Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 21 - Evidence - March 3, 2011
OTTAWA, Thursday, March 3, 2011
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:28 a.m. to study Bill C-35, An Act to amend the Immigration and Refugee Protection Act.
Senator Art Eggleton (chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee Social Affairs, Science and Technology.
[English]
The Chair: Today we start on Bill C-35, an An Act to amend the Immigration and Refugee Protection Act. Our first panel has Mr. Phil Mooney, Past President of the Canadian Association of Professional Immigration Consultants, which is the largest non-profit professional association for Canadian immigration consultants. It is committed to promoting and protecting the practice of all Canadian immigration consultants.
We have also Ryan Rosenberg, who is a lawyer with Larlee Rosenberg, Barristers and Solicitors, from Vancouver. He advises clients in all Canadian immigration and citizenship issues. These two gentlemen will launch us on our deliberations on Bill C-35.
I ask you both to take about seven minutes. If you need more, that should work out.
Phil Mooney, Past President, Canadian Association of Professional Immigration Consultants: Honourable senators, the Canadian Association of Professional Immigration Consultants is pleased to be able to contribute to this important debate. For the past 25 years, our association has provided representation for immigration consultants and worked hard to advocate for changes that strengthen the integrity of the immigration system.
Over the past few years, as president and past president, I have appeared before several parliamentary committees to request stronger legislation that would allow us to weed out crooked immigration consultants. It is important to ensure that regulated consultants who engage in fraudulent operations and unregulated consultants, or ghost consultants, be prosecuted to the full extent of the law.
Ghost consultants not only victimize prospective immigrants but also take money away from legitimate consultants who follow the rules and pay a high price to be regulated. Further, we suffer added indignities because the public cannot easily distinguish between the good guys and the bad guys. The recent ad campaign against crooked consultants was effective in alerting many about the problem. However, it also cost many of us clients. In one case, a member reported that his son was taunted in the school yard about his father being a crook. How does an 11-year-old explain what regulation is?
This is why our association supports wholeheartedly Bill C-35 as introduced in the House of Commons last year. We believe that Bill C-35 addresses a number of the shortcomings in the existing legislation by closing the loophole that allowed unregulated consultants to prepare applications or to give immigration advice for a fee.
For six years, we have asked that that loophole be closed, and we are delighted that it will happen. This will finally allow us to work effectively with the law societies to end the practice of unethical lawyers and Canadian Society of Immigration Consultant, CSIC, members who shelter those consultants. That is the way most unregulated consultants do business today. That is how they will try to do business after Bill C-35.
It is common for unregulated consultants to make an arrangement with a lawyer or authorized consultant. The ghost consultant prepares the documentation, charges a high fee, makes all kinds of promises, and then pays a lawyer or CSIC member a small fee to sign the Use of a Representative form, which authorizes the file to be sent. Some firms openly promote such an arrangement. Until now, there was nothing that could legally be done to stop it.
We have provided to the committee a copy of an email from a prominent immigration law firm that claims, on its website, to be the biggest immigration law firm in Western Canada. The email offered potential ghost consultants this service. It was written the day after Minister Kenney introduced Bill C-35 in the House of Commons. It is quite enterprising but absolutely unethical.
We are convinced that this practice is widespread. Bill C-35 gives us the opportunity to stop this. We support a strengthening of the integrity of the immigration system. Therefore, we are also concerned about an amendment, introduced at the very last minute, that would give Ontario paralegals the ability to practise immigration services.
We believe that professionals providing immigration services to newcomers to Canada should be equipped with the best training possible, follow the highest standards and be regulated by a professional body specializing in immigration matters.
Presently, there are more than 1,800 authorized immigration consultants across Canada. Each of these 1,800 individuals has written knowledge and language examinations and met other entrance requirements in order to practice legally. The last minute change to Bill C-35 will allow paralegals in Ontario to perform the same duties as an authorized immigration consultant or lawyer without having undergone training and examination specifically related to immigration practices. In Ontario, there are more than 2,700 paralegals that could fall into this category. A paralegal whose normal practice is to file small claims court forms could now be authorized to charge for immigration consulting services.
This amendment would provide a back door for ghost consultants to continue their practices. If some lawyers and some CSIC members shelter unregulated consultants, then adding paralegals to the mix would greatly decrease the government's ability to stop this abuse.
Paralegals generally earn far less than lawyers. They might be more susceptible to forming partnerships with ghost consultants. In other provinces, paralegals must work for a lawyer. In Ontario, only half of the paralegals are currently working in association with law firms.
Honourable senators, you were provided the opportunity to adopt legislation that would enhance protection for newcomers to Canada who choose to use the services of immigration consultants. However, this last minute amendment may make it much harder to achieve that goal. We certainly understand the objective of this amendment and have no objection in principle to seeing paralegals be able to provide immigration consulting services once they follow the same training and fall under the same regulatory constraints as other immigration consultants.
The last minute amendment will detract from the overall objective of the proposed legislation. These changes would undermine Canada's immigration system and put consumers of immigration services at risk of being subject to fraudulent, unprofessional and unethical practices.
Honourable senators, we ask you to help us properly regulate the profession of immigration consulting. We urge you to remove the language dealing with paralegals in the proposed legislation and bring it back to the form in which it was initially presented by the government or insist that this provision does not come into force for a year. This would allow time for the paralegals to get the training they need and would allow the law societies and regulator to work together in a cooperative arrangement for regulating them.
We applaud and support the government's efforts. Let us not ruin the government's good intentions by introducing flawed measures at the last minute. Thank you.
Ryan Rosenberg, Lawyer, Larlee Rosenberg, Barristers and Solicitors: Thank you for the opportunity to leave relatively mild Vancouver to enjoy the frigid Ottawa wind. I am somewhat accustomed to it, being originally from Winnipeg.
I will focus on some of the strengths and weaknesses I see in the proposed amendment package. In my practice and my firm, I and my colleagues are routinely retained by the victims of poor immigration advice. Often we are called in to clean up incredible messes, such as refused applications or an application nearing refusal, for the purpose of either appealing or trying to avoid the refusal in the first place.
In providing these services, we run into four categories of consultant. We identify each of our clients by the type of consultant that either caused the mistake or referred the work over. We see the competent, the incompetent, the unscrupulous and the ghosts.
The proposed amendments to the Immigration and Refugee Protection Act, IRPA, will certainly strengthen our regulatory framework. They offer an opportunity to regulate in a more meaningful way those who do wish to be regulated — the competent, some of the incompetent and some of the unscrupulous, but definitely not the ghosts. An appreciable strength in the new amendments is ministerial oversight as well as the opportunity for the minister to compel certain documents and information from the designated body that will ultimately oversee immigration consultants. This is a vast improvement from the current structure, which resulted in a largely unaccountable regulatory body.
Ghost consultants operate underground, primarily in overseas markets like China and India. Their clients are not encouraged to disclose their existence on the Use of a Representative form to which Mr. Mooney alluded. Rather, the applications are sent in without recognition of the representation. The pitch is quite easy. Ghost consultants will go to the client and say, ``You do not want to disclose me because the government does not like my clever little trick, so that form does not need to be included.''
The ghosts typically deal with two different types of client. Perhaps it is better framed as two different types of ghosts. Some ghosts go out and victimize would-be immigrants. They defraud their potential clients of dollars on their hopes of Canadian immigration — ``Give me this money and I will get you your status'' — but the status never comes. Other types of victims are given inaccurate or incomplete immigration advice for the purpose of securing personal financial gain for the consultant, such as a commission or large fee. That is the first category of ghost consultant.
The second category of ghost consultant includes the collaborators. These people operate beyond the strong arm of Canadian enforcement. They are sought out by their clients because they are not regulated. Some would-be immigrant applicants wish to disclose certain information from Canadian authorities within the context of their immigration applications; or they may not qualify and wish to generate documentation to support their application. There is a whole industry, in particular in China; I see it all the time. People seek out ghost consultants who will fabricate financial statements for the federal immigrant investor application, identity documents to prove or disprove family relationships, transcripts, court orders, et cetera; it goes on and on. A very large and lucrative industry is related to this sort of ghosting.
In my view, the overseas ghosting consulting community would view our attempt to amend and strengthen the Immigration and Refugee Protection Act with a combination of bemusement and contempt. That is because those who do not wish to be regulated most certainly will survive our best efforts to do so. My fear is that the number of ghost consultants will explode because of the mixed messages sent by our government today. On the one hand, we have new punitive measures under the amendments, but those amendments will force the ghosts further underground. On the other hand, we incentivize people to join the industry as ghost consultants in the first place.
