Citizenship and Immigration Committee on April 9th, 2008

[Sergiu Vacaru]

Good day, Mr. Chairperson and honourable members of this committee.

My name is Sergiu Vacaru. I'm here to prove to you the type of abuse within the federal jurisdiction concerning authorized representatives and the result of their incompetent service.

I have a status of scholar at risk, as a scientist who cannot return to his country because of human rights and political issues. I am the author of more than 100 scientific works for books, in the bulk published in the United States.

I was arrested and tortured in Moldova because I refused to collaborate with the KGB on supervising scientists and the anti-Communist dissidents. Fortunately my family got protection because of special NATO, UNESCO, and local university grants in the U.S.A., Portugal, Spain, and so on.

I came to Canada as a visiting international professor at Brock University, but because I lodged a claim of refugee status, I lost all possibility to work. So in order to keep myself in the scientific world, I arranged two years of unpaid visiting research positions at the Fields Institute for mathematical research in Toronto.

On March 7, a Canadian judge of the Federal Court took the decision to stay my family's removal to Romania until my application was decided. My problems began for my family at the refugee board, when I was not allowed to present all the evidence and the data from my family's passports were falsified. The application for leave at the Federal Court was dismissed without explanation. My motion for the opening to the refugee board is without any decision. The pre-removal risk assessment officer refused to consider the documents from the scholar at risk program, and the extradition lawyer in Romania decided also that it was the competence of the refugee board.

There were problems with legal aid lawyers and the Canadian Society of Immigration Consultants. For instance, a lawyer from legal aid, Toronto, Ms. Geraldine MacDonald, just before their deadline to launch my motion of stay, told me that I would lose the case because I did not have the proof that the KGB would arrest and torture me. Fortunately the judge took a decision in my favour, and I am still here.

Also, I had a big problem because I complained of the CIC member Mrs. Stela Coldea. That was a most drastic situation in my case. She lied that she was a lawyer and could refer my application to the PRAA removal risk assessment on humanitarian and compassionate grounds, if necessary, also to the Federal Court. But really, she falsified the files and even had not submitted necessary humanitarian application forms. When the Canada Border Services Agency picked a date of removal for my family, Mrs. Coldea asked for $10,000 to solve my case. She threatened that there is an established network, and if I would not pay money, my family would be returned to Moldova for torture.

Conclusions and suggestions. From my experience, I can conclude that Canada is a nice country with diverse and fair immigration programs for all ethnic groups and religions. Nevertheless, an internationally recognized scientist, educated in nuclear physics in the former Soviet Union, who refused to cooperate with KGB, who was involved in human rights activities, while his family was under the risk of flight and torture, wasn't able to get understanding, support, and protection by the Canadian immigration system. There is not a special program for scientists asking for refugee status, which is not in favour of the Canadian society and violates international established standards.

Thank you for your assistance.

[The Chair, Conservative, Norman Doyle]

Thank you, sir.

Now we will go to questions.

Mr. Telegdi.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you.

Ms. Balakrishna, I want to give you some time to finish.

Then I would also like to ask Mr. Hechter as to whether or not he would suggest, in terms of regulation, the experiences of the Canadian Law Society in terms of monitoring--

[Joel Hechter]

I'd be happy to answer your question, but if you wanted to let her go, I'll wait for that.

[Anita Balakrishna]

Thanks.

I didn't have much more to finish. I just wanted to talk a bit about one of the main problems we've been seeing at SALCO, and that's the phantom immigration consultant--when clients come to us and their applications are somehow lost or not followed through with, or the consultant who worked on their case has disappeared or has changed addresses, or refuses to transfer their file over to us. Often the consultant refuses to answer any questions about their file when we call, pretending not to have even worked with the client before. That's one of the common things we're seeing at SALCO.

I know that CIC recognized the problem of phantom consultants when it first contemplated the regulation of immigration consultants, but we feel that more meaningful steps have to be taken to actually address the problem.

The other thing I wanted to say is that we have had a few clients who have wanted to complain about their consultants, but because of the situations they're in and the onerous nature of the process, the long waiting periods to get their complaint addressed, they don't have the means or the time or the energy to pursue those complaints.

We would like whatever process is implemented to be easy for our clients to navigate. As you know, for immigrants, newcomers, people with language barriers, it's asking a lot of them to navigate through a complicated process, especially when they're often living without status or living with very temporary status and need to get moving on things. So that's one thing we would like you to consider as well.

Finally, I wanted to review the main points we wanted to get across.

First, from what we've seen with the clients who have come to us, we believe the immigration forms and processes that exist currently for most applications are very complicated, very onerous, and make it difficult for clients to navigate through. I think this creates a huge dependence on outside help. So we would encourage...and I know when CIC was revising its sponsorship application forms, we had made submissions that the forms needed to be streamlined and made more simple.

