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Ladies and gentlemen, we'll start the meeting. This is the Standing Committee on Citizenship and Immigration, meeting number 28, on Monday, October 25, 2010. Pursuant to the order of reference of Thursday, September 23, 2010, we are reviewing Bill .
Before we start, the clerk has passed to all of you a budget for the bill we are reviewing. I trust you've all received it. I would like someone to move a motion that this budget be adopted.
An hon. member: D'accord.
The Chair: Merci, monsieur.
All those in favour?
(Motion agreed to)
The Chair: We will now proceed with Bill . We have two witnesses before us: Mr. Lorne Waldman, who is an immigration lawyer, and Maria Yvonne Javier.
Ms. Javier told me how to pronounce her name before the meeting started, and I appreciate that, because one of my many faults is that I have trouble pronouncing people's names. Thank you, Ms. Javier.
You each have up to seven minutes to make a presentation to the committee. Who would like to go first?
Ms. Javier, thank you for coming.
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I will go first. It's my pleasure.
Good afternoon, ladies and gentlemen. Thank you for inviting me to speak before you today. My name is Maria Yvonne Javier. I was a programs director for Multicultural Helping House Society, a non-profit service provider for immigrant settlement and employment services. As an agency, we helped hundreds of immigrants settle in and adjust to their new lives in Canada. Those were the happy stories.
However, we also encountered immigrants and migrant workers who were deceived by what we now refer to as “ghost consultants”. Let me tell you how this happens.
There is immigrant or migrant worker A. That's me. I went to the website, downloaded the forms, filled them out, and submitted them. I'm here without any help from anyone. Then there's immigrant or migrant worker B, who needs an immigration consultant because they don't understand the forms, or they are rich and just want someone else to do it, or they are almost--but not quite--qualified, so they need a creative mind to help them.
A ghost consultant is defined as somebody who is not registered but is giving advice for a fee. The fees could run from $5,000 to $10,000--or even more, depending on how complex the case is. Bill , as I understand it, hopes to eliminate this ghost consultant, who I would like to call “Casper”. He may be a ghost, but he's friendly; this is only business, and there is no swindling involved.
Now let me introduce you to immigrant or migrant worker C, who comes to Canada through a ghost consultant, not Casper, the friendly ghost, but a mean ghost, or a ghost recruiter with a ghost employer and ghost documents. This ghost is also a magician and can magically produce documents that look authentic enough to pass the scrutiny of Immigration and CBSA officers. Once immigrant C is outside the airport, the magician's assistant appears out of nowhere, gives him some Canadian dollars, retrieves all the ghost documents, and disappears into thin air. Immigrant C never sees this person again and doesn't even know the name of the person.
That, ladies and gentlemen, is the new ghost: not Casper, the friendly ghost, but a real, live monster. This is not an unscrupulous consultant who charges exorbitant fees; this is a major swindler.
The registered immigration consultants and your so-called ghost consultants, my Casper, are all waiting in fear to see how the bill will affect them. But this new ghost I described doesn't even care what you do, because these new ghosts are nameless and faceless, and believe me, none of the victims will give them up. They will be ghosts as long as there are desperate people who will pay anything to get to Canada. They will be there because the recession has made Canadian employers bold enough to hire illegals and pay under the table.
I'm not expecting you to eliminate this new ghost: a single bill will not do this. These people are experts, with years of experience bringing illegal immigrants to the U.S. and Europe. I just want you to understand that we are not talking about $10,000 here. This is a multi-million-dollar scam. The people I encountered said that there were 10 of them and they were the pilot project. That was in 2009. This is now the end of 2010.
I wouldn't be surprised if by now they have brought in 100 people who have each paid $10,000. That's $1 million. Your fine is $50,000. These ghosts are making a mockery out of our immigration system and have made a fool out of every legal immigrant who had to go through the tedious process. Your jail term is two years. These are not unscrupulous consultants; let's not give them nice names. These are major swindlers. Call them what they really are: criminals.
This is not to say that you should not pass the bill. If you truly believe in your hearts that this bill will eliminate the Caspers of this world, then go right ahead and pass the bill, but understand that Casper is what we call a small fish, and don't forget the big sharks. I have seen far too many heartbroken fellow Filipinos innocently deceived by these new ghosts.
