Citizenship and Immigration Committee on Nov. 1st, 2010

[The Chair, Conservative, David Tilson]

Good afternoon.

This is the Standing Committee on Citizenship and Immigration, meeting number 30, on Monday, November 1, 2010. This meeting is televised and is pursuant to the order of reference of Thursday, September 23, 2010, Bill C-35, An Act to amend the Immigration and Refugee Protection Act.

We have three sets witnesses in this panel. The first witness, Stéphane Handfield, appears as an individual.

Good afternoon to you, sir.

We have three representatives from the Canadian Bar Association: Michael Greene, who is a member of the national citizenship and immigration law section; Tamra L. Thomson, who is the director of legislation and law reform; and Chantal Arsenault, who is the chair of the national citizenship and immigration law section.

From the Law Society of Upper Canada, we have: Laurie Pawlitza, who is the treasurer; Malcolm Heins, who is the chief executive officer; and Sheena Weir, who is the manager of government relations.

Good afternoon to all of you.

Each group has up to seven minutes to make a presentation, and then there will be questions from the four caucuses present here today. We'll just take it in order.

Mr. Handfield, you have up to seven minutes to make a presentation.

[Stéphane Handfield, Lawyer, As an Individual]

Mr. Chair, members of the committee, thank you for inviting me to appear before you regarding Bill C-35.

I have been a lawyer in Montreal for 18 years, and I served as a member of the Immigration and Refugee Board of Canada for 11 years. Immigration law makes up most of my practice. Practising law is a lawyer's domain. Immigration law is a field of law. Therefore, immigration law should be practised solely by lawyers, with the exception of notaries in Quebec.

The scope of activity of immigration counsellors should be limited to functions such as recruiting immigration applicants, gathering documentation and completing forms. Their activities should be overseen by a lawyer or notary, to ensure that the immigration applicant or foreigner receives proper advice. That would better protect people against fraud and other forms of abuse.

In the course of practising law, I have heard a number of disturbing stories involving immigration consultants. For example, an 80-year-old woman hired an immigration consultant to prepare and file her application for permanent residence in Canada on humanitarian grounds. After waiting several years and paying various fees, the woman learned from Citizenship and Immigration Canada that her application had never been filed. The consultant in question was arrested by the RCMP and taken to court on fraud charges.

There was another immigration applicant who, despite meeting the criteria for the skilled worker class, was advised by an immigration consultant to apply as an investor, so that the consultant could collect $50,000 in commission. Stories like that are a dime a dozen.

Situations like these have serious consequences for the people affected: their applications are denied, they are deported, they are separated from their families, they suffer financial losses, their lives are ruined. It is my position that Bill C-35 does not protect people from crooked immigration consultants who could claim that they were not compensated for their services.

Bill C-35 gives the body that would be responsible for immigration consultants numerous regulatory powers. That organization could be considered a professional body. The existing legal and regulatory framework in Quebec with respect to professional bodies can provide assurance of consultant oversight, which the federal framework cannot do. As a result, immigration consultants operating in Quebec should be overseen solely by the Quebec government. That would ensure that provincial jurisdiction is respected.

In short, only lawyers and notaries should be able to practise immigration law. If the government wishes to recognize immigration consultants, it should require them to work under the supervision of a lawyer. Furthermore, the body in charge of consultants should be regulated by Quebec.

In closing, I would point out that, according to Le Petit Larousse 2010, a consultant is defined as a specialist who gives detailed professional advice in his or her area of expertise, whereas a lawyer is an officer of the court who advises, assists and represents clients. A lawyer is trained to interpret complex laws and regulations, such as those in immigration law.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you very much, sir.

We now have the Canadian Bar Association. I'm not sure who's going to be presenting.

Everybody is pointing your way, Ms. Thomson.

Thank you and welcome.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

I will start and then give the floor to Maître Arsenault and then Mr. Greene.

The Canadian Bar Association is very pleased to appear before your committee today. The issue of who can represent those applying to immigrate to Canada has been an issue before the Canadian Bar Association as long as it has been before Parliament, before the government, and, indeed, before the courts. We come to this issue with the optic of what is best for the administration of justice within Canada.

I should mention that we will talking in our remarks about lawyers, but given our short time, we will mention not only the lawyers who are regulated by the law societies in each province and territory, but also the Quebec notaries, who are regulated by the Chambre des notaires.

With me today is Chantal Arsenault, who is the chair of our citizenship and immigration law section, and Mr. Greene, who is a past chair of that same section.

I will ask Chantal to continue.

[Chantal Arsenault, Chair, National Citizenship and Immigration Law Section, Canadian Bar Association]

The Canadian Bar Association has always been committed to protecting the public interest, as well as the integrity of the immigration system. With that objective in mind, we have kept a very close eye on all developments related to consultants for many years now, releasing numerous briefs on the issue since 1995. We appreciate the opportunity to comment on Bill C-35.