Under our federal Immigrant Investor Program, large and lucrative commissions are paid to lawyers or consultants upon the successful processing of an application, which necessarily includes the placement of an investment. Our investment levels recently changed. It used to be a $400,000 investment. Under that regime, commissions ranging from $28,000 to $60,000 were paid to consultants and lawyers alike upon success. A portion of that, 7 per cent of the $400,000, directly trickled down from the government through financial intermediaries into the hands of consultants. Now our regime has changed, and we have doubled the investment level from $400,000 to $800,000; and the commissions have gone up in kind. I have talked to a number of financial intermediaries. To my knowledge, there have not been any applications successfully processed under the new investment criteria. Perhaps there are a few, but I have not heard about them because the program only reopened in December. The commissions range from $80,000 to $120,000, with most commissions coming in at around $100,000. It is not all government money. Much of it is topped up by the bank for placing the investment. My point is that the carrot has never been more golden. There has never been a better reason to join the industry in an unregulated manner and to stop at nothing to see that applications are successful.
I predict an increase in the number of fraudulent documents created; and I see an increasing attempt to cut corners to ensure that applications are processed successfully. We see this in our office all the time. We have clients who have placed investments and then have been refused landing as an immigrant because border officers at the port of entry have caught issues that were missed overseas. These issues are mainly ones that clients did not even know were in their applications and that were never brought to the attention of the clients because it might have slowed down the processing and prevented the ghost consultants from reaping their commission. That was at $28,000 to $60,000. At $100,000, I predict a sharp increase in the activity.
The proposed amendments are not a cure-all. They will not work in a vacuum; and they do not address a number of systemic problems. However, they ought to pass for the limited but very important purpose of regulating those who need and wish to be regulated.
The Chair: Thank you. You both used a couple of references that I want to clarify for people watching these proceedings. First, the IRPA is the Immigration and Refugee Protection Act. Second, you both referred to a ghost consultant. What exactly is that?
Mr. Rosenberg: A ghost consultant is someone who operates in a very grey market to provide either direct or indirect advice to an immigration applicant in the context of a proceeding under the IRPA.
The Chair: They do the work for pay.
Mr. Rosenberg: Yes. They do not disclose the representation in the context of the application. When a typical immigration application is filed, when the client is represented there is an obligation to include form IMM 5476E, Use of a Representative form. On this form, both the representative and the client sign to acknowledge that the representative is in fact the representative and to authorize the department to correspond with that representative over the course of the application. When the representative is a ghost consultant, no form IMM 5476E is included with the application. There is no obligation to have a representative in any proceeding under the IRPA, so a visa officer receiving an application without that form would be led to believe that no advice was given.
The Chair: Thank you.
I note that we are joined today by a researcher on the bill, Ms. Anna Gay, from the Library of Parliament. She is responsible for this bill at the House of Commons. Mr. Brian O'Neal, also from the Library of Parliament, is always here, thank goodness.
I will ask about the amendments. Mr. Rosenberg, you think the amendments are fine. Mr. Mooney, you mentioned one amendment. I understand that you are okay with the other amendments.
Mr. Mooney: Yes.
The Chair: Five amendments were passed in the House of Commons.
Mr. Mooney: Yes.
The Chair: You object to the paralegal amendment.
Mr. Mooney: Yes.
The Chair: It says ``in good standing with the law society of a province.'' It does not say Ontario, but I take it the only province that admits them to the bar is Ontario.
Mr. Mooney: Yes.
The Chair: They would be subject to the code of conduct of the law society as a lawyer would be. Does that not cover this situation?
Mr. Mooney: Yes. Currently paralegals in Ontario are subject to discipline through the Law Society of Upper Canada; they have a code of conduct. Of course, all of it is referenced to paralegal work. Paralegals perform a wide range of services. That act was brought in because so many services being provided did not involve a lawyer. The Ontario government decided to regulate paralegals because there was a lot of abuse. Many people hung up their shingles and claimed to do divorces. They operated much like ghost consultants. Therefore, the Ontario government regulated paralegals.
Our problem with this amendment is that it was never discussed in any of the preliminary documents or committee hearings. The last presenter just before the minister spoke was from the Law Society of Upper Canada. To the great surprise of many, including the Canadian Bar Association, the presenter brought this forward and said that was what they would like to do. Five minutes later, the minister said yes, they were considering doing that. The next thing we knew, it was in the amendment. We had presented weeks before that. Had we had an opportunity to discuss that or present to the committee, we certainly would have made that a focus of our presentation.
Simply, it is not a question of who you are but a question of what you know and how you are regulated. Immigration is a specific law. Immigration consultants who are regulated have obligations to understand the law far beyond what a paralegal has in understanding processes like small claims court. We felt that there was no discussion or information given about how those paralegals would be trained, who would accredit them, or how they would get into the profession. We had strong concerns — not that in time this would not be a good idea, because more choice for more consumers should be good for the consumers; it is a question of getting there right away — about taking this on faith and trust when there was no research, no documentation, and no studies to say that this is needed or is a good thing.
The Chair: Mr. Rosenberg?
Mr. Rosenberg: I am not entirely familiar with the issue, but there is a streak of irony in this. If you ask an immigration lawyer the difference between an immigration lawyer and an immigration consultant, some will answer that an immigration consultant knows how, but an immigration lawyer also knows why you do a certain thing under the act. Mr. Mooney is saying that when dealing with a paralegal, the paralegal might know how but the consultant knows why. At the end of the day, I am not too sure where that leads us. However, I would imagine that there is sufficient regulation under the Law Society of Upper Canada's regime; otherwise, paralegals wishing to practise in the area would be faced with the task of answering to two masters, if they were answering to both the Law Society of Upper Canada and another regulatory body. That is kind of beyond my expertise.
The Chair: I will move on to my colleagues now.
Senator Eaton: Thank you both very much. This is a very complex question. I am the daughter of a lawyer. I would ask the two of you to educate me, but I understand that lawyers specialize. One is a corporate lawyer, a criminal lawyer, a lawyer for the environment, or doing copyright law. How is that different than a paralegal, Mr. Mooney, who decides that he will become an immigration consultant? As an immigration lawyer, you have specialized in that field, have you not? You have taken time to study the law and you understand the ramifications.
Mr. Mooney: Yes.
Senator Eaton: Would you not hope that a paralegal would do that as well?
Mr. Mooney: Absolutely. That is certainly how you would envisage the future. The trouble is that they have asked us to accept the future without telling us how we will get there.
When immigration consultants became regulated, we had to undergo a rigorous process that was mandated by the government. When the government commissioned the first regulated immigration consultants, there was a contribution agreement that said they had to achieve specific milestones. It was public. It was out in the open and discussed. We know nothing of what or how a paralegal in Ontario will become able to practise immigration. We have no information.
There is also a specific question around the operations of a paralegal: To date only Ontario has chosen to regulate those paralegals, but if they are allowed to practise immigration, they can do so anywhere in Canada because immigration is a federal matter. A paralegal in Toronto could have clients in Vancouver.
Coming back to the first point, lawyers might specialize, but the minute you become a lawyer you are authorized to practise immigration; you are authorized to practise in any field of law.
Senator Eaton: That does not mean you know anything about it.
Mr. Mooney: Exactly. You are obligated not to take cases that you are not trained for; however, that does not mean they do not do it. Immigration consultants are authorized only to practice immigration and must attend a university course on immigration. They must pass rigorous entrance standards; they have to maintain their education; and they have a rigorous code of conduct about what they can and cannot do. It has taken six or seven years to get some of these things in place, but we have not seen anything in the paralegal society. Two years ago they were not regulated at all.
We are concerned about it. We are not saying do not let it happen, just let us not rush into it. We do not have to go 100 miles an hour. No one has identified a problem where everyone is suffering because paralegals cannot practise immigration. If they are working for a lawyer, they are already doing immigration tasks and the lawyer is responsible for what they do. However, there are 1,400 paralegals.
Senator Eaton: I thought there was something in the bill about a paralegal as long as he was working under the supervision of a lawyer.
Mr. Mooney: I did not see that.
The Chair: It is under the law society.
Senator Eaton: It says, ``A student-at-law does not contravene'' as long as he is working under a lawyer.
Mr. Mooney: There are 1,400 paralegals in Ontario who do not work with a lawyer at all. Yet, they are regulated by the law society. Those individuals would be free to practise anywhere they wanted to without the supervision of a lawyer.
