[Recorded by Electronic Apparatus]
Tuesday, May 9, 1995
.1111 
[English]
The Chairman: I'd like to thank Mr. Mayfield for sitting in with us. We appreciate his presence here. Without it we wouldn't have a quorum. Thanks, Phil.
I'd like to welcome Mr. Grant and Mr. Brooks, from the department. They are going to give us an initial briefing on the issue of immigration consultants.
Gentlemen, thanks for coming.
Mr. Brian Grant (Director, Control and Enforcement Policy, Department of Citizenship and Immigration): I'll start, if I may, with a statement of the issue and a bit of the history of the issue. I'll start by saying I'm quite looking forward to what the committee does with this issue. It's an issue that's been around for a rather long time. As you'll see from the attempts we've made to deal with it over the years, it's a difficult problem to resolve to everyone's satisfaction.
I've been asked - and I think it came from the committee - to talk about the current law, the nature of the problem, the constitutional aspects of it, the various options we've looked at for reforming the federal law. It includes some provincial options we've looked at as well. I'll go through it in that order.
In the current law the role of counsel is defined by immigration legislation only in certain instances. The Immigration Act provides for the right to counsel before an adjudicator, before the refugee division of the IRB, and before the appeal division of the IRB. Counsel is defined in the act as a barrister or solicitor or other counsel, which could include a lay consultant, a member of a non-governmental organization, a relative, or a friend, who could represent somebody either for a fee or for free.
The Immigration Act provides the authority for the Governor in Council to limit or prohibit non-lawyers from appearing before all immigration tribunals for a fee; actually, to limit anyone appearing before these tribunals for a fee unless they have been duly licensed. As we will see in a minute, while this authority to make regulations exists under the act and has existed since the mid-1970s, regulations have never been promulgated on this aspect.
About the constitutional aspect, the regulation of professions and businesses, which would include consultants, is a provincial responsibility. However, the federal government has the authority under the act, as I said, under subsection 114(1), to require that immigration consultants have a licence before appearing before immigration tribunals. So there is a mix of jurisdiction there. Currently no licensing authority exists, either at the provincial or at the federal level, for lay consultants.
There has been, of course, considerable media attention over the years on the subject of immigration consultants involved in unscrupulous behaviour, even illegal activities. There is no real evidence to suggest non-legal consultants are any less scrupulous than legal consultants. The difference, of course, is that with legal consultants there are law societies that can govern their behaviour and take disciplinary action against them, whereas with the lay consultants there are no bodies to perform this.
The origins of lay consultants vary widely because there is no licensing, and no training or qualifications are required. Just about anyone can become an immigration consultant. Some of them are ex-employees of the immigration department. Some of them are refugees. Some of them just decided this was a business they wanted to get into and they got into it. Basically all you have to do is hang a sign up out in front and print up a business card, I suppose, and you're away.
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Lay counsel charges fees for drafting documents and for filling out applications. They attend client interviews in our offices. They represent their client's interests to immigration officials and before immigration tribunals, but not before the federal court.
The data on consultant activities is fairly scant. In 1991, there were about 54,000 immigration inquiries held. Of those, only 11% of the clients were represented by lay counsel. The following year, 1992, the percentage had dropped to 8%. So when we look at the authority the act now gives us to regulate consultants, one of the difficulties we see is that if we were to put regulations into place stating that one had to be licensed before one could appear before an immigration tribunal, we wouldn't capture very much of the activity - only about 8% of the inquiries.
In terms of the complaints against consultants, they usually fall into two categories. One is unscrupulous, although not unlawful, practices. That would include charging exorbitant fees, providing poor service, or failing to submit documents on behalf of their clients. The second would be criminal and illegal activities, which include supplying false documents, misrepresentation and other fraudulent activity.
Without a licensing system, the federal government can do little to control the first type of complaint - the unscrupulous behaviour. It's not illegal to charge a high consultant's fee; if somebody wants to pay it, we have no authority to prevent it. With respect to the criminal and illegal activities, however, we work very closely with the RCMP in an ongoing effort to control this and to prosecute anyone who has been committing illegal activities. A person can be prosecuted either under the Immigration Act for aiding and abetting someone to contravene that act, or they can be prosecuted under the Criminal Code.
In addition, illegal activities or unscrupulous activities often take place abroad as well. There is therefore a question of jurisdiction for consultants, either Canadian or foreign, operating in another country. Our experience is that other countries have not been keen to pursue activities of this nature because they feel it's basically our problem - they're coming into our embassies and we should deal with it if it's a problem.
If I can, I'll give you a quick, potted history of the issue. As I said at the outset, it goes back a long way, in fact to the early 1970s, to when the role of consultants began to become a major issue. Several studies at the time concluded that some fee-charging non-lawyers were exploiting both clients and the immigration program. There was an agreement in the mid-1970s, as we worked on what became the Immigration Act in 1976, that provisions should be put in to control the activities of immigration consultants, preferably by means of a licensing system aimed at competence and fee schedules. That led to paragraph 114(1)(v), which allows us to set regulations for licensing. However, it proved impossible at that time to reach agreement on the details of the licensing system - notably, who should administer it. It was left as a subject about which regulations could be drafted but, as I said earlier, they never have been drafted.
In 1981 a report entitled The Exploitation of Potential Immigrants by Unscrupulous Consultants was given to the Minister of Immigration. I only have a copy of this report in English, but we can provide a copy of it to the committee if it's helpful.