First of all, we stand together with all those who have already hailed the fact that the bill prohibits unregulated persons from representing immigration applicants at all stages of the process, even before the application is filed. Furthermore, the CBA has long been calling attention to that serious flaw in the current system. So we welcome this change.

The issue of who should be regulated and how is much more complex. The CBA has always maintained that only lawyers should be allowed to represent or advise someone in connection with a proceeding or application under the Immigration and Refugee Protection Act. Otherwise, it is our position that adequate representation of consultants is critical.

The whole idea of representation and advice is one of the cornerstones of Bill C-35. Unfortunately, however, contrary to what we have been recommending since 1996, the bill does not set out a clear definition of the immigration services subject to regulation.

In our submission, we provide you with such a definition of acts that should only be performed by lawyers, whether or not we are willing or able to designate a body as per the proposed paragraph 91(2)(b). Lawyers have received formal education aimed at developing the ability to analyze and address legal complex issues.

Many issues in the immigration context involve not only immigration law, but other areas of law, such as administrative, criminal, constitutional, and human rights. Inadmissibility or validity of a foreign marriage are just two examples of issues that require a sophisticated legal analysis for a representative to be able to competently advise and draft documents for clients, rather than just memorizing manuals.

While we recommend that nobody be designated by proposed paragraph 91(2)(b) of the bill, and that consultants be allowed to act only under the supervision of lawyers, we also suggest in our submission improvements to the bill in the event our recommendation is not followed by this committee or by the government.

My colleague Michael Greene has been involved with this issue for many years now. I will therefore give him the floor to talk about how we hope to improve the bill.

[Michael Greene, Member, National Citizenship and Immigration Law Section, Canadian Bar Association]

I was the national chair during the passing of IRPA, so I've appeared in front of this committee a few times for different things over the years. I'm pleased this time to be in a situation where we actually applaud the government for the legislation. We think it has been long in coming. There was a gaping hole left in the previous scheme, where there was nothing to cover the unregulated consultants. We're very happy to see that the minister has acted and is proposing something that would close that hole.

Chantal has already said that what our consistent position has been over the years is that this is essentially giving legal services, and like any other area—criminal law, civil law, or family law—it should be restricted to those who are sufficiently trained in order to protect the public interest and the integrity of the immigration program. It should be restricted to lawyers and members of the Chambre des notaires du Québec.

In any event, it's possible that at this time the committee and the government are not willing to go that far. The government essentially has three choices: limit all immigration activity to lawyers; delineate which services should be done by lawyers and which could be done by consultants; or allow both consultants and lawyers to do the whole works.

If consultants are going to continue to be permitted to provide immigration services for remuneration, it's imperative that they be properly regulated. It is our submission that CSIC has not functioned to properly regulate and that the problems are inherently structural--they're not personality... But there are structural problems with the way it was set up and that needs to be corrected.

The main problem is a lack of accountability. The result is that the public interest is not protected. There isn't adequate enforcement of ethical, professional, and competence standards and something needs to be done about that.

We think there are some good mechanisms in the bill, but it doesn't go far enough.

The organization that is doing it--partly because of the structural problems--has become mired in allegations of financial impropriety, governance issues, and conflict within the organization. It needs oversight. It needs some kind of accountability to correct that.

The minister proposes to have the power to designate the organization, which is more or less what happened before. We're saying that there need to be some companion powers that go with that power to designate an organization in order to create effective accountability and oversight.

Specifically--and this is set out in more detail in our brief--there needs to be an explicit power to revoke that designation. We submit that there should be a regulatory power to create regulations setting out the conditions that should be considered and factored into such a decision to properly exercise that discretion.

We believe that CSIC brought up the concern about that power being used for political reasons, so they didn't want the minister to have that power. But we don't see an alternative to granting the minister not only that power, but more power. We see that it's likely they will end up in litigation, so you want to be very express about the power to revoke and the factors that must be considered, which would likely be the failure to protect the public interest or act in the public interest in their deliberations.

There are two powers given to the minister. One is the power to designate. The other is the power to compel the provision of information. There is no consequence for failing to provide that information, so we think that should be there.

We're also suggesting, as a companion to the power to revoke, that there should be a power to appoint a trustee to create a situation for the interim situation. Because you have quite a comprehensive structure right now. You have grandfathering provisions for transition. If things go awry with the board, you want to be able to send in a trustee to run the place and not necessarily throw out the baby with the bathwater.

You can have the structures remain in place at the same time as a trustee. We recommend who could be on that board and what kind of people could be trustees, as they could be right now for interim purposes.

Again, we applaud the government for this bill, but we think it doesn't go far enough.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Ms. Pawlitza.