Although I no longer work for Multicultural Helping House, I remain an advocate for this cause. I have put up a company, 1-800-Godmother, with me being the godmother they can run to for help. I will no longer sit back and watch this happen.
While I cannot stop the ghosts myself, I can make sure that the victim recognizes a ghost when they see one. I may be a Canadian citizen now, but I am still a Filipino, and a lot of these victims are my countrymen.
I am here before you today to respectfully request you to please find it in your hearts to understand that these people are victims. If we cannot run after the ghosts, if the ghost documents are so good that our own immigration and CBSA officers cannot tell the difference between a ghost document and a real one, then let us not take it out on the victims and send them back home.
I cannot offer you a solution. This problem has existed for decades in the U.S. and Europe. Canada is the new dreamland, so it's Canada's turn. Maybe this is the price we have to pay for being a better dreamland than the U.S.
Ladies and gentlemen, the future of these ghost consultants and their victims is in your hands. All I can ask at this point is for you to show a little compassion to the victims and show no mercy to the criminal ghost consultants.
Thank you for your time.
I certainly empathize with everything the previous speaker said; however, I think most of what she said are issues that are beyond the scope of this legislation. I agree that it's important not to penalize the victims and to go after the criminals, but having said that, we're now here considering a piece of legislation that is designed to regulate a profession.
I have to make a disclosure in my brief opening remarks; that is, I have represented clients who are in litigation against the current regulator, CSIC. Interestingly enough, one of the issues that arose in that case was whether the Federal Court or any court had jurisdiction, or which court had jurisdiction over CSIC. As a result of our litigation, it's now clear that CSIC, the current regulator, is a federal board and tribunal and therefore subject to review by the Federal Court.
It took a year to be resolved. Now it's clear. I'm in the middle of this litigation. So my knowledge of the current regulator and my concerns about the bill and about this regulatory model are based upon my experience both in the litigation and also with other consultants who I have spoken to.
I firmly believe that regulation of consultants is essential. This comes from my experience in many years of seeing what the previous speaker spoke about: the victims of unscrupulous consultants, many of whom are not regulated and who charged large amounts of money and didn't do any work. In many cases, if they did do work, they did incompetent work that prejudiced the opportunity that some people might have had to go through the system legally.
The victims of unscrupulous and unregulated consultants are many, so it's vital that if the government enters into the field of regulating consultants, they do it properly. There is an urgent need for a good regulatory body, one that provides good standards, educational standards that ensure continuing legal education, because we now have one bill passed last June, another bill currently before the House, and a third bill, all affecting immigration. Regulatory changes are frequent. It's impossible to be a competent lawyer or consultant in this field unless you engage in continuing education, so it's vital that any regulatory body require that its consultants engage in proper education.
The difficulties with the current regulatory body, I think, are in the way it was set up. I know that it was set up under the former government, but the current government plans to continue with the same regulatory model, which I think is highly problematic.
I'm sure you are aware that there are three possible models. One would be self-regulatory. That has been rejected. The other would be a government regulator. That apparently has been rejected. So we are left with this third model, which is a private corporation that gets its power because only members of the corporation can appear for money before the Immigration and Refugee Board or before consultants.
The difficulty with this model as it was set up was that it really left the government powerless to control the regulatory body once it was created. So what we now have is a regulatory body gone rogue, I would suggest; it's a body that the government created but has no power to control. The government can't demand that the body hold annual general meetings. It can't demand copies of the audited financial records. It can't demand that the body create a power so that members can demand a meeting if a certain percentage pass a petition.
These are basic rights that exist in most self-regulatory bodies. The current system does not allow the government to hold the regulatory body accountable at all. That's a huge problem.
The other major problem with the current body is that it doesn't have effective powers to be able to undertake its function. Any body that is a disciplined body has to have the power to subpoena and call witnesses; it has to have broad investigatory powers. The current CSIC does not have that power and I can tell you why that's a problem.
I was involved in a case where I was representing the people who were subject to a complaint by CSIC against them, based on a newspaper article. A newspaper reporter went to the consultant, pretended to be someone, and got the consultant to say things, and there was the suggestion the consultant had acted improperly.
We argued that CSIC couldn't effectively prosecute them because they had no power to subpoena the reporter to come forward and testify before CSIC. Without having the person who is the actual “victim”--and I'll put that in quotation marks--it was impossible, in my view, to have an effective disciplinary action.
