Citizenship and Immigration Committee on Oct. 20th, 2010

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. This is the Standing Committee on Citizenship and Immigration, meeting number 27 on Wednesday, October 20, 2010.

The order of the day, pursuant to the order of reference of Thursday, September 23, 2010, is Bill C-35, an act to amend the Immigration and Refugee Protection Act.

You will note that this meeting is being recorded by video.

We have two guests with us today: the Canada Border Services Agency and the Royal Canadian Mounted Police. With the Canada Border Services Agency, we have Peter Hill, who is the director general of post-border programs, who I gather will be speaking for the group today. We have Dale Brown, who is the acting director of criminal investigations division. We have Gregory Israelstam.... How did I do?

[Gregory Israelstam, Counsel, Justice Canada, Legal Services, Canada Border Services Agency]

Very good, actually.

[The Chair, Conservative, David Tilson]

Thank you very much.

He is counsel with Justice Canada legal services

We have two representatives from the Royal Canadian Mounted Police: Superintendent Joe Oliver, director general of border integrity, who I gather will be the spokesperson initially; and we also have Superintendent Shirley Cuillierrier, who is director of the immigration and passport branch. I apologize to both of you for my pronunciations, but that happens from time to time.

Each group has up to seven minutes.

Point of order, Monsieur St-Cyr.

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

I am sorry to interrupt you, but I would like to have some clarification about the presence here of a camera that does not belong to the House of Commons. In the few minutes before the meeting started, I had time to check into certain rules contained in a report on that topic. I find it surprising that this new practice has been introduced, although I am certainly not against televising our proceedings; indeed, as politicians, we want to share our work with the public. However, it is the first time that I have seen this happen.

During one committee trip—Mr. Dykstra will recall this because he was there—we had a major discussion about the issue, and the chairman agreed that the standing orders did not allow for cameras in the committee room other than those belonging to the House of Commons broadcasting service.

The explanation that we were given at that time was that certain standards and rules had to be adhered to so that the camera angles did not give an advantage to a given party, and so that no discussions were recorded without committee members being aware of it. There is also a need for some uniformity. In short, a certain number of parameters and arguments were presented to us.

So I would like a little more explanation from the chairman and the clerk, especially because we have the necessary equipment in this room to broadcast our proceedings. We have two cameras here that have been used for this purpose in the past. I would like an explanation as to why, in a last-minute decision and without anyone being notified, we have a camera here in the room recording this meeting.

[The Chair, Conservative, David Tilson]

I raised the same questions to the clerk. I've chaired a few meetings in this place, and I don't recall this happening either.

The clerk has directed me to some broadcasting guidelines, which are directed for the media, and these came through a Standing Committee on Procedure and House Affairs report, the 40th report, adopted by the committee on March 29, 2007. The report was then presented to the House on March 30, 2007, and concurred in at the House on March 30, 2007. The clerk has given me a copy of the broadcasting guidelines. I don't imagine anyone else has them. If anyone has any questions....

Clearly, Monsieur St-Cyr, there is a guideline that mentions: “Where the notice for the meeting is either issued or amended during the 24 hour period prior to the meeting, the clerk must be notified at least two hours in advance of the meeting.”

As I understand it, this is CTV that is with us, and they have complied with those guidelines.

There are other guidelines, such as the cameras must be in fixed positions, they can't move around; only the individual recognized by the chair is to be filmed; close-up shots of people or documents, or reaction shots among others, are not permitted; and it goes on.

I suppose at a later date we could ask the clerk, or maybe I can tell her now, to send copies of these guidelines in French and English to all members of the committee. But we are bound by an order of the House of Commons, and CTV is quite properly here. I'm sure they know the guidelines, and we'll be watching that the guidelines are followed.

So your point of order is well taken, but quite frankly, pursuant to the order of the House of Commons, I have no problem with them being here.

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

I would just like to add to what I have already said, Mr. Chairman. As I mentioned, I have no problem with the principle behind the broadcasting of our proceedings. On the contrary. I will simply point out that the guidelines that have been provided call for the committee to be given reasonable notice and that it is up to the committee to define that reasonable notice. Given that I personally knew about this only about 10 minutes before the meeting, I feel that the amount of notice was hardly reasonable.

