Citizenship and Immigration Committee on April 28th, 2008

[Les Linklater]

No, we have not.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Does that seem totally ridiculous, or is it something that's measurable or would be helpful in understanding the extent of the problem here?

[Les Linklater]

As I said earlier, in terms of understanding the scope of activity both in Canada and overseas, particularly by ghost consultants, where no federal or provincial authority is aware of the activities, it would be very difficult to quantify or to measure that type of activity.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Quickly, Chief Superintendent Cabana, in your report you mentioned recommendation 31, about improving the penalty provisions in IRPA. It's something that didn't happen at the time when this was all set up. You said that operationalizing something like that might be difficult. Could you expand a bit on why you see that as a problem? Clearly it's something that's still around as an important idea or you wouldn't have mentioned it.

[C/Supt Mike Cabana]

Again, sir, that's a good question.

From our perspective, looking at the narrow mandate of the RCMP with respect to the enforcement of IRPA, the legislative tools that we require in order to do our work are already in place as far as we're concerned. In terms of operationalizing the issue, it's not necessarily about the legislative framework that's in existence; it's more of an evidentiary issue for us in trying to bring these cases to court.

Probably one of the biggest challenges we have is that sometimes the victims in these cases are also potential witnesses in criminal prosecutions, and there's a significant likelihood that these individuals will be returned to their country of origin prior to the trial taking place, which poses a significant challenge for us.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Siksay.

Mr. Komarnicki.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Thank you, Mr. Chair.

From what we've heard, or at least what I've heard from the witnesses in terms of what they think should change from what we have presently in the legislation, there are three things.

Number one, they were of the view that the legislation we now have applies from the point that the application is filed and not necessarily from the point where the work is commenced for a fee, and they feel that there is some need for correction in that area.

Two, they feel there should be some provision for disclosing that a person is being paid for providing a service of some kind, and imposing that as an obligation.

And three, they feel there needs to be in the legislation a specific offence with respect to unauthorized practice.

I hear from Mr. Sloan that there is present legislation regarding counselling misrepresentation or misrepresentation itself, or other existing provisions of a criminal nature that the RCMP spoke about. Is there any reason legislation couldn't be introduced to add an offence to the current provisions of the Immigration and Refugee Protection Act addressing unauthorized practice and improper practice and specifying a fine or punishment for anyone who commits the offence of unauthorized practice? It seems to me that law societies have in their provincial legislation specific provision for prosecuting, if you want to call it that, those who practise without authorization, having a penalty to it.

We don't have that specific kind of legislation in IRPA. Could we?

[Steve Sloan]

I wish we had a representative from our legal side here.

One potential problem in that area is that I know we have on at least one occasion raised the issue of trying to apply section 124 in relation to these types of unregistered consultants, and the view of crown counsel was that for the sole act of not being a registered consultant, there was a question in the mind of the Department of Justice about whether criminal sanction was the appropriate type of sanction to use to deal with that type of contravention. Their view was that civil administrative sanctions were more appropriate when there was not a misrepresentation injury involved.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I appreciate that, but you wouldn't have to make it a criminal offence; you could make it something in the nature of a legislative liability offence. If you're not registered and you practise, you pay or you're penalized somehow.

Is there any reason—Mr. Linklater, perhaps—why that couldn't be legislated in a statute such as IRPA?

[Les Linklater]

In fact, there are penalties in IRPA for counselling misrepresentation.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I'm not talking about counselling or misrepresentation. I'm talking about specifically acting without being an authorized representative, acting itself being the offence.

[Les Linklater]

Right. Again, we would require the cooperation of the provinces, given their jurisdiction around regulation of professions. For those who are acting as representatives, if they are providing poor advice, we can refer them to the disciplinary committees of the three bodies, but given the extent of the work of ghost consultants, actually getting a handle on the numbers and policing that with a view to laying charges or pursuing those types of activities would be very difficult.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

But didn't the Supreme Court of Canada pretty much indicate that other counsel, if you want to call it that, would include immigration consultants, which would be federal jurisdiction, a federal jurisdiction offence; it wouldn't be provincial?

[Les Linklater]

It's a bit of a balancing act between federal and provincial when we look at actual proceedings before the minister. IRPA allows the authority for regulations to be developed around which individuals will be allowed to represent a client in any proceeding before the minister, and that's the authority under which we've developed the regulations that we have now.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So are you saying it can't be done, or it could be done?

[Les Linklater]

Without examining the extent of the legislative authority, I would be reluctant to give you an answer one way or the other today.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

With respect to commencing the prohibitive sections not at the point of the application but at the point that the work is commenced and paid for, is there any reason it couldn't go back to that point?

[Les Linklater]

The policy interpretation that we've taken to begin “monitoring” at the time an application is filed is really driven by our ability to control what happens beyond that process, during proceedings before the minister. It's very difficult for us to know, given the vast number of potential actors, who could be providing service or advice before we actually receive an application.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

That would bring me to the third point. Simply because it's difficult, could one not include a disclosure provision in the application process that would be mandatory, requiring the applicant to disclose any type of relationship, and subject that person to a type of offence?

[Les Linklater]

In fact, there is a disclosure requirement on the application form for permanent residents, and if an applicant is found to have used the services of someone and has not disclosed it, the applicant would be liable to be determined as inadmissible.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So are you saying that this can't be bolstered or strengthened in any way, that there is no stricter, more constrictive method than already exists?

[Les Linklater]

Again, the applicants are requested to disclose. If they've received counsel or support from an unauthorized representative for a fee and received a benefit, it's unlikely they'll complain after the fact. Where this may come to our attention, perhaps, is if someone has used the services and has not received a benefit and is willing to lodge a complaint. We would then be able to refer the representative in question either to the disciplinary body--if they're a registered member of CSIC or the bar or the Chambre des notaires--or to CBSA or the RCMP.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I'll go to another point that was raised. Some of the witnesses said there should be a complaints process within the organization through which persons can complain with respect to unregistered consultants. That would then identify persons for purposes of prosecution, if you want to call it that, with respect to a specific offence, if you had one, of unauthorized practice.

[The Chair, Conservative, Norman Doyle]

A brief response.

[Les Linklater]

Right. Given our network overseas and in Canada, that's certainly something to look at in terms of a centralized point of contact.