past experience, is that an improved system will give the public more confidence in consultants, and that it will enhance their chances of making a living. For example, if you look at organized real estate in Ontario, people used to make jokes about real estate agents and so on, but it's really a dynamic organization, and it has grown as the credibility of the agents has grown.

I just wanted to share that thought with you. I don't know if you have any comments on that. Please go ahead.

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

As for the organization's mandate, before the break, when the hearings began, we held a discussion about whether CSIC's primary mandate was the protection of the public or the protection of the system's integrity. Competence is an issue here. What's your current take on this?

What mandate will be set out for the organization under Bill C-35?

[Nigel Thomson]

Yes.

So our fees come in, in total.... As you may be aware, the current Law Society of Upper Canada errors and omissions insurance will run in the neighbourhood of $3,500 for a lawyer to practise in Ontario. So we believe that our fees are competitive, given the size of CSIC. Obviously it's been raised by this committee that the size of the membership of CSIC does obviously impact on fees. A regulator has to meet a minimum requirement in terms of education, complaints and discipline, discipline panels, registration, and ongoing operations, but it's hoped of course that with Bill C-35 our membership will grow in the future.

[Justin Trudeau, Liberal, Papineau, QC]

Looking at some of the complaints of some members that I know you're glad to respond to, one of the concerns that has been expressed here has been that the fees are too high and that the focus is much more on penalizing and drawing fines from people than perhaps allowing more people to become immigration consultants. Financial accountability becomes a question. I know you've had a number of audits, but what sort of accountability do you have on board expenditures, on strategic decisions, on partnering with organizations like CMI? What level of accountability is there, or is there accountability? Is that one of the criticisms that you're willing to make around Bill C-35?

[Imran Qayyum, Chair, Canadian Migration Institute]

Thank you, Mr. Chairman.

Good afternoon. The Canadian Migration Institute is honoured to be here today to share our views on Bill C-35.

CMI is the voice of the immigration consulting profession. Since our inception in 2007, we have grown to more than 1,800 fellows, who can be found across Canada and overseas. With representatives from the immigration consulting, legal, and notary professions, CMI is larger than any other similar organization in North America.

Our mandate is to educate, accredit, and advocate on immigration law and policy. We have several chapters throughout Canada that provide regional support through accredited educational programs as well as advocacy on provincial issues.

CMI strongly supports Bill C-35's provisions, which will close legal loopholes that have enabled ghost agents to thrive. For too long, these unlicensed, disreputable individuals have exploited these loopholes to take advantage of prospective Canadians.

However, we do have serious concerns. While the new penalties in the bill give law enforcement agencies such as the CBSA and the RCMP the legal tools to put ghost agents out of business, there is no additional funding provided in the bill to enable these agencies to do this, meaning that consumers will still not get the protection they deserve.

Further, we remain unconvinced that this regulatory review to select a designated body is really necessary. Members of the Canadian Society of Immigration Consultants, most of whom are also fellows of CMI, have invested over $37 million since 2004 to build CSIC's sophisticated regulatory functions. These include rigorous membership standards, a thorough complaints and discipline process, and an intricate IT infrastructure. It would be foolhardy to throw away this investment, especially because we know for a fact that our fellows are satisfied with CSIC as it is today.

Just two months ago we commissioned a survey to determine how our CSIC member fellows feel about their regulator. The results clearly indicated that fellows think CSIC is an effective regulator.

These fellows are on the ground, dealing with CSIC on a day-to-day basis and closely following its activities. That puts them in a unique position to evaluate its suitability as regulator. They realize that CSIC is well governed, a fact that has been confirmed by independent reviews done by recognized leaders in governance. They realize that CSIC has been working diligently to combat ghost agents within the constraints of its limited authority. They see that CSIC does so by reaching out to warn consumers and engages in the tracking of ghost agent activity, and they appreciate that CSIC has held its members accountable through its rigorous complaints and discipline process.

While there is no denying that some CSIC members are dissatisfied, this extremely vocal minority does not speak for our fellows. In fact, this regulatory review has cast a wide shadow over the immigration consulting profession. It is endangering the livelihood of fellows who work hard to provide high-quality service to prospective Canadians. By questioning the competence of their regulator, the government cannot avoid endangering the public's confidence in immigration consulting professionals and the overall immigration system.