I understand that exceptions are made if the agenda has been amended within 24 hours of the meeting, which is the case here, but the amendment was quite minor, in my opinion. That is my first point.

My second point is about the provision that prohibits cameras if the meeting is already being recorded by the House of Commons. I understand that this is not the case today, since we have decided not to use the equipment that is at our disposal, but perhaps the committee should give some thought to this and see whether it might not be better to use it in an environment that we know and control, rather than having outside cameras.

I will conclude, Mr. Chairman, by saying that we will consent to the presence in this case of an outside camera, which seems to be in compliance with the rules. However, I would like to go on the record has saying that I reserve the right, even though I don't really like that expression, or the opportunity to consult the documents, and, among other people, my whip in greater detail on this point and perhaps to come back to it.

To be clear, the fact that I have no objection to this practice being used today must not be perceived as consent on our part to take this as a precedent.

[The Chair, Conservative, David Tilson]

It's not a matter of you reserving the right. You can reserve whatever rights you wish, quite frankly. You can say those things, but quite frankly I take the position that this committee is bound by an order of the House of Commons of March 30, 2007.

I'll be quite honest with you, this is the first time I've ever seen these things as well, and I think you have more experience than I have. I've never seen them before. I was here, quite frankly, and I don't remember them, but apparently they were concurred in at the House on March 30, 2007.

If members of this committee do not like these guidelines, or do not like these rules, I think they're going to have to go back to the House, or go back to the Standing Committee on Procedure and House Affairs and amend those proceedings. But at this particular point in time, I take the position that I'm bound by these rules, and CTV is quite properly here and can do what they're doing.

So we will continue. Welcome again.

Mr. Hill, could you proceed first? Thank you.

[Peter Hill, Director General, Post-Border Programs, Canada Border Services Agency]

I thank the committee for the opportunity to appear today to discuss CBSA's role in relation to Bill C-35.

Since 2006 the CBSA and the RCMP have developed a complementary approach in relation to immigration offences. The CBSA is the lead agency for investigating most offences under IRPA. The RCMP maintains responsibility for immigration offences dealing with organized crime, human smuggling, and national security. The CBSA has lead responsibility for offences related to fraudulent documents, misrepresentation, counselling misrepresentation, and the general offence section within the Immigration and Refugee Protection Act.

The general offence section applies to individuals who do not comply with various conditions or obligations under the IRPA. Examples include employers who hire foreign nationals without authorization, previously deported persons who return to Canada without authorization, and persons who fail to report to the CBSA officials upon entry into Canada.

Enforcement related to misconduct by consultants is complex and may cross the jurisdiction of various enforcement bodies. Depending on the nature of the consultant's activity, various criminal offences and sanctions exist under the IRPA and the Criminal Code. These would generally be investigated by the CBSA and/or the RCMP. By contrast, review of activity that is either unethical or unprofessional but does not constitute an offence falls under the responsibility of the Canadian Society of Immigration Consultants.

I will now speak to the IRPA offences most frequently related to consultants. IRPA provides for criminal sanctions to be laid in relation to counselling misrepresentation, section 126; misrepresentation, section 127; counselling to commit an offence, section 131; as well as the general offence provision under section 124.

For example, where it can be proven in court that a consultant counselled the client to provide false information with the hope of increasing the chances that their immigration application would be approved, that consultant could be charged with counselling misrepresentation. The counselling of misrepresentation could be in relation to any immigration application, for example, a temporary resident application, a permanent resident application, a spousal sponsorship, or a refugee claim. This charge could apply to consultants whether or not they are authorized to act as representatives pursuant to the regulations.

The IRPA general offence section would apply in situations where an individual who is not an authorized representative represents a client for a fee. The maximum penalty upon conviction is a fine up to $50,000, and/or imprisonment for up to two years. Presently the regulation respecting authorized representatives applies only after an immigration application is submitted. This has been problematic, as much of the counselling often occurs prior to the submission of the application. Today, activities of this nature are not regulated by the IRPA, and ghost consultants operating in the pre-application stage cannot be pursued through the courts.