The report recommended four courses of action. The first was the production of a profile of immigration consultants. A profile was produced; however, no follow-up was done on it.
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The second was community projects. The community projects would assist NGOs to become more familiar with immigration procedures so they could provide accurate and useful counsel to intending immigrants. There were a number of projects proposed in that report, but they did not receive funding to go forward.
The third recommendation was the production of a multilingual pamphlet to warn prospective clients of the activities of consultants and that they should be wary of whom they employ. This pamphlet was produced as a result of the recommendation, but it has now gone out of print.
The fourth was to encourage the RCMP and/or local police forces to prosecute consultants involved in illegal activity, and as I said, this has been an ongoing activity.
The report resulted in an attempt to reduce unscrupulous behaviour by producing and distributing information brochures to the general public. Warnings were given to immigrant communities, both at home and abroad, about the risk of dealing with so-called consultants. The department once again pointed out that there was a risk in dealing with these so-called consultants and that advice was available free of charge from the department.
In 1985, the then Minister of State for Immigration approached the Ontario government as part of the Portuguese refugee claimants issue of the time. The Ontario government was asked whether or not it could take steps to deal with the consultants who were counselling large numbers of Portuguese to make refugee claims on the basis of persecution as Jehovah's Witnesses. The province indicated they were only interested in supporting federal initiatives, so it ended there.
The following year, in 1986, a private member's bill was introduced in the Ontario legislature proposing a comprehensive scheme for regulating the education, discipline and conduct of independent paralegal agents, including immigration consultants, who do not work under the supervision of lawyers. That bill died on the order paper of the legislature.
The same year, the Law Society of Upper Canada recommended that any immigrant consultants permitted to operate in the province of Ontario be licensed and be required to practise under the auspices of a law firm. The province responded by creating a task force - the Ianni task force - to study the issue of licensing paralegals.
In 1988, the then chairman of the Immigration and Refugee Board wrote to the Minister of Immigration of the day proposing that immigration consultants be licensed in order to appear before the IRB.
In 1989, the Ianni task force in Ontario recommended to the Ontario government that it strictly regulate immigration consultants and other paralegals. The task force also recommended that the Ontario government set up a registry to ensure paralegals would meet minimum standards.
In their submission to the Ianni task force, the Law Society of Upper Canada recommended that independent paralegals ought not to be allowed to appear before the IRB.
Nothing came of these recommendations in the form of legislation in Ontario.
In 1991, a group of consultants organized themselves into an association that became known as the Organization of Professional Immigration Consultants Inc. This was the first time that consultants had tried to organize themselves into a body. It began initially in Ontario, and I believe it has since added a couple of members overseas. It has expanded into British Columbia - or at least has an affiliate association in British Columbia - and in Quebec there is a nascent organization or membership wing of this organization. The organization is registered as an association with the Government of Ontario.
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In 1992, about the time of Bill C-86, the provinces were advised of the federal government's intention to move on paragraph 114(1)(v) and to require that in order to appear before tribunals all consultants would have to be licensed.
The provinces responded in varying ways. The smaller provinces, Saskatchewan and New Brunswick, for instance, stated that there would be minimal or no need for regulation in their area because there was not a sufficient number of consultants operating to go to that expense. British Columbia felt that it was inappropriate for the province because, although it could see that it was jurisdictionally within the province, they thought it was inappropriate for the province to regulate the conduct of consultants acting within the confines of federal immigration tribunals. Quebec indicated some interest but has not pursued the option, to my knowledge. Ontario was prepared to explore the notion of licensing and regulations but wanted to have full federal funding before proceeding with anything along these lines.
So given the lack of interest shown by the provinces in taking over responsibility for regulating consultants, and given also the realization that even if we went in this direction we would capture very little of the activities of consultants, the federal government did not proceed any farther in that direction.
We have maintained regular contact with the Canadian Bar Association and we have also met with OPIC, the Organization of Professional Immigration Consultants, on a number of occasions to discuss the issue.
We have looked at several options over the years, four options in fact, which seem to be the options available at the moment. I'll run through these in order to give you some indication of what we discovered.
The first is basically to proceed with the power that now exists under the Immigration Act, the argument against that being, of course, that it really doesn't address much of the problem.
The second option is to ask provinces to license. The major drawback of this is that it's likely to have a limited effect, certainly under the current powers, and the provinces did not show great enthusiasm for moving into the field of licensing.
The third option was an option we looked at that was tried in Australia. The Australians have set up something called the migration agents registration scheme, or MARS. This is an appointed board of officials who are empowered to examine complaints made against consultants, or migration agents, as they're referred to in Australia. They have the power of investigation to look into allegations made against an agent, and they also have the power to suspend the agent or to revoke the agent's licence to practise as a migration agent in Australia. All migration agents are required to be a member of the scheme and they pay a yearly fee - I think it's about $1,000 Australian - in order to be a member. It applies to legal and non-legal migration agents working in Australia, so lawyers also have to register with this scheme.
The scheme has been running for two years now. The Australians found that they underestimated the cost of running such a scheme and that the fee that is charged doesn't go very far toward covering their costs. They have a secretariat, which is part of the immigration department, which supports the activities of the board, and it has grown to 11 people, 11 FTEs, in order to support the work of the board.
In terms of the number of complaints in the first two years of the scheme, they have had 500 complaints and they found that the complaints have increased in number in the second year. Once people got used to the fact that there was this scheme and there was a mechanism to make complaints, the number of complaints rose. They are spending a considerable amount of resources just to support the activities of the board to investigate these.
