Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 61 - Evidence - May 30, 2019
OTTAWA, Thursday, May 30, 2019
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:30 a.m. to study the subject matter of those elements contained in Divisions 15, 16, 18, 19 and 20 of Part 4, and in Subdivisions C, K and L of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures (topic: Division 15), and in camera for consideration of a draft report.
Senator Chantal Petitclerc (Chair) in the chair.
[Translation]
The Chair: Good morning and welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I am Chantal Petitclerc, Senator from Quebec, and it’s a pleasure and a privilege to chair this meeting today.
[English]
Before we give the floor to our witnesses, I will invite my colleagues to please introduce themselves.
Senator Seidman: Judith Seidman from Montreal, Quebec.
[Translation]
Senator Poirier: Welcome. Rose-May Poirier from New Brunswick.
[English]
Senator Eaton: Good morning, minister. Nicole Eaton, Ontario.
Senator Ravalia: Mohamed-Iqbal Ravalia, Newfoundland and Labrador.
Senator Oh: Victor Oh, Ontario.
[Translation]
Senator Mégie: Good morning. Marie-Françoise Mégie from Quebec.
[English]
Senator Omidvar: Ratna Omidvar, Ontario.
Senator M. Deacon: Marty Deacon, Ontario.
Senator Dasko: Donna Dasko, Ontario.
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator Moodie: Rosemary Moodie, Ontario.
Senator Forest-Niesing: Josée Forest-Niesing, Ontario.
Senator Munson: Jim Munson, Ontario.
[Translation]
The Chair: Thank you. Today, we are continuing our study of Division 15 as part of our study on the subject matter of those elements contained in Divisions 15, 16, 18, 19 and 20 of Part 4, and in Subdivisions C, K and L of Division 9 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures.
The study of this bill will continue next week, as well.
[English]
As per the order of the Senate, the committee will conclude its hearings on June 6, with a final report to be tabled in the Senate later that day. In the second hour of today’s meeting we will keep you for a bit of an in camera session for drafting instructions.
[Translation]
I am delighted today to welcome our witnesses. Thank you for being with us. Joining us today is the Hon. Ahmed Hussen, P.C., M.P., Minister of Immigration, Refugees and Citizenship. With the minister, we welcome, also from the Department of Immigration, Refugees and Citizenship, Raymond Kunze, Director General of the Office of Internal Audit and Accountability; and Katarina Stephenson, Director of Social Immigration Policy and Programs. Welcome.
Also joining us today, from the Royal Canadian Mounted Police, is Erika Sheridan, Superintendent and Director of Border Integrity.
[English]
Honourable senators, we have half an hour with the minister. However, the officials will remain with us for the full hour to answer questions.
[Translation]
Mr. Minister, you may begin your presentation.
Hon. Ahmed Hussen, P.C., M.P., Minister of Immigration, Refugees and Citizenship: Thank you for asking me to join you today to discuss proposals included in the Budget Implementation Act.
[English]
In particular we are pleased to discuss the proposal to address unregulated or unscrupulous immigration consultants and specifically the harm they cause to people’s lives. In a previous life as a lawyer practising immigration, I have seen first hand the enormous damage that unscrupulous immigration consultants cause to individuals as they take advantage of vulnerable people for financial gain.
I want to also acknowledge the fact that there are many honest and ethical professionals who provide immigration consultancy services and these are very important for clients to navigate the immigration system. They too suffer from the damage caused by the few bad apples amongst them.
The current framework has failed to simply provide the mandate and the tools to effectively allow the oversight body to carry out its work. Therefore the government has created a thoughtful and multifaceted plan to address the gaps, equip the new body and protect the public through better oversight, enhanced compliance and stronger enforcement of the law.
We are presenting a three-pronged approach to accomplish this. First, we propose to overhaul how consultants are regulated by creating a new statutory regime for the profession. The College of Immigration and Citizenship Consultants would have a clear mandate and new authorities to properly regulate consultants, protect the public and hold consultants to high standards of professional and ethical conduct.
The first ever statutory regime would put consultants on the same footing as other regulated professions in Canada such as doctors, lawyers and members of trade professions.
Clients of licensed consultants who believe they have not received ethical or competent advice would have access to a very robust complaints process and we would have new powers for the college to effectively investigate complaints against members.
This will also give them new powers to, for example, enter the premises of a consultant when wrongdoing is suspected as well as to request court injunctions against unauthorized consultants to prevent them from practising further.
The college would also be required to, for the first time, establish a compensation fund to benefit those who have been exploited by a consultant. There will be a tiered licensing process for different types of services, and the college will introduce new training and educational requirements.
We will couple this with strong government oversight. We will be able to appoint public interest directors to the board of the new college. Immigration, Refugees and Citizenship Canada would design the code of conduct, designate a civil servant observer to the board, step in if the college fails to perform as expected and make regulations governing the code of conduct of the college.
The second area is on compliance and enforcement. Budget 2019 commits $51.9 million to strengthen protections against fraudulent consulting practices. More resources for Canada Border Services Agency to pursue complex criminal investigations. We are also proposing to double the maximum criminal fine from $100,000 to $200,000 and establish a new administrative monetary penalty to capture behaviour that may not necessarily be criminal, but egregious.
We will launch robust public awareness activities in Canada, and abroad to help clients protect themselves. These materials will be prepared in multiple languages. This activity would also include placing community outreach officers in some of our busiest visa offices abroad. Let me underline that I believe it is the responsibility of governments to do all we can to stop unethical behaviour by immigration consultants.
I’m confident that the comprehensive proposal that I am explaining today will allow us to better protect the public from fraud and stop those who prey on vulnerable people. Thank you.