I urge the government to carefully consider these points. It has taken many years to build CSIC into what it is today, and consumers should not have to wait while the process of building a regulator begins anew. Further, without concrete funding for enforcement, the effectiveness of the government's crackdown on ghost agents cannot be guaranteed.

Merci beaucoup.

[Nigel Thomson, Chair, Board of Directors, Canadian Society of Immigration Consultants]

Thank you very much. Thank you, Mr. Chair.

Bonjour. Good afternoon. It's a great pleasure to be here, given the challenges we had in getting here.

The Canadian Society of Immigration Consultants welcomes this opportunity to appear before this committee on Bill C-35.

CSIC appreciates the action the Minister of Citizenship and Immigration is taking to shore up Canada's immigration system. We are particularly pleased that the government is taking action on ghost agents, the most important attribute of Bill C-35 and the key failing of the existing legislation. CSIC has actively advocated with government for several years to close the loophole that has allowed ghost agents to operate.

Under the immigration and refugee protection regulations, CSIC is designated as the body that regulates immigration consultants, who, for a fee, represent, advise, or consult with a person who is the subject of a proceeding or application before the minister, an officer, or the Immigration and Refugee Board of Canada.

CSIC welcomes the introduction of this bill, but there are a few shortcomings that need to be addressed.

First and foremost, the duty of any regulatory body is the protection of consumers. CSIC's primary focus continues to be the protection of vulnerable immigrants coming to Canada, those who will eventually become productive citizens. Before CSIC, there was no one to protect consumers of immigration consulting services.

Since 2004, CSIC has shut out 800 agents because they could not meet CSIC`s rigorous standards. We have disciplined 225 consultants for misconduct. We currently have 400 open investigations of complaints and 13 matters before CSIC's independent hearings panel. Further, we regularly conduct multilingual national consumer awareness campaigns. CSIC has been doing its job to protect future Canadians and has been successfully carrying out our mandate of educating, accrediting, and regulating our members.

With this in mind, Bill C-35 is a good start, but more needs to be done.

The proposed provisions look to close the loophole that currently permits ghost agents to prey upon uninformed consumers. We fully support this provision. CSIC has always advocated penalties for those who illegitimately hold themselves out as being qualified to offer immigration services.

The Canada Border Services Agency and the Royal Canadian Mounted Police have the mandate to investigate, prosecute, and ultimately bring to justice those individuals who look to thwart the immigration system. We are concerned that they will not have the resources to do so.

No funding provisions have been made to carry out the enforcement mandate, nor has any funding been earmarked for the prosecution of ghost agents. Without the proper funding and other resources, the hands of CBSA will be tied and ghost agents will continue to plague the immigration system.

Finally, CSIC embraces the provision in the bill that calls for the regulator to be more accountable to government.

CSIC has concerns about the powers that Bill C-35 gives to the Minister of Citizenship and Immigration. For the first time, under the new section 91, the minister alone will have the power to choose who will regulate immigration consultants. The proposed legislation will give her or him the power at any given time in history to change the regulator with a simple notice in the Canada Gazette. This creates the potential to unduly politicize the regulator, contrary to the public interest when the regulator must be seen as neutral.

The regulator's independence from the minister is of paramount importance. CSIC is concerned that under the proposed legislation, the minister will have too much power over the regulator and over those who are representing vulnerable immigrants. Our members must be free to provide the best advice to their clients without fear of ministerial influence threatening their ability to act independently as authorized representatives. Furthermore, CSIC objects to the fact that the Minister of Citizenship and Immigration will have more control over immigration consultants than the minister does over other authorized representatives, including lawyers.

CSIC supports the provision to allow the Governor in Council to specify what information the regulatory body should provide to government, but this information needs to be provided to a department other than Citizenship and Immigration. CSIC recommends that the information be provided to the Minister of Justice. This would ensure the independence of the regulator while remaining accountable to the government in the interests of consumer protection.

Canada's immigration system, its consultant regulator, and consumers of immigration consulting services deserve more stability than this bill currently offers.

I want to assure the honourable members of the committee and all Canadians that CSIC will continue to fulfill its mandate to protect consumers through accreditation, education, and discipline of our more than 1,800 members. CSIC is doing its job. Let's build upon experience and expertise.

