BRIEF TO THE STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION 42 ND PARLIAMENT 1 ST SESSION

Transcription

1 BRIEF TO THE STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION 42 ND PARLIAMENT 1 ST SESSION REGARDING LEGAL, REGULATORY, AND DISCIPLINARY FRAMEWORKS GOVERNING AND OVERSEEING IMMIGRATION, REFUGEE AND CITIZENSHIP CONSULTANT AND PARALEGAL PRACTITIONERS IN CANADA. 5 APRIL 2017 Cobus (Jacobus) kriek Member in Good Standing of the ICCRC Dewdney Trunk Rd, Suite 300, Maple Ridge, British Columbia, V2X 3J5 cobus@matrixvisa.com X 101 Submitted via to the Clerk of the Committee 1

2 Standing Committee on Citizenship and Immigration Sixth Floor, 131 Queen Street House of Commons Room 253-D Centre Block Ottawa Ontario K1A 0A6 Facsimile: April 2017 Dear Mr. Wrzesnewskyj and Respected Committee Members 1. Thank you for the opportunity to make a presentation on the issue of regulation of paralegals and Regulated Canadian Immigration Consultants (RCICs). 2. I will address 2 issues: a. Double regulation with specific reference to Saskatchewan b. So called Ghost agents in Canada that contravenes Section 91 of the Immigration and Refugee Protection Act and the action taken by the CBSA and the Public Prosecuting Service of Canada (PPSC) Issue 1: Double Regulation 1 Mangat Case In the Mangat case, the Supreme Court of Canada set the course for the profession of Regulated Canadian Immigration Consultants to become fully regulated at the federal level. It resolved once and for all the constitutional issue of which level of government could make binding laws about immigration consulting. The context in Mangat was an irreconcilable conflict between certain rules the feds had made in the Immigration Act using their immigration authority in the Constitution to permit non-lawyers to appear at immigration tribunals, and rules the province of British Columbia (BC) had made via their Legal Profession Act using their civil rights authority in the same Constitution to regulate professions, including the legal profession. Resolving such inter-jurisdictional conflicts is the daily bread of constitutional law. 1 The research of Part 1 of the presentation was completed by a group of RCIC that is concerned about double regulation and the effect it has on consumers. Special reference is made to RCIC Ms Fran Wipf that contributed in the preparation of the submission. 2

3 As both governments were acting within their authority, but the rules could not co-exist, Mangat held that the federal rules prevailed due to the constitutional doctrine of paramountcy. Once the SCC finally settled the issue in 2001, the feds moved to amend IRPA, establish CSIC and later ICCRC to regulate consultants. Consultants had not previously been regulated and a comprehensive new regime emerged under s. 91 of IRPA, thanks to the clarity of Mangat and the perceived need for robust regulation. Under the legal principle of stare decisis, all lower courts, including the Federal Court, Federal Court of Appeal and all courts in all provinces are bound by any clear ruling of the SCC. Mangat was one such case;; the federal power to regulate immigration consulting (indeed, to regulate anything to do with immigration) trumps any provincial statutes, regulations or policies that conflict. Reality of re-litigating Supreme Court rulings If the same issue ever came before the SCC again, the SCC would most likely follow its earlier ruling;; predictability is a crucial value in the legal system to avoid endless uncertainty and litigation over the same issue. To get around this, lawyers try to find a legal way to distinguish their issue, i.e., it s not exactly the same issue, so stare decisis does not apply. Is this a concern in our situation, i.e., that Mangat would not apply, or be overruled? This is not likely for the reasons set down in the recent Carter case decided by the Supreme Court. In Carter, the Supreme Court of Canada overturned its own earlier ruling in Rodriguez, effectively ending the ban on physician-assisted suicide in Canada. The Carter decision provides the framework to understand the circumstances under which any court may reconsider the ruling of a higher court. From the summary: Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised;; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. Under present circumstances, there is no compelling reason to change the Mangat ruling based on the two pronged test set out above. Saskatchewan Legislation The Foreign Worker Recruitment and Immigration Services Act of Saskatchewan (FRWISA) was promulgated in Saskatchewan (SK) in Oct FRWISA placed additional requirements on RCICs that was in conflict with the rules of the Immigration Consultants of Canada Regulatory Council (ICCRC). Please see Enclosure 1 for a list of conflicts between FRWISA and it s rules as well as the rules of the ICCRC. 3