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When considering the various options, we have looked at two criteria that we think are essential to try to navigate between. One is the question of resources; we would like to find a method that is resource neutral and certainly would not run to the the expense of something like the migration agents registration scheme in Australia.
The second is that we have been concerned for a number of years with avoiding liability on the part of the federal government for appearing to endorse the activities of consultants who might then act unscrupulously. If somebody was not properly treated by a consultant they could then sue the federal government for appearing to have endorsed the consultant.
The scheme in Australia certainly violates the first of those two criteria; it is very expensive to operate. The Australian counterpart of this committee was to have completed, in March or early April, an investigation of the scheme in its first two years to see how well it was working. I had asked that the committee's report be sent to me but haven't seen it yet. I'll certainly inquire after this meeting as to where it is and would be quite happy to pass that on to the committee for its information.
The fourth option we have been exploring, which shows some promise - though we haven't looked into all aspects of it - is some form of self-regulation of consultants. The notion would be to set up some sort of scheme analogous to the way lawyers regulate themselves through a law society.
What we would look at would be to recognize any association. Right now, to my knowledge, there is only one association but there's nothing to prevent other consultants from forming similar associations. We would look to the association to regulate its own members and recognize the association as an association able to represent clients before the immigration department. Such an association would be held responsible for ensuring that complaints were investigated and that the rules were enforced against any unscrupulous behaviour.
If the association failed to take appropriate action, and that would obviously have to be defined, then the power would rest with the government to de-list the association and all members of that association. Essentially such a scheme encourages the ``good'' members of the association to discipline the ``bad'' members of the association, in their own self-interest.
There would probably have to be some form of agreement between the association and the federal government, perhaps a memorandum of understanding. We would want to identify the aspects that would go into such a memorandum of understanding. Again, we haven't completed all our thinking on this. The committee may be able to guide us on this. We would obviously have to define what was an acceptable association. You couldn't have two people getting together and calling themselves an association. You'd have to define the critical number and critical criteria that would make up an association.
There would have to be some code of conduct for members of such an association to adhere to and some mechanism for hearing complaints and taking disciplinary action against members as a result of any of those complaints that were found to be valid. There would also have to be some sort of liability fund for anyone who lost money to an unscrupulous consultant - possibly education programs or training programs for members or some sort of knowledge criteria for people to be members of such as association.
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I was mentioning to the research staff before that the Australians, under their scheme, required everyone to be registered under the MARS scheme. In order to be registered as a consultant, you had to have five years' experience. Then they realized they had a closed system and nobody new could ever come along and even get the five years' experience, because it was illegal to work as a migration agent, so they couldn't qualify.
So they have set up a number of courses through various schools on the immigration act and representing clients, and they have examinations for people to qualify.
An association might be able to do that, or there might be a way of ensuring that the people who call themselves consultants and are members of an association in fact know what they're talking about and are able to give sound advice to their clients.
In terms of the resource implications for the federal government, it seems as if a scheme such as this would require fairly minimal resources. The association would be required to take care of all complaints and the investigation of complaints and discipline.
We still do not have a legal answer on the question of liability, on whether the government, by recognizing the association, would in fact be liable for any members. So that would have to be looked into.
Those are the four options we've looked at over the years and what we have concluded on them.
I'll stop there, if there are some questions.
[Translation]
Mr. Nunez (Bourassa): I'm sorry I'm late and I would like to congratulate you for your presentation. You seem to know the problems very well. It's a rather important and sometimes serious question.
I've had a lot of complaints especially from Montreal and as far as I'm concerned the government must do something either through administrative or legal means.
Could you give us figures for the whole of Canada - I don't know if you've given them already - on the number of consultants by province and by main urban centres in Canada? Do you have that data?
Mr. Grant: I don't have those figures with me. I can give you an approximation for the number of consultants across Canada. I imagine that most of them work in the three big urban centres of Montreal, Toronto and Vancouver but I'll find them for you and send them to you.
Mr. Nunez: My second question concerns jurisdiction and whether it's federal or provincial. In my opinion, it's mainly provincial because the provinces regulate the professions like Quebec through its Office des professions. Could you enlighten me and tell me whether this is an exclusive provincial jurisdiction or whether it's shared with the federal level?
Mr. Grant: In my opinion, the jurisdiction is provincial because consultants come from the professions. But the federal government still has the possibility of limiting access to its offices in Canada and perhaps elsewhere in the world. It's a legal question and I'm not a lawyer.
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Under the Immigration Act in force since 1976, the government has the power to demand that consultants have a license to practice.
[English]
Mr. Nunez: Mr. Chairman, since this is a very important question, could you ask for some legal advice on the question of jurisdiction? Could we invite somebody here?
The Chairman: We could do that.
Ms Margaret Young (Committee Researcher): It's covered to the extent that it can be in here, as Mr. Grant has mentioned.
[Translation]
Mr. Nunez: Do you have any idea of the number of complaints submitted to immigration offices by clients, lawyers or organizations about these consultants?
Mr. Grant: I don't know how many complaints there are. There are some, of course, but in every case we ask the RCMP to investigate. When complaints seem valid, the consultants working illegally are charged under the Immigration Act or the Criminal Code.
As to complaints against consultants who lack professionalism, we don't have any powers to settle them. We can only advise clients to be vigilant when they hire one.
Mr. Nunez: What kind of follow-up do you have once a complaint is made? Do you advise the RCMP?
Mr. Grant: Yes.
