Thank you, Mr. Chair.
As the committee is aware, the administration and enforcement of the Immigration, Refugee and Protection Act (IRPA) falls under the responsibility of several government departments and agencies.
While the IRCC has the lion's share of the policy responsibility under IRPA, the CBSA's role is largely one of enforcement and intelligence and criminal investigation.
Since 2000, the CBSA and the RCMP have worked to develop a complementary approach in relation to immigration penal offences. The RCMP is responsible for immigration offences dealing with organized crime, human trafficking, and national security. The CBSA has the lead responsibility for the remaining immigration offences. These include offences related to fraudulent documents, misrepresentation, counselling misrepresentation, and the general offence section under IRPA.
The general offence section under IRPA applies to individuals who do not comply with various conditions or obligations under the act. That includes examples such as persons who hire foreign nationals without authorization, previously deported individuals who return to Canada without authorization, or persons who fail to report to CBSA officers upon entry into our country.
Depending on the nature of the consultants' activities, various criminal offences and sanctions exist under IRPA and the Criminal Code. These would generally be investigated by the CBSA and/or the RCMP. By contrast, review of an activity that is unethical or unprofessional but does not constitute an offence falls under the responsibility of the Immigration Consultants of Canada Regulatory Council.
With respect to IRPA offences most frequently related to consultants, the act provides for criminal sanctions to be pursued in relation to the following: being an unauthorized consultant, counselling misrepresentation, misrepresentation, and counselling to commit an offence.
For example, where it can be proven in court that a consultant has counselled a client to provide false information with the objective of increasing the chances of their immigration application being approved, that consultant could be charged with counselling misrepresentation.
The counselling of misrepresentation could be in relation to any immigration application, be it a temporary resident permit 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 a representative pursuant to the regulations.
The IRPA offence of being an unauthorized consultant applies when a consultant is not registered with the ICCRC and provides advice to a client for a fee. The penalty upon conviction by way of indictment ranges from a fine of not more than $100,000 to imprisonment for a term of not more than two years, or both. On summary conviction, the penalty ranges from a fine of not more than $20,000 to imprisonment for a term of not more than six months, or both.
Prior to the passage of Bill C-35 in March 2011, regulations respecting authorized representatives applied only after an immigration application was submitted.
This was problematic from an enforcement perspective, as much of the counselling often occurred prior to submission of the application. Activities of this nature were not regulated, and unauthorized consultants, sometimes referred to as “ghost consultants”,
were operating in the pre-application phase but could not be pursued through the courts. Now, the legislated rules respecting authorized representatives apply before and after an immigration application has been submitted. Unauthorized representatives found to be knowingly representing or providing advice, directly or indirectly, to a person prior to the application phase, during, and/or afterward can be charged under subsection 91(9) of IRPA, as well as persons “offering to” represent or provide such advice.
The legislative amendments brought about by Bill C-35 now limit those providing, or offering to provide, consulting services for a fee in the pre-application phase to persons who are lawyers, notaries in Quebec, and paralegals and consultants who are in good standing by a governing body. These provisions provide an additional tool for the CBSA and its partners to use in pursuing enforcement action against those individuals who would misrepresent themselves.
Obtaining evidence of consultant fraud can be challenging. Often the applicants are hesitant to report the counselling offences to the CBSA, as they were either a party themselves to the misrepresentation or convinced that even though the representative was not authorized, the individual could assist in ensuring that their client received a positive outcome on their application.
As a result, most offences are brought to the CBSA's attention only after the immigration application has been rejected. Even then, applicants in Canada may not come forward out of fear that they will be removed from our country.
In addition, contracts between clients and unscrupulous consultants are often made verbally, and payment is given in cash, leaving—