4 It seems as if the ICCRC did not take strong action as it want to remain neutral and regulate it s members only and not be involved in lobbying for change in how provincial laws are implemented. Same legal issue and doctrine of paramountcy The current legal issue regarding the Saskatchewan legislation would seem to be exactly the same as in Mangat: it is a simple conflict of laws case where two orders of government have incompatible regimes affecting immigration consultants that issue has already been decided, and the answer is that the federal rules prevail. The province cannot have rules that conflict with federal rules. Our present situation seems even more compelling than Mangat in light of the express wording of s. 95 of the Constitution Act, 1867: Concurrent 95. In each Province the Legislature may make Laws in relation Powers of to Agriculture in the Province, and to Immigration into the Legislation respecting Province;; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture, etc. Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces;; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. The Province cannot enact rules that are repugnant to IRPA, the current federal statutory authority, similar to the prior Immigration Act at issue in Mangat. The current federal immigration consultant regime derives directly s. 91 of IRPA and Regulations made under it. The Minister has designated ICCRC as the regulatory body and it exists at the pleasure of the Minister on terms set solely by the Minister. ICCRC s operations are now more closely monitored and the reporting to the Department is more rigorous following the experience with CSIC. Nor is there any relevant change of circumstances or evidence that fundamentally shifts the parameters of the debate, to meet the second prong of the threshold to overturn Mangat. If anything, the new regime which has emerged following Mangat assists the federal government who have invested so much in creating that new legislated reality not the party trying to undermine it. The federal government have occupied the field of immigration consultant regulation in a very aggressive, proactive and comprehensive way - -- as Mangat clearly entitles them to do. Indeed, even if they had not done so (which was the case at the time of Mangat), the province cannot usurp their ability to do so if the federal government merely intend to regulate consultants. Paragraph 67 of the Mangat decision says this: 4

5 Moreover, by the enactment of s. 114 [of the Immigration Act] Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers. It is hard to see how the whole matter of Authorized Representatives for Canada s immigration program could be considered to be unaddressed in Canada today. It is assumed the federal government would concur, and would be willing to use s. 95 of the Constitution Act, 1867 to assert their paramountcy on matters concerning immigration consultant regulation. The Canada-Saskatchewan Agreement Looking more globally, the federal government have carved out exactly what they will allow the provinces to do in the field of immigration through various statutory instruments and in the various Immigration Agreements with the provinces. These include many forms of oversight from the right of the feds to second-guess provincial selection decisions, to the annual caps, to keeping the admissibility screening exclusively federal, etc. a quick look at any provincial Agreement will disclose many detailed constraints placed on the province. It is a contract which binds both parties, but is not a negotiation between equals - the federal are 100% in control;; they could have no Procincial Nominee Programs (PNP) if they wished. Section 95 of the Constitution Act, 1867 above is expressly referenced in the Preamble to the Canada/Saskatchewan Immigration Agreement, 2005 and the Agreement proceeds in light of it: asp#0 In this Agreement, Saskatchewan may be relying on Article 7.4 to make its own rules for immigration consultants (not lawyers). That provision says that Canada and Saskatchewan will consult on the development and implementation of national measures to regulate immigration representatives. Canada recognizes Saskatchewan s right to develop and implement its own measures consistent with provincial jurisdiction. It is unfortunate the phrase provided such measures do not conflict with federal regulation was not added, as that is necessarily implied given s. 95 of the Constitution Act, 1867 and may better have clarified the scope of Saskatchewan s intended jurisdiction. Still, their constitutional jurisdiction is limited to matters consistent with provincial jurisdiction. In this context, this may mean things like consumer protection, business or labour laws, becoming a commissioner of oaths and similar such areas of provincial jurisdiction where the province has sole jurisdiction, as was likely intended by Article