Right now, paralegals do immigration work under the supervision of a lawyer. That is acceptable; there is a person who is accountable. However, that was not even recognized in the rules.
Senator Eaton: Perhaps the law society will keep them accountable.
Mr. Mooney: The law society is an excellent regulator. It has my full respect, but we do not see the plan. We do not see any detail. What is the rush? That is our point.
Senator Eaton: Thank you.
Mr. Rosenberg, how could we do away with ghost consultants? Is it a matter of having a better website, or having people interviewed rather than filling out forms abroad?
Mr. Rosenberg: We will never, ever see the end of the ghost consultant. In any regulated area of anything you will always find those who work in grey markets and act underground. Eradicating it is off the table.
What could be an effective tool is putting further information before immigration applicants. Presently, our immigration application forms are primarily in French and English, but I have never seen a full and comprehensive disclaimer form setting out certain expectations before an applicant in his or her native language or even in English. That might be one way of dealing with it. I do not know whether it would be effective. However, information and getting information out to the people who are relying on these services and setting examples of those who are caught will help.
Senator Eaton: Thank you.
Senator Ogilvie: Both previous senators have touched on the two areas that I wanted to ask you about, and you have helped inform me in that regard.
Mr. Rosenberg, with regard to your last intervention, it seems to me that you came close to stating the obvious, which is that in almost every profession — certainly in financial advising, legal matters and many areas — we find those who are unscrupulous and who operate outside the framework. It is an issue one must recognize and deal with.
In this bill, we identify specific people who are recognized to be capable of operating within the framework. That is where I would come back to the paralegal issue. At least in this situation, they are now identified as a group who can act presumably under the regulations of the act and responsibly within the professional issue.
Mr. Mooney, I very much take your points about how you ultimately are able to ensure that a paralegal will have the expertise to deliver the services within this area. However, they are clearly identified and they are identified within the bill. It would seem to me that the ability of the law societies to regulate and to intervene in these areas would be on the surface of the table, as opposed to extra in the ghosting kind of areas. Therefore, that brings a certain amount of opportunity for society to protect itself in this area.
I also took your point in your presentation that it is important how the regulations are developed around the implementation of the bill. That is true with almost every piece of legislation. I think you have made that point well, and presumably it will be taken into consideration in the time between the passage of bill and the enactment of the regulations.
I will not go further because you have both illustrated the situation very well. If anything in my summary is not accurate, I would welcome your comment. Otherwise, I do not need you to go further.
Mr. Mooney: I will make a couple of comments about ghost consultants because the word gets thrown around all the time. It is a simple definition: A ghost consultant is someone who takes money who is not regulated — just full stop. As you mentioned, the trouble and the problem came in IRPA; with the enactment of the ability to regulate consultants, there was a loophole. That loophole said — if I can use the analogy of a divorce lawyer — if I put up a sign on the street saying that I can help you with your divorce, I will take all your statements and fill in all the forms, give you all the advice about how to proceed with this divorce, and charge you money for it, but when it goes to court you have to get a lawyer.
That is effectively how IRPA and immigration consultants have worked, because it is stated that the guy who meets with the victim in a shady alley somewhere and says, ``I can get your sister into Canada in three months for $10,000, and here is how you will do it,'' and then fills in those forms has done nothing wrong. He has given bad advice and has charged a lot of money for it, but he has done nothing wrong because the act said we will only start the clock, if you will, when the application is submitted. We have been asking for six years for that to be changed, and that is what we are so pleased about in Bill C-35. It says now it will be an offence against the act to even offer to provide advice for a fee.
That is why we also want then to clean up the umbrella, because many of these consultants are submitting forms that have a legitimate signature on the Use of a Representative form, but that signature was provided by an authorized representative — either a lawyer or a consultant — who took $100 just to sign the paper, signed 50 of them that day and has no idea about the rest of it.
The one last piece of this is that the government will now require on the Use of a Representative form that applicants identify that they used a person and paid a fee. They must identify that person, otherwise it is misrepresentation. The problem is when applicants do not speak the language. When an application goes in with the signature of a lawyer or consultant on it, the applicant did not know that that was a problem, yet the ghost consultant knows it is a problem and the lawyer or consultant knows it is a problem. I suspect that is where 70 per cent or 80 per cent of all the ghosted applications are coming from. We can now work on that issue.
The Chair: Senator Jaffer from British Columbia is the official critic of the bill. That does not mean she is opposed to it; that is just a title.
Senator Jaffer: Mr. Rosenberg and Mr. Mooney were talking about the ghost consultants. Having practiced in this field for many years, we all have stories about this. I want to look forward. I am anxious for this bill to be passed because we all have horrible stories about how victims have suffered. My preoccupation is what happens next. As you both know, in the bill it says that the minister ``may'' by regulation designate a body. I would have preferred ``shall,'' and you both will understand that then he is obligated. ``May'' means he may. I am sure he will, but I have a bit of concern about when that body will be formed.
Also, I am concerned that it is not an independent body like a law society. It is designated by the minister. I have not yet got a handle on what that body will look like. Will the minister appoint some people to that body, or will it be like an independent body where the members elect their peers to represent them on the designated body? Could either or both of you tell us how you see this designated body?
Mr. Mooney: I can certainly share with you the bid that is in process now. Part of the bid requirements are that the new body or whatever body is selected to represent immigration consultants must be an independent body. There must be incorporation under the Canada Corporations Act as a non-profit organization. We know the governance structure of the new body, which technically is the same as the old body, and as you know, the current regulator is allowed to bid.
I believe under Bill C-35 there are proposals about the accountability of that body and the ultimate authority of the minister to change that body should he wish. The actual body itself has to be an independent corporation and ruled under the Canada Corporations Act, including the old one and the new one that is coming. That is a fairly simple question to answer. It will be an independent body. However, no one knows the exact structure of it.
Mr. Rosenberg: I do not have much to add. I have not been monitoring the bid process all that much. I know that bids closed at the end of 2010, and I have not seen a list of the bids that were submitted. As Mr. Mooney indicated, there are some basic requirements, like independence, and they are looking for effectiveness, accountability and a strong code of conduct.
In my view, if a good immigration system resembles a very tall wall with a very wide gate, the regulation of the people who manage the system should resemble a very tall wall with a very narrow passage. That is what I hope to see out of a regulatory body.
Senator Jaffer: My other preoccupation with this body is that in all the years I used to come to Ottawa to say we need a body, we need to regulate consultants, I was always told professions are regulated by the provinces, not nationally. I now know the air traffic controllers and some other professions are regulated nationally. I realize that. I would not like this bill to fail, because it is so important. Have either of you any concerns about whether this should be regulated provincially or nationally?
Mr. Rosenberg: I think this issue is already resolved in the Mangat case, which went to the Supreme Court of Canada. As it is a federal area, there is federal jurisdiction. There are certain aspects like consumer protection, which may dribble down to the provinces, but I do not see any issue with that.
Senator Jaffer: You are right about the Mangat case, and we all know that the Mangat case was fought right up to the Supreme Court. It was set out there, but I should have added a clarification. My concern is that the provinces are also involved, say in the investment category where the provinces get directly involved, or in Saskatchewan with temporary workers. Will there be an issue?
Mr. Mooney: Interestingly, when the regulation first came in there was that question, but at the time there were very few active provincial nominee programs, other than Quebec and possibly Manitoba. Since then, of course, the provincial nominee programs have become extremely important, but they have also evolved in their outlook to say we are fine; we will set the standard where you must be a member of a law society or a member of the Canadian Society of Immigration Consultants. The only province that has gone one step further is Quebec, which has implemented additional rules. If you want to be representing applicants before the Quebec government — immigration consultants who are not regulated by Quebec can still do that and lawyers are fine — as a consultant you must be a member of the Canadian Society of Immigration Consultants and you must pass the requirements for MICC, the Quebec immigration department, to be able to communicate with the department.
Senator Callbeck: Mr. Mooney, on the body that may be set up by the minister, did applications close in December 2010?
Mr. Mooney: Yes.
Senator Callbeck: Did your association apply?
Mr. Mooney: Our association participated in a consortium of individuals who were interested, and we prepared an application and submitted a bid, yes.
Senator Callbeck: Mr. Rosenberg, you said the federal Immigrant Investor Program has changed a bit. It has gone now from $400,000 to $800,000 as of December.
Mr. Rosenberg: That is correct.
Senator Callbeck: Did I hear you say that an immigrant can invest that money and when he or she comes into Canada can be turned down?