The Chair: We have questions for you. I want to remind the senators that we aim for five minutes for questions and answers.
Senator Seidman: Thank you very much, minister, for your presentation. I would like to ask you about your reference to a statutory regime for the profession where you talk about the college to regulate consultants and putting them on the same footing as other regulated professionals in Canada such as doctors and lawyers. We heard from a lawyer yesterday, Robin Seligman, who did not mince words about this legislation. She was very clear when asked if the college will help fix the problems that exist within the current system. She said:
My opinion is that the regulatory body is only one part of the issue of how to deal with the issue of consultants, but the regulatory body, without . . . pairing it with dramatically increasing the education requirements and scaling back the scope of works consultants are providing will do nothing. I think we will be back at square one. This has been going on for I don’t know how many iterations.
She said absolutely there should be no grandfathering.
Mr. Hussen: I’ll respond by saying that I don’t agree with that opinion because we are introducing a brand new regime. This college will have expectations that we will place on it. We expect the existing body to transition to the new college. If that is not possible, we will establish a brand new college from scratch.
The fact is the board of directors will have a majority of board members consisting of public interest directors and the remainder will be members of the college.
Second, there will be tiered training and licensing of the members. There will be a mechanism to ensure there is a robust disciplinary and complaints process. The college will be equipped to do the job that we expect it to do, which is, just like any other self-regulating professional body, to hold its members to account and to the highest ethical and professional expectations and standards.
The problem in the past has been that the existing body was never given the tools to do its job. We are finally doing that and we are matching this with a very robust and ambitious government enforcement and investigative regime that will give resources to the relevant government bodies to go after the unauthorized —
Senator Seidman: Excuse me. I know we have a limited time and I don’t mean to be disrespectful or rude, but I want to ask one other question here. It has to do with mandatory education requirements.
If they are truly going to be on the same footing as other regulated professionals in Canada, such as doctors, lawyers and members of trade professions, there are mandatory educational requirements. She was recommending a two-year full-time program, mandatory language requirements, no grandfathering and definitely limited scope of work.
How will this college establish a credentialing process and an educational package to ensure a certain standard of education and a professional approach to this?
Katarina Stephenson, Director, Social Immigration Policy and Programs, Immigration, Refugees and Citizenship Canada: Thank you. There will be a new and much higher education standard for the entry to practise. The new standard will be a bachelor’s degree and with that the college has a contract with two universities in Canada, one in English, one in French. They are the Queen’s University’s Faculty of Law and the Sherbrooke University’s Faculty of Law. It’s a 12-month postgraduate degree that every new consultant will have to go through and obtain the diploma in order to do so. However —
Senator Seidman: I’m going to stop you only because I can use your time well after the minister leaves. I know my colleagues want to ask questions of the minister, so perhaps we can come back to that after. Thank you. I appreciate it.
Senator Forest-Niesing: Thank you minister. My question to you is with respect to the injunction that the college would have authority, under Bill C-97, to pursue against an unregulated consultant. In your view, is this measure sufficient?
Mr. Hussen: A single measure is not sufficient. Again, it’s not just what the college does, but it’s also what the government does to protect Canadians and foreign nationals against exploitation. The increase in resources for CBSA to go after unauthorized consultants is part of the mix as well.
Senator Forest-Niesing: I think we all agree that consultants are used primarily by individuals who don’t have the means to afford formal legal representation. Given that that is likely the group that would be best served by this piece of legislation, I’d like you to comment, if you could, on the complaint process. If there is an agreement, an issue can be referred to the dispute resolution process under the act. Who would be responsible for the costs associated with that?
Mr. Hussen: The costs associated with the complaints process?
Senator Forest-Niesing: With the dispute resolution process that the parties, if they agree, can resort to under the bill.
Mr. Hussen: The first part of your question dealt with a premise I want to quickly address, because I’m cognizant of the time as well.
Yes, many people go to immigration consultants for access because they can’t afford a lawyer, but I have also seen the opposite where immigration consultants, especially the unauthorized kind, charge way more than lawyers do. In my private practice, I would get people who would come to me for help and they are out $30,000 or $40,000 for a simple application after they have been ripped off by an unauthorized immigration consultant. Then they would come to a lawyer for help and you would have to start the process from square one. Even for that enormous fee, they didn’t really get anything. I just wanted to situate that.
Second, just like law societies and colleges of physicians and other professionals, the college will have a very robust complaints and disciplinary process. For the first time, the college will also require its members to carry liability insurance, in addition to the compensation fund that I mentioned.
That process will take its course and, depending on the outcome, the person, if they have a meritorious case, will be compensated through the compensation fund or the insurance fund, or both depending on the circumstances.
Senator Forest-Niesing: Thank you.
Senator Poirier: Can you give me an idea on the timeline for how long it is going to take for Division 15 to be fully implemented?
Mr. Hussen: I’ll let my officials take that.
Senator Poirier: I can come back and save my time for the minister.
Section 3 of Division 15 of the bill provides that the Governor-in-Council may designate any federal minister to be the minister responsible for the CICCA. Why has your government decided not to designate a federal minister to be responsible?
Mr. Hussen: My understanding is that the Minister of Immigration would be the default minister responsible for writing the code of conduct, establishing the statutory regime and appointing the public interest directors to the board of the new college.
Does that answer your question?
Senator Poirier: In part. I’m looking for clarity when it comes to the transition. I also asked this question yesterday to the witnesses. The bill contains two scenarios, either that it would be to continue as a college or discontinue it completely and have a standalone college. Why would the bill not be clear and just have the ICRC incorporate the modification? Wouldn’t that be more cost and time efficient?
Mr. Hussen: It is and that’s our default position. It’s the first position to try out and see how we can transition the current body to the new college.