Mr. Nunez: Are criminal charges brought? Do you have an example you can give us either still before the courts or where judgement has already been passed?
Mr. Grant: This is a question that has more to do with the RCMP. However, I can give you an example. A consultant handing in a fraudulent document for one of his clients would be committing a criminal act and could be charged before the courts. Two or three weeks ago, a Toronto consultant was convicted for that offence.
[English]
He was convicted of twenty charges of criminal activity.
[Translation]
Mr. Nunez: Is he in jail?
Mr. Grant: Yes, he's in jail today.
[English]
The Chairman: Was it for fraud?
Mr. Grant: It was for illegal activities, fraudulent activities. I can get the reference. It was reported in the Toronto newspapers about two weeks ago.
So they do exist. There are prosecutions that take place all the time. The RCMP will look into accusations and will have to decide whether there's sufficient evidence to proceed against somebody. It's not true in all cases that there is, but where there is the RCMP will proceed, as I said earlier, under either the Immigration Act or the Criminal Code.
[Translation]
Mr. Nunez: You mentioned Australia's case and I found it rather interesting. We'd have to get documentation on Australia for further examination.
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Do you know any other countries that have legislation or regulations on the profession of immigration consultant? How about the U.S.A., New Zealand or European countries?
Mr. Grant: I could give the Committee a few examples
[English]
of experience in other countries such as the United States, the United Kingdom, and Australia. The United States does not regulate immigration consultants per se, but it does limit those persons who may represent someone in immigration proceedings, so it's similar to the authority we have under our act.
Persons entitled to representational privileges include attorneys in the U.S., law students, law graduates, reputable individuals provided they appear on an individual basis without remuneration and have a pre-existing connection with the person concerned, and accredited representatives and officials. Certain organizations may also qualify for official recognition in order to designate accredited representatives.
In the United Kingdom there is no legislation regulating persons who give immigration advice or assistance for a fee, and there are no rules concerning persons assisting clients in their dealings with immigration authorities. In the U.K., however, as with the case in Canada, section 22 of the U.K. Immigration Act does allow for the establishment of procedural rules and a statutory instrument limiting representation to certain categories, which include barristers, solicitors, consular officials, and representatives of the United Kingdom Immigration Advisory Service.
Australia, as I said, has a scheme that was instituted in September 1992.
[Translation]
I have the documentation for the Australian program.
Mr. Nunez: Could we get copies?
Mr. Grant: Absolutely. Unfortunately, they are in English only.
[English]
The Chairman: Maybe you could give it to our researchers and they could summarize it and provide at least a summary in both official languages.
Mr. Grant: We have quite a few fact sheets here that have been produced by the Australian government. As I say, I have asked and I'll pursue with our mission in Canberra to see whether they have the report of the standing committee in Australia that was looking into it. I'll provide that to the committee as well.
The Chairman: Does that suit you, then? We'll provide it to the researcher and they can summarize it.
Mr. Nunez: Sure.
The Chairman: Your ten minutes are up.
Mr. Assadourian.
Mr. Assadourian (Don Valley North): I have a few quick questions and then I have one or two other questions.
You mentioned 54,000 inquiries. Does that include the MPs' inquiries to the board?
Mr. Grant: Those are inquiries before an adjudicator. They are immigration inquiries where people are taken to inquiries.
Mr. Assadourian: The other point I want to make to you is that I have met some of these consultants with their clients. They come to my office, and often these people are paid in cash. When you make the charges or when the RCMP investigates, do they investigate also how they were paid, if they paid income tax on a cash receipt or anything, or is it just the legal aspect of it or fraudulent activities such as forging documents or whatever?
Mr. Grant: I can't answer that question. I think the RCMP would have to assist you on that. I don't know the answer.
Mr. Assadourian: What's the main difference you see between an immigration consultant and other consultants who work in other industries? Is there a difference among them as you see it?
Mr. Grant: An immigration consultant, unlike a consultant in other industries, I suppose does have the possibility of representing somebody before a federal tribunal. A consultant who is - I'm hesitating because of the definition of a consultant. A doctor can be a consulting physician. A consultant can provide communication advice, policy advice, management advice -
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An hon. member: Political advice.
Mr. Grant: Political advice. The consultant has such a wide -
Mr. Assadourian: One sure thing they have in common is that they all get paid.
Mr. Grant: Certainly, yes.
Mr. Assadourian: Somehow they have regulations that more or less govern their activities. But in this document, the very first page shows us that we've had this problem for 20 years. You mention four different options here.
In the last 20 years why was not a single step taken to correct the situation? If you know some of the solutions - the proposals you make, the four options - how come not a single step was taken in 20 years? People were being ripped off right and left. I know people who paid $7,000 cash to a consultant and who haven't a single paper to show for it.
Mr. Grant: I don't think it's true that nothing was done for 20 years. As a result of the 1981 report a number of steps were taken, including counselling applicants to be careful of whom they employed to represent them. I suppose the message was one of caveat emptor, of telling them that they didn't require the services of a consultant in order to deal with their application, and that our officers were there to answer any questions they might have, but that if they did choose to employ somebody to represent them they should - as they should be when employing anyone - be very careful who they give their money to.
There were steps taken in the mid-1970s to provide the authority to limit access for consultants. We were never able to agree on the question of how we would proceed with that or whether that would really address the problem you've just raised, which is the problem of people giving $7,000 and getting nothing in return. It would not be addressed by the legal authority we currently have. It would appear, as was discussed earlier with Mr. Nunez, that it is a provincial jurisdiction, although the provinces don't seem interested or able to decide exactly how to proceed.