Mr. Rosenberg: Yes, we have seen a number of cases in our office, and I can explain one in a little more detail. The investment is placed prior to visa issuance; once the investment goes in, a number of weeks later the visa is issued, but a person does not become a permanent resident until he is examined at port of entry. In this particular case, when the unfortunate family we were dealing with recently arrived, the border officer asked about their family composition. As it turned out, the principal applicant had been married before. He did not disclose his previous marriage in his original application because — at least from what I understand — the immigration consultant who helped him with the application did not want to complicate the process. He would need additional documents from that previous marriage, a divorce certificate and possibly others. In an attempt to streamline the application and get to the commission more quickly, that issue was left off the table. When the client arrived at the port of entry and this omission was discovered, the officer wrote him up for misrepresentation, and he was on his way back to China.
Senator Callbeck: What happened to the $400,000?
Mr. Rosenberg: It is an ongoing matter in our office right now.
Senator Callbeck: Do they generally get their money back?
Mr. Rosenberg: We are currently examining that.
Mr. Mooney: The issue is whether they paid the $400,000 or they gave the financial intermediary $120,000, effectively for fees. It is then up to the financial intermediary to give the government the money. The financial intermediaries, which are banks, would be much more likely to get the $400,000 back. The question then would be whether they would pay back all the people they paid or would ask for the money back to give it back to the clients. My suspicion is that if it was $120,000, the clients will probably not see that back. If it is $400,000, there is a reasonable expectation that they would get that back. The government would have to ensure they got the commissions back.
Senator Callbeck: There are many problems in this area.
Mr. Mooney: There are problems with the investor visa, but there are a couple of differences between that and a person coming here to visit or work. There is a very strenuous financial evaluation process, and there are financial intermediaries in between, most of which are major banks, which are pretty experienced with these applications, and they vet every application with their legal team.
Regarding the investor visa, I would not be as concerned that people who do not qualify are coming to Canada. That is a fairly simple part of the application. The high fees that my friend mentioned are large amounts of money compared with $1,000 for a skilled worker application. Whenever there is money like that, there will be temptation.
Senator Martin: With the higher fees and the doubling of the investment amount, all the stakes are higher, so I would think that the clients themselves would be that much more vigilant about whom they are seeking out for assistance. This speaks to the need for this bill, as I heard from both of you today. If this bill is passed, it will close that loophole.
Mr. Mooney, is your association doing outreach in the form of education and awareness raising, not only in Canada but especially overseas? Are you working with your counterparts?
Mr. Mooney: Absolutely. The bill gives us the moral authority to tell newspapers around the world that they are carrying ads from people who are breaking the law in Canada. In some countries, that is a serious accommodation. It allows us to speak in support of the minister, who has been doing the same thing with bilateral agreements.
We will now have the moral authority to do that, whereas currently we cannot criticize people in their own country for doing something that Canadians are doing as well. We have many plans to do that outreach.
There are billboards in some parts of India that advertise consultants who are offering the world, and they are all ghost consultants. I have heard members say that they will put up a billboard saying that those guys are all crooks and giving the proof. They are waiting for the indication that they should go ahead and do that. Again, it is food out of the mouths of their families. They are directly affected by the ghost consultants, in both reputation and income.
Senator Martin: You said that this bill has been long awaited. Do these loopholes exist in other jurisdictions? Are we ahead of other jurisdictions? If we effect this change, will we be leading the way for other jurisdictions? It is an international market, and it affects everyone.
Mr. Mooney: Certainly, and many bad consultants are bad consultants for New Zealand, Australia, and others. In general, we have been a little behind in that. For example, in Australia, New Zealand and the U.K., individuals cannot offer advice or complete forms unless they are regulated. It has been that way for a long time. In the U.S., you have to be a lawyer to practise immigration — full stop. I would say we are catching up to the other jurisdictions in that regard.
Senator Martin: I know that the fees for investors are that much higher. The $800,000 seems to be a doubling, but it is more affordable here than in other jurisdictions.
The selection committee that has been established is comprised of officials from Citizenship and Immigration Canada, the Canada Border Services Agency and external experts. It seems that we are on our way to doing a fairly effective job in the process of selecting the regulators for this body.
Mr. Mooney: I am not aware of whom the selection panel is to consist of. I must have missed that, although I have watched carefully. I do not know how it will be set up. If that is public, I would like to know, but the bids are in. The door is closed, and now we are all just waiting.
Senator Champagne: Mr. Mooney, you are with the Canadian Association of Professional Immigration Consultants. In 2008, the committee recommended that the Government of Canada introduce stand-alone legislation to re-establish the Canadian Society of Immigration Consultants as a non-profit capital corporation. Is that what you belong to or what you have created? How does it work?
Mr. Mooney: One of the problems with the regulator at the time was that it was a non-profit corporation under the Canada Corporations Act and therefore did not have the authority to go after individuals who were practising in immigration who were not its members. The committee recommended that the new regulator be given statutory authority, just like a law society, where it is a criminal offence to pretend to be a lawyer or to practise law without a licence. That was the recommendation of the committee at that time, and it was a recommendation made a year later as well.
What the government came back with in Bill C-35 was not that, but it is probably as close as you can get. The government has decided to treat this as an independent body. Again, the answer given to me in discussion a year or two ago was that the government did not want to get involved in the regulatory business. That was its philosophy for not putting in a statutory body with a law. The government has gone as far as it could without doing that, and the onus will be on whatever regulatory body exists to live up to the government's expectations, because the second thing in the act is that the minister will now have the authority to make a change in the regulator.
Senator Champagne: The minister will have the power to designate this regulatory body but also to revoke any such designation made under the act. Would that apply to individuals or to the association?
Mr. Mooney: I believe that is directed to the regulator of immigration consultants. The minister will have the authority to appoint or revoke the appointment of a body. Individuals are allowed to represent because they are members of. We are members of the Canadian Society of Immigration Consultants, which has been designated by the government to be the regulatory body for immigration consultants. The minister in IRPA did not have the authority to designate or to end the designation of such a body. This bill gives it to him.
Senator Champagne: You do not want it to be that you have one bad egg in your association and the whole group loses the possibility to act as consultants.
Mr. Mooney: Absolutely. The same goes for one bad lawyer. We might have heard of one, or one bad politician, maybe. No, probably not.
Certainly, if the mandate of the regulator and the purpose of regulation are to provide consumer protection, then I believe in this bill the minister is getting tools to be able to say, ``I believe you are fulfilling your mandate; keep going,'' or ``I have issues with the way you are fulfilling your mandate. We think you should do this and this,'' acting through the department always, ``and we believe you should change.'' In the previous incarnation he could not do that. He could not come to the current regulator and say, ``If you do not straighten out, we will change you.'' He did not have the authority to do that. That is what this bill does. It says we should not be in the same situation again.
Senator Eaton: My understanding is that the regulatory body must be a stand-alone body that covers ethical questions. Is that correct? It will also be subject to or accountable to the Canada Not-for-profit Corporations Act.
Mr. Mooney: Yes.
Senator Eaton: I think it would support better governance altogether because it will be subject to both the minister and the Canada Not-for-profit Corporations Act, which means it will be very well regulated and supervised at arm's length.
Senator Martin: May I correct something? When I was talking about the selection, I was mistaken. I was referring to the selection that is being done of the submissions, but no actual body has been selected. I was a bit mistaken about that.
Mr. Mooney: I thought you knew something I did not.
Senator Martin: I just wanted to correct myself on that.
The Chair: Let me close by asking another question about these ghost consultants acting abroad. Are there any particular bilateral or multilateral measures? I think Mr. Mooney talked about a moral authority that the government might have to try to pressure, because many of these problems are starting overseas. Is that sufficient? Do we need bilateral or multilateral measures of any kind to help put a little more legal clout behind this?
Mr. Mooney: I believe the will is there to do everything that is possible. The issue is enforcement. I think there is an overriding factor that says the problem of ghost consultants overseas will diminish in time. The fundamental reason for that is the change within the immigration system on the selection of immigration candidates. In the past, it was people in different countries applying from Delhi or Jakarta or wherever, saying that they wanted to come to Canada. They would find out how to do that in their home country. The whole switch, especially in the Federal Skilled Worker Program, is that individuals will be applying from within Canada. If they are already here as workers and want to become permanent residents, and that is a major shift in the program, those individuals will basically be serviced by individuals in Canada. Far more of the business will now come from people who are already here, which means there is far less business for the bad guys outside who are harder to regulate.