6 When it comes to any immigration jurisdiction, the province has concurrent, not sole jurisdiction with the feds, their authority, given s. 95 of the Constitution Act, 1867, stops where the federal rules on the same matter start. Matters such as settlement services and recruitment of foreign nationals are arguably immigration-related areas in which the federal government have not regulated, which may thus be open to a province to regulate. But the activities of immigration consultants are not. The Province cannot use Article 7.4 to justify rules that extend to compelling consultants to violate federally-derived obligations lawfully imposed on them by the duly authorized federal regulatory body. However, Saskatchewan has in fact used its concurrent authority over immigration to regulate immigration consultants working in Saskatchewan in ways that are incompatible with federal rules. It passed the Foreign Workers Recruitment and Immigration Services Act (FWRISA) and has adopted various policies and practices affecting federally regulated consultants that conflict or potentially conflict with their role and obligations as ICCRC members. Saskatchewan does not acknowledge this, and publicly asserts there is no conflict for ICCRC members, or if there is, they intend to apply the legislation in a practical and workable way. This is not a proper answer to a legal conflict or potential conflict. The rule of law necessitates that the language of the law itself must be prima facie valid;; it is not reasonable to have to rely on the arbitrary discretion of officials not to apply the law. Mangat still prevails and provides a test for rules in conflict For Saskatchewan to say It s our immigration program and we can decide how to govern every aspect of it is not a new legal issue. It is the same legal issue that the BC Law Society (via the BC Attorney General) raised when they said It s our profession and we regulate the practice of law, including immigration law. Mangat decided differently: A province s right to regulate the practice of immigration law stops where irreconcilable federal rules cover the same topic. Immigration is a concurrent area of jurisdiction under the Constitution (meaning they can both make laws in this area) but the province s scope is restrained by the basic principle of paramountcy. Saskatchewan alone does not have control;; it is only legally permitted to operate a program on terms agreed by the feds. In other areas (say, admissibility) it understands that it must not conflict with federal rules. It is a federalprovincial program. (Even if SINP was solely within provincial jurisdiction, Mangat applies - the BC Legal Profession Act was solely provincial but was inoperative to the extent it prohibited what the feds allowed, due to paramountcy). The content or subject matter of provincial rules must be analyzed to determine whether there is any conflict in fact with federal rules the pith and substance of the impugned provisions. It is a question of fact for which Mangat provides a test in paragraph 69: There will be a conflict in operation where the application of the provincial law will displace the legislative purpose of Parliament. The test is stated at p. 191 [of the Multiple Access case being referenced]: one enactment says yes and the other says no ;; the same citizens are being told to do inconsistent things ;; compliance with one is defiance of the other. This seems precisely the current dilemma. 6