On the one hand, you have a body that is not accountable to the government or to the public because it's a private corporation. It's only accountable as far as the bylaws require accountability, and the current bylaws don't have sufficient accountability. On the other hand, you have a body that is charged with engaging in discipline of members but that doesn't have sufficient powers to be able to discipline the members.
So the current model is not one that's working effectively. That's independent of all the difficulties with how it's being run by the current board of directors and all the difficulties I've heard from people and the concerns raised.
The legislation does not really go far enough to address these problems. It gives the minister the power to require certain documents, but it doesn't give the minister the power to impose certain basic governance requirements on the governing body.
So you have a situation now where new bodies are applying, pursuant to the order in council. One concern I have, quite frankly, given the complex nature of creating a regulatory body from scratch, is that I wonder whether the government has really created a situation where the only qualified body will be the current body.
So then you will have gone through this whole process of asking for submissions, looking for a new regulatory body, and sort of being stuck with the current body as being the only qualified bidder, in which case people are going to ask why you went through the process if you thought this current body wasn't satisfactory. So you're seeking another body, and you've created a system where you didn't create the conditions to allow for another qualified body to come forward.
Thanks to both of you for being here.
I'm going to start with a couple of questions for Mr. Waldman and then I have some for Ms. Javier.
So that we separate this from the structural problems of the regulatory body versus the personnel, or the people, or the effect of that creation, I want to do the structural part. We'll leave the other part out.
It seems to me that we've had a confusing set of witnesses from the government side. We thought this piece of legislation was primarily about consumer protection, but the senior officials from the department said it was really about the integrity of the immigration system. Now, those two are related, I understand that, but I'm trying to clarify your thoughts: if this is truly consumer protection, what is missing?
Obviously, I think the department is responsible, with CBSA and other agencies, for the integrity of the system. Consumer protection, it seems to me, requires accountability mechanisms for licensing, for complaints and discipline, etc., and penalties and appropriate abilities to effect that accountability.
On the integrity of the system side, you need independence from the body that these people are appearing from. It would seem to me you need resources to do your work, whether those are legal resources, such as the power to subpoena at a discipline hearing, or resources in terms of going out to the bad guys out there, who are not the ghost consultants, as we are calling them, but the really bad ones. You need resources to do that.
Is this legislation, in your mind, primarily consumer protection or is it about the integrity of the system? What can we do to try to improve both of those things, the consumer protection and the integrity of the system?
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I think it has to be about both, because the regulation of consultants has a dual aspect.
On the one hand, you have the immigration officials, who are struggling with precisely the problems the other witness described. You have people who are unscrupulous and who don't care about presenting false documents. Their only objective is to make money. They have no sense of any obligation or duty to the system and aren't accountable because they operate outside the law. They operate secretly. I mean, if a lawyer presents a false document, at a certain point that's going to come back and the lawyer's going to be disciplined--and that's aside from the whole issue, hopefully, that lawyers act with integrity.
Independently of that, a lawyer would know that consequences are going to flow, so lawyers have to be careful. If consultants are part of a regulatory body, they have to be careful. So there is the issue of the integrity of the system that's involved, and that's why the bill attempts, in some ways, to deal with ghost consultants. Really, I think the reality is that dealing with ghost consultants is something that has to be left to enforcement and the police, because anything short of that is not going to be really effective.
On the other hand, from the point of view of the users, this bill has to be about consumer protection. It has to be about ensuring we get a regulatory body that serves a dual function, one of ensuring the integrity of the people who operate as consultants, but also one of ensuring integrity vis-à-vis the client, the person who is the user.
There has to be an element of consumer protection, so we have to ensure that the regulatory body, the people who are the consultants, are acting in the public interest, on the one hand--that's the issue that concerns CBSA--but also in the interests of the users. There's a dual aspect. I don't think there's any contradiction between the two. Obviously when you focus on one, you're interested in certain things, and when you're focusing on the other, you're interested in other things.
Let me continue the discussion with you, Ms. Javier.
During your presentation, you described a very worrisome situation. From what I understood, you said you were not able to provide a solution. That's somewhat unfortunate because that is exactly what the committee is looking for.
You have emphasized—and I believe Mr. Waldman talked about it too—that we should not punish the victims. Although I too share this noble point of view, I was wondering what you meant by that. Are we to understand that victims of fraud should be allowed into Canada, even if their application is invalid, just because they were victims of fraud?