But we also have to plan for the worst. If that’s not possible and that doesn’t work out based on the standards that we expect the new college to have, then we’ll list them, either through this body or through a brand new establishment. What we need is to have a College of immigration and citizenship consultants that will have very high ethical and professional standards. If the current body can be transitioned to that new college and that new landscape, so be it. If not, we will have to do it another way.
Senator Poirier: Okay.
To follow up on Senator Forest-Niesing’s question, yesterday the lawyer we had as a witness said that sometimes the lawyer’s fee, because they do pro bono, is not any higher than consulting fees. If I understand correctly, there is a fee with the consultants?
Mr. Hussen: Yes.
Senator Poirier: That’s right. Is it comparable? Will the fee be set by each individual consultant? Or is the fee a set standard that they must follow, like doctors have a set fee they must charge?
Mr. Hussen: There will be a fee schedule. It’s confusing because, when you talk about consultants, who are you talking about? Are you talking about the legitimate consultants or the unauthorized?
In my experience, at least, it is the unauthorized folks who charge so much and don’t actually do the work they are supposed to do and don’t even file the application in most cases.
We are going after those folks in two ways. We are giving the college the power to go after them, but we will also resource CBSA and double the criminal fines and introduce monetary penalties that are outside of criminal behaviour. We are sensitizing and educating and raising awareness about the importance of using legitimate consultants.
Senator Omidvar: Minister, this is a growth industry. We recognize that. There were 3,600 immigration consultants in 2016; there are 5,500 today. Their number is growing by 1,000 a year. I did not get a satisfactory answer from yesterday’s witnesses on grandfathering.
I want to know from you whether you will prescribe grandfathering of existing consultants; that’s a huge number of people. You can speak from personal experience, as can I: There are some very good immigration consultants. However, I’m worried about the consumer interest. How do we protect the consumer interest when there is a whole batch of — how do I put it — people who function under different guidelines, as opposed to the new cohort coming? Can you provide us with some clarification?
Mr. Hussen: To address your first point, senator, the industry growth is on both fronts. My sense is that the growth is simply due to more visitors and more international students coming to Canada. There is just more demand. More people are accessing immigration services and, therefore, more people are accessing immigration consultants.
On the grandfathering, I want to defer to my officials.
Senator Omidvar: We can return to that later. That was a great suggestion.
There is nothing in the measure that talks about a review. Given the concerns we have heard around this table, given the concerns raised yesterday and answers that were not specifically addressed to our satisfaction, would you consider a review within two years? We are talking about very vulnerable people who are out by thousands of dollars, with no service, who are getting a terrible impression of Canada in their first interaction with a Canadian institution. I would urge you to consider a review within two years to be tabled in both houses of Parliament.
Mr. Hussen: I’ll do one better. We will have an annual report to Parliament to highlight how things are going. The number-one priority is to protect vulnerable people. This industry has to come down hard on the unauthorized consultants. I strongly believe these measures will do exactly that.
Senator Omidvar: Will you propose regulations?
Mr. Hussen: We will have an annual report to Parliament. I can assure you of that. How we’ll do that, we will sort out.
Senator Omidvar: I love it when ministers give assurances. I like it better when it’s in legislation or in regulation.
Mr. Hussen: All right. It’s inside the bill actually. It is in the bill that there will be an annual report to Parliament.
Senator Oh: Now you are going to legalize and put regulatory control on immigration. Wherever I travel, I walk into offices and I see “Canadian consultant, immigration.” So how do you control disreputable people using that name? Now they have a licence to print money and they start doing even more business overseas. How does your jurisdiction cover that?
Mr. Hussen: Senator, you raise a good point. Due to jurisdictional limitations, we cannot regulate foreign consultants on foreign soil. Having said that, we can beef up our presence in visa offices and outreach offices where staff proactively go out to the populations of our majority source countries. We can inform people on the proper ways to use the right immigration consultants and so on.
Second, these changes will also impact recruiters who recruit employees on behalf of companies from abroad to also act as consultants. We will regulate the consultancy part of their job. If they use their recruiting hat to conduct immigration consulting and rip people off, this bill will stop them from doing that.
Finally, the college will issue a list of authorized consultants that people can hire. Of course, as IRCC and some of the outreach officers deploy, they will share that list with Canadians and also with foreign nationals to ensure people do not use unauthorized consultants.
Senator Oh: The list will be given to our consulates and embassies overseas?
Mr. Hussen: Yes.
Senator Eaton: On an unrelated matter, to change the subject somewhat, we heard this week from the head of the IRB that the asylum-claim backlog will reach 100,000 by the end of 2021. I’m concerned more with the time for resolution than the sheer numbers. Your backlog is now approaching two years. Can you tell me where you see that going within 12 to 24 months?
Mr. Hussen: On the issue of the asylum backlogs and processing, number one, we have never treated the asylum system as a system. Sometimes we have thrown money at IRB and then helped the CBSA here and there, but we have never really treated the system as a system.
Senator Eaton: You never had to?
Mr. Hussen: No, actually, in 2008, we received 30,000 asylum claims, but the funding was for 10,000 asylum claims. The system has been starved of money; vacancies have always been there. The 2012 scheduling forms really messed up the scheduling of the IRB. That resulted in a legacy refugee backlog. Budget 2019 finally funds the system for the volumes it receives — $208 million for the IRB; 700 new staff. That is on top of the decision makers from 2018.
The processing time now is around 21 months. We expect that to come down substantially as we invest more money in the system. It’s also about efficiency. The IRB has done its own internal efficiency work to, for example, shorten hearings and do faster processing for obvious cases. If you have a young minor from Syria, you don’t need a one-week hearing for that. They are doing a number of things to speed up the process and, in those obvious “yes” cases, you will have a six-month processing time.