[Laurie Pawlitza, Treasurer, Law Society of Upper Canada]

Thank you. I'm the treasurer of the Law Society of Upper Canada, which is the elected head of the society.

I'd like to begin by saying that we very much welcome the minister's actions in introducing Bill C-35. We're supportive of its aim, which is to protect the public. In particular, we're supportive of the expansion of the range of prohibited activities.

However, we are here to ask you to consider an amendment to the bill to exempt from the membership to CSIC the paralegals in Ontario who are regulated by the Law Society of Upper Canada.

Currently, proposed subsection 91(2) of Bill C-35 exempts from CSIC the members of the provincial bars. Lawyers are exempted, as I understand it, because they are already regulated by law societies.

In Ontario, the Law Society of Upper Canada does not only regulate lawyers; since 2008, it has also had a fully operational regulatory structure for paralegals that mirrors the structure of regulation for lawyers. Currently we regulate 42,000 lawyers and 3,000 independent paralegals.

I should pause here to point out that the law societies are not like the bar associations. The operations of the associations, like the CBA, are quite different. Their membership is voluntary. Bar associations lobby in their members' interests. By contrast, the law society is a statutory body that's obliged to regulate in the public interest. To provide legal services as a paralegal in Ontario, you must be licensed as a paralegal.

Under the amendments to the Law Society Act, paralegals are permitted to provide legal services in a narrow scope of practice, which includes things such as small claims court and federal and provincial tribunals. Included in the legal services that paralegals who are licensed in Ontario can provide are immigration matters.

The difficulty the paralegals in Ontario face is that the Law Society Act requires that for them to provide legal services, they must be a member of the Law Society of Upper Canada. In addition to that, IRPA requires that they be a member of CSIC. In our view, the regulation of paralegals in Ontario by two regulatory bodies is unnecessary.

I'm going to mention a little bit about how we regulate paralegals in Ontario. When the regime was implemented in 2008, applicants who met certain criteria were grandparented, and they weren't required to have a certain college education. That phase has now passed.

Now paralegals providing legal services in Ontario can only be licensed if they have completed an accredited community college program. The law society accredits the programs. We've done extensive research into the competencies required, which we can discuss if questions are asked.

In addition to that, paralegals must satisfy other criteria. As with the lawyers we license, they must all be of good character. They must pass a licensing examination that tests different competencies than the competencies required under the accredited college programs. They are required, under those licensing exams, to focus on the issues of professional responsibility, ethics, and so on.

In addition, paralegals, once licensed, must abide by the paralegal rules of conduct, which are very similar to the lawyers' rules of professional conduct. If they handle and hold client funds, they must maintain a trust account. As with our lawyers, they are subject to spot audits of their books and records. Also, they must cooperate with reviews of their practices.

Beginning in January 2011, they will also be required to take 12 hours per year of continuing professional development education. They will be suspended from providing legal services--suspended from their practice, if you will--if they don't complete that education over the course of that year. They would be reinstated once they have completed it. To maintain a licence, they need to have insurance of $1 million--$2 million in the aggregate.

The law society also operates a compensation fund. If a client has been subject to dishonest action on the part of the paralegal, there is compensation provided by the law society; for example, in the instance of fraud.

The law society of course has an established discipline process. We discipline paralegals as well as lawyers in the event that there are issues with their conduct, competence, or capacity, and we also prosecute unauthorized practice.

In addition to that, with respect to the paralegal regime, we're required to report to the government. We reported in 2009 and have copies of the interim report about the paralegal licensing regime here with us today. We're also required to report again to the government in 2012.

In conclusion, the law society has been regulating the legal profession since 1797. We're Canada's oldest regulatory body. Our regime mirrors the lawyers' regime and, for these reasons, we're asking that Bill C-35 be amended to exempt the paralegals licensed by the Law Society of Upper Canada from the provisions of proposed subsection 91(1) in the same manner as our lawyer licensees are exempted.

We're happy to answer any questions.

Mr. Heins, our CEO, has been with the law society for much longer than I've been an elected treasurer, so Mr. Heins will doubtless be answering any questions you might have of the law society.

[The Chair, Conservative, David Tilson]

I want to thank all of you for your presentations.

Mr. Trudeau has some questions for you.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you very much, Chair.

Thank you for your testimony.

The first thing I'd like to point out is that there are two separate bodies here at the table: the law society, which is the regulatory body, and the Canadian Bar Association, which is the representative, the lobbying body, almost the union, if you will, of lawyers. You wouldn't use the word union, but you're representing the lawyers.

Within the current CSIC model, we have one body that seems to be taking on both of those roles. Is that something that you see and would care to comment on in terms of the proposed legislation?