Ontario has done a considerable amount of work on the question and has gone beyond immigration consultants to deal with the paralegals generally. We're not able to determine how to go. The Australian system is an interesting system we're looking at. Self-regulation is a system we're looking at. I suppose it would require the federal government to move into a vacuum that exists, because nobody else is regulating it.
Perhaps there are easier solutions that could have been followed. One would be to require that all consultants - again, you limit the activity you're getting at, which would not include the activity you mentioned - work through a legal firm and that only lawyers represent clients before tribunals. There's a question of whether you want to drive lay consultants out of business. Some of them are very reputable people. Some of them are unscrupulous. I suppose the same is true of lawyers.
So it's not for want of trying that nothing's been done, but a number of activities have taken place. It's a difficult problem to deal with because the resource implications of dealing with the industry are quite high.
Mr. Assadourian: Are the professional consultants associations in favour of regulating themselves? If they had a choice, which one would they prefer to have?
Mr. Grant: They are very concerned. I gather the reason they set up the association originally was out of concern with the reputation immigration consultants have. As I understand it, one of the goals of the association was to provide some sort of standard of activity for the immigration consultants who were members of that association. In my discussions with them, they are as concerned as others are at the unscrupulous activity of consultants. They would like to take some steps to address it and are willing to cooperate in trying to find the best way of going about it. But their main concern is to deal with the unscrupulous consultants who tarnish their image as well.
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Mr. Assadourian: Which step would they rather have of the four options you mentioned? Would it be the Australian option? What do they want to do?
Mr. Grant: I can't speak for them regarding what they would choose. I think anything that would accomplish the goal would make them happy. If there were some system of provincial licensing, I'm sure they would be happy to comply with whatever requirements there would be to be licensed. If there's a federal licensing scheme like the Australian one, I'm sure they would be happy - or it may be self-regulating.
I can't speak for them. I don't know whether their committee is going to speak to them. They obviously want something that works. They could talk about which option they would like.
Mr. Assadourian: But they haven't put a specific program or proposal for your consideration?
Mr. Grant: They did talk to us a couple of years ago about self-regulating, such that we would recognize the association. Our concerns at the time were twofold. One was whether there was a sufficiently workable disciplinary mechanism. Could they discipline their own members? How would they go about that?
Second, there was this question of liability, which is a fairly subtle legal question to deal with. It's whether we would appear liable for recognizing the association.
Part of the reason they formed was to try to give some respectability to their members. They asked whether we could recognize them in some way. They didn't know exactly how, but they wanted their efforts to be recognized.
Mr. Dromisky (Thunder Bay - Atikokan): It's a very complex problem, as I see it. Some 20 years have gone by, and another 20 years will go by without any kind of a resolution to these problems. There has to be, in my mind, some kind of formal admission strategy into this kind of occupation. Simply because I've been sitting on this committee and I know something about immigration doesn't justify my assuming a role as a consultant for people who are in trouble or who need advice and counselling. To me, that's being a charlatan.
Anybody who's been in involved in the Department of Immigration is going too far in assuming that kind of role, simply because they are playing games with people who are in a very precarious position because they don't know anything, they are vulnerable and can easily be misguided. There is no doubt about that. They could take advantage of them.
Even though we say we are very sincere, we still could do a great deal of damage because we are ignorant of changes, rules and regulations, little innuendoes, double meanings, acts, and everything else. In other words, we're not as good as we think we really are, and somebody is going to suffer.
I would like to see possibly a very formal key to entering this profession, which could possibly be some type of diploma that we could offer. Have the community colleges become involved in this? Have they made some attempt to present a two-, three-, four- or five-course diploma before somebody can actually become involved in this activity?
An hon. member: Like real estate.
Mr. Dromisky: Yes. We all call it a licence, but they don't give licences. It could be a diploma from a community college; not a degree, but a diploma.
Mr. Grant: I'm not aware of any effort by community colleges along those lines. I would suspect that it is a question of supply and demand. If there was a requirement to meet certain licensing standards, then we might find that courses might grow up as a result of that.
For instance, if the Ontario government had been successful in its attempt to regulate paralegals generally, the education industry probably would have followed suit and provided courses. But until now, no. Literally anyone can become an immigration consultant from having sat on a parliamentary committee or perhaps not even having that much knowledge. They could just put out a sign and print up some business cards. There has really been no impetus for people to offer courses.
Mr. Dromisky: I realize that it's practically impossible to get all the provinces to agree to any kind of plan. But possibly, Mr. Chairman, the federal government should consider a federal move in introducing and supporting a model of that nature; in other words, a five- or a three-course diploma, whatever, and have some agent, such as a community college, deliver that program for the federal government.
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Mr. Grant: The only courses I'm aware of are training. They are not really courses, but training offered by the Canadian Bar Association to its members. Also, the organization of professional immigration consultants offers courses or training to its members; if any changes are announced as part of the Immigration Act, then they will set up training programs for their members. Those are the only courses per se that I'm aware of.
Mr. Dromisky: Do they do them themselves?
Mr. Grant: They do them themselves. Often, certainly with the Bar Association, members of the department will be invited to explain changes to regulations or to legislation.
Mr. Dromisky: That's not the best model, of course.
Mr. Grant: Those are the only ones I'm aware of.
I'm obviously leaving out all schools and training for lawyers just as ongoing training.