We believe in the investments in Budget 2019. The Auditor General’s report on the asylum system is a real indictment of the last 10 years of underfunding the system. We are finally funding the system for the volume it receives. There is an asylum management board that actually looks at the entire system from asylum claims to removal. That never existed before.
Senator Eaton: I applaud what you are doing. If you get it down to 18 or 20 months, does the province bear the cost? Do Ontario, Quebec and Manitoba bear the cost of looking after people — health care, lodging, food, welfare? Or does the federal government take that on?
Mr. Hussen: It’s always been a shared responsibility. I might add that our investments in Budget 2019 will result in about half of the claims being processed in 12 months — about 21,000 claims. The rest will take longer.
Second, the costs associated with asylum claims have always been a shared responsibility. Provinces have stepped up in terms of temporary housing and we have helped with interim federal health and so on because of the increased numbers.
Senator Eaton: But there is money for the provinces?
Mr. Hussen: Yes, we have given an initial instalment, and there is more money allocated in Budget 2019 to assist provinces with the pressures around temporary housing.
Senator Eaton: Thank you.
Senator Ravalia: Minister, while Bill C-97 was being drafted, was any consideration given to the Canadian Bar Association or a legal body to be the parental oversight of this immigration consultant question?
Mr. Hussen: Yes, absolutely. The Canadian Bar Association’s suggestion and policy idea was for immigration consultants to simply work under lawyers, in the same way that paralegals came under the supervision of lawyers in Ontario. I seriously looked at that proposal. I thought it was a serious proposal that had a lot of merit. Unfortunately, we don’t have one law society in Canada; we have a number of them. When we canvassed them, some law societies were willing to take on immigration consultants and put them under lawyers, some were not and some were lukewarm. So you can’t have a patchwork a situation where immigration consultants in some provinces come under lawyers and in others, they don’t. That was really the problem with that policy proposal.
Senator Ravalia: Thank you.
Mr. Hussen: It was a good idea. If all the law societies agreed, we could have done it, but they didn’t.
Senator M. Deacon: Thank you for being here today. Building a regulatory body is no easy feat.
Mr. Hussen: Yes.
Senator M. Deacon: I was personally involved with this about a decade and a half ago and there are learnings from it. When you’re looking at having this regulatory body, building it and making sure that, at the same time, you’re adjudicating and licensing different people to deliver your training, different people to be licensed to be successful, the leadership, the governance, all of those things are pieces in getting the ball rolling with this.
You’ve talked about an annual review. But what about the actual monitoring as the process is unfolding. This is going to take time to get right, and it’s the right thing to do.
But I’m wondering if you can talk about that built-in piece that’s going to ensure us that as the ball is rolling, there is monitoring that is measurable and reportable as the process unfolds.
Mr. Hussen: First I spoke about the composition of the board of directors. We will be able to appoint a majority of the board of directors. In addition to that, we will have tools to review the activities of the regulator and direct the regulator accordingly, if it becomes necessary. There will be greater accountability for the public and Parliament, including an annual report that I spoke about. But the public interest board members, as well as the tools that we will have in IRCC to review their activities periodically and direct it accordingly, I believe will give us that on-time ability to respond very quickly to any shortcomings.
Senator M. Deacon: With having the store front open, so to speak, up and running and operational and ready to roll, do you have an anticipated month, date, year?
Mr. Hussen: If you allow me to finish the pieces in place, you can get a picture.
In addition to the public interest members, the tools and the direction, I can also appoint a civil servant observer to the board who observes not just the make up of the board but the activities of the board and the college. The Minister of Immigration, specifically, can direct the board, including to make, amend or repeal any bylaw. If needed, the Minister of Immigration can appoint a temporary administrator to take over some or all functions of the board.
So there are a lot of tools here. I’m very keen to ensure that this new college succeeds. A lot of people are counting on redress, and the board and the college is a big part of that. But there’s also a second half, which is the actions that the government is taking, CBSA, IRCC, enforcement. There’s a whole new regime called administrative monetary penalties to be levied on behaviour that’s not entirely criminal but is still egregious. That didn’t exist in the past and the doubling of the fines, the ability to go after these people directly will certainly send a message.
The Chair: Minister Hussen, I don’t want to put you on the spot and I know we are stretching your time, but we have three questions left. Would you indulge us with three questions?
Mr. Hussen: I have five minutes so if they can ask the three questions together, I’ll answer them together.
The Chair: Good idea. Maybe we put all the questions on the floor and then we get an answer, please.
Senator Dasko: Thank you, minister, for being here. As a Toronto senator, this is a very important topic for Toronto. We’re the centre of immigration in Canada. I have a couple of quick questions I’ll try to slip in.
My first question has to do with whether any particular communities in the background to this have been more vulnerable to these immigration consultants, just from your experience in background putting these proposals together.
Second, from my own reading over the years, I would conclude that some of the unscrupulous operators are rather creative. Will they have the ability to put themselves under a new category and just keep practising, like settlement counselors or family counselors? Can they put up a different shingle and evade the net that you have created to capture them? Can they present themselves under other titles and continue to operate whether they would be unscrupulous or above board? Can they slip into another category and continue to offer services for a fee?
The Chair: I suggest that Senator Kutcher and Senator Moodie put your questions, and then Minister can answer everything at the same time if that’s fine.
Senator Kutcher: Sure. We know from the health sector that the presence of a regulatory body is by itself often not enough. So recent experiences in Canada, particularly in chiropractic and naturopathic areas, show that those colleges do not respond adequately to patient complaints but have very poor disciplinary processes by which fraud and harmful practices continue.
