Citizenship and Immigration Committee on May 6th, 2019

[Ahmed Hussen, Liberal, York South—Weston, ON]

I will defer to my officials on this question.

[Natasha Kim, Acting Associate Assistant Deputy Minister, Strategic and Program Policy, Department of Citizenship and Immigration]

Thank you, Minister.

In terms of section 91, which sets out the requirement, it is around immigration advice or representation. That would be actually advising on someone's application or representing them in their application before us or before tribunals such as the Immigration and Refugee Board of Canada.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Would providing advice on what to put in a form to have maximum potential for acceptance not constitute legal advice in this regime?

[Natasha Kim]

In our view, we would likely believe that does constitute advice if you're trying to provide advice on a certain outcome, rather than, for example, transcribing within a form or translating—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Who would be responsible for interpreting whether or not legal advice was provided in a complaint?

[Natasha Kim]

It would depend on which recourse was at issue at that moment.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Is that clear in the code of conduct right now? The code of conduct does not set out...The minister has said that the oversight body would be responsible for writing it. Just to be clear, that interpretation of the concept of legal advice is not yet laid out.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Madam Chair, that's not what I said.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Could you clarify?

[Ahmed Hussen, Liberal, York South—Weston, ON]

I said the code of conduct is currently set by the board of directors of the current regulatory body, but in the future, as per this proposal, the code of conduct will be set by the minister. Any changes would have to be approved by the minister.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Certainly. The concern I have, and that members from the legal profession have had, is that a lot of the fraud and abuse in this industry occurs at the margin of what we would constitute legal advice. There have been a lot of recommendations, but actually moving the profession under the auspices of the legal profession, given that there's clearly defined jurisprudence around what constitutes legal advice...I just don't really see how this...I guess I'll put my questions into this regard.

I'm looking at this from the perspective of end-users who have been abused by somebody, where we have seen casework in any of our offices where they've had advice to fill out a form a certain way. We're not quite sure about the interpretation of what constitutes legal advice.

Then we have an oversight body that came to this committee, and frankly, was very juvenile in its presentation, I think we would all agree on that. Are you now saying that you, as the Minister of Immigration, are taking on the responsibility of defining what would constitute legal advice in that situation if the board continues to fail? How would an end-user have any other extra recourse or ease of complaint process versus what we've had before?

[Natasha Kim]

Perhaps I can elaborate on my earlier comments where the actual requirement around the prohibition on giving advice or representation on an immigration application, that's set out in section 91 of the Immigration and Refugee Protection Act—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

That's the issue where the complaints are right now.

[Natasha Kim]

There would be an elaboration of that, for example, in our program delivery instructions. We also regularly engage and work with non-governmental organizations or service delivery providers, settlement-providing organizations, to actually provide more clarification on the parameters.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Next we have Mr. Sarai.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Thank you, Minister.

As you know from our previous study, this is an important issue. As other members have stated, we have constituents coming in all the time who were affected either by ghost consultants or others, and therefore, that was the reason for the study.

I'm happy to see that it will be a statutory regime. How is the new statutory regime different from the current regulatory regime?

[Ahmed Hussen, Liberal, York South—Weston, ON]

It is much more stringent. It is very focused on the protection of clients. It sets up for the first time a compensation fund so that people who are wronged can have access to some sort of a financial remedy. It also sets up mandatory insurance for the members.

It really tightens the disciplinary process. In the current regime, there is no authority to compel witnesses, for example, to appear and to give testimony. In the proposed approach, the college will have the statutory authority to summon witnesses to appear and to testify. There will be consequences for obstructing the complaint and discipline process.

There will be a new prohibition on using the title “immigration consultant” or “citizenship consultant”. Right now, if the regulatory body wants to enter the premises of a consultant who's suspected of engaging in activity that is not within the bounds of the body, it requires the co-operation and the consent of the member to enter those premises. In the proposed approach, the college will have the statutory authority to enter the premises of the consultant for the purposes of investigations of misconduct, to search the premises, to seize documents, to require documents or to require that information be provided to the college.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Then, under this new regime, will they be able to go after ghost consultants who are not regulated? That was a concern we had the last time: that the previous organization was not able to go after anybody who was not licensed.

[Ahmed Hussen, Liberal, York South—Weston, ON]

That's one of the tools that the regulator lacked. I'm very happy with the fact that we will now be able to provide the necessary tools for the regulator to do its job. Under the new approach, the new regulator will have the ability to send cease and desist letters to unauthorized consultants, and it will also have the ability to seek court injunctions against those very same unauthorized consultants.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Will it be similar to how the law societies or the Royal College of Physicians and Surgeons protect their industries from, for example, somebody who is pretending to be a lawyer or pretending to be a doctor?

[Ahmed Hussen, Liberal, York South—Weston, ON]

Absolutely. It's exactly the same. However, in addition to that, I just want to make it clear that everything is not being left to the regulator. IRCC and CBSA will have a lot of activity to support the protection of clients. As I said, the introduction of the administrative monetary penalties, which are very, very high—they have a very high limit—will, I believe, deter and punish that behaviour, as well as CBSA's having more ability and more resources to conduct criminal investigations. Doubling of the criminal fine will also act as a deterrent and a punishment.

[Randeep Sarai, Liberal, Surrey Centre, BC]

In terms of the compensation fund for those who are victimized, will that be beefed up with CBSA provisions? For example, on one side would be unscrupulous consultants or ghost consultants who overcharged, under-delivered or promised things that they could not or should not have promised, and on the other side would be people who are losing their immigration status because of this ill-founded advice. Would CBSA be able to bridge and help them out in situations where they've been duped or mishandled, as well as get compensation? How would that work in that kind of scenario?

[Lori MacDonald, Acting Deputy Minister, Department of Citizenship and Immigration]

Actually, the compensation fund will be set up so that people can apply. Criteria will be established in terms of regulations with respect to how the fund can be operated. They will be determined through consultation and feedback. It is separate from what CBSA will do in terms of investigation. It will be established and determined through a set of criteria on its own. The CBSA will do the broader and more complex investigations relating to those multipronged, larger, complex criminal investigations.

[The Vice-Chair, Conservative, Michelle Rempel]

Thank you.

Mr. Tilson.