[Recorded by Electronic Apparatus]
Tuesday, June 6, 1995
.1815 
[English]
The Chairman: For the record, we were supposed to start at 5:30 p.m. We didn't because of the vote. The main committee meets at 7:30 p.m. in another building. That's why we've asked you two gentlemen to appear at the same time.
This committee tends to be pretty informal compared to others. We're looking at the issue of regulation of consultants.
Mr. Waldman, since you were first on the list, why don't you begin.
Mr. Lorne Waldman (Individual Presentation): In my opening remarks all I'm going to do is highlight what I think the issues are. Then I'd be glad to answer questions on any of the issues I've raised.
As I say, I do have some experience in these issues because at different times I've been consulted by different organizations or groups dealing with these questions.
One of the issues, of course, is the possibility of whether you can regulate and the extent to which you can regulate, given the problems of the division of powers. At different points I was consulted by the Law Society of Upper Canada when they were considering the response to the Ianni report on consultants that was prepared. There were meetings held between senior officials in the immigration department and the minister and the Law Society about whether they could regulate and who would regulate. It seemed to be like a ping-pong ball going back and forth between the Ontario government and the federal government about who had jurisdiction. We were told at one point that there was a legal opinion that the federal government couldn't regulate, and now it appears that they think they might be able to.
But you have to be cognizant of this difficulty. You also have to be cognizant of any potential charter challenges to the extent that any regulation you make might restrict the right of people to earn a livelihood. People might challenge those regulations under the charter.
With respect to the problem, I thought it might be helpful to divide what consultants do into three areas. Consultants represent people very much the same way immigration lawyers do. What I want to make clear is that there are bad consultants and good consultants; there are bad lawyers and good lawyers.
One significant difference is that there are law societies that more or less effectively regulate the conduct of lawyers, and there is recourse that aggrieved people have to the law societies in situations where lawyers have inappropriate conduct. In addition to that, it's important to note that the fact that there are law societies to regulate lawyers is an important control on the conduct of lawyers. They are aware that if they step beyond a certain line, which may not be clear to all of us, they can be engaging in professional misconduct that would bring the wrath of the Law Society down upon them.
Having said that, consultants represent applicants and visa offices abroad. They represent applicants at tribunals in Canada. There are different tribunals, the Immigration Appeal Division of the Immigration and Refugee Board, which deal with appeals from deportation orders and sponsorships. Every time I go, I inevitably see a consultant there.
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They represent claimants at refugee claims before the Convention Refugee Determination Division, and they will often represent people who are in detention at immigration inquiries or who are subject to immigration inquiries dealing with removal. So that's before tribunals.
The third area where consultants are involved is inside Canada. That means anything else - applications on humanitarian grounds, all the applications for extensions of work permits, visitors' visas, all of these things. Consultants are involved in all these things.
I think it's important to distinguish because the problems that arise in each one of these areas are different, and the need for regulation may be different as well. You have to recognize the difference.
The third point I want to raise has to do with what are now the areas of possible enforcement. I've been involved in advising the Law Society of Upper Canada when they've dealt with prosecutions. I had a client who was represented by someone who held himself out to be a lawyer. We took the case to the Law Society and the person was successfully prosecuted, one of the few successful prosecutions of an immigration consultant. But the effect was a fine and an order not to continue the activities. Of course, people then do it again. It takes two or three convictions before the court will consider instituting contempt proceedings against the order to not engage in this illegal practice.
The other possible areas of enforcement are the local police and the RCMP. My experience with both has been that they tend not to be very effective. The RCMP particularly have very limited resources. Their resources are dedicated elsewhere. Immigration consultants don't tend to be a high priority item on their agenda. There's also the difficulty in obtaining a conviction. They've attempted to obtain convictions and they haven't been successful, so that's been a disincentive.
What are the abuses? That's the next category I wanted to speak about. I could categorize and give you anecdotes for hours about different abuses I've seen of work done by immigration consultants, but the most common things you see are people taking money and not performing.
The Chairman: It would be most helpful if you could say whether you think the problem is worse now than ever.