7 Under this test, double regulation of the same activities poses many actual and potential conflicts. A chart of numerous examples of incompatibilities is being prepared by Action Sask, but a few under FWRISA will suffice here: Section 22(b) prohibits immigration consultants from taking possession of a foreign national s passport or other official documents or property. ICCRC members routinely submit passport and official documents such as original police certificates on behalf of clients in the immigration process. It would be professional negligence not to do so and inevitably violate this clear, if patently ill-conceived provision in FWRISA The overly broad provision in s. 22(e) for immigration consultants not to contact a foreign national who has requested no contact fails to account for the withdrawal of representation protocols required by ICCRC in Article of the Code of Professional Conduct In bizarre fashion, Saskatchewan has incorporated by reference the entire ICCRC Code of Professional Ethics into its requirements [see Part III, Article 11(2) of the gazetted regulations under FWRISA] thereby making the FWRISA internally inconsistent with itself as its own statute is incompatible with some those tenets ICCRC retainer agreement and office management systems are the subject of detailed requirements by ICCRC. The demand under s. 27(1)(e) and (f) of FWRISA compelling ICCRC members to add any terms to their retainer agreement required by the Saskatchewan Director is untenable Inspection of records of activities under 31(1) is a violation of the confidentiality of clients and others co-mingled with the data subject to inspection. Their affairs and information can be turned over to police under s. 32. Numerous practical conflicts exist as explained in Enclosure 1. It is not at all clear who requires a Saskatchewan licence, given the fluidity and scope of advice /representation services a professional engages in, and the vague definition of immigration services in s. 2(k) which goes far beyond representing SINP applicants to cover spouses in the family class, students, temporary workers any application whatsoever where the applicant is destined to Saskatchewan. No formal definition of who is considered destined to Saskatchewan is even provided. A possible forum for resolution The problem may be able to be addressed at the federal/provincial PNP table. There is an urgent need for the federal government to clarify and enforce the provinces need to respect the federal regime for regulation of consultants as part of the principle of paramountcy under s. 95 of the Constitution Act, To avoid further undermining the federal regime such an understanding should be non-negotiable and should be part of every PNP agreement. The feds have the power to enforce this in the Saskatchewan Agreement in the next round of amendments, if Saskatchewan will not voluntarily accept the federal regime as a paramount regime. (Under Article 2.8 of the Saskatchewan Agreement, the province must engage to attempt to resolve conflicts, and under Article 8.1, a Joint Management Committee will address policy and operational issues that impact the implementation of the Agreement and 7

8 follow the amendment procedure in Article 9 if needed). The federal government may benefit by having clear samples of actual conflicts. At this point, it is not clear what the federal government position is on this matter. Ascertaining that may be the next step. If consultants affected were to seek a declaration or injunction to honour Mangat, one would expect the federal Attorney General to intervene in support;; however, their position has not yet been ascertained. Assuming they concur with ICCRC members, then litigation should not be necessary as they have to power to simply compel the resolution of the issue without litigation and reverse the damage already done. Should they not be willing to demand the provinces refrain from making rules incompatible with the federal scheme, i.e. they actually concur that the provinces may override ICCRC s rules, or that there is no actual conflict here, then that is a serious and perhaps very different type of problem for consultants and for ICCRC to resolve. The scope of the litigation, and certainly the politics of the litigation, would be quite different. But that does seem to be a self-defeating path for the feds, which would ultimately negate their national leadership in this area, and control over the designation of the regulatory body. It seems unlikely their intent. However, that remains to be ascertained. If the feds agree with this issue, then there is a clear, quicker, simpler, less costly mechanism to fix it, which is already built into the PNP agreements and could be done in a matter of weeks or months. Conclusion Similar to Mangat, the subject matter of legal advice and representation by immigration consultants (here for Saskatchewan bound immigration applicants) has federal and provincial aspects. Thus, federal and provincial rules can co-exist insofar as there is no conflict between them. Where there is any conflict, the federal rules will prevail according to the paramountcy doctrine. Ideally, the feds would assert paramountcy in this context to require that the federal regulation of consultants under IRPA, IRPR and the delegation to ICCRC be respected. They have the power to do so via an existing mechanism in the same way they have constrained the scope of provincial immigration powers in other contexts. Failing that, litigation should succeed as Mangat seems to patently apply. However, in litigation, nothing is a certainty (including the position that may be taken by AG, ICCRC, CAPIC e.g. which we cannot assume would support individual consultants) so it seems worth a try resolving it politically, especially as the result could be included in all future Immigration Agreements with all provinces. An effort to bring the feds onside to fix this can be initiated by individual consultants with or without the support of ICCRC. Finally, it also follows from Mangat, and especially paragraph 67 above, that the principle of federal paramountcy will remain true regardless of the quality of the regulatory regime the federal government set up for immigration consultants, e.g. if CSIC had continued, or if consultants are currently in the news media for possible fraud. The province may still not implement incompatible rules, but may send their complaints about the conduct of regulated consultants to the regulatory body and, if that fails, try to resolve it politically with the Minister to regulate better. (CSIC s demise occurred under such 8