So I love the idea of establishing a regulatory framework, but I’m also aware that many regulatory frameworks don’t work very well.
I have two things for a suggestion. Number one, as this framework is being established, are there going to be people who are expert in setting up these kinds of organizations, a college expert that actually can advise and not only in an advisory capacity? My suggestion is that somebody on that board come from a well-established regulator that understands how these regulations should be working and can protect the public because of that.
The second thing is that although I’m encouraged to know there will be an annual report to Parliament, I would vehemently urge you to have an independent review by people who actually know what they’re doing, maybe other regulators, to look at this college to see how it is working. Senator Omidvar suggested two years. I would give a bit of a grace and suggest five years. I think it needs an independent review.
Senator Moodie: I wanted to take us back to the fee structure, which I’m happy to hear that you plan to put in place. Three things about this: Who will create this fee structure? Will it have regular, predictable reviews to readjust amounts? Who is going to monitor it over time?
I ask because yesterday we heard from some folks from the Canadian Association of Professional Immigration Consultants, and they didn’t seem to have any activities planned in this area.
Mr. Hussen: Okay. I’ll start with the first one. Is any community more vulnerable than others? No. I have seen, and our research indicates, that unauthorized immigration consultants take advantage of Canadians of all backgrounds and foreign nationals from many countries. This is a widespread problem, especially the unauthorized folks. These measures will go a long way to stop them from preying on vulnerable people.
They would be able to go into another category and still do immigration consulting, because it’s actually legal to do that. Section 19 of the Immigration Refugee Protection Act disallows anyone who’s not an authorized immigration consultant to provide immigration advice. You can have a settlement worker to transcribe what someone is telling them on an immigration form, and they can refer them to services, but once you are paid money to provide immigration advice, then you should be a licensed immigration consultant and you should not be doing that. That act will expose you to penalties as an unauthorized immigration consultant.
They can put out all the new shingles they want, but once they enter into the field of providing immigration consulting advice without being licensed, then they will be captured by the new tools we’re putting in place and the resources we’re providing to the government — to CBSA and others. Also, they may be subjected to a criminal fine of double what it was, which would be $200,000 after this bill goes into effect, and an administrative monetary penalty that could be as high as $150,000.
To your second question, yes, I agree that regulatory bodies by themselves are not the answer and, left to their own devices, may sometimes circle the wagons and protect themselves more than the public. That’s why we would have the majority of the board of directors to be public interest members and not members of the college. That way, they will look out for the interests of the public, not the interests of the membership of the new college.
The idea is to appoint experts who have knowledge and expertise on running a regulatory body for professionals. Even in the setting up of that regime, we will work with experts in the regulatory field who can help us to get it right. We intend to get it right.
Regarding the fee structure, no private self-regulating profession has a fee structure. Doctors have a public mechanism. However, self-regulating professional bodies have expectations on a range of fees that someone can charge based on their competency and their years of experience and practice. We expect that the college will also set that up, as opposed to what is now the case where they can charge whatever they want. So there will be an expectation that they’ll follow some sort of method to this.
In addition to that, there will be, for the first time in the college, a tiered licensing process. So if you became an immigration consultant yesterday, you can’t then go the next day and represent someone in front of the immigration board. There has to be a tiered licensing process that takes into account your years of training and work experience as an immigration consultant. The more experience you accumulate, the more things you can do and vice versa. Right now, there are no limitations on how these folks can practise.
The Chair: Thank you very much, Minister Hussen, for your time and your assistance in studying this section of the bill. We will continue with questions to the officials. Thank you very much for being here.
Mr. Hussen: Thank you.
The Chair: I have a list on the second round, and we will begin right away.
Senator Seidman: I will continue, Ms. Stephenson. If you can tell us what the new requirements from an educational point of view would be in this new college, I would appreciate it.
Ms. Stephenson: As I started saying, the new requirements for anyone new entering into the practice of providing immigration advice will, at the start, have to have a bachelor’s degree that will allow that person to pursue the postgraduate degree in the area. The regulator has entered into contracts with two universities, the Queen’s University’s Faculty of Law and the Sherbrooke University’s French Faculty of Law, and only then would a person be licensed.
There are other entry-to-practice requirements for the regulator. We will be working very closely with the new college to make sure that they’re on par and sufficient for the new consultants to be able to function, and provide accurate and quality advice.
When it comes to grandfathering — the 5,000 current consultants — it’s a mix. It’s a mix of practitioners with the required current standard, but many of these consultants already do have bachelor’s degree and university degrees. The college will ensure that after they are grandfathered, through continuous education, they are on par with anyone who is entering into the practice new. This is for the reason of providing continuity. We would end up with practically no access to immigration advice, so this is to ensure that whoever is currently practising and providing advice will have a set of time during which they will have to obtain a level in order to maintain their licence.
Senator Seidman: So will they all have to pass an exam that will equalize their professional expertise?
Ms. Stephenson: Precisely.
Senator Seidman: Including those who currently practice in the profession?
Ms. Stephenson: Precisely.
Senator Seidman: Will there be some kind of academic professional development of a curriculum for the postgraduate program you’re referring to? They came with a bachelor’s degree, but a bachelor’s degree in what. You know, how do you —
Ms. Stephenson: Yes, in order to get into that postgraduate degree, you have to have a certain prerequisite, and that prerequisite is a bachelor’s degree.
The curriculum is being developed by the faculties of law. So these are faculties of law that will set the curriculum based on the discussion with the current regulator. The current regulator is also upping the level of language, both English and French, that anyone, including the grandfathered consultants, will have to have in order to continue to practise.
The importance will be in the detail, and this will be set both in the regulations and the bylaws. We will be working very closely with the regulator to ensure that the required quality and the level will be there. In fact, the regulator is quite keen to work with us to ensure that the quality and the accurate advice will be provided.