The second thing is, of course, what everyone else here is saying, that consultants need to be regulated with a statutorily backed regulation scheme to effectively deal with complaints about immigration consultants.

Finally, start towards a more meaningful crackdown on phantom consultants, including adequate investigation and widening of the mandate of CSIC and legislating controls to increase prosecution under IRPA and by the RCMP. We need to send out a strong message that this kind of conduct is not going to be tolerated, so I think that's really important.

Finally, we just need to remember to acknowledge the context. A lot of immigration consultants are doing fantastic work. We don't want to penalize anybody who is doing fantastic work. Remember that just because someone isn't a lawyer, it doesn't mean they're automatically incompetent.

[Joel Hechter]

I want to make sure I understand your question.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

The law society has been involved a lot longer than the immigration consultants in terms of regulating the members. What I'm asking is what suggestions you would make from that experience with the issue.

[Joel Hechter]

It's not a coincidence that the law society, which has a fairly good--in fact, excellent--reputation for discipline and enforcement, has an empowering statute. The difference between the actual codes of conduct and the disciplinary policy between, for example, the Law Society of Upper Canada and CSIC isn't all that great. The major difference is the Law Society of Upper Canada is required by law to follow its disciplinary policy and code of conduct and everything else, whereas with CSIC, if it doesn't conduct investigations as per its own policies, there's not much one can do about it.

Does that answer your question?

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Partially, but I guess what I'm looking for is that maybe there can be more of an exchange as to what the experience of the law society has been. It evolved over time; it didn't happen overnight.

[Joel Hechter]

Surely, and I'm not affiliated with the law society, so I feel a bit diffident about speaking about their experiences or expertise. Certainly in Ontario and every province, the law societies are the regulators, and they do a good job across the country. They do have--I think you said it was 1797--more than two centuries of experience doing this, and that certainly is something a regulator like CSIC could learn from.

That said, with that much collected wisdom out there, not just in the Law Society of Upper Canada but in law societies across the country, it seems to me there's no reason that a properly drafted enabling statute couldn't be created to make sure a new regulator hit the ground running and wasn't trying to catch up for four years.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you.

[William Rallis]

May I answer that as well?

Very briefly, it would be suitable to have each province regulate their own section of immigration consultants and perhaps have the law society of that province as the appeal mechanism. This way you could get everyone involved and make sure the system works. Then, everyone is accountable. It's not one big wide-open field.

That's my follow-up and suggestion.

[The Chair, Conservative, Norman Doyle]

Mr. St-Cyr.

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

Thank you, Mr. Chairman, and thank you all for being here today.

I'd like to address with you the question of the “area of jurisdiction” of an organization that regulates the professions.

Mr. Hechter, in your presentation, you named a whole series of regulatory agencies. Obviously, all those agencies are under provincial jurisdiction. The Canadian Society of Immigration Consultants is the only organization that was established by the federal government.

I am increasingly convinced that a large part of the problem is related to jurisdiction. When we talk about jurisdiction, in Quebec, in French, we're often talking about “champ de compétence”. I don't know how that's translated in English, but the expression “champ de compétence” includes a notion of competence. As Mr. Telegdi said, the provinces have regulated professional associations of all kinds for decades. They've developed an efficient infrastructure that operates well. The federal government, under the constitution, is not responsible for regulating the professions. In addition, it has neither the competence nor the knowledge to do so. That can be seen very clearly from the results we've seen.

Shouldn't we instead transfer the regulation of immigration consultants to those who know about it, that is to say the provinces? The act governing the status of the Canadian Society of Immigration Consultants consists of only a few paragraphs. However, the provincial statutes run to tens, even hundreds of pages. They are much more complex and sophisticated than those few paragraphs mentioning that it is these people who regulate a given field.

Wouldn't it be more efficient to use the existing provincial structures?

[Joel Hechter]

I'm going to try to address a couple of your points in order, the first point being that the federal government may or may not have competence to draft the kinds of statutes that are necessary for this.

I don't want to sell Parliament short. I think the federal Parliament could certainly learn from the patterns of regulation that exist in all the provinces. When a new provincial government has to pass a statute to regulate a new area, it may not have the competency to do so instantly, but it has the collected wisdom of all the statutes to base a new statute upon. That's why I said earlier that it's possible to hit the ground running. Whether it's a better idea to begin with provincial regulation.... That requires every province--I'm not sure how it works in the territories--to come up with their own regulation. It could be spotty across the country, and it takes a certain amount of time.

There should be one federal statute across the country.... With the kinds of models we're talking about--all the regulators that exist across the country--the regulation of immigration consultants isn't all that different from what's already happening under the Law Society Act in Ontario for paralegals. In fact, paralegals, as defined under the Law Society Act, embrace what immigration consultants do; they provide services of an equal nature.