The proposed legislative amendment in Bill C-35 would broaden the legislation to also limit those providing or offering to provide consulting services for a fee in the pre-application stage to persons who are lawyers, notaries in Quebec, and consultants who are in good standing with the governing body. If you're not any of those, then you're a ghost consultant. This would close a current loophole in the legislation and provide the CBSA and its enforcement partners with a further and important enforcement tool.

Obtaining evidence of consultant fraud can be time-consuming and challenging. The applicants are often hesitant to report the counselling offences to the CBSA, as they were either party themselves to the misrepresentation, or have been convinced that even though the representative is not authorized, he or she can assist in ensuring that they receive a positive outcome on their application. As a result, most alleged offences are only brought to our attention after Citizenship and Immigration Canada has rejected the applications. Even then, applicants may not come forward for fear that they be removed from Canada.

Additionally, contracts between clients and unscrupulous consultants are often verbal in nature, and payment is made in cash, leaving little documentary evidence for presentation in court. Further, many consultants operate outside of Canada, where Canadian law cannot be applied. In such cases, investigators will attempt to identify and investigate any Canadian links to the overseas consultant.

Currently, in order to lay summary charges investigators must become aware of an alleged offence, gather all the evidence, and lay charges within six months. In the case of immigration offences and the complexities required to adequately investigate such cases, six months is generally not adequate.

One of the proposed legislative amendments in Bill C-35 would increase the statute of limitations to five years, thereby ensuring that investigators have sufficient time to properly and fully investigate various IRPA offences, refer the file to the Public Prosecution Service of Canada, and lay charges before the time period passes.

A second type of fraud with respect to consultants involves situations where an individual accepts fees for services and fails to submit any application to the Government of Canada. Allegations of this nature are best investigated under the fraud provisions of the Criminal Code, and therefore fall primarily to the responsibility of my colleagues at the RCMP, or in municipal or provincial policing agencies.

Finally, there are cases where the alleged activity of the consultant appears unethical or unprofessional but is not a criminal offence, such as charging exorbitant fees, or the provision of poor quality advice. Matters of this nature are not the responsibility of the RCMP or the CBSA, but rather a matter for a designated body, such as the Canadian Society of Immigration Consultants.

Under the current system, government officials are limited in their ability to share information regarding allegations of this nature with the designated body. Bill C-35 would authorize government officials to share information with the governing body and ensure that the body has the required information to undertake a review and pursue disciplinary action where appropriate.

Since taking on IRPA enforcement responsibilities, the CBSA has undertaken a large number of investigations related to various offences. The agency, in many cases in conjunction with the RCMP, is currently investigating a number of cases related to immigration consultants. The CBSA anticipates that the legislative amendments contained in Bill C-35 will assist us to continue to build on these efforts and results to date by closing the loophole that currently exists with respect to individuals who provide, or offer to provide, consulting services for a fee at the pre-application stage.

Mr. Chair, in closing, the CBSA recognizes the seriousness of this issue and its importance to maintaining the integrity of the immigration program. The CBSA will continue to work diligently with CIC, the RCMP and other law enforcement partners to address this issue.

Mr. Chair, thank you very much, and I will be pleased to take questions and pass the comments over my colleague at the RCMP.

[The Chair, Conservative, David Tilson]

Thank you for your presentation, Mr. Hill.

Superintendent Oliver, you may make a presentation of up to seven minutes, although I can't really complain, because we took up about 15 minutes here nattering away.

You may proceed.

[Chief Superintendent Joe Oliver, Director General, Border Integrity, Royal Canadian Mounted Police]

Thank you, Mr. Chair and members of the committee, for the invitation today to appear before you.

I am Chief Superintendent Joe Oliver, Director General of Border Integrity for the RCMP. I will focus my brief remarks on the RCMP's enforcement role in relation to immigration offences, with specific reference to offences committed by immigration consultants, and the new provisions proposed under the Immigration and Refugee Protection Act.