Mr. Rosenberg: There is still a lot of work overseas. Every time a Canadian goes abroad and marries a foreign national, a sponsorship application is born. Every time a large Canadian company needs employees to satisfy its labour market needs, a work permit is issued. There will be no shortage or end to the overseas immigration application processing. However, to your question, I believe the only way to effectively get at the ghosts is through cooperation with our friends in foreign jurisdictions and partnering with authorities in China and India and other places where the ghosting is particularly acute, to bring an end to it if at all possible.
The Chair: One thing that concerns me and may concern some others is that in the attempt to get to these people taking advantage of applicants trying to get into the country, the ghosts who need to be regulated and need to be punished if they violate the law, we do not also punish the victims at the same time. How do we ensure that the victims will not be punished, that we are getting to the crooked folks and not the victims who get manipulated and who do not understand the rules because of language or culture?
Mr. Rosenberg: Right now the onus is still on the applicants to ensure that the contents of their application are truthful and correct. They are the ones signing the application. The application of our rules, particularly with respect to misrepresentation, is very heavy-handed. We have no shortage of examples in our office alone of people who have suffered at the hands of ghost consultants or incompetent consultants, and their immigration dreams have been completely ruined.
I do not know how much offset we will see in that regard. If we do go after the ghost, I think the onus should still be on the applicants to ensure that their applications are truthful and correct.
Mr. Mooney: I would add to that that we do not have to be Pollyannas here. A large number of individuals participate willingly in attempts to defraud the system. Canada is a very desirable place to be. Conditions in many countries are deplorable, and there are hundreds of thousands of people who will do anything, sign anything, pay anything to come here. That is one of the reasons why the ghosts operate with such impunity, because when they fail it is almost like the partner in crime saying, ``I know we both robbed the bank, and I am mad because you got more money.'' That is one of the major problems.
With regard to the business, I absolutely agree: You cannot have a system with integrity unless you have the misrepresentation provision because people are just simply too desperate to come. The other part is that many people fall victim to consultants' incompetence, because people do not take the time to stay up with the act and the regulations, because they do not know the rules and they do not know there is a new work permit form. They file applications and take money, and then the person gets refused because of incompetence. It is incumbent upon the law societies or the bar associations and the regulator for consultants and their associations like ours to educate their members to provide the highest level of service. That should be a journey. You should be learning all the time.
Senator Callbeck: On the investor program, Mr. Rosenberg, would you take a minute and go through the various steps that that application has to go through from the federal and provincial point of view?
Mr. Rosenberg: Sure. I will try to be as brief as possible, mindful of the time we have left. Basically, a completed application will include the personal details of an applicant as well as the family members, including documents verifying their personal net worth, the origin of those funds and the total of those funds. That application will eventually be reviewed by a visa officer in an overseas market, and if a favourable decision is made, either with or without an interview, a call for investment is made. The funds are transferred to an authorized intermediary, and then the visa is issued. Following that, the applicant arrives in Canada to activate his or her visa and become a permanent resident of Canada.
The Chair: We have run out of time. Thank you both very much for giving us your views about Bill C-35. It is a good start.
Senators, we have a new panel. From the Canadian Society of Immigration Consultants, we have Mr. Nigel Thomson, who is the chair, and Mr. John Ryan, who is the chief executive officer. This society is a not-for-profit, self- regulatory body created to protect the consumers of immigration consulting services while ensuring the education, competency testing and discipline of its members.
The Centre for Immigration Policy Reform is represented by Mr. James Bissett, a member of the advisory board. The centre is a not-for-profit national organization of citizens who believe that fundamental changes must be made to our immigration policies if they are to serve the best interests of Canadians.
From the law firm Kurland Tobe, we have Mr. Richard Kurland, a Vancouver-based lawyer who is involved with immigration. He is an immigration policy analyst and Canadian immigration lawyer.
Welcome to all of you.
Nigel Thomson, Chair, Canadian Society of Immigration Consultants: Thank you very much. The Canadian Society of Immigration Consultants, CSIC, is pleased to appear before this committee on Bill C-35. Under the Immigration and Refugee Protection Regulations, the Canadian Society of Immigration Consultants is the designated body to regulate immigration consultants who represent, advise or consult for a fee with people who are the subject of a proceeding or application before the minister or before the Immigration and Refugee Board of Canada.
CSIC's mandate is to protect consumers of immigration consulting services. As such, CSIC supports any initiative focused on improving consumer protection. The most important components of this bill will enable authorities of the government to take action against ghost agents, which the Canadian Society of Immigration Consultants has long advocated.
It is fair to say that before CSIC was introduced in 2004, there was no one to protect the consumers of immigration consulting services. Since that time, CSIC has grown as an organization, and it is doing its job to protect future Canadians.
I would be remiss if I did not admit that we are far from a perfect organization. Of course, we have shortcomings, but I would rather deal with facts instead of sensational sound bytes.
Looking back, it is clear that CSIC has matured significantly since its inception almost seven years ago. To prove that it is an effective regulator, we recently commissioned highly respected third-party experts to conduct in-depth audits of four key areas of CSIC's operations: governance, our complaints and discipline process, our educational processes, and compensation for the board of directors.
Results of these audits are clear: CSIC is responsibly and capably undertaking its mandate as the regulator. I believe that anyone taking an objective look at the audit reports would draw the same conclusions, but you do not have to take my word for it. We have provided you with brief fact sheets on each of the audits, and I invite you also to log on to the society's website, where complete copies of all the audit reports are available for your review.
The independent auditors have made recommendations on how CSIC can be improved in these four areas. I am pleased to tell you that we have already started to act on some of those recommendations, and the others are currently being reviewed.
CSIC has long advocated penalties for those who illegitimately hold themselves out as qualified to offer immigration services. The proposed provisions look to close the loophole that currently permits ghost agents to prey upon uninformed consumers. We fully support this provision.
The Canada Border Services Agency and the Royal Canadian Mounted Police will have the mandate to investigate, prosecute and ultimately bring those individuals who look to thwart the immigration system to justice. We are very concerned that they will not have the resources to do so. We call upon the government to reinforce these departments so they can provide the appropriate level of enforcement to properly stem the tide of illicit activity perpetuated by ghost agents. Without the appropriate funding to bolster the affected departments and additional funding being earmarked for the prosecution of ghost agents, the hands of these government agencies will be tied, and ghost agents will continue to plague the immigration system.
At this point I would like to turn to another area where CSIC has serious concerns regarding the bill before us. It is to do with the paralegals becoming authorized representatives. The idea of paralegals becoming authorized representatives, without requiring them to be members of a national consultant regulatory body, is contrary to the original regulatory impact analysis statement released in 2003. The regulatory impact analysis statement recognized the perils of having more than one regulatory body. This view was also supported in the final report of the Advisory Committee on Regulating Immigration Consultants.
CSIC believes that allowing provincially regulated paralegals to offer immigration consulting services would create a constitutional problem for the government. The Supreme Court of Canada has recognized that the application of the law must be applied uniformly across Canada in the manner of federal competence, including immigration.
Further, CSIC firmly believes that allowing paralegals to be recognized as authorized representatives would impugn the Canadian immigration system. Paralegals are not trained to offer immigration consulting services, and law societies do not impose strict standards of practice for immigration law, nor do they have any compulsory education or knowledge requirements on the subject of immigration law for either lawyers or paralegals. Currently there is no requirement in any province or territory for paralegals to have knowledge of federal or provincial immigration law, policies or processes.
Finally, allowing paralegals to practise immigration consulting flies in the face of established government policy regularizing the immigration consulting profession and could result in a patchwork of different regulatory bodies — one per province and territory, in addition to the various law societies. National standards would cease to exist. It is also worth noting that a decision of this kind would fly in the face of the Government of Quebec's recent decision to finally accept national standards established by the Canadian Society of Immigration Consultants.
Canada's immigration system, its consultant regulator and consumers of immigration consulting services deserve a system that is consistent from one jurisdiction to the next. Consumers deserve to be secure in the knowledge that the authorized representatives they are dealing with are well-trained, ethical individuals who are held to the same strict, professional standards no matter where they are located in Canada or around the world. This is what CSIC has it done and can continue to do for Canada's immigration system.
I want to assure you that the Canadian Society of Immigration Consultants will continue to fulfil its mandate to protect consumers through the accreditation, education and discipline of our more than 1,800 members. CSIC is doing its job as a national regulator. Let us build upon CSIC's experience and expertise.