9 pressure). But there is no legal option for a Province to try and make a better system by making rules that are incompatible with the federal system. As the trend is for more and more provinces to initiate rules for immigration consultants that can and do amount to double regulation, the time has certainly come to clarify it. Suggestion: Immigration Refugee and Citizenship (IRCC) should address this issue in provincial agreements to prevent conflicts and to protect the public. Provinces should only regulate the action of authorized representative in terms of own immigration programs (PNPs). Issue 2: No Action Taken Against Ghost Agents It is not possible to make general statements and conclusions about isolated cases. However I am going to use 2 cases to demonstrate a potential problem. On 23 April 2015 I submitted a complaint to the Canadian Border Services Agency (CBSA) in Toronto about a ghost agent that accepted CAD4000 from an Australian Citizen. The ghost agent informed the Australian that the case will be signed off by a lawyer in Toronto. I called the lawyer and she mentioned she has never heard about the Australian Citizen. Subsequently I sent evidence of the immigration advice given and evidence of the contravention to the CBSA via and in writing. The Australian Citizen was in Toronto for a visit and willing to speak to the CBSA. I also called the relevant director of the CBSA. I am not aware of any action being taken and the Australian was never contacted. It seems as if the CBSA ignored the complaint. In another case I reported to the Law Society of Upper Canada (LSUC) but they just mentioned that the ghost was not a member of the LSUC and that they cannot act. As a result of these two frustrating cases I submitted two Access to Information Requests to the CBSA and Public Prosecution Service of Canada (PPSC). The ICCRC reported 671 contraventions to the CBSA from it s inception until the 3d quarter of The CBSA reported 3 the following on 2 Nov 2015 Number of cases reported to the CBSA (leads) = 412 Number of cases being opened = 71 2 Reported by the CEO of the ICCRC via e- mail during the second half of CBSA Access to Information Request A /JS 9

10 Number of cases currently being investigated = 53 Number of Charges laid = 12 Number of cases closed with no charges = 17 Number of cases before the courts = 10 If the ICCRC reported 671 contraventions to the CBSA but the CBSA only listed 412 cases, it seems as if about 259 cases are not being accounted for. The PPSC reported 4 that on 15 Oct 2015 shows charges where laid in about 15 cases. Therefore towards the end of 2015 the ICCRC reported 671 contraventions to the CBSA, the CBSA was aware of 412 cases and the PPSC only prosecuted 15 cases. The PPCS explained to me in an that it can only prosecute cases presented by the CBSA. In my opinion the ICCRC did an excellent job of reported cases to the CBSA. The statistics present here are 18 months old but it shows a potential and worrying trend of a lack of action by the federal government when contraventions of Section 91 of IRPA is being reported. If IRPA contraventions with reference to Section 91 are not being prosecuted and ghosts trick the public inside and outside of Canada without a reasonable counter effort from the federal government, regulating the Regulated Canadian Immigration Consultants become less effective and the public is not being protected. On 6 March 2017 Mrs Zahid from this committee asked Ms Jennifer Lutfallah (The Director General of Intelligence and Compliance of the CBSA) if the CBSA has enough resources to investigate the offences. The response was that there are sufficient resources (200 investigators to investigate immigration and customs offences) and that 148 immigration cases are being with respect to immigrant consultants. It was not clarified how many of these cases are Members in Good Standing of the ICCRC and how many where ghosts, illegally providing immigration advice. It is possible that since I obtained the statistics obtained 18 months ago and mentioned above the situation has improved (more investigations and prosecutions). Suggestion: The Committee should consider to obtain recent statistics about reported ghost agents from the ICCRC, the CBSA and the PPSC. The analyses could assist the committee in making recommendations. My research (18 months old) shows that a very small number of complaints by the ICCRC actually leads to prosecution. 4 PPSC Access to Information Request A /LD 10

11 List of Enclosures 1. List of conflicts between FRWISA and ICCRC Rules and Regulations 2. CBSA Access to Information Request A /JS 3. PPSC Access to Information Request A /LD 11