Mr. Waldman: I think it has been bad for a long time. It tends to be cyclical. For example, in 1989 when the backlog was 100,000 cases, the number of consultants was massive. You would go to the Toronto backlog office and there would be twenty consultants. As the number of cases drops, the number of consultants performing drops. It tends to be cyclical.
They tend to operate in different countries. There was a rash of consultants from Trinidad, for example. Then the government put on a visa requirement from Trinidad to prevent people from coming, and the number of consultants from Trinidad dropped as the number of people arriving from that country dropped.
I don't think one can say the problem is more serious or less serious today than it was ten years ago. It has always been a problem. The problems are not with the good consultants but with the unscrupulous consultants and the types of things they do. They encourage people to misrepresent themselves. Many of the notorious schemes that have made the headlines over the last ten years were instigated by consultants encouraging people to make up stories in this way and that way to get their status. There is the case of the work permits in Mexico and the fraudulent work permits that hit the newspaper in 1991, and the Jehovah's Witness refugee claims from Portugal before that. These stories are all well known because they made the national media.
So there are people who don't do any work at all and get paid for it, who encourage people to make misrepresentations, or who do incompetent work. I do a lot of appeal work myself, and in that context I can tell you that I see a lot of people who are very badly represented by consultants. Those are the cases that inevitably end up on the minister's desk. We go to the minister crying that this person was incompetently represented and his story didn't get out properly because he was represented by an immigration consultant.
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I have a last point before I turn the microphone over to my colleague - or whomever. I don't want to usurp the role of the chairman.
The Chairman: Oh, don't worry.
Mr. Waldman: What are the possible solutions? It occurred to me that some people...and I think in conversations with somebody, anyway, there was a suggestion that there might be...hearing from lawyers, we're an interested party, and we want to regulate the consultants so that we can get more business for ourselves.
I don't think whether or not the consultants are regulated will necessarily affect the amount lawyers obtain. In fact, if the consultants are properly regulated, that would tend to legitimize them, and might in fact result in their getting more business as opposed to less.
So I'm not necessarily convinced that regulating consultants will result in there being fewer of them and there being more work for lawyers.
The Chairman: No one is questioning your motives.
Mr. Waldman: I understand that, but it would be inevitable not to. I just wanted to say that I think we have available a whole gamut of solutions.
With respect to tribunals, one solution would be to not permit a person to appear before a tribunal unless the person is either a lawyer or working through a law office, either as an articling law student or perhaps as a legal assistant, but under the control and the responsibility of a lawyer.
The attractiveness of this is that one would hope that would ensure a certain level of competence in the representation.
The disadvantage is that it's going to deny certain people, who may in fact represent you competently, access to tribunals if they aren't associated with lawyers.
I think in the context of a tribunal's work, the argument to impose such a regulation is strongest because it is there, before the tribunals, that the work is most technical and the legal arguments that need to be raised may well need the expertise of a lawyer, at least in some cases.
When you appear before a tribunal, you can have 20 routine cases - and then the 21st one complicated. It is for the cases that are complicated that you need the competent counsel. The problem is, you never know which case is going to be complicated until you get in there. You're presenting a case, and then something happens: you have to be prepared, you have know how to respond. If you don't have the necessary training, you may not be able to.
In terms of non-tribunal work, I don't think there's any justification, in my view, to suggest that you would have to limit consultants to people who worked under the auspices of a lawyer.
I do believe there is a need for regulation. I believe the need for regulation comes about because it is the only way we can effectively ensure enforcement to ensure: (1) minimum standards of competence; and (2) that people who engage in unscrupulous practices can be disciplined.
How you go about regulating is another matter. My belief is that there has to be a statute or some type of legislative provisions that provide for the regulation.
It can't be an organization. I know the one that exists, OPIC.... The concern about that is that it leaves too much to the discretion of the organization, unless there would be some way in which the recognition of the organization could be tied to certain minimum conditions of standards.
In my view, the regulation would need to have, as a minimum basis, standards of admission into the organization and powers of discipline. The disciplinary body would have to be independent of the organization.