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

I think it's important to emphasize two things. Although a profession's sphere of action is a federal jurisdiction, the fact remains that control over all professions in Canada, except that of immigration consultant, is under provincial jurisdiction. If you are a lawyer, even if you argue cases concerning Foreign Affairs, which are under federal jurisdiction, in the Supreme Court, you must nevertheless be a member of your provincial professional association. If it wanted to do so, it would be quite simple for the government to require immigration consultants to be members of their provincial professional associations. At that point, those associations would establish themselves.

Second, there is an oversight mechanism in the provinces, since there are a number of professional associations. They are asked to regulate themselves, but there is also an outside organization that oversees them. In Quebec, for example, the Office des professions du Québec does that. There is no board of that kind at the federal level. What could we do? We could build from scratch an organization that would control a single profession. It seems to me that's not efficient. It would be better to invest immediately in the right solution, which is to transfer that jurisdiction to the provinces.

Do you have any comments? What do Ms. Onuschak and the other speakers think?

[Joel Hechter]

I'm sure the other witnesses, too, have opinions about that.

I think where I would start is that because immigration is so clearly under federal jurisdiction—there are immigration statutes within the provinces as well, but who gets to come to Canada is under federal jurisdiction—the Supreme Court said, in the Mangat case, that regulating that is certainly within the federal jurisdiction should the feds decide to do so. It's also, as you say, within provincial jurisdiction, and there are reasons, as you've described, for possibly giving it to the provinces.

Downtown Legal Services is consulting with the Canadian Council for Refugees and other organizations as well. We're not married to the one federal statute model. We're still in the consultation process, which is why we haven't given you a brief yet. We're still working on that.

However, we're here to say that we need a statute. Whether it's a set of provincial statutes across the country that incorporate regulation into the law societies or a federal statute that does this the same way as a law society does, we need a statute, because without a statute we're lost.

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. Khan.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Thank you, Mr. Chair, and thank you, ladies and gentlemen.

We all recognize that immigration is not just about the need of the skilled labour market to meet Canada's increasing need for skilled workers. I understand it is feared that down the road almost 100% of the net labour market requirement will come from immigration. But there are also humanitarian and emotional factors in a compassionate country, and therefore it is such an important part of our lives that I tend to give some credence to the ideas put forward by the law society, as stated before. There's the Law Society Act of 1990 and then the Regulated Health Professions Act, 1991; the Professional Engineers Act, 1990; and there has also been the Public Accountancy Act of 1990.

So some people have mentioned here that this might be the way to go, and also it has been suggested there may be a conflict of interest as far as CSIC being supervised by Citizenship and Immigration Canada is concerned. I'd like to hear your comment on that as well.

Also, as everybody has admitted today and every other day, it's a known fact that there are problems within the immigration consultant family. It has been suggested that individuals or organizations are encouraging or dealing with untrained, unqualified people. I'd like to see what the impact of that might be. Those who are regulated by CSIC may still choose to misrepresent a certain policy to the public. CSIC may not be able to take any action.

So a host of questions are out there.

Ms. Balakrishna also suggested, and rightly so, that there may be unscrupulous lawyers. We're all human, and there are good and bad people in every profession. My question is, if there are unscrupulous lawyers, is there a course of action? I'd like to receive your comment on that issue.

If there was one way you could improve the system, as was suggested way back on October 31, 2003, to then Liberal minister Denis Coderre... I'm sure you're aware of that; if not, we could look into it. How can they fix the system? The system is not functional. There are problems. You all admit that. What do you think is the easiest way to bring about and monitor, federally and provincially, the change you suggested earlier? If CSIC is not satisfactory to the people who are here today, what's the alternative?

Anybody?

[Katarina Onuschak]

I think I already agreed with Mr. Hechter. I think the regulation has to be mandated by Parliament, and the regulator has to have teeth and has to be responsible and accountable to someone--I don't know whether federally or provincially. I don't think we really care. But I feel like a hot potato right now. Nobody wants us. The federal government doesn't want us, and it's too much work for the provincial, so we are where we were at the beginning.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

What actions can CSIC take against those who are part of organizations that are qualified and yet misrepresent a particular client or a policy?

[Katarina Onuschak]

A complaint procedure is outlined on the website. I have no way of knowing what really happens. We just received, I believe, the first decision on such a complaint, and frankly I haven't had time to read it yet.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Mr. Hechter, what would happen in the case of the law society, if a lawyer were representing, if there was gross misrepresentation? Can there be any action taken by the law society?

[Joel Hechter]

There absolutely can, and those rules are enforceable. There are fines. All sorts of sanctions are available. If a fine is levied by the law society against a member, or even against a non-member--because again, the law society regulates the area of practice--the law society can go after someone who's not a member, someone who's hanging out a shingle and representing himself as a lawyer or taking money from someone for that reason. The law society can fine them, and if that fine doesn't get paid, the courts can enforce that fine.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Does CSIC have the same jurisdiction over...?