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.

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

In my opinion, we are voting on the principle. The Committee has already expressed its opinion. I believe that this amendment is necessary to ensure consistency with Quebec's policy.

I would like to give you a concrete example of the consequences of not passing this amendment. Both at the federal level and in Quebec, there is an immigrant investor program. Even though there is generally extensive cooperation between the two levels of government, the fact is that these two programs compete with each other. The federal government and the Quebec government try to encourage immigrant investors to take part in their program, because it brings in money. In Quebec, the immigrant investors program brings in up to $50 million a year, which is distributed in the form of grants to Quebec companies.

If the amendment currently under consideration is not passed, that will mean that some immigration consultants in Quebec will be authorized to recommend the federal program, but will not be authorized to recommend the Quebec program.

Of course, the government is saying, through the letter and spirit of its proposal, that people will be required to state that they are not authorized under the Quebec program. My respectful submission is that this will simply create confusion. The evidence needed to monitor the veracity of such claims will be extremely difficult to collect, and a great many immigration consultants in Quebec will recommend to investors that they go through the federal program, not necessarily because it is advantageous for them, but simply because it is the only program they are able to recommend.

That confusion could result in a loss of investors for the Quebec Business Immigrant Investor Program and, as a result, a loss of funding for our Quebec SMEs, as well as lost job opportunities or even jobs.

In spite of the government's good intentions, which are completely inadequate, this amendment is needed and continues to be needed in the interests, not only of Quebec, but of all consumers.

I think it's important to point out to Committee members that this is something we have been examining for more than two years. We began by looking at bogus consultants. We were told that it was very complicated and difficult to ensure that people deal with accredited consultants who are able to provide advice.

We should be advertising on our website and on government websites. Bill C-35 will be implemented, and yet we will leave a gaping hole and create even more confusion because, in Quebec, when people go and see an immigration consultant, they will have to know in advance whether that person is able to apply at a single level, as opposed to both levels.

Outside of any considerations with respect to the separation of powers between the different levels of government, on which we do not agree, it is clear that this is in the interests of consumers and that the Committee's work thus far supports passing this amendment. I encourage you to do that.

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

I have a few more points to make.

The amendment, at least the way it's drafted, would also remove the minister's authority to designate a body. We would actually have to move an amendment to this to allow the minister the ability to revoke a designation.

I do have an alternative approach to this. I understand where Mr. St-Cyr is coming from. He may not be satisfied with the alternative approach, but I think it is one that is reasonable and that certainly gets to the intent of his amendment. It also has stronger support from the Government of Quebec. They have informed us that they do not see the need for such an amendment, that it's actually not necessary.

The minister mentioned at his appearance here a couple of weeks ago that the intention of Bill C-35 was to designate one body. Nothing in the bill limits designation to only one governing body, so it does allow for that provision.

I can't stress strongly enough that it's the federal government—and Ms. Ménard laid out a Supreme Court decision on this—that maintains responsibility for its legislation. If we were to pass this amendment we would be relinquishing that responsibility.

We have worked extremely well together on bills like Bill C-11 and we want to try to find a way to compromise and meet the objectives of the bill while still having a bill that meets federal requirements. This amendment simply shoots a hole in that strategy, and in fact it is the one amendment that would obviously have to go back to cabinet for approval. This is one area around where there is a huge question mark as to whether it would survive that.

So, Mr. St-Cyr, if it is the intention of the Bloc to pass this amendment and if it is the will of the committee, we're going to need the support of somebody on the other side of the table, as we only have five votes on this side. I can tell you that it is not going to meet with the approval of the government.

I'm asking the committee to consider an alternative amendment that would get at what Mr. St-Cyr is presenting but do so in a way that actually allows us, as the federal government and legislators, to maintain our federal responsibility for legislation.

Thank you.

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

Thank you, Chair.

The one thing I agree with Mr. St-Cyr on and appreciate is that this is something he brought to the attention of the committee, and certainly to my attention, when we began to deal with Bill C-35. The difficulty, and where we disagree, is that his amendment actually significantly deflates the ability of the federal government to control its own federal legislation. It would actually pass on some federal responsibilities to the provincial government, which is not acceptable when taking on accountability and responsibility for legislation.

I have further comments to make, but I would like Ms. Ménard to lay out, from a legal perspective, the difficulties we would face if in fact this amendment were carried.

[The Chair, Conservative, David Tilson]

Good afternoon. This is meeting number 32 of the Standing Committee on Citizenship and Immigration on Monday, November 15, 2010.

The orders of the day are pursuant to the order of reference of Thursday, September 23, 2010, Bill C-35, An Act to amend the Immigration and Refugee Protection Act. In other words, we are into clause-by-clause consideration of this bill, having heard witnesses for some time.

I'd like to again introduce the two members of the Department of Citizenship and Immigration who are with us. If need be, they are available for, I suppose, technical questions. The policy questions, of course, can be asked of Mr. Dykstra. We have with us Brenna MacNeil, who is the director of social policy and programs, and Elaine Ménard, legal counsel, legal services.

Welcome to the committee again, both of you.

We will commence with the clause-by-clause debate on Bill C-35. As you know, the first clause will be postponed because of Standing Order 75(1). That will be dealt with at the end. I will therefore proceed to calling clause 2.

(On clause 2)

Ms. Chow, you have an amendment. I assume you're going to proceed with that. Before you do, I will advise the committee that if your amendment, Ms. Chow, is amended--and that is seeking to amend line 12 on page 1 in the French text, I believe--the committee will have taken the decision on the wording of that line, and the government amendment, G-1, then cannot be moved. I just draw that to everyone's attention.