Thank you very much.

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. This is the Standing Committee on Citizenship and Immigration in meeting number 26, Monday, October 18, 2010.

The orders of the day are twofold. For the first ten minutes there is a motion from Mr. Trudeau, and, pursuant to the order of reference of Thursday, September 23, 2010, Bill C-35, an act to amend the Immigration and Refugee Protection Act.

Mr. Trudeau, you have the floor. I believe you've already made your motion.

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

Very quickly, it's been mentioned here, and I would just ask you to clarify, that while the recommendation in the standing committee report was for a statutory body, the recommendation that's actually coming out of the report is to move in the direction that our piece of legislation, Bill C-35, is actually suggesting. Could I just get confirmation of that?

[Brenna MacNeil]

Just to reiterate and to be clear, there are two main parts of the broad strategy on regulating immigration representatives. Certainly Bill C-35 is the key element of that and is the subject of discussion here today. Just to reiterate, the public selection process is a complementary process and is part of the broader strategy. It's undertaken under current authorities. It's a separate process, but it is certainly a complementary process. As we've said, it's really to identify a governing body for immigration consultants. That is under existing authorities now, whether the bill goes forward or not.

I think I'd also like to mention that in addition to efforts to better regulate immigration consultants, we've certainly made additional efforts with respect to public awareness to warn people about fraud and the dangers of using unauthorized representatives. Service improvements have also been made to address the broader issue of whether people feel they need to use immigration representatives at all. Some of those service improvements Ms. Tapley spoke to in her opening remarks. They include movement towards e-applications and something called Visa Wizard, which will help applicants navigate the process, determine the best route for them to come, and respond to specific elements of the immigration process.

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

Thank you. So, consultants should be overseen because you feel that there is a legislative gap, as provinces do not fulfil their duty when it comes to monitoring them. As a result, the federal government must do the monitoring, but it does not need to get involved when it comes to lawyers, since they are already overseen by the provinces. That is the basis of Bill C-35.

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

I have to stop you there. My question is really simple. Why is Bill C-35 aimed at overseeing consultants, but not lawyers? Why did you make that decision? I'm not saying that I think lawyers should have been included. I'm just asking why.

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

I know that they are excluded. I know the answer, Mr. Chair, but I want to hear what the officials have to say about this.

Why did the federal government not think it appropriate to include in Bill C-35 provisions concerning lawyers and notaries?

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

I will rephrase my question. Bill C-35 proposes a strengthening of the rules governing immigration consultants to ensure the integrity of the system.

Why did the department not consider proposing similar action at the federal level—in order to maintain the integrity of the system—for practising lawyers who also provide immigration advice for a fee?

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

Thank you.

In our previous exchange, you confirmed that Bill C-35 was not aimed at protecting the general public, but at protecting the integrity of the immigration system. However, when the minister tabled the bill in the House and spoke about it in the media, he did in fact say that the bill's purpose was to ensure the protection of the public and of those involved in the immigration process. That's how it appeared in the news release and in the bill's title, which seems to indicate as much.

I understand that you cannot give your opinion on political issues—that's not your role—and I will not ask you to do that. However, can you confirm to the committee that, from a strictly technical point of view, the minister is erroneously claiming that Bill C-35 is aimed at ensuring the protection of the general public?

[Catrina Tapley]

Sure. Mr. Chairman, I'll start, and my colleagues can chime in to offer some additional detail.

In order to address the concerns of public confidence in the body currently governing immigration consultants, I think as the report from this committee had pointed out, the government wanted to move quickly. It was determined that the establishment of a governing body through stand-alone legislation would have been a lengthy, and I might also add a costly, process.

So the approach we've arrived at in Bill C-35 is really what we feel is the most practical and efficient, in terms of cost and time, to the regulation of immigration consultants. And I'd just point out as well—and then I'll ask Ms. Harder and Ms. MacNeil to comment—that governing bodies, whether it's stand-alone legislation or not, do have a responsibility for taking disciplinary action against their members, including the revocation of membership, which we see as a significant tool.

Like other governing bodies, the governing body for immigration consultants can provide for measures concerning the discipline of its members, similar to the process used by law societies in looking into complaints concerning their own members.

Madame.