Mr. Waldman, I would like to go back to my colleague Mr. Oliphant's question.
When I asked the departmental officials about the constitutional grounds of their bill, they said the reason for that was first and foremost to protect the integrity of the system. They obviously could not say that the main purpose was to protect consumers because that falls under the jurisdiction of Quebec and the other provinces. There is an issue of jurisdiction, and in my opinion, it is important.
In French, we often talk about the “compétences des provinces”. The French word “compétence” has a double meaning. It is used first to refer to “compétence constitutionnelle”, meaning constitutional jurisdiction, but also to the ability—acquired through one's experiences, knowledge and expertise—to perform a task. So the French word refers to someone's competence to do the job.
Sometimes, I get the impression that the failure of the Canadian Society of Immigration Consultants is because the federal government does not have the required competence. I am not only talking about constitutional jurisdiction to regulate a profession, but there is no legal framework like the one in the provinces to regulate any profession at all.
Would you agree that there is nothing at the moment under federal legislation and in our federal institutions that allows the federal government to create a regulatory body for any profession?
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You're asking me a legal question on the jurisdiction of the federal government, and I think the Supreme Court of Canada decided that in a case called Mangat. The B.C. law society argued that the federal government had no jurisdiction to regulate consultants, and the Supreme Court of Canada concluded that it did. So the question of which body--federal or provincial--has the jurisdiction has been decided by the court.
There is a second related question, and that's in terms of competence. I would agree that one possible solution would be for the regulation to fall to the provincial law societies. In Ontario, for example, the provincial law society now regulates paralegals. Since the law society has expertise over the regulation and all the experience in regulating in consumer protection, it would make sense to have them be the regulatory body. Albeit many people think the law society doesn't do it that well, it does have more experience than anybody else in the area, and it does its best. So now that the law society is into the area of regulating paralegals in Ontario, it would make sense for them to be the regulatory body.
Now, that would work if every law society in every province were prepared to undertake the responsibility of regulating the paralegals in the province. But it would be the preferred solution, for sure.
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I would like to go back to the question of jurisdiction.
You mentioned the decision of the Supreme Court. Since I am not a lawyer, I will do my best with this. In my opinion, since current legislation essentially allows the federal government to decide on who will appear to represent a client, the Supreme Court determined that the government could say who it wanted to deal with and that it was its choice.
In my view, Bill is heading towards something much broader. It is not only a question about regulating who represents a client before the federal government but it is also about regulating the whole profession. This would include consultants who only do preliminary consultations, even before getting to the applications.
Would you agree with me that there is a change in the scope of the legislation? Do you think that, with this new legislation, the Supreme Court could now arrive at a different decision in terms of the federal government's jurisdiction to regulate the profession of consultant?
Again, to continue comparing what is already in place in terms of professional associations, not only do most of them regulate the practice of a profession, but they also protect the title, making sure that only the members of the organization are allowed to describe and present themselves as engineers, lawyers and so on.
It is not clear whether the bill will prohibit people from distributing business cards on which they claim to be immigration consultants, although they are not members of that association.
Is that your understanding too? If so, do you think we should introduce an amendment to explicitly forbid the use of the title of immigration consultant by those who are not members of the association?
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I don't mean any disrespect, but I don't agree.
If the title of the bill were about cracking down on CSIC and the industry itself, the immigration consultants, perhaps, but when the title of the bill is about cracking down on ghost consultants--
Mr. Tim Uppal: On crooked--
Ms. Maria Yvonne Javier: --on the crooked consultants.... Because they're not even part of the equation. You see, here's the way it is: there is a desperate person who wants to come in, and there is a swindler, and they're both outside. This operation is not going to work at all without the cooperation of the immigration officer and CBSA. But with this, it works. CSIC and all the other immigration consultants are out of the picture. They're on this side; the problem is on that side.
Thank you for inviting me here today to speak to Bill . I'm the chairman of the board of directors of IMMFUND.
IMMFUND was established in 2008 to offer consumers of immigration services an added layer of protection against the potential criminal activities of immigration consultants who are members of the Canadian Society of Immigration Consultants. It is a wholly-owned not-for-profit subsidiary of CSIC, which has its own staff and board of directors. Since its inception, the fund has collected just over $1.2 million from CSIC members, who are required to make an annual contribution.