[Malcolm Heins, Chief Executive Officer, Law Society of Upper Canada]

Generally, that model has fallen into disrepute worldwide. It's pretty clear that you need to wear one or other of the hats and to some extent you heard the difference in approach here today.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you.

[Michael Greene]

I'd just comment specifically in an immigration context. This is the very problem that happened in Australia. Australia was the model for our model; we modelled our system after Australia. Theirs turned out to be a failure. They started theirs in about 1998-99. They had one organization, the MIA, the Migration Institute of Australia, doing both functions.

It proved to be a failure. The resolution in Australia was that the government took over the regulatory function and created their own regulatory body, because there's a conflict between promoting the interest of your members and trying to protect the public interest. It's just one of those inherent structural problems that exist with the current organization.

In our submission of July 2, which should be read as a companion to this submission, we said that this has to be looked at. Whoever is going to take over this role in the future, even if it's CSIC, they can't continue to be the representative body and the regulatory body.

[Justin Trudeau, Liberal, Papineau, QC]

Thank you very much.

You've all said, with various degrees of certitude, that lawyers should be the only ones providing legal advice around immigration laws.

Mr. Handfield, which university did you attend prior to becoming lawyer?

[Stéphane Handfield]

The Université du Québec à Montréal.

[Justin Trudeau, Liberal, Papineau, QC]

How many courses in immigration law did you take there?

[Stéphane Handfield]

Unfortunately, in those days, no courses in immigration law were offered.

[Justin Trudeau, Liberal, Papineau, QC]

I asked you even though I already knew the answer. Nowadays, all the major law schools offer courses in immigration law, but it was a long time before that happened, yes.

How are you going to oversee paralegals or lawyers who practise immigration law specifically, to ensure that they stay on top of their professional development, in other words, that they are up-to-date on all the requirements and complexities related to this field of law?

[Stéphane Handfield]

It is indeed true that universities did not used to offer courses in immigration law. But we did have law courses that taught us how to interpret laws and regulations, which were often complex, in the field of immigration law. You can see here, I have the Canadian statutes annotated. The stack is quite hefty and does not even include them all.

It is also important to bear in mind the requirements of the bar. For a year and a half, lawyers in training study the law, learning how to practise and interpret it. They also have to article in a law firm under the supervision of a lawyer.

A lawyer is trained to be able to practise in more than one field of law. Universities do not produce lawyers so much as legal experts. It is only afterwards that you decide whether you want to be involved in politics or, in the case of Quebec, join the Chambre des notaires du Québec or the Barreau du Québec.

As far as a regulatory body for immigration consultants goes, I think it is really important to distinguish between consultants and lawyers, because the distinction is great. They are two totally different worlds.

[Justin Trudeau, Liberal, Papineau, QC]

Would any of you others like to comment?

[Michael Greene]

If I may, I'll add a couple of points.

I've heard the argument before: lawyers only get one course or whatever. The idea is that what happens in law is that you get trained to think like a lawyer. You get trained in how to apply knowledge of the law—that is, statute and the common law, the courts law, the civil law—to factual situations. That takes years of training. You get intensive training and that should be applicable to any area you specialize in. In fact, most lawyers don't specialize until they're long out of law school. It's that training in how to solve problems.

What happens with the consultants is that they get knowledge about what the current rules are. We're saying that most of the activity you're doing when you're giving advice and you're representing people involves applying knowledge of the law to factual situations, and that's an ability that takes years to do.

The other thing in terms of training is that most law societies now are moving to require compulsory training every year; that is, training that lawyers have to.... Right now in some provinces, such as my province of Alberta, it's still voluntary, but you have to file a plan every year; it will become mandatory shortly. In some provinces it's already mandatory that you must have a certain number of credits every year so that you stay on top of the law. Any self-respecting lawyer does stay on top of the law.

[Justin Trudeau, Liberal, Papineau, QC]

I'm assuming that those credits, if someone who's choosing to be an immigration lawyer or have their own specialty or work in an office that specializes in that, will specifically go after the courses. Will there be courses in specific areas of law in general?

[Michael Greene]

Yes. The Canadian Bar Association offers very comprehensive legal training in areas of specialty. I think ours is unsurpassed in what we offer in terms of annual national courses, but also in local provincial courses.

As well, some provinces are like the province of Ontario, where the Law Society of Upper Canada has a specialist designation. You have to show that you have a certain amount of training and that you've worked a certain amount in the field before you can call yourself a specialist in immigration law.

[Justin Trudeau, Liberal, Papineau, QC]

Would you see, then, a need to insert into a bill like Bill C-35 a recommendation or even an obligation that people who want to practise immigration law should be qualified specialists in immigration law? Or is that setting the bar higher than you feel is needed?

[Michael Greene]

Then you might get yourself into a constitutional fight with the provinces.