Thank you very much for having me here today.
I am an immigration lawyer at a community legal aid clinic in Toronto called Neighbourhood Legal Services, but I am here today on behalf of the Inter Clinic Immigration Working Group, which is a network of lawyers and paralegals in Ontario community legal clinics and student legal aid service societies. Clinics are funded by Legal Aid Ontario to provide services to low-income individuals and disadvantaged communities.
We service clients in a variety of ways, including summary legal advice, representation, public legal education, and law reform activities. Of the 76 funded clinics in Ontario, approximately 30 belong to ICIWG, so we are very aware, in Ontario, of a couple of perspectives: one is that access to legal aid is somewhat of a patchwork and a privilege not afforded to everyone, depending on where you reside; and the other is that, in the clinics that do provide immigration services, we are quite overwhelmed by the demand.
We are very pleased that the standing committee is studying the important issue of the legal, regulatory, and disciplinary frameworks governing and overseeing immigration paralegals and consultants in Canada. I'd like to make three main points, and then I'll move on to our recommendations.
First, we want to highlight for the committee how we are impacted by the chill placed on newcomer-serving NGOs by the very harsh penalties they potentially face should they contravene the law of authorized representatives. I am speaking particularly about section 91 of the Immigration and Refugee Protection Act and section 21.1 of the Citizenship Act, which would provide very serious consequences for anyone who is not authorized, i.e., a member of a regulatory body like a law society or the ICCRC. The penalties include a fine of up to $100,000 and/or two years' imprisonment.
Our position is that in Bill C-35—this “cracking down on crooked consultants act”, the attempt to catch the bad guys in all these stories you are hearing from various witnesses—those provisions have overreached. That is because they provide that anyone who provides services for consideration is captured by these provisions. Since these provisions came into effect in 2011, “for consideration” has been varyingly interpreted by the department.
At first, our newcomer-serving NGO partners were assured that these provisions would not apply to them, because they offer their services for free, in good faith, to the vulnerable communities we mutually serve. That changed a few years ago with some emails that some of the settlement sector partners we work with received from their IRCC representatives, advising them that in fact they were afoul of section 91 of IRPA because “for consideration” was interpreted to include salaries that they received at their non-profit organizations.
More recently, in January 2017, there was an attempt to bring some clarity, but it still appears that it may be only international organizations with service agreements with the federal government, like UNHCR and IOM, that are, in fact, exempt from these provisions.
My second point is to highlight for the committee the reality we experience on the ground, providing immigration services in our communities to low-income clients who cannot afford to pay anyone for their complex legal needs. We note that underfunding of legal aid immigration services in Ontario and across the country puts a big strain on newcomer-serving NGOs. Those NGOs play a key role in the continuum of immigration services for low-income newcomers.
When there was somewhat of a chill placed on our NGO partners as a result of these directives coming down a few years ago, a lot of that work came back into the clinics, and we could not possibly meet the demand. We really cannot meet the demand as it is. When settlement agencies aren't sure if they can provide any information beyond basic form-filling, you create a situation where people really don't know where to turn and, in our respectful submission, you create a situation that leads to people being preyed upon.
Our third main point is to highlight our observation that it is newcomers themselves who face the harshest penalties of all—loss of status, inability to reunite with family, deportation—when a representative, authorized or not, makes a mistake. We believe that, when there is a doubt, it is the newcomer who ought to be given the benefit of that doubt.
We sympathize with the department in aiming to strike a balance to protect vulnerable newcomers from unscrupulous practitioners who exploit the gaps in services. However, the current law and policy framework continue to assume that the vulnerable newcomers living in poverty will simply be able to pay a consultant, paralegal, or lawyer to help them when a complicated legal issue arises. This is blind to the access-to-justice reality for newcomers, and continues to expose newcomer-serving agencies, which operate without a profit motive and in good faith in the service of newcomers, to the overly harsh penalties set out in the law.
We urge the committee to recommend a more common-sense approach that is allied to the financial reality of newcomers in the context of a lack of adequate publicly funded legal services like legal aid clinics. Newcomer-serving NGOs may not always have the legal know-how to get it right, but we believe they operate in good faith and are a bedrock of the operation of Canada's immigration system. The better solution, in our view, would be stabilized long-term funding for that sector, enhancing their professional development opportunities, and ensuring that legal aid funding is adequate to meet the needs on the ground.
We believe that the current atmosphere of fear puts low-income newcomers, desperate for a solution to their problems, into the arms of unscrupulous practitioners, as I've said, borrowing money they often do not have for the service.
We have three sort of flexible, common-sense recommendations for the committee.