I'd like to take a moment to describe how the fund works. If a CSIC member is convicted for a criminal act in a court of law, and if that act resulted in the loss of a client's money, IMMFUND will reimburse the client for their loss. To date, there have been no claims against the fund, but we are aware of five cases currently before the courts that could result in claims.
l'II now turn to IMMFUND's position on Bill . The provision for clear penalties is strongly supported by IMMFUND, because it should discourage those operating in Canada from continuing to practice outside of regulation. IMMFUND strongly supports Bill C-35 because it offers consumers added protection by closing a loophole that allows ghost consultants to front-end services and further prevents them from openly advertising their services.
Of particular concern to IMMFUND is the provision that gives the immigration minister the unilateral power to designate a regulatory body with a simple notice in the Canada Gazette. This awesome power could create instability in the immigration system. It is of paramount importance that Bill be amended to allow for the Governor in Council, and not the immigration minister, to select the regulator of immigration consultants and establish criteria under which this power would be exercised.
I want to take the opportunity to stress the instability that would ensue should any body other than CSIC be designated regulator as a result of Bill . If CSIC ceases to exist, so too would IMMFUND, and make no mistake, IMMFUND provides an added layer of stability to the Canadian immigration system by offering protections to consumers that would not otherwise exist.
I was disheartened to hear one of my fellow CSIC members last week talk about the possibility of dismantling the fund. This viewpoint shows a complete lack of respect for consumers and a lack of understanding about how to run an effective regulatory body. It's important to remember that the job of a regulatory body is to protect consumers, which goes to the very heart of why it's necessary to create IMMFUND as a subsidiary of CSIC. Further, the foundations of its very existence guarantee that the assets of the fund would not be used for CSIC operations.
If CSIC is not recognized as the regulator, the $1.2 million that CSIC members have already contributed will not be returned to them, but would instead be repatriated to the parent corporation to cover any costs associated with the wind-down of its operations. I don't have to tell you that this would leave consumers without any source of potential compensation for criminal acts perpetrated by CSIC members until a new fund could be established.
IMMFUND is just one of the ways that members of CSIC work together to protect the consumers of immigration consulting services while contributing to the integrity of the immigration system. I urge this committee to act on the recommendations that IMMFUND has presented to you today in the interests of consumer protection and the immigration system as a whole.
Thank you.
This committee has heard stories of big swindlers, of big fish, and criticisms that this bill does not do enough to enable the government to go after them.
My approach or my emphasis is very different. I'm concerned about some small fish: small fish who are actually honest, well-informed, and transparent, but who do this work on a small-scale basis, on a part-time basis, and charge modest fees, partly because they're motivated in part by charitable considerations.
For them to go through the certification process, to take all the training, pay the membership fees, and go through all the professional development requirements, would simply put them out of business. They wouldn't do it anymore.
So this is a very different issue that I'm bringing forward and I appreciate that the committee is willing to also listen to these concerns. I did bring a document. I'm sorry that I couldn't bring it out earlier. I was invited to make this presentation on Friday, so I finished writing it only today. I brought some copies to the clerk. I don't know if all of you have received it or not.
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Okay. That's fine. Thank you.
I could explain the context in which this issue arises for me. It has to do with Mennonite communities in Latin America. Many of the people in those communities came from Canada but have moved back, and so on and so forth.
But it also relates to charitable work in Canada. There are charitable organizations that do a lot to welcome refugees and to assist newcomers with a range of things, including citizenship and immigration questions.
There is also a question of how the bill will relate to travel agencies, which often help people apply for tourist visas. Would that be prohibited?
Then, in section 3 of my brief, I go to elements of a solution. One factor obviously is transparency. There ought to be transparency, and if there is transparency, then there will not be ghost consultants, by definition.
But I also refer to the fact there is an internal transparency system at present. When a person makes an application, at the end of the application form there is a question: who has helped you to prepare, to fill in, this application form? Our people always fill that in.
Also, if a person who does provide assistance wants to do any follow-up inquiry, they have to submit a “Use of a Representative” form, or a different authorization form that is signed by the applicant. So there is a significant internal transparency system, and I wonder whether it could be strengthened. There could be accountability requirements added to that transparency, and also investigative powers, and so on. That could go part of the way.