Senator Seidman: Okay. Thank you. That’s helpful.
Senator Poirier: Just to get back to the little question I asked before: What’s your time frame for the full implication of Division 15?
Ms. Stephenson: As Senator Deacon mentioned, this is a long-term process. In terms of how this would roll out, provided that the bill is approved, the Royal Assent would be received sometime by the end of June or so. What happens at this stage is the two things that would come into force is the doubling of the penalties and the green light for the government to start working on the new administrative, monetary and consequences regime.
Because of the current timing and the election coming, after the election, the Governor-in-Council will provide the green light to the regulator to hold the vote. The vote is necessary to be able to have the regulator come out of the not-for-profit act. So this is something that Canada’s not-for-profit act requires; that a two-third majority of members vote in order to continue into the new college.
The bill provides, the coming into force, the green light for the current regulator to hold the vote and to come back to the minister with the decision. During these six months, the regulator will have time to hold the vote and start setting themselves up to start functioning properly.
The six months could be longer, or it could be shorter. It depends on how quickly things fall into place.
At the point when the regulator comes back to the minister to advise on the date, the minister sets the date of continuance. At this point the full bill comes into force, so the college becomes the college; that is the official regulator of the immigration and citizenship consultants. The new transitional board is started at this point and comes into force as well, which is up to a majority of public interest directors, which are ministerial appointees.
During the six months when the regulator is working on putting processes in place, the government will be working very hard to ensure that we work on the ministerial appointment process, that we help the minister with choosing the right people, the right experts, who would be sitting on the board, so that on day one, when the college comes into full practice, the board is in place and the college can start functioning.
Another thing that we will be working on together with the regulator during the six-month-or-so period is putting regulations in place. Regulations that are set and identified in the bill to ensure that there is a proper structure that will then, in turn, dictate how the bylaws are set up.
Senator Poirier: Following that, we’re already looking at six months, possibly more. But then you have that training after the bachelor’s degree, which is a 12-month training that the consultants need. Before the consultants are out there and actually working in the field with the qualifications they need under the new system, we’re looking at two years over or close to it?
Ms. Stephenson: Potentially. The postgraduate degree will start in 2021. Everything will be set up. The contract was just signed. In the meanwhile, the current regulator had started on working on increasing the continuing education requirements for the current consultants, including the higher level of language that will be required in both English and French. The continuing education will continue during this whole process. But yes, you are absolutely right that it will take some time for people who will want to enter as new members, new licensees, into the profession to go through the 12-month post-graduate degree.
Senator Poirier: Thank you.
Senator Omidvar: I’m stuck on grandfathering; I’m sorry. I think about the 5,500 plus a thousand yearly growing, so by the time this comes into place we’re looking at 6,600. I know a lot of these immigration consultants, and they do not have a bachelor’s degree. That’s my first question. What happens to that? How will they be grandfathered? Can you give us a time limit when we can expect the grandfathering to have been completed?
My second question is: How is this money going to be spent, $51 point something million? Who is going to get it and for what?
Ms. Stephenson: What the bill provides for is a seamless continuation of the current regulator for the college to ensure there is no gap for clients to be able to get the services and the advice from an immigration consultant. During this period, as things are changing and the continuous education and the college is transforming, the consultants will continue to function and provide advice. However, the education requirements have been changing for since the 2017 report. So there are new courses, new requirements, new exams that have started in 2017 in order to provide the right training, knowledge and information to the consultants who would like to practise.
There is no beginning or stop during this whole process. The process continues and the regulator does require of consultants to continue to improve their education. Having said this, during this whole process, once the college comes into effect, anyone who would like to obtain a licence will have to have the new requirements.
Senator Omidvar: I understand the new. I’m worried about the 5,500, growing daily, and you talked about no gap in services. The flip side of that is no gap in exploitation, either, when you look at the consumer interest. I just need comfort if we’re going to do this, and clearly we’re going to do this, that by two years or so, everyone who is licensed to provide this service is at the level they should be, and I’m not quite hearing that from you.
Ms. Stephenson: Just to reiterate, just to reconfirm, the continuous education, the new exams, the new requirement will ensure that the quality and the required knowledge and education will continue to build.
In terms of the specifics, we are working with the regulator to make sure that whoever is being grandfathered is on par with the knowledge with whoever comes new, as a new licensee, which will be a combination of education and practice.
Senator Omidvar: I understand. By a certain time. I’m looking for comfort on the horizon.
Ms. Stephenson: This is a detail that will come out as we work the regulations. This is a detail that we will absolutely pay attention to.
Senator Omidvar: Good.
Ms. Stephenson: Now, to your second question about the budget. So the $51.9 million over five years, with $10 million ongoing goes, strictly to the federal government. It goes to CBSA and it goes to IRCC. It goes to improve our functioning in three areas: governance, investigations and enforcement, and public awareness. Ten out of the 51 million goes to the CBSA to allow, improve and increase the level of investigation and enforcement they will be able to tackle when it comes to IRPA and their criminal investigations. The rest of the money will go to IRCC for the governments to better coordinate and work, not only within the department but also with all the relevant stakeholders and partners, to improve the regime overall.
The biggest amount of the money will go to setting up the administrative penalty and consequences regime, which is completely new. When we looked and reviewed the current regulatory regime, we saw that when it comes to enforcement and investigations, no matter how much money you put to CBSA, there will always be a limit as to what they can take on. So there are cases, whether it’s an immigration consultant or a lawyer, where the activity is not legal, but it doesn’t quite reach the criminal threshold for CBSA or RCMP to investigate.