James Bissett, Member of the Advisory Board, Centre for Immigration Policy Reform: As practitioners, my fellow panellists know much more about the consultancy business than I do, so I will be very brief in my remarks. I certainly support the bill, and I think the proposed amendments are straightforward and sensible. I hope the very fact that an act could emerge will itself act as a deterrent against the exploitation of many people who want to come to Canada and the exploitation of people who are already here. The damage done to these victims is not only financial; it is a heartbreaking blow to them when they realize they have been made fraudulent promises that cannot be fulfilled. It shatters their hopes and aspirations of getting here.
I think the provisions giving the minister a lot of power to regulate and oversee the immigration consultancy process is also to be commended. It brings the occupation of immigration consultants in line, or much more in line, with other professions in Canada. Promoting the concept of self-regulation is fundamentally important.
Therefore, I think the bill is a good one.
Having said this, I think it is realistic to understand that, despite its well-meaning objectives, the proposed legislation may not be as effective as we might hope it would be. Much of the exploitation and misrepresentation by crooked consultants takes place offshore. It is extremely difficult to identify them, bring them to justice or prosecute them. That is a major problem.
Often the victims of these scams are reluctant to go to the local authorities or to complain. Often if they hope to do that, they are warned by the consultants that they know where their family is and that there will be retaliation if they are reported to the authorities.
In most countries, it is not an issue of significant importance for the foreign authorities to take it seriously, although I hope that can be changed by some very active work abroad by our government.
The real difficulty is the ghost consultants that operate in Canada. They often work for clients who trust them and who are of the same ethnic group or organization. The consultant fills out the forms and completes all the documentation and then submits it to the department under the name of the client. Who is the wiser? The client pays the money and no one knows about it. I think that goes on all too frequently.
I remember a time in immigration when there were very few immigration consultants and not that many lawyers who got involved in the immigration process. Part of the reason for that is that the immigration volumes were lower and the department itself was able to do what we considered to be our job in those days, to help the immigrants who wanted to get their mothers or fathers into Canada and to help selected workers come to Canada as quickly as possible.
If you were a client, you could get in to see an immigration officer. You could actually go to the visa office and have an interview and get counselling. That is gone now. It is very seldom that any overseas officer even sees an immigrant. It is almost all done on paper. It precludes the possibility of the department itself providing what should be a satisfactory service.
As a consequence, people are required to rely on lawyers and consultants to navigate through the bureaucratic labyrinth, as I call it, of forms, procedures and processes. Otherwise, you do not have a hope of getting your application dealt with. Attempts to do this application on your own through the Web — assuming you have a computer and the English or French skills to do it — usually end in frustration, failure and time lost. Therefore, people wisely go to consultants and lawyers. Otherwise, they will not make it through the system.
The counselling of immigrants before they arrive is important. We should be doing much more in terms of prevention, so that the ghost consultants and exploiters have a more difficult time. Immigrants should be consulted and warned about paying fees to people who really do not know the business well enough to help them. They should be warned via advertising. The department and government should give much more time to advertising in ethic press and newspapers about ghost consultants and how they operate.
The reliance goes beyond just putting these warnings on the government websites, as I think is proposed. Many of the victims do not have computers and do not know how to get online. They need more direct advertising in newspapers and in the ethnic communities themselves.
We all know that the passing of legislation is one thing, but the enforcement of laws and the prevention of abuse require more than that. We need a determination to follow through with this proposed legislation and provide the resources necessary to make a meaningful difference. Otherwise, the fraud and the exploitation will continue.
I think these essential measures have been sadly lacking in Canada and, to some extent, I think the department has to take some responsibility for that. I will close by saying I hope that if passed, the legislation will do more than just end up in a section of the Immigration and Refugee Protection Act.
Richard Kurland, Lawyer, Kurland Tobe Lawyer: I would like to provide a context, a kind of overview, using the Quebec example. I am a member of the Quebec bar association as well as of the Law Society of British Columbia.
This is a $1-billion example: In the 1980s, the Province of Quebec regulated the dealers of investor immigration files — the dealers. Instead of micromanaging each individual immigrant investor file, they focused their gaze on the dozen institutions. By watching those institutions and motivating those institutions, they achieved compliance on the micro level.
That meant low enforcement costs and high program integrity results. The public was protected, to the point where the deputy minister at the RCMP wrote a memo, obtained under access to information, that people who invested in the immigrant investor program in Quebec had their money returned 99 per cent of the time. One out of five people lost all of it if they did not invest in Quebec. The sole difference was the variation in the monitoring and compliance mechanism, and that is the context of Bill C-35.
The idea here is to regulate the people who are dealing with large numbers of immigrants. It is cheaper. You effectively hive off compliance to the private sector, and you protect the public at a lower cost.
Does Bill C-35 do that job? You bet. Does it have problems by infringing on some provincial areas, namely paralegals? Yes, but let the private sector decide.
Paralegals cannot and will not know the complexities of the many jurisdictions in Canada and the rules outside their province, and the private sector will quickly twig to the fact that a paralegal in one province will not know how it works in the other provinces. They may be streamlined the wrong way.
Nevertheless, that is not the question here. Is the public protected when you have a regulatory authority to go to for complaints? Yes, Bill C-35 does that.
Now, in the time left here, I had the benefit of testimony from earlier today, notably the questions from senators Jaffer, Martin and Eaton. Bill C-35 gives the correct policy tools to our immigration officials to enforce compliance, but it does not go far enough.
There are a couple things that can be done — not in Bill C-35, but as an adjunct to Bill C-35 — to protect the public, attack the ghosts and correct what is, as far as I am concerned, an attack on Canadian integrity by investor oligarchy businesses operating offshore, beyond our reach. There is a way to get these guys.
I will wait for questions.
The Chair: You could tell us now.
Mr. Kurland: I can; it is not rocket science. You have $200 million a year in Canadian commissions being channelled to overseas contacts. What is wrong with a rule imposed on the financial institutions, using the Quebec model, to require payment of commissions into trust funds of authorized third parties — the regulated consultants and the lawyers?
Follow the money by requiring that simple payment mechanism, which does not require a statute or regulation — it can be done with a directive. The money goes into a trust account. That person becomes responsible for disbursement and is accountable to the regulatory authority.
In the event of trouble, the commissions still spill into the trust fund, pending disposition of investigations. The public, meaning the applicant, is still protected because that process continues forward. The only person who gets burned, when there is a need to review and a need to freeze commissions in a trust fund, is the offshore ghost. It is not the applicant who gets the commission.
If you want to dry up the pool of abuse, dry up the pool of money — control it. Bill C-35 gives the tools to do that because you increase the scope of oversight on the consultants. Once that tool is in place, administratively, you can attack the problem of ghosts by following the money.
The Chair: I will start by asking a question on that. That assumes the money for these people is coming from Canada; but how much of it does come from Canada versus how much these ghosts get overseas?
Mr. Kurland: I can tell you about the structure for this sort of thing. That commission, which we heard earlier today will vary between $80,000 and $120,000 — typically $100,000 — is paid by the Canadian financial institution.
The Chair: Okay. Have you tried this on them?
Mr. Kurland: I would not want to spring that prior to this microphone being open.
The Chair: I have a couple of other questions for you all.
The Canadian Society of Immigration Consultants has made it quite clear that they are not fond of this paralegal provision that comes in here as an amendment. I want to explore that further.
The amendment does say paralegals have to come under a law society regulation, so there is an entity that will regulate them. Presumably that entity will also ensure they follow a code of conduct and get training or whatever. You would expect the same thing for lawyers. I am not clear why you think that is such a bad move. I would like also to hear from Mr. Kurland or Mr. Bissett. You did not specifically mention the paralegals. In fact, Mr. Bissett, you thought the amendments were all fine.
I would like to explore that further with the three of you.
Mr. Thomson: I will begin by saying that a concern for the Canadian Society of Immigration Consultants is the issue of education in the immigration field. At the moment, Ontario is the only province that currently has regulation of paralegals; other provinces are exploring the idea in a very preliminary way. However, even in Ontario, there is no specific education on immigration law and practice for paralegals.
In our view, creating that blanket designation immediately brings people into the field who do not have the training and background that members of the Canadian Society of Immigration Consultants must have through our regulated education and examination processes. That is one concern.
I certainly agree with you that the Law Society of Upper Canada is more than capable of regulating paralegals, but it would be a question of what perception or what focus that would get within the law society and whether there would be a possibility of creating a group of individuals who do not have any training and background, who are nonetheless authorized to practise under the act.