But then I go on to say that if there is to be a new regulatory system covering everybody who provides assistance with any kind of immigration work and charges even the smallest fee, if that is the system, then we would like to ask that it be structured with different gradations, first of all because there are significant differences in the level of complexity in immigration work. To apply for a tourist visa is fairly straightforward. To apply for permanent resident status in the family class, or even for humanitarian and compassionate consideration, is not too complex. Where it gets more complex is when one applies in the investor or skilled worker class, where it involves a provincial nominee program and so on. Then it gets much more complex.
One of the things that could be done may be that people who get certified to work at one level of complexity need not meet all the requirements or pay all the membership fees required to be certified for working at the higher level of complexity. That's one suggestion.
Another reason for gradations relates to enforcement. If every form of assistance on every immigration matter, where even the smallest fee is charged, and if everyone like this has to be fully certified, then there will be problems with enforcement. There will be ghost consultants, because people will do more such things under the table.
It should also be asked whether it is really wise to burden Canada's law enforcement agencies with the task of enforcing laws that prohibit every little thing where people are honest and there is no suspicion, where the only question is whether or not they are fully certified, and where there are no other questions about the assistance.
Those are some reasons why I think a system of gradations should be seriously considered within that regulatory body.
Then I have some concerns about what happens outside of Canada, because if this law is passed as it is, it would probably lead those consultants outside of Canada who are honest to stop working. Because they'll say, “Well, I'm not going to break the law of Canada, and I'm not going to do something that the laws of Canada don't allow”. So then the field outside of Canada will be left to unscrupulous consultants, because, as this committee has heard, the government really doesn't have much capacity to enforce the law outside of Canada. So in some ways it would really make things worse there.
Also, if consultants outside of Canada want to become certified, they will face even higher costs because of all the professional development trips they will have to undertake to come to Canada to take the courses, and people will be exploited even more.
Then I come to the last part, where I have some recommendations on the bill. Proposed subsection 91(1) reads, “Subject to this section, no person shall knowingly represent or advise a person for consideration--or offer to do so--in connection with”, and here I would like to ask for the insertion of one word, “prohibited”, so that it reads “with a prohibited proceeding or application under this Act”.
Now, why would that word “prohibited” make a difference? Well, it would immediately mean that not every small immigration proceeding or application would be subject to it. The minister would be required to provide a list of the kinds of immigration assistance, the immigration matters, whether that's a tourist visa application or a bit much more complex.
I have, I think--
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I'm certain that could come as a result of negotiation between the new regulator, if there is one, and CSIC. I will say, however, that you have to understand that this $1.2 million is still a fund that has not been properly funded.
Our actuarial studies in terms of the risk require a much larger fund. We have decided that in order to try to minimize the impact, or at least make it workable with a membership of 1,800 members, this has to be built over a five-year period. So when you are focused in on $1.2 million, I'll say that an actual fund that's going to provide the necessary protection--and remember, this only came in to 2008--is going to have to be in the order of closer to $4 million, given the number of people it's covering and in fact the impact of what Bill C-35 is going to mean, given that there's now a new offence. This means, most probably--and hopefully, if CBSA does what they're going to do--that there are going to be increased convictions and prosecutions of members, potentially, and therefore more payouts from the fund.
It's really a question of risk in terms of what the fund has to be, how big the fund has to be, and how that's built up over time.
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Actually, it would be in the consulting industry's best interest not to start from scratch. I agree with you that we must increase that fund and that $1 million is not enough. Perhaps we should go up to $4 or $5 million.
However, I don't see why it would be in the consulting industry's interest to start back at square one by starting a separate fund. In my opinion, it goes without saying that the fund should be transferred to the new body, if necessary, so that it takes over the one million that's already there. Obviously, I understand that the responsibilities also have to be transferred. We cannot transfer the funds and leave the responsibility to the former body.
I am not sure whether my colleagues see the matter in the same way. Some might see a potential threat if the association wanted to waste the fund already accumulated.
Anyway, whether it is your association or another one, we are still talking about the interests of the consulting industry. It would not be in the interests of any of your members to start a turf war or to squander the money in the fund and bring it down to zero.
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Yes, absolutely. CSIC, as you know, was created in 2004 as the result of a delegation of powers of the Governor in Council to CSIC to educate, accredit, and discipline its members. That's CSIC's power, CSIC's mandate, and that's in the public interest.
From 2004 to 2008, CSIC essentially was fighting an uphill battle, because the Government of Canada chose at that time to give a four-year hiatus to anyone who had an application in front of the government if they were a consultant: they could continue to practise without having to register with CSIC. So really, immigration regulation has only been in place, I would argue, since 2008.