The Law Society, for example, now has lay members on the discipline committees. More and more of the discipline committees in the professions are moving toward that type of lay participation so that the public has a sense that it isn't a closed club engaged in the discipline of the members.
Those are my opening comments.
The Chairman: Thanks very much.
Mr. Goldman, if you'd like to say something, please do.
Mr. Ian Goldman (Individual Presentation): I'll try to keep my comments as brief as possible. I don't want to repeat what has been said, but a lot of what I have to say is quite similar.
The Chairman: For emphasis, you can repeat.
Mr. Goldman: Thank you.
First, I'll just tell a couple of anecdotal stories that happened to me firsthand.
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When I was an articling student a few years ago, my principal, the lawyer who was responsible for everything I did, told me to do a refugee hearing. I was not allowed at that time to do a minor criminal case, and yet I was allowed to go in front of the Immigration and Refugee Board and represent somebody whose life was in danger. If they got sent back, they might have been killed. I was quite shocked that I was allowed, as an articling student, to do that.
But as it turns out, you don't even have to be an articling student. I found out very quickly you could have been a real estate agent or a totally illiterate person and been able to do what I was asked to do by my principal.
The second story is something I heard just this weekend. I'm a lawyer in Vancouver, but I was in Toronto visiting a friend, and he told me a horror story. He had a friend who went in front of the Immigration and Refugee Board for somebody who was facing removal from Canada. That was the question.
The person had no qualifications whatsoever. They were sent in front of the board and the person got arrested at the board. The person, without any qualifications, had no clue what to do about it, and didn't even know what the arrest was for or anything. It was just a complete disaster for the claimant. There was no way this person's rights could be protected or that he or she was aware of what was going on.
These are two personal stories that happened quite recently. I just thought I'd show the extent of the problem. It's quite serious. These are very serious issues.
I think the reason they haven't been addressed before is that they involve immigrants. They're people who don't have a lot of say in the political life of Canada. If they get shafted, they get sent out of the country. You don't hear about them. That's the fact of the matter.
I just saw a report by Lloyd Axworthy that was prepared in 1981 and had the words ``Unscrupulous Consultants'' in the title. Nothing's happened since 1981. We're still here talking about what to do. I urge you to take this issue seriously and to do something. At some point something will come of all of these discussions we're having.
I do agree with Mr. Waldman that in order to address the problem there has to be a distinction between a barrister and a solicitor. The people who attend the hearings have to have extremely detailed knowledge of the laws of the charter. Constitutional issues come up, and you'd better know your charter stuff so that you are prepared to deal with them.
That is much more technical than what we call solicitor's work: filling out forms and helping people apply for work permits, permanent resident status and all that stuff. It is a less onerous legal requirement.
I think it's important for you to understand the problem is to make a key distinction between a solicitor's practice and a barrister's practice.
My flat-out recommendation for a barrister's practice is to alter subsection 69(1) of the Immigration Act, which says counsel can be either ``a barrister or solicitor or other counsel''. That's the wording in the act. If you just delete those last three words, you'll have gotten rid of a big problem.
The problem at the board is that counsel, when they're not lawyers, have no ethical obligations to the board. They show up and ask for unreasonable delays, they haven't prepared and they don't know what they're doing. The board gets all backlogged. The backlog in Vancouver, where we have a huge problem with consultants, is enormous.
For the same reasons that you don't allow lay people to go into the courts, you shouldn't allow lay people to go into the Immigration and Refugee Board. There's no difference. In fact, the issues at the Immigration and Refugee Board are usually more serious than provincial court issues, where somebody may have been picked up for breaking and entering or for a minor assault or something of that nature.
The issues at the Immigration and Refugee Board deal with people's permanent removal from Canada, or sometimes the permanent removal of people's lives. Often appeals deal with the reunification of families of Canadian citizens. Their families are extremely important to them; that seems to go without saying.