Investigations of immigration offences, including offences by immigration consultants, are a responsibility shared between the RCMP and the CBSA. As Canada's national police force, the RCMP works closely with CBSA and CIC as well as with domestic and international law-enforcement partners to secure Canada's borders and to protect the integrity of our immigration system.

The CBSA is the lead agency responsible for investigating most offences under the Immigration and Refugee Protection Act, including general offences, misrepresentation, counselling misrepresentation, smuggling, and document fraud.

The RCMP plays a leadership role in combatting serious and organized crime by developing and implementing strategies to disrupt organized crime threats. As part of the continuum of investigations into immigration-related offences, the RCMP has primary responsibility for investigation of offences under the Immigration and Refugee Protection Act involving criminal organizations or national security, such as organized human smuggling or trafficking in persons, and investigations requiring the employment of special police techniques. The RCMP is also responsible for investigation of Citizenship Act offences relating to immigration consultants and Criminal Code offences such as fraud, forgery, uttering forged documents, trafficking in persons, and conspiracy.

Immigration fraud cases are not new to Canada. Due to the clandestine nature of immigration fraud and the reluctance of some witnesses and victims to come forward, it is difficult to make an accurate assessment of the extent of the problem in Canada.

For some time RCMP immigration and passport units have been working closely with partners, including CBSA and CIC, to investigate cases of unscrupulous immigration consultants producing fraudulent citizenship applications and providing people with advice to commit fraud.

Generally, when the RCMP becomes involved in fraudulent immigration consultant cases, there is a criminal network implicated. These investigations are a priority for the RCMP, both due to the highly organized nature of the crimes and the effect this crime has on a vulnerable sector of the population.

Currently, there are several ongoing criminal investigations into the activities of certain immigration consultants who have subverted or are attempting to subvert the legitimate immigration process. While for operational reasons I cannot discuss the specifies of a particular case, I will give as an example the case of an individual who was found to be operating an immigration consultant business in British Columbia. This individual would receive money from victims to process immigration documents that were never completed. The accused would also obtain and keep original documents belonging to the victims to use as leverage, demanding more money from the victims and saying that there was an issue with the documents. If the victims requested the return of their documents, the subject would threaten them with deportation. An undercover operation was initiated by the RCMP to investigate this criminal activity, and the subject was charged with fraud and several other offences under the Criminal Code.

The RCMP welcomes the new provisions being proposed, as the legislative amendments would provide another tool to assist law enforcement in combatting immigration fraud. Since the new provisions fall under section 124 of the Immigration and Refugee Protection Act, CBSA would be largely responsible for investigating the new offence.

However, the CBSA might refer certain cases to the RCMP where special police techniques such as undercover operations are required to achieve a successful operational outcome. The RCMP will also continue to investigate cases of immigration fraud where organized criminality is detected.

In those cases where immigration consultants are part of transnational organized crime operating in Canada or abroad, the RCMP engages its extensive liaison officer network overseas to solicit the assistance of our foreign law enforcement partners in the investigation. Collaboration with foreign partners is critical to successfully targeting those crime groups behind immigration fraud operating overseas.

The RCMP recognizes that crimes committed by unscrupulous immigration consultants undermine the integrity of the immigration system. For this reason, I wish to assure the committee that criminal complaints involving immigration consultants have been, and will continue to be, vigorously investigated in the context of organized crime or national security investigations undertaken by the RCMP.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you very much, Superintendent Oliver.

Each caucus will now have a round of seven minutes.

Mr. Trudeau.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you, Chair.

The two elements of the proposed legislation that seem to be most helpful to your job seem to be the provision allowing investigation and prosecution for advice given during the pre-application phase, and the extension of the timeline from six months to five years to allow you to do your investigations.

What interests me right now is that, obviously, under section 124, it's already an offence to provide fraudulent advice.

What resources do each of your agencies and bodies dispose of in terms of your budgets, in terms of manpower, to go after ghost consultants specifically at this time, or fraudulent immigration cases?