Mr. Dromisky: I think lawyers should not be the people involved in this kind of program.
Mr. Grant: No. I was just saying that courses in immigration law exist at law schools, but we're talking beyond that.
Mr. Dromisky: I'm talking about a specialized program, not a three-hour course once a week for thirteen or fourteen weeks and then they qualify. Most of the time the students are not there anyway. What was presented in a lecture last week they have forgotten this week. I'm not talking about those kinds of courses. They are very meaningless and they are not of much value. I'm talking about an intensive, specialized program just for this purpose.
Mr. Grant: The experience of the Australians was that when they set up their registration scheme and discovered that they couldn't get new people in, because they couldn't get the five years of experience, courses were set up. I believe they were set up at the Australian equivalent of community colleges, to offer courses in immigration law. So the supply follows the demand.
Mr. Dromisky: What we're saying is that the first community college in Canada that sets up a program should have quite a few applicants.
Mr. Grant: What we're saying is that they wouldn't have any applicants until it was a requirement, to practise as an immigration consultant, that you met some sort of standard.
Mr. Dromisky: Yes. We could demand it from this level since it's a federal responsibility and not a provincial one.
Mr. Grant: That's a grey zone on which Mr. Nunez has asked for legal clarification. They are acting as professions, so you would think they would be covered by provincial jurisdiction, although they do appear before federal tribunals and in federal offices.
The question then arises: does the federal government have a right to limit who may gain access to its offices and represent clients before it? That's where we believe there is room for the federal government to act. Certainly, if the provinces are not interested in acting, the federal government would be justified in acting in those circumstances.
Mr. Dromisky: I'm sure they can come up with a thousand obstacles to this problem, no matter which level we look at, whether it's provincial or federal.
I strongly believe, as other members of this committee believe, that something has to be done. We can't just be sitting on our rear ends and saying that it has gone on for 20 years and these are the problems here, and we can't do this and we can't do that because of various regulations. Either we must go in this direction and demand some type of program of formal training or we must go all the way in that direction and say that it requires university training and in a law degree there has to be a component and only those people with that component can be involved in consulting - and wipe out all other consultants. Nobody should be allowed to be providing consultant services unless they are knowledgeable and qualified. Too much damage is being done.
Mr. Assadourian: I have one quick point, on page 5 of this document.
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Mr. Grant: I'm sorry, I'm not sure which document you're referring to.
Mr. Assadourian: Immigration Consultations.
Mr. Grant: I don't have a copy of that. But go ahead.
Mr. Assadourian: In the middle of the page it says every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel. If you drop the words ``or other counsel'', I think it solves most of your problem. What's the difficulty with dropping the words ``or other counsel''?
It's the same thing with the second paragraph. It says ``or an agent''.
Is that a difficult thing to do? I'm not a lawyer.
Mr. Grant: From a drafting point of view it's not a difficult thing to do. The implications are that somebody would have to be represented by a barrister or solicitor, or not be represented. So it would mean you couldn't be represented by a consultant who is being paid. But similarly, you couldn't be represented by a member of your family. You couldn't be represented by a friend who wasn't being paid. You couldn't be represented by an NGO that wasn't being paid. You would cut all those people out. That is the implication.
Mr. Assadourian: I'd rather cut those out than have the poor guy paying $7,000.
The case that still bothers me.... This person was from Greece. He applied for refugee status from Greece to Canada. He paid a consultant $7,000 cash, which he has nothing to show for. How crooked can you be?
Mr. Grant: I'm not sure what he paid $7,000 for. If he paid $7,000 for the consultant to represent him at his refugee hearing -
Mr. Assadourian: Yes.
Mr. Grant: - then either the person was there representing him or he was not representing him. If he was there representing him, then the question is did he do a good job or did he do a terrible job? He might have paid $7,000 to a lawyer who did a bad job. In your case, I'm not sure what the $7,000 bought him.
Mr. Assadourian: I'm sure if you go to a lawyer and say, listen, I'm from Greece and I want to claim refugee status, the lawyer would more or less say you're out of your mind. But because this guy is a consultant, he's not accountable to anybody. He just takes the money and next week he closes shop. He has $7,000 cash.
An hon. member: Lawyers have been known to do that too, on occasion.
Mr. Assadourian: I'm not a lawyer. I don't know.
So what's the difficulty with dropping ``or other counsel''? Is it just that the family cannot represent...? Is that the idea?
Mr. Grant: That's right.
The Chairman: May I interject here for a second? What you're basically asking for is that just lawyers or people who aren't doing it for money would be able to appear in front of the federal government. We'll be hearing evidence from other people who will talk on behalf of the scrupulous consultants, who say, don't put us out of business, don't prevent us from.... We're going to have to come to some sort of conclusion once we hear all the evidence.
Mr. Grant: If you were to do something like that, you wouldn't put unscrupulous consultants out of business. As I mentioned earlier, only about 8% of those inquiries have lay consultants appearing for pay. So they wouldn't appear. They'd have to work through a lawyer, perhaps. A lawyer could appear. But they could still represent clients, fill in documents, make applications, and do a number of things that concern everyone. You wouldn't be addressing that. All you'd be addressing is appearances before tribunals.
What you're suggesting is very simple. The authority exists within the Immigration Act to do that now. But it's not clear that would really address the problem.
Mr. Assadourian: How about education for new immigrants? When you apply for it...don't do this, don't do that, don't go after this kind of consultant...just educating the newcomer. You mentioned that earlier.
