Thanks for having me here.
I should note that I am vice-chair of the Canadian Bar Association, and I'll be chair in August, but there just wasn't time for us to go through our vetting process, so I am making these remarks in my personal capacity, with thanks to some of my colleagues for their comments.
It is a tacit acknowledgement of failure to spend $100 million over 10 years to educate the public on how to protect against fraudulent immigration consultants and to spend so much taxpayer money on strengthening compliance and enforcement measures for consultants, including government oversight of a new college for them, when consultants could have easily been brought under the supervision of lawyers at no cost.
It seems the government is trying to do three things: fight ghost consultants, tackle fraud by registered consultants and deal with competence issues amongst registered consultants. Let's deal with those first.
We don't know how the money will be allocated, but I will say that I do support increased funding to CBSA and on overseas positions to liaise with foreign governments and encourage them to crack down on ghosts, but the best way to deal with ghosts is if only lawyers may represent for a fee, because then the messaging becomes quite simple, and the public is not confused with different categories of representatives. Saying that only lawyers may practise law for compensation is not complicated to communicate or grasp.
Now let's deal with registered consultant fraud. As The Globe and Mail reported in its three-part investigative series covering 2,600 foreign workers and students: “...exploitation is far more prevalent than has been reported, primarily because most victims are reluctant to go to the authorities for fear that they will be deported.”
Navjot Dhillon appeared before you two years ago talking about consultants asking clients to pay tens of thousands to find employers to support permanent residence applications with kickbacks to employers. He said, “I have never seen a lawyer going that route.” He even described female students being asked for sexual favours. He said that there was no documentary proof of such acts, so it was very difficult to hold people accountable for such fraud, echoing what the Globe had said.
If victims are unlikely to complain and documentary proof is illusive, setting up a bureaucratic administrative penalty scheme for negligent consultants and a compensation fund and liability insurance will not provide the desired public protection, because people don't come forward.
Now let's deal with competence amongst registered consultants. Two years ago, Paul Aterman, the then deputy chair of the IAD of the IRB, differentiated the rigorous training lawyers go through and said, “...there is considerable scope for improvement when it comes to consultants acting as litigators.”
Exactly two weeks ago, the former Federal Court of Appeal Justice John Evans, wrote a Globe and Mail op-ed, and in it he said, “Accurately determining whether a claimant meets the legal test for refugee status presents unique challenges, both factual and legal. For a claimant without a lawyer they are likely to be insurmountable.” He said, “Lawyers’ professional skills in identifying relevant evidence and presenting it cogently enable refugee decision makers to navigate around these obstacles to accurate fact-finding.”
He said that lawyers:
... play a vital role in assisting the board and the federal courts on the interpretation and application of the law. Refugee law is very complex. The IRPA alone has more than 200 densely packed sections. It must be interpreted in the light of international human-rights law and...the protections of the...Charter... Arguing cases in this area also requires knowledge of administrative law, a set of principles that even seasoned litigators find difficult.
My submission is that those comments apply equally to application work and solicitor work. There is no such thing as simple applications, by the way. Thus the issue is lack of competence, or put differently, under-representation can be worse than no representation.
Elizabeth May illustrated this well when she said:
...in my little riding office, we spend at least 80% of our time on immigration and refugee cases. The ones that come to us, after an immigration consultant has “helped” the applicant, are the hardest to unravel, with the the multiple mistakes that have been made.
Adam Vaughan said, “I think all of us as MPs know that when one single department generates 75% to 80% of our work, depending on our ridings, there is something wrong.”
Michelle Rempel said:
We just need to think of the cost of 338 members of Parliament employing someone in their offices just to do immigration case work, or the amount of resources required within ICCRC to look at poor applications, or the cost of the deportation of people who have been given bad advice
There were 1,600 under CSIC, and now there are over 5,500. If a future government proceeds with the college—and here are my recommendations if you're proceeding with this—they should not be grandfathered; all consultants should undergo language testing; referral fees should be barred, which they aren't; all should be audited; and dues should be sufficiently high to cover the compensation fund and liability insurance. I don't know, by the way, how you compensate for a lifetime of potential Canadian earnings when someone has lost out on their permanent residence.
Further, I submit that a Canadian Bar Association executive member should be invited to sit on the college board, and lawyers should be exempt from this administrative penalty scheme, given that law societies have robust disciplinary measures, as we've heard.
Even nurses who complete an entire degree program have restrictions on their practice. The same should apply to consultants with respect to litigation, which should be completely off limits; but again, a future government may change course.
Finally, I just want to take the remaining time to talk about a few myths I'd like to dispel. This is all based on assumptions, this whole reality of immigration consultants. It is assumed that immigrants prefer to go to members of their own community for legal advice and representation, that lawyers cannot fulfill this role, but this is utterly outdated, given the diversity of the bar today.
It's also assumed that immigration lawyers are inaccessible because we charge too much, and yet, unlike family, criminal or civil litigators, most immigration lawyers litigate in the four-figure range and provide upfront, fixed-fee quotes and reduce fees based on clients' ability to pay. Of course, we do a tremendous amount of pro bono work, whether that's at the airport.... There are Trump's executive orders, times of natural disasters, Syrian refugees. There is no comparable tradition among the consultants, even though they have been in business for decades now.
Also, most immigration lawyers operate as sole practitioners or in small firms with low overhead, so we're not talking about big, fancy firms with a million dollars' worth of art. They save money for clients and taxpayers by discouraging unmeritorious applications and appeal, which is a timely consideration given the pressure on the IRB. We aren't business people. We're members of the bar. We're mindful of the critical role we are entrusted with in acting for the client's best interests and upholding the fair administration of justice.
Propping up consultants for a third time—