As part of a contribution agreement that we signed with the Government of Canada, we were committed to establish a compensation fund. With everything else we had to roll out in the regulator, it simply was not possible to start establishing that compensation fund until 2008, so the fund itself has only been in place since 2008. However, I must say that a full errors and omissions policy on every member, which is mandatory, has been in place since 2004 for members of CSIC.
I think it's important that the committee understand that full-blown regulation, as limited as it is, post application being received by the minister, has only been in place since 2008. In fact, it just came into effect around the time that the standing committee issued its last report.
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Having been a member of the minister's advisory committee on the regulation of consultants--one of the 15 members, including the treasurer of the law society--that recommended initially this model to the minister, I can tell you, Mr. Dykstra, that I'm very happy the government has listened to us, finally, as over the last six years we've been asking for a specific penalty with respect to immigration consulting.
We at the regulator have been fighting an uphill battle because people have not had to be a member of CSIC. So we've had an involuntary system where you've had good consultants, who have decided that they're going to go through competency testing and are going to prove that they're good consultants, honest consultants, and were willing to pay the freight, while their competitors just around the corner were allowed to trade, advertise, and continue to do so with the blessings, in many cases, of the CIC and the department.
We're very happy with that aspect of the bill, so I want to congratulate the government on that.
Secondly, the other frustration we had was with the exchange of information. We want to congratulate the government as well on the fact that you finally got around the Privacy Act where you can actually share information with the regulator.
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I think the one concern we have with this, Mr. Dykstra, is the issue of the judge and the representative and the role that representative performs in front of the minister. Our members have to represent their clients in front of the minister, much in the same way as a lawyer would have to represent them in front of a judge.
The provincial government has dealt with this. We've recommended in the CSIC submission we made to this committee a slight adjustment in what you're trying to do, which I think will provide for.... In fact, we welcome being accountable, but we think the accountability has to be along a different line, specifically so that.... The members appear before the immigration minister, which essentially creates, in my view, a question of independence and a question of undue influence on the members.
It would be much better, in our view, that CSIC report to the justice minister, potentially, or to another minister of the crown so that they can be held accountable, report to standing committees, annual reports.... Whatever the accountability mechanisms, I think you're going to find CSIC will be very supportive of that.
We do have some concerns, though, Mr. Dykstra, about the regulator being beholden with just a change in a Canada Gazette notice: today you're the regulator and tomorrow you're not. It creates instability, it creates doubt in the marketplace, and it devalues the hard-working immigration consultants who have gone through the process that is saying they're competent.
:
The only problem, Mr. Janzen, is that a lot of people are doing that. That's why we had to introduce the legislation.
I understand your issue, and I wanted to pursue this a little bit further, because I realize, and many of us realize, the good work that the organization obviously does. But within the context of the bill, it actually does allow and extends to individuals offering advice if they are members in good standing of a provincial or territorial bar, the Chambre des notaires du Québec, or a member of a body designated by the Minister of Citizenship and Immigration. It also allows not-for-profit organizations or individuals who are friends or family of the individual to assist them in the process.
So it does provide for some exemptions. One option would be to fall within one of those guidelines. You wouldn't be charging a fee to any of those folks you would be helping, but if you are a not-for-profit organization, you would in fact be able to assist individuals or families.
There's another option, and I don't think it's necessarily a bad one. Why are you opposed to becoming a registered organization or a registered consultant who would report to the newly formed regulator body. Why not just become a member of it and continue to do the work you're doing?
:
This is an issue that has been confused by many members of the committee. Statutory self-regulation is really an act that empowers the body to have certain powers, competencies, etc., similar to the MARA, to the Migration Act. It empowers. There's a whole section inside the act that creates a statutory self-regulatory body.
What we have in Canada is a self-regulation, part II, Canada Corporations Act. I saw that the committee had recommended this in the last thing. Well, that's already what you have in CSIC. The new body, whether it be CSIC under the current process, or a new body, will still be a part II Canada corporation, so you're still talking about regulation by inference. There is a body of law with the Federal Court of Appeal, the Federal Court, and the Supreme Court that now supports the government's ability to do that in terms of regulation by inference, in terms of delegating the authority to a private corporation.
Mr. Rick Dykstra: Well, I--