Citizenship and Immigration Committee on Nov. 1st, 2010

[Malcolm Heins]

I think you also need to remember that as professions we require as part of our code professional competence in the area in which you choose to practise. So we offer specialist programs; we offer 140 programs a year of continuing education to our members, and that includes the paralegals whom we just talked about. There's more than ample opportunity for people to become competent.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Trudeau.

Monsieur St-Cyr.

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

Thank you, Mr. Chair.

Thank you all for being here. We are hearing from some very interesting witnesses today, witnesses we should have perhaps heard from in the beginning.

We have indeed spent a lot of time and energy studying the technical side of regulating the profession, without even asking the most basic question of all: should we regulate the profession or simply prohibit it? Of course, I am talking about immigration consultants.

We have heard from many people who share your position. The most common arguments made by those who support immigration consultants revolve around cost and accessibility. Lawyers' services are indeed very expensive. So the services of immigration consultants are more accessible to applicants.

Mr. Handfield, you practise law, so perhaps you could paint us an overall picture of the cost of a lawyer versus that of an immigration consultant. I do not want to know what you charge specifically, but how do your fees compare with those of an immigration consultant? How do they stack up in terms of accessibility and government support for less fortunate clients?

[Stéphane Handfield]

I will not tell you today what I charge, but I have seen some immigration consultants charge a lot more than most lawyers.

In terms of legal fees and access to justice, it is important to note that immigration consultants cannot accept legal aid certificates. Only a lawyer can. That is very important because refugee claimants often arrive in Canada with very little; they do not speak the language and have no means or resources. It is unfortunate, but when we send them to immigration consultants, they are often bled dry trying to pay for representation before the Immigration and Refugee Board. A lawyer, however, can accept a legal aid certificate, which means that refugee claimants are not on the hook for the cost of those services. That is an important distinction.

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

I have another question about something that has already been mentioned: what falls under Quebec's jurisdiction and what falls under federal jurisdiction? Clause 91(1) of the bill reads as follows:91. (1) Subject to this section, 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.

This act being the Immigration and Refugee Protection Act.

When someone applies for a selection certificate through Immigration Québec, is the application covered by this act, in other words, IRPA, or not because it is covered by provincial legislation?

[Stéphane Handfield]

When a client goes through a lawyer and obtains the Quebec Selection Certificate, that does not entitle the client to permanent residence status. It does not give the client any status, nor does it authorize the client to come to Canada. Obviously, the person's file is then transferred to the federal government, which conducts security checks and requires the applicant to undergo a medical examination, further to the permanent residence application process. At the end of the day, it is the federal government that decides whether or not to issue a visa. Clearly, it falls under IRPA. Someone cannot just apply for a Quebec Selection Certificate. It is in connection with a file that eventually makes its way to the federal government and is covered under IRPA.

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

So whether the client applies to Quebec or the federal government, the application will be subject to IRPA at some point during the process. Is that correct?

[Stéphane Handfield]

In the case of immigration law, yes.

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

There are a number of lawyers here today. I want to know whether they agree with you.

[Chantal Arsenault]

Yes, the first step in Quebec is indeed selection. Under the federal legislation, it is not necessary to repeat that step; Quebec's selection certificate is accepted for what it is. However, the selection certificate or certificate of acceptance is not enough for people who come to Canada on a temporary basis to obtain status. They must then apply for status under the Immigration and Refugee Protection Act, in order to be allowed into Canada.

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

We talked about this back when we were discussing the creation and relevance of a Canadian Society of Immigration Consultants. Today, we are talking about provisions that would give the government even more power in terms of oversight. It would basically oversee the profession, not just the relationship between the consultant and the federal government. In addition, the whole issue of jurisdictional authority is a consideration. The common argument we hear from those who support a Canadian body is that immigration comes under federal jurisdiction. However, it is also the domain of lawyers. And law societies, the bar, are under the jurisdiction of the government of Quebec and the other provinces.

Mr. Handfield, do you think Quebec's immigration law is so distinct that future immigration consultants should have to meet training and oversight requirements specific to Quebec's system, as compared with the rest of Canada?

[Stéphane Handfield]

I do not think they should be regulated differently. To my mind, a single body would be adequate. I think a distinction could be made for those wanting to practise specifically in Quebec.

As I mentioned in my opening statement, this bill will give the body charged with regulating consultants numerous powers. That is not too many steps away from a professional association. In my view, Quebec has everything in place to regulate consultants and, above all, to oversee them.

Just look at what happened with CSIC. If it had behaved as a professional association in Quebec, I am certain that the province would have stepped in to bring CSIC into line and perhaps gone so far as to place the body under provincial control. That would have saved many immigration applicants, foreigners and newcomers a lot of trouble. Goodness knows all the problems those poor people have suffered at the hands of many a consultant.

[The Chair, Conservative, David Tilson]

I'm sorry. We're over the time.

Ms. Chow.

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

In the submission of the Canadian Bar Association, you have five recommendations. I'm particularly interested in a few of them. On the factors to grant or revoke a designation, which I believe is in recommendation 4 on page 9 of your submission, what are some of the criteria that you think should be added? Does your wording in recommendation 4 actually cover them?

[Michael Greene]

I'm afraid we haven't gone so far as to give specific wording. We do suggest that the public interest has to be the main consideration here, but you would also have other factors that would be relevant to that.

You need only look at the litany of complaints about the current organization to help you depict those factors, but one of them would be a failure to institute and implement an effective disciplinary system and pursue it. Financial mismanagement, the way the funds of the organization are or are not used, I think would be another one. It's one of the main complaints. But again, that goes back to the public interest.

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

So it would include the public interest and failure to institute sanctions or...?

[Michael Greene]

One of the big complaints that this committee heard and commented on in its previous reports in 2008 and 2009 was the fact that the disciplinary system did not get up and running. Now there is another problem in that they lack the powers to effectively discipline; they just weren't given the powers to subpoena, for instance, to compel witnesses, and those kinds of things.

Do you want to answer that, Chantal?

[Chantal Arsenault]

Yes. I just want you to look at page 4 of our submission, where there is an example of what the U.K. is doing. It says they have the power to revoke the privileges of those professional bodies that have “consistently failed to provide effective regulation of its members in their provision of immigration advice or immigration services”. So the “consistently failed” terminology provides one example of where that power has been used before.

[Malcolm Heins]

If I may add this, you might as well look at section 4.2 of the Law Society Act, which states the principles that would be applied by a regulatory body. You could just adapt those. It's already set out in a statute: section 4.2.

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

Folks, you know that we are supposed to do clause-by-clause very soon. We have until tomorrow at noon to draft it. I totally agree that we should have some factors as to how to grant and revoke. Those include transparency, for example, right? It should be democratic and transparent, and for financial, the principles make perfect sense, but I'm looking for a system here.

Anyway, thank you.

[Michael Greene]

Well, on that, those can be done in the regulations. You just need to make sure that the minister has the power to make those regulations.

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

Does it now...?

[Michael Greene]

We're saying that in proposed subsection 91(5) or around there you should make sure that the minister has the power to make regulations that would govern the minister's exercise of the revocation function.

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

Does the way it is written right now not give the minister that power? Would recommendation 4 actually give the minister the power to do so?

[Michael Greene]

Well, yes, I confess that I don't think it's worded as beautifully as Gary Dubinsky and the Department of Justice would do it, but we've given them an idea, and they can stay up really late tonight coming up with a solution. How's that?