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So the barristers' practice would require a simple amendment to the Immigration Act. Remove those three words and you get rid of fraudulent refugee claims, for instance. You get rid of fraudulent people advised to lie about who they are when they appear for removal at hearings. I do the appeals just as Mr. Waldman does, and I have that happen all the time. People are up for removal and they say they are that person because they are afraid to admit their real identity. They are afraid they would get sent back. It causes just the beginning of their problems.
The problem with solicitors is a little bit more...I think regulation there may be appropriate. Of course, anything is better than the status quo - I think regulations with some teeth that require people who fill out immigration forms to have some qualifications, some ethical duties, so if they don't properly advise people, they should have their status removed.
To go further than this, whenever documents are submitted to Immigration, I would recommend that if a person has counsel, they require a lawyer to fill out those forms and fill in their qualifications.
Mr. Assadourian (Don Valley North): Can I ask a question?
The Chairman: Normally we'd start with Mr. Hanger.
Mr. Hanger (Calgary Northeast): Let Sarkis go ahead.
Mr. Assadourian: If I'm a refugee from XYZ country, I phone you and come to your office and tell you I want to be an immigrant in this country, take me through the steps you go through.
Mr. Waldman: So the question really is if a person comes to me and says I am a refugee or an immigrant...which one? There are two.
Mr. Assadourian: Accepted as a refugee so they can be an immigrant.
Mr. Waldman: A lot of times what happens is that a person will come to my office, and the end result of obtaining refugee status is the ability to apply as a landed immigrant. The first thing I would do is sit down with the person and assess the possibilities of doing it.
Mr. Assadourian: How much do you charge for each consultation?
Mr. Waldman: Normally $200.
Mr. Assadourian: Is that the going rate within the system?
Mr. Waldman: Some lawyers do the first consultation for free. Some lawyers charge. Sometimes I don't charge $200. Sometimes I do it for free. If the person is legally aided, I don't charge a consultation fee. So it depends.
Mr. Assadourian: How do you decide how much to charge as you go along? Do you have a formula?
Mr. Waldman: How much the person can afford...the fees vary from person to person based upon the complexity of the case. A considerable percentage of my work is done on legal aid if the people can't afford a lawyer and if the person qualifies for legal aid financially. Legal aid doesn't cover all areas of immigration work, so some areas are not covered by legal aid, in which case the person would have to pay.
I think anyone who deals in the area of immigration has to be flexible because of the nature of the clientele we're dealing with. If I deal with an entrepreneur from Hong Kong, I'm obviously going to charge the full rate I can.
My rate is $250 an hour at the top end of the scale, which is -
Mr. Assadourian: On average how much would you say the cost would be, $2,000, $3,000, $5,000?
Mr. Waldman: It depends on the complexity of the case. Some cases take me 5 hours, some cases take me 20 hours. I just did an appeal and billed 45 hours for that case, so it was $9,000.
Mr. Assadourian: You're a lawyer, right? Would the ordinary consultant fee be similar to yours or higher or lower?
Mr. Waldman: My experience is that consultants tend to charge more for the work I've done. For an application on humanitarian and compassionate grounds, based upon the time it takes me, I charge $750. I've seen consultants charge $2,500 for the same work. Sometimes they may charge less, I'm not saying...and there may be a consultant who would charge $500.
Mr. Assadourian: Why would they go to a consultant and not their lawyer? What is the benefit for them?
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Mr. Waldman: There are different answers for that. Sometimes they don't know the people are consultants. A lot of people will come to me and I will ask them who their lawyer is. They'll give me a person's name and I'll ask them if that person is a lawyer. They say yes, but when I check it out, I find that person isn't a lawyer but a consultant. Sometimes people believe the person they are retaining is a lawyer when they are not.
A lot of the time it has to do with language. People tend to like to deal with people who speak their own language. So in many cases a person will retain someone from their community who speaks the same language because they feel that person can understand them better, can deal with them, can empathize with their problem, and can understand their situation and converse with them. It can also be because of referrals.
Mr. Assadourian: If you have a family of a husband, a wife, and children, do you charge each one separately?