Yes, indeed, there would be a mechanism for complaints to the law society, but that is somewhat shutting the door after the horse has bolted.
We are also very concerned that the door is opened for the creation of a number of disparate regulators across country, which would, presumably, be educating and regulating to different standards. That was not the premise of the original report to government or the original legislation, which was to create designated authorized representatives. We think this is moving away from standardization on an important area of federal law that requires standard application across the country and that, in our view, demands one regulator.
John Ryan, Chief Executive Officer, Canadian Society of Immigration Consultants: I was on the original minister's advisory committee on this, and one thing the committee determined was that it did not want to set up a competitive process between regulators, so the Government of Canada adopted the position that there should be one regulator. That is not unlike what is being considered in the securities area, and for many of the same reasons. In that way, you have one national set of standards and one point of interface where the consumer can make a complaint, not 12 or 13 points. The immigration system is already complex for vulnerable applicants coming in to Canada who do not understand our legal system and in some cases have difficulty even with the language.
The Chair: You do not regulate the lawyers.
Mr. Ryan: We do not, but currently we have lawyers and we have one national immigration consultant body with one standard. As my chair noted, we were finally successful in bringing Quebec online last year. Quebec now has subscribed to this national standard. That was a huge accomplishment. I wish I could give Mr. Flaherty advice about how he might be able to obtain the same kind of cooperation in the securities area.
We now have a national standard for immigration consultants to which we can hold them accountable. It is not perfect, but it is certainly a good start.
Let us face it — immigration is a federal domain. It is shared, in terms of selection, with the provinces, but foreign nationals coming to Canada, as found in the Supreme Court decision in Law Society of British Columbia v. Mangat, is a function of a foreign national selecting his or her counsel. If you brought paralegals in provincial jurisdiction back into the picture, you would be making the system far more complex.
The Chair: I do not quite understand that, because you would still have the same number of regulators. You would still have the law societies in each of the provinces plus the work that you do now, or whoever the successor is.
Mr. Ryan: All with different education standards, different enforcement standards and different complaint mechanisms. In addition, you would have a consultant regulator, so you would be making things much more complex.
The Chair: Those law societies already have to regulate the lawyers.
Let me move on to Mr. Bissett and Mr. Kurland on this issue.
Mr. Bissett: I do not have anything to add on the paralegal issue, but I would like to make a couple of important comments.
Over 180,000 temporary workers came to Canada last year, and probably about that number are already here. The provinces are much more active now in bringing in immigrants, and we have large numbers of foreign students. As well, we have more than 200,000 foreign students here. Those three groups — temporary foreign workers, students and provincial nominees — are very vulnerable to exploitation by racketeers and ghost consultants.
In most cases, with the exception of Quebec, the provinces do not have the capacity to select the workers they bring to Canada. They often rely on agents in the Philippines, Korea or Mexico. We know that these agents often take a big cut for recruiting temporary workers who might end up working in a Maple Leaf packing plant in Brandon, Manitoba. The ghost consultant who got them into the province may also expect the immigrants to regularly pay him a certain portion of their wages. That whole area should be watched.
The temporary worker is much the same. Often temporary workers are not selected by the employer who wants them. They are organized, selected and chosen by agents overseas. The same is true for students. Very often they are brought here by schools that are not competent to teach them what they hope to learn. We have seen media reports of isolated incidents of this. Those three areas are pretty well beyond the control of professional consultants in Canada.
Mr. Kurland: Looking through the front window rather than the rear, the Federation of Law Societies of Canada is well aware of the inter-jurisdictional issue and has taken steps to look forward and react to the creation and maintenance of national standards. This is an ongoing effort. The law societies in every province are moving in that direction.
Even if there are currently concerns about paralegals under the supervision of a law society in Canada, those concerns will be more than adequately addressed with the strategic plan being undertaken by the Federation of Law Societies in this country.
The Chair: Do you know whether the Ontario law society is developing programs for paralegals?
Mr. Kurland: Yes. I and more than one of my colleagues in Canada were involved at the pre-embryonic stage of the regulation of immigrant consultants in this country. We have been working on this dossier for 17 or 18 years, and we are still on top of it. We are now moving forward to allow for a remedy of this cross-jurisdictional knowledge challenge.
The Chair: Thank you very much.
I will now recognize Senator Jaffer from British Columbia, who is the official critic of the bill.
Senator Jaffer: Thank you very much. All four of you have helped us in understanding the complexities of this matter.
I heard what you said about the investment category. That is not my bias, because I feel that if you have the money, you have access to the best lawyers. I am concerned about the temporary worker, the student and the family applications.
For the information of my colleagues, Mr. Kurland is an expert on finding out what our government is doing. He can probably tell you more than anyone else about immigration issues. He is not liked by the immigration people, but that is another issue.
You have this plan for investment. What further work do we need to do on this issue? How can we help students, for example?
Mr. Kurland: With students and foreign workers we are on the right path. Two fiscal years ago, $40 million was put forward by this government at Human Resources and Skills Development Canada, HRSDC, for enforcement. Money and tools were put in the hands of a new team of people who went into the field to guard against abuse of foreign workers by controlling the employer, monitoring, following up and imposing practical penalties.
On students, I may be letting the cat out of the bag, but Bloomberg news today is in China on a two-week expedition to show how the United States can follow our Canadian model on enforcement and protecting the public in the student field. We have migration integrity officers globally to identify ghost agents and the like. They identify certain streams of file for review.
In Canada we can do more. I have been pushing for a long time to create a prescribed list of schools about which there are fewer concerns than average. Unless a student is applying to a school on the prescribed list, it would be subject to heightened enforcement measures.
We are doing an excellent job and are a model to the world on improving protection for the public, but we can always do more.
Mr. Thomson: May I interject on the same issue? We have a federal-provincial issue with regard to the protection of workers and labour legislation. The Canadian Society of Immigration Consultants has worked with the provinces to bolster provincial regulations to protect temporary foreign worker, notably in Manitoba and Ontario. We had preliminary discussions with the Province of Alberta, which, as we understand, will take steps to bring in legislation.
This is an important addendum or corollary to the work being done on the federal side to regulate immigration consultants. The provinces must bring in their own legislation on the labour side and bring in measures that protect students, as education is also a provincial responsibility, and temporary foreign workers coming to Canada.
Senator Jaffer: That is the challenge. I am embarrassed to say that, in my province, there is a lot of work to do with regard to temporary workers, especially those from Mexico.
Mr. Thomson: I agree.
The Chair: Senator Eaton is the sponsor of Bill C-35.
Senator Eaton: Mr. Thomson and Mr. Ryan, you represent a body. Are you one of the bodies applying to become the designated body under this new act?
Mr. Thomson: We are the designated body at the present time, and we have submitted an application to be re- certified as the national regulator of immigration consultants.
Senator Eaton: Are other bodies bidding?
Mr. Thomson: We are not aware of other applications. Common knowledge would say two or three other bodies are bidding.
Senator Merchant: In listening this morning, I gather that the mischief is that people are cheated, get poor legal advice, and are sometimes encouraged to lie. Is any immunity granted to people who complain? Mr. Bissett mentioned that certain people belong to ethnic communities and that their families may have some concerns.
Mr. Kurland: A specific immunity is granted to victims of human trafficking. That is in the written guidelines. However, caveat emptor. Often the person concerned is left twisted and dangling. I have looked at the statistics for compassionate humanitarian relief accorded to files like that over the last four years. For no rational explanation, the data show a dramatic upward trend in the provision of compassionate humanitarian relief on immigration files in Canada. It could be a reflection of family values or a philosophy; however, more needs to be done to specifically address individuals who come with clean hands yet find themselves in a bad spot.
Senator Merchant: Funding provisions would have to be made on the enforcement side. Do you have a comment on that?
Mr. Thomson: The Canadian Society of Immigration Consultants is very supportive of this bill. The minister is taking strong, courageous and judicious action to address the issue of ghost consultants and block the loophole that allowed them to continue to operate. We are concerned that the bill provides strong penalties for individuals who are acting if they are not regulated or appointed authorized representatives. We wonder whether the Canada Border Services Agency and the RCMP will have sufficient resources to devote their time and energy to enforcement activities in the area of ghost agents. Canada Border Services Agency and the RCMP have their hands full now dealing with a great number of serious issues, including those under the immigration legislation, such as human smuggling. More resources and money must be given to both agencies to enable them to carry out the provisions of Bill C-35 as they focus on ghost agents.