This is where IRCC will be developing this new administrative consequences and compliance regime whereby we would be able to address this gap and go after those who may not know or who made a mistake or did something that they should not have, which doesn’t quite reach the criminal threshold. We would be able to impose a penalty. We would be able to ban them. We would be able to post their name on the website. There will be different tools to address this kind of behaviour in order to ensure compliance.
The other portion of the money will go to the public awareness area. When dealing with ghost consultants, as previously mentioned, there are limits in terms of what we can do in other countries. One of the areas that we feel will really make a big difference is public awareness overseas. In addition to better communication via social media, via our visa centres overseas we are going to put five outreach officers in five key missions overseas where we are seeing these kinds of activities happening to be able to tackle this problem, to be able to create awareness, to let people know if you are going to use a consultant, a lawyer, make sure they are authorized. There is a licence for these people. Make sure you use the right folks.
Senator Omidvar: Thank you.
Senator Munson: I felt the RCMP officer was getting lonely over there. Based on the new powers the college would have to regulate ghost consultants — they use the word “ghost,” but crooks, fraudsters are what they are, some of them. We know that. Those who don’t respect the regulations, how would the RCMP investigate and bring to prosecution those who do not fall under the college? With that question there’s what new or increased resources will you have to investigate these ghost consultants?
Erika Sheridan, Superintendent and Director, Border Integrity, Royal Canadian Mounted Police: Thank you very much. If I heard you correctly, maybe I’ll answer the second part of your question first. As it was stated, the RCMP did not get any new funding to attack this specific type of activity per se.
Senator Munson: That’s not a good thing.
Ms. Sheridan: Anyway, from that perspective, of course, the RCMP always does have its federal policing element and, of course, we do work with IRCC and CBSA to the point where they determine first the level of criminality, which was very well articulated, presented to your forum today by Katarina. If the threshold is there for a criminal investigation, yes the RCMP is consulted. Then we do our own threshold review to determine what would be the best outcome available.
The first step, of course, is to make sure all of the current regulatory and the — new provisions being put in place have been exhausted and whether there is a criminal element for us to pursue. At that time, we would look at it and depending on whether it falls into our existing federal policing priorities, which are either cybercrime, national security or transnational serious organized crime.
Therefore, there is not a cookie-cutter approach for all of these types of offences. However, we remain a strong partner and we will take on any recommendations that come our way.
Senator Munson: What would the charge be and what would the range of penalties be? I think the message has to go out in a very firm way and it probably has in different ways, of what you can charge. If you saw a storefront place that was doing irregular things, to put it mildly, do you have the right to shut it down, to make arrests on the spot, to show examples to others that you are not going to get away with this because you have been defrauding?
On a personal basis, friends of my sons were trying to stay in the country and they keep handing out 1,500 bucks — 1,500 bucks. I keep telling them, you should go home and do it on a regular basis; you would be welcome to come back. But no, they are desperate to stay. They have become broke and all of a sudden are on a plane going home. How do you crack down in a public way?
Ms. Sheridan: Thank you. That’s a very interesting point.
For your awareness, the RCMP’s role is to collect the evidence and to bring the cases before the prosecution. Then it’s up to the courts to determine what’s the appropriate penalty. Your point is well taken but it’s to keep in mind that the RCMP role there is to investigate, to gather the evidence. We work with the prosecutors to determine whether that charge goes forward. In regards to the penalty or decision, that’s up to our judicial system.
Senator Munson: I think you wanted to say something.
Ms. Stephenson: Just to add to that, there are multiple factors and multiple levels as to how to address this problem. It’s not just one solution. CBSA and RCMP are responsible. They have parallel authorities under different legislation. So CBSA pursues anything that is under IRPA, and RCMP it’s Criminal Code and the Citizenship Act. In addition to that, in a case like you mentioned, IRCC will be able to use the new administrative monetary and consequences regime depending on what the investigation yields, depending how the penalties can address the type of activity.
Lastly, the regulator themselves will have a tool to be able to go after ghost consultants. We spoke about a court injunction. In addition to all of these tools, they can send cease and desist letters to people who are not supposed to be practising without a licence. That could gradually be all the way to a court injunction. So there are different tools depending on what kind of activity and how serious the activity is.
Senator Munson: Very briefly, the RCMP doesn’t seem to have any more money to do what it wants to do. It’s very difficult. You are tasked to the limit in what you are doing right now. In this bill is there substantially more money to do what you want to do? Is there a new budget?
Ms. Sheridan: If I may, we did hear that CBSA did get a component of funding for investigations and they also have powers under IRPA for them to pursue those investigations. It’s a whole-of-government approach from what we can see. Of course, from the criminal aspect the RCMP did not get any more specific funding to pursue this specific type of criminality.
Senator Ravalia: My question too was for Ms. Sheridan. This question is related to irregular crossings. Does that fall under your jurisdiction, or are we outside of it? This is a question I received from a constituent of mine. We heard yesterday that 51 per cent of individuals who cross our borders irregularly do not end up meeting the criteria for refugee status and may, in fact, be economic migrants. I guess the optics and perception of this amongst Canadians are disconcerting. This means then that our ability to truly process genuine refugees — people are waiting in camps in places like Lebanon et cetera — are delayed in their ability to get into our country. Do you, as a force, have the necessary resources to actually minimize these irregular crossings and in a more proactive way determine genuine from not genuine refugee status applicants?
Ms. Sheridan: Thank you. Again, the role of the RCMP is not to make a decision on a person’s status. That is, basically, what CBSA and IRCC deal with. We are there to enforce criminal codes and, of course, entering Canada illegally. We do our due diligence with regard to our mandate to determine whether there is any criminality with respect to that person crossing into Canada. There again, if a person determines they are seeking asylum, our current process recognizes that it is the role of the CBSA and IRCC to determine whether that person meets the requirements in a bona fide manner. I’m not sure if that answers your question. Again, the RCMP has no mandate to determine a person’s status for refugee or asylum.