Mr. Waldman: If they do the application together, there would be no need to charge separately. When you do an application for permanent residence, for example, there's one applicant and the entire family is included. So there's no extra time on my part to do one application for a whole family as long as there are dependents. The fee would be the same.
Mind you, the immigration fees are a different situation. The immigration fees are now extremely expensive.
The Chairman: We're aware of that.
Mr. Waldman: I'm just teasing.
Mr. Assadourian: Would you agree that if there were a diploma course for consultants to go through it would be a step forward and that maybe it would eliminate some of the problems we have with the consultants?
Mr. Waldman: I think that in and of itself isn't enough. There would have to be some type of training course that led to some type of official recognition. But that would have to be coupled with registration and with the capacity to discipline. The diploma course will alleviate one of the concerns.
First we'd have to establish what the minimum criteria would be in terms of the course curriculum, but if we could agree on the curriculum and if we required people to pass the course, one would at least assume that most of the people would have the minimum knowledge. But that doesn't prevent people from continuing to engage in unscrupulous conduct. The only way you can do that is to have regulation and discipline.
Mr. Assadourian: To back up the....
Mr. Waldman: Right. You would have to have both.
Mr. Hanger: How many immigration consultants are there in Canada? Do you have any idea?
Mr. Waldman: I think it's impossible to quantify them, because there are people who will appear once or twice or five times and then disappear. If you include people who have appeared once or twice, I think there are hundreds, if not thousands. If you include people who make a livelihood from it, I would say hundreds.
Mr. Hanger: Hundreds.
Mr. Goldman: Could I answer that too? I noticed there were a lot more when the Vancouver real estate market declined. I'm not joking. All of a sudden the ethnic newspapers filled up with advertisements from people who were real estate agents calling themselves immigration consultants and saying we do cases and we do appeals. I could show you the newspaper clippings. It fluctuates with the market. If they can't sell houses, they'll take money from people in other ways.
The Chairman: Those damn real estate agents.
Mr. Hanger: Why should there be a need for consultants? Whether you look overseas or internally, why can't government officials handle the job?
Mr. Waldman: That's an interesting question. If you speak to immigration officers and visa officers, they'll often question the need for counsel. I can give you examples of why counsel is necessary in certain situations. To be honest with you, in a very simple, straightforward case maybe counsel wouldn't be necessary, if we're talking about overseas applications.
I'll give you an example. A man came into my office. He was a PhD student at Queen's University. He applied to Buffalo for his immigration. He filled in the application form and outlined all his work experience in India, but where the form required the intended occupation to be listed, he wrote the word student. Applications are done on the basis of points. You must get one point in the category of occupation in order to get your visa. Students have a zero in the occupation category.
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They wrote him a letter refusing his application. He came into my office and asked for my help. I looked at his work experience. Well, before he came to do his PhD in Canada in some very esoteric area - and I can tell you he already has four job offers - he had worked in business in India in a senior management position after he got his Master's degree.
Mr. Hanger: But did he come to you -
Mr. Waldman: After he got refused.
Mr. Hanger: - in your role as a consultant?
Mr. Waldman: No, in my role as a lawyer.
Mr. Hanger: As a lawyer.
Mr. Waldman: But you're asking me why they would need -
Mr. Hanger: Why would there be a need?
Mr. Waldman: Yes, why would he need me? He told the truth when he said he was a student and he was refused. I wrote a letter to the visa officer and asked them to please assess this gentleman in his occupation before he came to Canada, which is the occupation he will take up when he finishes his doctorate in three months. His occupation was in demand. He got the visa.
You will ask why the visa officer couldn't have done that. Well, maybe he could have, but he didn't. There is a case in the Federal Court that says he is not under an obligation to do that. In other words, if I ask to be assessed in twenty categories they have to consider me in all the different occupations to see if I qualify under any of them. But if I write down student, the visa officer doesn't have to take the time to look at my application and say that the applicant said he was student but he really qualifies as an electrician, and if we qualify him as an electrician he'll get in. There's no obligation to do that.