12 Enclosure 1: Sample Incompatibilities in the Saskatchewan Rules Applicable to ICCRC Members Federal Section Federal requirement Saskatchewan Section Saskatchewan requirement 1 IRPA s. 91(5) Members of the designated body can represent and advise in all immigration applications FWRISA 2(k), 4 Illegal to represent or advise Sask-destined workers, students, EE applicants, SINP applicants, FC parents, FC spouses etc unless licensed By Sask regardless of location of RCIC FWRISA 6(2) Director can investigate character or financial history of RCIC applying for licence (terms not defined) FWRISA 8(2), 12, 48 Numerous discretionary grounds to refuse licence or rescind licence, eg failing to act in the public interest 2 IRPA s. 91(5) Members of the designated body can represent and advise in all immigration applications 3 IRPA s. 91(5) Members of the designated body can represent and advise in all immigration applications 4 By-laws 26.1 Must comply with all By-laws, Code, all ICCRC Regs FWRISA 9 Sask rules take precedence Director can impose any licence terms and conditions it sees fit; RCIC must comply 5 By-laws 2.1 Code and Regs will be ultimately interpreted by FWRISA 8(2) Code of Ethics will be ultimately interpreted by Sask Director/ ICCRC board of directors/ binding on RCICs interpretation binding on RCICs; Sask rules paramount over ICCRC Regs 6 Retainers 1, 2(n) Parties to contract are RCIC and Client; sets out business arrangement between them FWRISA 27(1)(e)(f) Director can compel terms to be added without client or RCIC consent; cabinet can impose terms 7 Retainers 7 Can only amend with client s consent FWRISA 27(1)(e)(f) Director can amend without client or RCIC consent 8 Retainers 13 Contract termination - laws applicable are those FWRISA 28 Sask laws applicable to retainer contracts where member resides and is licensed 9 File Mgmt 2(h) Client file includes original client documents FWRISA 22(b) Prohibited from possession of passports, original client documents 10 File Mgmt 8 Members duty to protect client property FWRISA 22(b) Prohibited from having client property 11 File Mgmt 7(i)(a), Obligation to notify client of various matters upon file FWRISA 22(e) May not contact client by any means if client so says (b), (c) closure 12 Code Binding on all members as ICCRC interprets FWRISA Regs 11.2 Code binding, as Director interprets it 13 Code 6 Quality of service obligations to clients FWRISA 22(b) Client file may not include passports, official docs such as police certs 14 Code All All duties to co-client equally, e.g. sponsor FWRISA 22(e) no contact with co-client sponsor if applicant client demands 15 Code 10 Must advocate for your client FWRISA 12 Must act in the public interest 16 Code Various obligations upon withdrawal FWRISA 22(e) no contact for any purpose including withdrawal protocols 17 Code ICCRC will investigate possible breach of Code FWRISA 36 Sask will investigate possible breach of Code 18 Code ICCRC will punish breaches of Code FWRISA Part V11 Numerous offences, penalties, enforcement provisions 19 Code Obligations if required to breach confidentiality of Sask clients in sensitive circs FWRISA/FWRISA Regs 31(2) Act; s. 8 of Regs No confidentiality - you are required to breach - authorized by law 20 Code Obligations if required to breach confidentiality of non-sask clients co-mingled with Sask clients FWRISA/FWRISA Regs 31(2) Act; s. 8 of Regs No confidentiality - you are required to breach - authorized by law 21 By-laws 3.1 ICCRC Regs must comply with provincial law FWRISA All Does this cover immigration consultant laws? Acronyms: IRPA ICCRC By-laws ICCRC Regs Federal Immigration and Refugee Protection Act Immigration Consultants of Canada Regulatory Council ICCRC By-laws ICCRC Regulations Code File Mgmt Retainers ICCRC Code of Professional Ethics ICCRC File Management Regulation ICCRC Retainer Regulation FWRISA Saskatchewan Foreign Worker Recruitment and Immigration Services Act FWRISA Regs Regulations under FWRISA Director Director responsible for FWRISA

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