Mr. Grant: We did that in the past. I don't think we'd do it any more. For quite a while we did do that.
Mr. Assadourian: Why did we drop it? Did it not work?
Mr. Grant: It went out of print. I don't think there was any decision not to do it. I'm not aware of what counselling we provide when somebody applies. I can find out. I believe we give oral counselling, though I can't swear in all cases we do, that we will answer any questions. There is no requirement to obtain a counsel. They're permitted to have an agent if they wish.
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Mr. Assadourian: Most people who go to these consultants who work in the country illegally give them cash. It's the underground economy. I think it's big money. Personally I think we're doing something wrong if we haven't gone after this and stopped it after 20 years.
Mr. Grant: I'm not disagreeing with the problem. I'm just pointing out some of the limitations of the options we've looked at. Yes, we could move, but would it actually address the problem? Our concern is to address it but not to make a bold step and really not solve anything.
We could limit access to tribunals and say we've taken care of consultants when we wouldn't have dealt with the problem at all. We could make a bold step and clear the way for lawyers if they want to pick up those 8% of cases, but they may not and it really wouldn't solve the problem.
Mr. Assadourian: What's your personal choice? How would you handle it? I'm sure there is no problem in the world that cannot be solved. To everything we propose you say it can't be done this way; it can't be done that way; this is difficult and that's not. What's your choice? How would you solve this problem?
Mr. Grant: As a civil servant I don't think I have personal choices.
Obviously we work within certain limitations, and I mentioned them earlier. The government, and the people of Canada by extension, do not have enormous sums of money to solve this problem. Perhaps we could set up a scheme of registration with licensing, exams and investigative boards that would look into all complaints, but it would cost an awful lot of money. I don't think we can afford that. That may be a wonderful solution, but it's not a realistic one.
So for that reason and certainly on that criterion I would lean toward self-regulation. If we can find associations that seem to be respectable and honest that will police themselves, let them pay to ensure people are properly trained and licensed and there is a mechanism for looking into complaints.
We could look at how well the associations were doing their job. That seems like a cheaper way for the taxpayers of Canada to make the people who benefit from this activity pay for their own disciplining. The legal profession does that. There are law societies that take care of its ethics and behaviour.
The second criterion - and it's one I don't know the answer to - is that obviously by doing this you want to make sure unscrupulous consultants are not able to operate and honest consultants are able to operate. But in doing so you don't want to open the government to liability for appearing to give a stamp of approval.
It's quite possible that somebody who is a member of an association that has been duly recognized may commit an illegal act, for whatever reason. You want the person to be prosecuted and thrown out of the association, but you don't want the person who made the complaint to turn around and also sue the federal government because he or she lost $7,000. There has to be a mechanism to ensure people get their money back, but not necessarily from the government. So if an association must have a liability fund, there is some recourse to somebody who has lost $7,000 and received no service as a result of it, and the recourse is not against the federal government.
Of the earlier options we've looked at, as a public servant my conclusion is that they really don't address the whole problem so they're not worth pursuing. The only options that address the problem are some form of government regulation by either provincial governments, if they're interested, or the federal government, which seems to me to be an expensive undertaking, or self-regulation.
[Translation]
Mr. Nunez: It would be easier to regulate the profession in Canada, but what could we do abroad? Could some consultants help potential immigrants to Canada without even going through the embassy or the immigration office?
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Second, you referred to some illegal immigration from Portugal in 1986 and the behaviour of some immigration consultants. Could you explain the nature of the problem at the time so that we understand the situation correctly?
Mr. Grant: I don't remember exactly the nature of the problem, but I do know that some consultants were advising Portuguese immigrants who... I think the problem was that the consultants were telling immigrants to request asylum as refugees who were Jehovah's witnesses. So the consultants advised these individuals to lie to the Immigration and Refugee Board.
Mr. Nunez: That answers my first question. My second was how far we could go in trying to regulate the profession abroad.
Mr. Grant: That is a big problem. I think Canadian embassies can refuse access to any individual, but that is all we can do about consultants working abroad. If consultants give incorrect advice to immigrants in another country and if they never try to enter a Canadian embassy, there is not much we can do to limit the activities of consultants abroad.
Mr. Nunez: What are the fees charged by these consultants? It's probably difficult to determine. Are they lower than the fees normally charged by lawyers?
Mr. Grant: We don't know. It varies from one consultant to the next. There is no fee schedule for consultants. It might be possible to regulate this and establish a fee schedule for consultants. However this does not exist at the moment. As we say in English, ``the price is whatever the market will bear''.
Mr. Nunez: I have a question about who these consultants are. Do you know how many are former employees of the federal and Quebec Departments of Immigration? How many are lawyers who have been debarred? How many foreign immigrants are consultants? Do you have any idea about this?
Mr. Grant: Which group? The OPIC Group or consultants generally?
Mr. Nunez: Consultants generally and OPIC in particular.
Mr. Grant: OPIC was established in 1991 or 1992 by former Department of Immigration employees and other individuals who never worked for the government. The organization also includes some lawyers.
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I don't know how many of the consultants are former department employees or refugees. I do not have this information.
Mr. Nunez: Your study seems rather superficial in its analysis of the fact. I thought you had taken an in-depth look at the matter.
Mr. Grant: It is very difficult to determine exactly how many consultants there are in Canada. It's very easy to become an immigration consultant. You could start working at 2:00 this afternoon - all you need is a business card. So it is impossible to get an exact estimate of the number of consultants.