Senator Ravalia: We heard some dialogue yesterday around the safe third country et cetera. Is there any actual way to stop this loophole of irregular crossings or do you anticipate that this process will continue?
Ms. Sheridan: That is a good question, but it’s not under the purview of the RCMP to make that decision.
Senator Ravalia: Going back to the college structure, have you formalized a process by which complaints and discipline will be dealt with in a structured manner? Could you outline that for me?
Ms. Stephenson: The broad strokes of the policy intent for the complaints and discipline committee are in the bill. The details will be worked out through regulations.
To answer your question, the complaints and discipline committee will have a mixed membership. The intent is to have both members of the industry on both committees, as well as experts, public interest members, who will sit on the committee. There will be a strong transparency aspect set in the complaints and discipline committee. For example, when someone puts in a complaint and the complaint is reviewed, if the complaint is not submitted to the disciplinary committee, the college or the complaints committee must inform the person who complained of the reasons and what they are doing with that written complaint.
Once the complaint is submitted to the disciplinary committee, the committee will have the power to investigate, to compel testimony and to compel witnesses. It will be able to do the investigation that the current regulator is not able to do. It will use tools such as monetary penalties. They can suspend or revoke licence. Some of the monetary penalties could be used toward the compensation fund the minister spoke about. The broad strokes and intent of how these committees would function is in the bill. We will work closely with the regulator to ensure that in the regulations we set out the proper mechanisms and proper structure around these committees to be able to function effectively.
Senator Ravalia: What is the mass of complaints and discipline that happens with present structure of these consultants?
Ms. Stephenson: I think the regulator would be better to answer the question. It is mostly about the conduct of a given consultant.
Currently, the regulator does not have the tools that it needs, especially for the disciplinary committee to be able to investigate effectively. They do not have the authority to enter a premise of a consultant in question to be able to gather evidence or to be able to remove documents that could serve as evidence for a given disciplinary hearing. They cannot compel testimony. They cannot compel witnesses, which they will have once they become a college.
Senator Oh: I pass. My question has been asked.
[Translation]
Senator Mégie: My question is for the RCMP representative. At the time when the wave of immigrants previously known as “irregular immigrants” were crossing the Canada-U.S. border, there was talk of the possibility of criminals entering the country, and it was said that Canada was becoming a sieve. I wanted to know what role the RCMP is at that time. Do you receive information before these people arrive in the country or when the file is reviewed, and that’s when you discover they are criminals?
[English]
Ms. Sheridan: Thank you for that question. In any investigation, the RCMP relies on the information we have access to at the time of the crime being committed. We have our own investigative tools, access to databases and we do our own background verification on Canadian databases, including other law enforcement partners, which includes CBSA. At that time, we make a determination if any of our own intelligence or information indicates that the person is involved in criminality. That is done on a case-by-case basis. The decision is made at the time of the interaction with that person and we do our due diligence.
Am I answering your question?
[Translation]
Senator Mégie: Yes, sort of. They always said that the cause of the delay in reviewing the files was precisely those cases that they had to review to prevent the people in question from entering the country or being given the opportunity to open a file so that they could become refugees. That’s when we talked about these criminals; they were said to be the cause of these delays. So I thought to myself that there was probably a time when the review of files was delaying things.
[English]
Ms. Sheridan: At this time, I can only validate that our current process with CBSA is when that person makes their claim and goes before the board, we have processes in place whereby we can provide them with the information that we have at that time. I believe that when it comes to a board hearing, there are other law enforcement partners that, perhaps, have access to certain intelligence. It’s not just the RCMP who has access to that.
Senator Eaton: The Auditor General said that one of the big problems with the backlog was that the ways of sharing information between IRB, the ministry and CBSA were antiquated. That leads me to the fact that we are doing a third country negotiation with the States to stop the irregulars from claiming asylum if they have already claimed asylum. Is this something that worries you? Is the AG right when he says the system of sharing information between you is antiquated? Is that why you are looking at her — asking for help with what to say now?
Ms. Sheridan: I don’t participate in the boards. I cannot answer that.
Senator Eaton: But your guys are at the front line. Do they have ease of getting information? Does it come through as fast as you’d like?
Ms. Sheridan: Again, law enforcement is to determine the person —
Senator Eaton: You are not going to answer my question. I can see you have to be diplomatic. You’re not going to do it. Thank you.
Ms. Sheridan: I want to make sure there is a clarification of the role of the RCMP in determining asylum
Senator Eaton: In your role at the border, you are sharing information with the ministry and the CBSA. I’m asking are the systems antiquated or in great shape? That is, are they 21st‑century smooth?
Ms. Sheridan: I only speak for the RCMP as to the information that we share with CBSA. There is a flow of information that is timely and effective.
Senator Eaton: So it’s 21st century smooth and the Auditor General is wrong.
Ms. Sheridan: I can only speak for the RCMP, ma’am. I cannot speak for the other entities.
The Chair: Did you want more time?
Ms. Sheridan: No.
Senator Omidvar: Just an observation in answer to Senator Eaton’s question. I visited the border last year and saw how the agencies worked together. With the creation of the new information sharing, I believe it was working quite well and could work better.
[Translation]
The Chair: On that note, I want to thank our witnesses today. You have spent a lot of time with us, and we thank you very much for that.
[English]
We thank you for your assistance with the study of this bill.
Honourable senators, we will suspend for only two minutes and then we will proceed with our in camera discussion on the draft report.
(The committee continued in camera.)