[Peter Hill]

Thank you very much.

What I can say is that our statistics and the way we track them have evolved since 2008, the last time a representative of the agency was here. At that time we were only tracking cases with respect to the type of offence, and we weren't tracking whether it was a ghost consultant or consultant.

Since then we've enhanced our systems. We're now actually able to better track the number of cases involving consultants. Often they're complex cases, so they may involve human smuggling or other infractions, so it's difficult to isolate them specifically—

[Justin Trudeau, Liberal, Papineau, QC]

Can you give me a feel for the number of cases?

[Peter Hill]

--but I can give you a feel for the number of cases and the budget.

I can say, roughly speaking, that the agency has a budget of about $19 million annually for its criminal investigations. Now, that covers all criminal investigations with respect to Customs Act enforcement, IRPA enforcement, and food, plant, and animal regulations. Roughly half of that is devoted to Immigration and Refugee Protection Act enforcement. So that will give you a sense of the amounts.

[Justin Trudeau, Liberal, Papineau, QC]

What other offences fall under Immigration and Refugee Protection Act enforcement, other than crooked and fraudulent consulting?

[Peter Hill]

We have a number of different cases. Perhaps—

[Justin Trudeau, Liberal, Papineau, QC]

Well then, what proportion of that proportion, if you will, is dedicated specifically towards the issue we're discussing here? A ballpark figure, again.

[Peter Hill]

A ballpark figure again is difficult for me to say. I'd be happy to provide you and the committee with further information.

I can tell you that we have about 36 active cases under investigation right now that involve misrepresentation, counselling misrepresentation, or acting as a representative without proper authorization.

Since 2008 we've had about 200 referrals, of which we've opened 55 cases. That will give you a sense of the proportion of resources devoted to the—

[Justin Trudeau, Liberal, Papineau, QC]

Thank you.

Superintendent Oliver, I have the same question, but not the money question. How many cases do you guys have ongoing? I'm assuming there are going to be far fewer because most of the time it's CBSA.

[C/Supt Joe Oliver]

In terms of identifying the number of cases, our case management system is not designed or built to isolate the cases dealing specifically with ghost consultants.

In terms of the resources available within the RCMP's immigration passport program, we have about 175 full-time employees. Now, the reality is that this includes investigation of all offences relating to immigration and relating to citizenship fraud as well as passport offences.

[Justin Trudeau, Liberal, Papineau, QC]

The sense I'm getting then, and it's what we expected, is that your agencies are obviously involved in an awful lot of things other than simply cracking down on crooked consultants. I think the express desire of all us around this table is that we need to crack down on fraudulent ghost consultants.

The CSIC and the current regulator have made it very clear, and we've seen it very clearly, that the responsibility for ghost consultants lies squarely on your shoulders. It's not the regulator that gets to go after them.

With this bill, the Cracking Down on Crooked Consultants Act, and the fact that we know there are anywhere from an estimated 4,000 to 5,000 ghost consultants working out there, and that we have 36 active investigations, and maybe 55 cases since 2008, and maybe a large handful more from the RCMP, we're a long way from the 4,000 necessary.

Because we're cracking down on the crooked consultants, I'd like to know from each of you, how many extra resources are going to be afforded to you by this bill to crack down on crooked consultants?

[Peter Hill]

My understanding is that the agency will be required to deliver the enforcement within existing resources. So that's what we will do. We are treating this as a greater priority among our overall enforcement priorities to meet the priorities of the government. As a matter of practice, we continuously review our priorities to ensure that they are appropriate and that we assign resources to address those as best we can.

I can tell you that the Minister of Public Safety, in consultation with the Minister of Citizenship and Immigration, has given us direction in that regard to treat these kinds of cases with greater priority.

[Justin Trudeau, Liberal, Papineau, QC]

With greater priority.

I assume that's similar for you, Superintendent.

[C/Supt Joe Oliver]

For the RCMP, with our priority-setting tools, our focus is clearly on organized crime. We allocate our resources, whether to human smuggling, human trafficking, or immigration fraud, based on priority.