You may proceed and move your proposal, Ms. Chow.

Business of the House

[John Baird, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, today we are debating the NDP opposition motion.

Pursuant to any order adopted by the House earlier today, the vote on that opposition motion will take place on Tuesday, November 16 at the end of government orders.

Tomorrow the House will have the occasion to debate at second reading Bill C-32, Copyright Modernization Act, and the backup bill, should debate conclude at second reading, will be Bill S-9, Tackling Auto Theft and Property Crime Act, which I know is a key priority of the Minister of Justice and Attorney General of Canada.

Next week, as the member opposite said, is a constituency week. I encourage all members to remember and recognize the sacrifices made by the men and women of our armed forces, on November 11.

When we return on Monday, November 15, we will call a number of bills, including Bill C-3, Gender Equity in Indian Registration Act, Bill C-31, Eliminating Entitlements for Prisoners Act, Bill C-35, Cracking Down on Crooked Consultants Act, Bill C-20, An Action Plan for the National Capital Commission, Bill C-28, Fighting Internet and Wireless Spam Act, Bill C-22, Protecting Children from Online Sexual Exploitation Act and Bill C-48, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. We would also consider calling other bills that may have returned from committee by the time we return.

Thursday, November 18, shall be the next allotted day.

In closing, I wish all members a productive constituency week.

[The Chair, Conservative, David Tilson]

We're going to call the meeting to order.

Ladies and gentlemen, this is the Standing Committee on Citizenship and Immigration, meeting 31, on Wednesday, November 3, 2010. Pursuant to the order of reference of Thursday, September 23, 2010, we are considering Bill C-35, An Act to amend the Immigration and Refugee Protection Act.

We are into clause-by-clause discussion.

Mr. Wrzesnewskyj has put me on notice that he wishes to....

[Jason Kenney, Conservative, Calgary Southeast, AB]

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 C-35 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 C-35. 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.

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

Thank you, Mr. Chair.

I have a few technical questions to ask either you, Minister, or one of your representatives.

Bill C-35, now before the committee, states the following:[...] no person shall knowingly represent or advise a person for consideration—or offer to do so—in connection with a proceeding or application under this act.

The act this provision refers to is clearly the IRPA. Will an application to the Government of Quebec for a CSQ, and then for permanent residence, be covered under this provision, or would it be considered as outside the scope of the IRPA?

[Jason Kenney, Conservative, Calgary Southeast, AB]

That is power we get in BillC-35, so unless someone gives me some legal reason why we can't, I think it's makes a lot of sense that we would publish their blacklists, shall I say, on our website as well.

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

You will after Bill C-35.

[Jason Kenney, Conservative, Calgary Southeast, AB]

But if the friend is providing advice and dealing with Immigration Canada or not, they would then be covered by IRPA and Bill C-35.

I understand your point. There absolutely are unscrupulous labour recruiters. That's why I'd like to commend the NDP government of Manitoba and other provinces for having taken the lead in tighter regulation of that sector--

[Jason Kenney, Conservative, Calgary Southeast, AB]

Labour recruiters are captured under the current law in Bill C-35 if they provide advice on immigration matters--

[Jason Kenney, Conservative, Calgary Southeast, AB]

Just to make sure I express myself clearly, I will read my answer, since I was expecting the committee to ask that question.

I do not think such amendments would be necessary to achieve that objective. Even if I intended to designate just one national body, there is nothing in the legislation stipulating that only one body can be designated.

Quebec's recent amendments to its regulations not only refer to the body designated under federal regulations, but also demonstrate a willingness to work closely with the federal government in the regulation of immigration consultants.

Prior to introducing Bill C-35, we shared our proposed legislative changes with Quebec during federal-provincial consultations. I had many discussions with Quebec's Minister James, and I spoke with Minister Weil on Saturday. They did not raise any objections to our approach.

However, if Quebec wishes to regulate immigration consultants, the federal government will, when designating a body, take into consideration any regulator designated by a provincial government to oversee immigration consultants.

So we are open to Quebec designating such a body. We believe the legislation already sets out that power clearly. And, of course, nothing in Bill C-35 prevents the federal minister from recognizing a body designated by Quebec.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you.

On the process we're in right now, we're busy debating and amending Bill C-35 as we move forward. However, at the same time, we've had the call for submissions going on since the summer. Ideally, Bill C-35 would be complete and we'd have a framework to then turn around and say, “This is what we want you to apply for”.

Can you talk to me a little bit about why we're doing it all at the same time and how that's perhaps interfering with the quality of the process?

[Justin Trudeau, Liberal, Papineau, QC]

Thank you very much, Chair.

Thank you, Minister, for being here today. Obviously, we have a few questions.

First of all, you mention in your brief that Australia is going through a more expensive approach in creating stand-alone legislation to create a regulatory body. One of the hints as to why they're going that way is something that we heard in the previous testimony.

According to the Canadian Bar Association, the model of having the regulator also be the professional body has fallen into disrepute. For example, we have the Law Society of Upper Canada in Ontario, and the Canadian Bar Association, which is the professional body and the association for lawyers.

The proposal in Bill C-35 does not separate these different functions into two different entities. I'm worried that down the line we'll have to end up going the route the committee recommended we take the first time, when they came forward with the recommendations a couple of years ago.