Now, what you're really talking about is the philosophy of the service in the department and whether the department sees its role as one of assisting and facilitating or one of processing. To the extent that many visa officers see their role as being one of applying the law, which is what their role is under the statute, they're under no obligation to facilitate. So the role of the consultant or of the lawyer is to try to assist the person in qualifying so that when his application is presented, he meets the criteria. That's just one example.
Mr. Hanger: I can say the same thing for the office of an MP. These kinds of scenarios actually come forward. I don't think there's an office around that probably hasn't done that in some fashion or another.
Mr. Waldman: Of course.
Mr. Hanger: But, again, I'm wondering is there really that much of a need that couldn't be adjusted in some other fashion by changing a few things in the bureaucracy to handle some of those applications?
Mr. Waldman: That would deal with one part of the problem overseas. We might solve that problem if you gave instructions to visa officers telling them that when they receive applications for permanent residence they should look at the application and look at all the potential occupations, etc.
Don't forget that part of the process in immigration is adversarial, where the minister is the adversary to the person and is seeking to expel or to prevent the person from being admitted. In all of those circumstances the officials of the department cannot legally be in a position to facilitate. So in some circumstances where the role is not necessarily adversarial, maybe if the attitude of the officials were different....
It's not even a question of attitude. It's often a question of time. And is it reasonable to expect an immigration officer who has to go through 150 applications in one day to look at each application and consider all the possibilities that might happen?
Mr. Hanger: I can appreciate that given the present scenario as far as the number of people on the front line goes. I agree they would not be able to do it adequately. I get your point.
The other thing I wanted to -
The Chairman: Mr. Goldman, did you want to add something?
Mr. Goldman: Mr. Waldman just made my point. They just don't have time.
The Chairman: Jump in if you want to.
Mr. Hanger: Mr. Goldman mentioned getting rid of fraudulent refugee claims by regulating consultants. How are you going to do that?
Mr. Waldman: Well, you have to know what happens out there.
Mr. Hanger: I do. I think I do.
Mr. Waldman: People come to the border with a story cooked up or have one cooked up even before they come to the border. People, including their relatives, try to get the most interesting story so they can get accepted, and usually their stories are based on the advice of somebody who tells them what a good story is.
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I know most people have a very low regard for lawyers, but we just cannot do that. Lawyers would never put their careers at risk to tell people to answer some questions a certain way. It's just not worth it. More importantly, our ethics... my personal ethics would not permit me to do that. It would just create havoc in the whole system.
Consultants make it their livelihood to cook up stories and create nice fiction so people get accepted. So consultants are more important than the claimants in creating fraudulent refugee claims.
I have had many cases where claimants had real cases; they had refugee claims. But they went to consultants and the consultants advised them to lie for whatever reason - I don't know why - and harmed them more than helped them. So that's why I think you would get rid of a lot of fraudulent refugee claims if people weren't advised to lie.
Mr. Hanger: With the present circumstances within the Immigration and Refugee Board, why should that even be a problem? In my way of thinking, it's not. You have an 80% or 90% acceptance rate across the country and in some areas it's even higher. You're looking at 10% to a maximum of 20% who are rejected, and they are never removed from the country anyway because by the time they go through the appeal process they are still kept here on humanitarian and compassionate grounds. So I guess I question the regulation when ultimately the bottom line is the same no matter which way you do it.
Mr. Goldman: I'm sorry, I'm just not following you. If you get rid of the fraudulent claim, of course that claim will be turned down.
Mr. Hanger: Why be concerned about whether it's fraudulent or not when you have an 80% to 90% acceptance rate on board members and the other 10% to 20% who are rejected are usually held on humanitarian and compassionate grounds?
Mr. Goldman: Well, if you perceive that rate as being too high -
Mr. Hanger: Well, it is that high.
Mr. Goldman: - and somehow come to the conclusion there is some sort of rate it should be at, that's a different problem. That's what I'm trying to say.
The Chairman: Why don't you give us your perception?
Mr. Goldman: About the refugee claim?
The Chairman: About everything you just said.