Mr. Ryan: Enforcement is the final aspect of this. It has to be there.
I congratulate the minister for the decision to put some serious money behind a national advertising campaign on ghost consultants and protecting the vulnerable. It is the first time we have seen this commitment by the government to do that. We have to get to the consumers to inform and educate them before they make decisions about who to retain or give their money to. That is where we can do the best job. That is cooperation between government and the private sector. There is no question: Empowering the consumer to make the right choice in the first instance is worth 10 times the amount of money you can plough into enforcement. For years, we have advocated for penalty provisions within the act. The provisions have to be meaningful and have to be enforced. However, we cannot lose sight of the consumer at the point of their decision. I mean this in terms of educating and empowering them to make the right decision, irrespective of where they are in the world. That is a very difficult proposition.
Senator Champagne: Very little was said about those who apply as refugees. When a boatful of people arrive in Vancouver or Halifax, there must be some ghost consultants somewhere who assembled those people and gathered the money. Will this bill help in getting those people and stopping that process?
Mr. Kurland: It will not help in the slightest.
[Translation]
The proposed legislation will not change anything in terms of people who skirt around the law. It is almost impossible to completely counter this type of abuse.
Senator Champagne: We don't want to sink these boats in the middle of the ocean.
Mr. Kurland: No, but a decision was considered.
Senator Champagne: We are in Canada here, not in Libya.
M. Kurland: For your information, the government was given the option to intercept ships sailing in an area out of our territorial waters. They chose to abide by international law.
[English]
Our government chose to abide by international custom in law and not intercept overseas when that was a political and practical choice to put an end to the mass arrival issue. It was the right decision made for the right reasons. Bill C- 35 will not address the particular and plaguing problem of enforcement internationally.
[Translation]
Senator Champagne: It happens often, for example, that some Haitian families, comprised of the father, the mother and two or three children, reach the Quebec border after crossing the United States and claim refugee status. How are these people going to find a lawyer or a consultant to help them? They cannot manage by themselves, they do not have money most of the time. This remains a serious issue. How are they going to be informed that there are some respectable consultants who would be able to facilitate the processing of their claim?
M. Kurland: The NGO system in Quebec offers solutions to this type of cases. The Quebec round table is an organization dealing with this type of problem and, according to my experience, the necessary information is suppplied to these people.
[English]
The problem is taken care of. In Quebec there is a grid of information presented by the non-governmental organizations. As well, the Quebec bar has a referral service that provides information on a case-by-case basis. There is the collaboration of Citizenship and Immigration Canada and the tribunal of the Immigration and Refugee Board that feeds out the information to protect the refugees.
Mr. Thomson: I might add as well that the Canadian Society of Immigration Consultants also has a referral service for urgent cases to competent members who are competent to deal with individuals with refugee claims and serious matters at ports of entry.
[Translation]
Senator Champagne: No wonder everybody wants to come to Canada.
[English]
Senator Demers: I am suggesting Mr. Kurland to motivate the Canucks before they go to the playoffs. He is very good, and all the others were good, too.
[Translation]
You answered Senator Champagne's question, which was very simil
[English]
To reconfirm, if this bill passes, what is the percentage of control? It seems there is no control. You told Senator Champagne that you will not be able to control everything, but will there be enough people? This is a serious bill, as Senator Eaton said. What controls do you have to protect these people? How far can you go?
Mr. Kurland: For the refugees, to go back to our first example from Quebec, what you can do — and this is the beauty of the bill — is control the regulator to force them to control the individual member. That is quality assurance and risk management. As a regulator and the government, you look at the outcomes. You run a computer program. How many bad files are connected to this agent, to this consultant? When you are above a standard deviation, pull all the files. Slow down service for that guy. Dry up the market, because people will hear, ``Do not go to him or to her. Service is delayed. The results are bad.'' That is how you whither the vine of the bad people. This bill gives the authority to proceed administratively with that solution.
Mr. Ryan: Senator Demers, I am a glass-half-full guy. I do not take the position, and I think it would be wrong for anyone here to take the position, that we cannot influence what happens overseas. The minister has made some statements in this regard that are right on point.
The offshore agent issue, the human smuggling issue, is a multi-jurisdictional issue that requires a multi- jurisdictional response. Our society is working closely with the Office of the Immigration Services Commissioner in the U.K. and the Office of the Migration Agents Registration Authority in Australia, as well as the New Zealand regulator. Through these initiatives and multilateral government initiatives between regulators, because we have these relations now, is how we get at the offshore ghost agent problem, another angle to what Mr. Kurland has spoken about.
I congratulate the minister for recognizing that point. Unless we have the cooperation of our immigrant source countries, the governments of those countries and their enforcement agents to the extent that we can, it is buyer beware offshore. As Canadians we can affect what happens offshore, even though we have a limited jurisdiction in terms of our law. We must recognize that and keep trying.
Mr. Bissett: Human smuggling is such a broad issue that there is no hope that the professional consultants can help. It is far beyond that. In 2008, for example, we had 37,000 asylum seekers enter the country. Remember that these are asylum seekers, not refugees. They are people who claim to be refugees. They were citizens 188 different countries. We have such a wide open system that anyone, anywhere in the world, from any country, including the United States — and there are many of them every year — can claim asylum for any reason they want. Once they reach Canadian territorial waters, they are home free. If they claim persecution, they are basically allowed in. It may take three years for the hearing. When they have their hearing and are turned down by the board, they can then seek leave to appeal from the Federal Court. Even if they are eventually turned down, the chances are they will not be returned to their own country. It is too late; they have been here for three or four years.
Regarding the high incidence of humanitarian cases being landed, Mr. Kurland, I would guess that the majority of them are failed asylum seekers that the department will not send back because by that time it would be inhumane to do so. We are the country of choice for human smuggling. Why? The human smugglers — and they are international syndicates; they are professionals — may be operating out of Istanbul or some other country. You can never get them. If you get the smuggler, it will be someone working for the syndicate, one of the minor officials, the captain of the boat or some of the crew. You do not get the big ones. It is a much bigger problem than that.
The Chair: We have only five minutes left. I have three senators on my list. If we can have quick questions from each of the three, we will then wrap up in five minutes.
Senator Cordy: Mr. Ryan, I agree with you. If we are proactive and help immigrants make good choices, then we will save a pile of money in both enforcement and time. That is a positive statement.
Thank you all very much. This has been most informative and helpful. Mr. Kurland, I am interested in the idea that you threw out when you told us that over $200 million in Canadian commissions is being sent overseas. You suggested a trust fund. That can be done by regulation. Perhaps you could give us more detail on that. Perhaps we could make that as an observation to red flag it for the minister.
Mr. Kurland: The trust fund mechanisms exist now in every jurisdiction. If you are a lawyer, you can have a trust fund. If you are a consultant, you can have a trust fund. The mechanism is there — just pour gas into the tank.
Senator Martin: Thank you so much for your expertise and for articulating your justification and reasons for this bill. I think we all are in agreement.
I have a question to ask because you are here, as well as Mr. Kurland and the others. It relates to what happens with many of the international students who end up immigrating as well. In B.C., for example, in the Coquitlam school district, this is a multi-billion dollar business across Canada. I believe that education is one of our greatest assets. Potentially, these are the same consultants who, at times, are victimizing the family. Will this bill also address the concerns that are attached to that industry?
Mr. Thomson: An issue that existed previously with the existing act was that the act did not control the process before an application was submitted to the minister. This bill provides the minister with the ability to regulate and control all aspects of counselling, advising or providing any information that would fall under the definition of what an immigration consultant would be doing. It would be captured by this bill.
This is closing off a major loophole that has allowed educational agents, student consultants and temporary worker recruiters to be active and skirt around our legislation. The minister has taken an important step to close this loophole. It will significantly improve the regulation of students and temporary foreign workers just by insisting that everyone who provides any type of information or guidance must be regulated.
The Chair: Any other comment? The final question is from Senator Eaton.
Senator Eaton: I wanted to clear something up. There is a bill presently in front of the House of Commons that Minister Kenney has put forward that deals with trafficking, boatloads of people and asylum seekers. Eventually, that will come here.
The Chair: Eventually that will come here, and you can come back and tell us about that.
Thank you very much to our panellists. You have given us a lot of good information to think about. We appreciate your being here.
Members of the committee, this completes our sessions for today. We are back on Bill C-35 on Wednesday at 4:15. Hopefully, that will be the last meeting on Bill C-35.
(The committee adjourned.)