Mr. Nunez: Do you know how many individuals defended their clients' cases before the Immigration and Refugee Board in 1994 who were not even lawyers?
Mr. Grant: We know how many people were represented by a consultant when they appeared before the Board.
Mr. Nunez: Do you have the figure with you?
Mr. Grant: No. All I have is information on inquiries held in 1992. Of the 40,000 inquiries held in 1992, only 8% of the clients were represented by consultants who were not lawyers. That would be between 3,000 and 3,500 people.
However, the same consultants can represent a number of clients. The figures I gave refer only to the number of clients.
[English]
The Chairman: I have just a small question.
My understanding is that the OPIC organization is made up of lawyers and non-lawyers. I think there's an assumption that when we use the word ``consultants'' we're talking about non-lawyers. Should it concern us that if we were to authorize them as a professional body the lawyers in the group might say this should be just for lawyers? Should that be an issue for us?
Mr. Grant: I suppose you'll have to speak to OPIC. I know there are lawyers who are members of OPIC. I'm not sure why they would object to OPIC being recognized. They're covered both ways; they're covered by the law society and they would be covered by a new scheme. Their involvement with OPIC I would think would be....
Because of some concern about the activities of unscrupulous consultants, they feel this association is in some way a way of trying to address the problem. As for their own personal practice, I'm not sure what they stand to gain out of this. They're able to offer all services because they are regulated.
The Chairman: Let me ask a couple of quick questions as well. You seem to suggest that unless we can solve the problem we shouldn't take any half measures or quarter measures.
If we assume for the sake of argument that there's only so much we can do because of constitutional limitations, if we thought it was a good thing to limit appearances before the IRB or whatever, don't you think that in and of itself might be worth doing, notwithstanding the fact it's only going to cover about 8% of the cases? We might do that and then offer some challenge to the provinces to step in and exercise their authority to clean up the rest.
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Mr. Grant: Yes, that's a possibility. When you think of that, though, you have to think of how you're going to do it. You could do it by saying you have to be a barrister or solicitor to appear, period, or you would have to be a barrister or solicitor, or be appearing without pay so that you would allow family and NGOs to appear if you wanted to allow that. For the rest of the people, forget it. You can no longer offer this service. That's one way you could do it.
Another way would be to say one can't appear unless one is licensed. Then that raises the question: one is licensed by whom? That was the approach we took in the past, which is where we got into discussions with the provinces. Would they do it? Would we do it?
So if you don't ask that second question and you just assume that consultants are no longer going to be allowed to appear unless they're lawyers, then you could do it.
The Chairman: What about a registration system? Ignoring the issue of compensation and getting your $7,000 back or whatever, if someone wants to be a non-lawyer consultant and they want to appear, then they pay a fee of $300 a year or something. The federal government registers and licenses them. If at some point we get a complaint and find that the complaint had merit, we might de-license them or kick them out of the profession. Do you think that kind of scheme is overly complicated?
Mr. Grant: Who would do the licensing?
The Chairman: The federal government or its agent.
Mr. Grant: I don't see a problem with that other than that from the Australian experience it's expensive to set up a licensing scheme. If you set up a licensing scheme, then you also have to set up a scheme for people to complain if somebody has done something wrong In the Australian experience, they had to set up some sort of mechanism for investigating those complaints to see whether or not they're founded. That is how they ran into considerable expense to the extent that their secretariat has grown to 11 FTEs in order to support this board that has powers to de-license people.
So somebody has to do that investigation. It's really a question of cost. This was the concern of some of the provinces as well. Once you ask somebody to set up some sort of registration or licensing, then it costs money to set standards and exams, if you're going to have exams, or even just to investigate complaints.
The Australians found that what they were charging to be members - everyone had to be a member, including lawyers - went a very small way toward paying the cost of administering this scheme.
The Chairman: There is the issue of liability in case the federal government was worried about legal liability. I'm curious as to where that came from.
For example, the province licenses architects, doctors and lawyers. I've never heard of the province being hooked into a lawsuit because of professional negligence of an architect, doctor or lawyer. It was never said that the law school wasn't up to standards. I've just never heard of an example of such a case.
Did somebody just dream this up? What's the basis for it?
Mr. Grant: Perhaps you're right. Perhaps it's just our natural cautiousness for us to look into that avenue. We have asked for legal advice on that, and I'll be happy to share it with the committee when we get it.
You're probably right. We're probably free, but before recommending a course of action to the minister, we would want to look into that to ensure that we had asked that question, at least.
The Chairman: There's never a guarantee that you're not going to be sued. Do I say that I won't walk out my front door because I might be sued?
Mr. Grant: Because of the nature of the industry, I suppose, there was just a concern here, and perhaps it was partly optics. Was the government appearing now to endorse consultants? Was it basically telling prospective immigrants that it will answer any of their questions and that it also endorses these consultants? So we would appear to be encouraging people to hire consultants when perhaps they don't need a consultant. It was also a question along those lines as much as liability.
I think you're right. We probably would not be held any more liable than any government would for any measures in this field.
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The Chairman: Thanks very much. You have gotten us off to a good start. Certainly you've initiated the discussion.
At this stage, anyway, there seems to be a preliminary feeling that we need to do something, or at least recommend something; the status quo isn't appropriate. We'll try to work that through as we take additional evidence. Thanks very much.
Mr. Grant: We have a number of documents we've agreed to provide you. We will get those to you.
The Chairman: Thank you.
The meeting is adjourned.