Mr. Goldman: I don't really know how people can come to the conclusion that there should be a specific acceptance rate for refugee claims. I don't know how they know what the rate should be. I don't know where you get the criteria for saying whether it should be 30% or 50% or 20%, because there's no basis for it as far as I can tell. But if you're saying the rate is 80% or 90% - and I'm not sure what it is - and it should be lower, that has nothing to do with consultants.
Mr. Hanger: No, I appreciate that. The question of levels is another argument, in a way.
I'm saying that regardless of whether you're looking at the area of refugee claims or even appeals, it doesn't matter whether or not there's a rejection because the track record of removals in the country is almost nil, apart from people returning on their own. So what difference would it make if they were regulated or not?
Mr. Waldman: First of all, in my experience, I agree with you there have been serious problems with removals. We can talk about that, but how you improve the removals and what the objectives should be behind the removals are topics for another day.
The problem with removals is that no one understands why we're removing. Until we decide what the purpose is for removing, we won't have a reasonable removal policy. You can ask five people in Immigration why they're removing and you will get five different answers. Until we determine that, we're not going to have a policy. We must have clear criteria for saying why we remove and what the priorities for removal are. Once we determine that, we can have a policy. The reality is that we have a limited capacity to remove because it costs a lot of money to remove. Countries don't cooperate in removing and there is a whole series of logistical problems involved. In a time of government cutbacks it's not in the cards for the government to spend another $500 million in removals anyway.
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So if the proposition is why bother regulating because people are going to be allowed to stay anyway, there are several answers. One is that it will eliminate some of the abuse. It will allow the board to be more effective in some ways, because a lot of the abuse of the system in terms of constant adjournments is a product of immigration consultants. It will prevent the worst cases of people not being represented when they have paid for their representation.
Regardless of whether the system operates or not, in the sense of whether we see the prime objective being removals, it will give protection to people who operate within the system independently of that. To be honest with you, I think the commission has begun to confront the problem of removals over the last few years, and I expect there will be changes within a period of time.
There have been changes. In my first seven years of immigration practice none of my clients were removed. To be honest with you, now people are removed with some regularity. Obviously it's not as effective as it could be, and whether that's right or wrong I don't know, but there are more removals. The number of removals have quadrupled in the last six years.
The Chairman: Are you familiar with OPIC?
Mr. Waldman: Yes.
The Chairman: It believes we should put a regulation in place that somehow allows us to give a stamp of approval. The lawyers already have it as lawyers, so if you're in OPIC you would get this government stamp of approval saying you were legitimate. Through word of mouth in the market, the immigrant and refugee community would then go to members of OPIC, notwithstanding it's really something the provinces have the right to regulate. So even if immigrants just wanted help filling out forms, if the federal government put that regime in place it would work.
Mr. Waldman: I have a few comments. First, I wonder why it would be any different from what it is now. We have lawyers, and people don't go to the lawyers. A significant percentage go to the consultants. If we allow some consultants to register as immigration consultants, will that eliminate the others? I don't know. I don't see any necessary logic to that proposition, unless we say the others can't operate.
The Chairman: Do I have the right, as a federal lawmaker, to prevent somebody from charging money to help an immigrant fill out a form?
Mr. Waldman: It depends in which context. I think you have the right to prevent them from appearing before tribunals.
The Chairman: Yes, but I've been told that only involves about 10% of the cases.
Mr. Waldman: Of the total immigration flow.
The Chairman: Yes.
Mr. Waldman: Obviously you're going to have a big problem with people who are applying outside of Canada because it's very difficult for you to regulate activities that don't occur in Canada, period, even though they may occur at visa offices overseas.
The Chairman: So that's our problem. Members of OPIC have said if we just give them the label, for proper reasons, they would set up a discipline code and go through all the hoops. If we're satisfied that they're genuine and they really want to do a good job, the marketplace will draw a line between them as legitimate consultants and non-legitimate consultants, and market forces will contribute a lot toward solving the problem.
Mr. Waldman: Any type of legitimization of OPIC or any other organization would have to be conditional upon the organization meeting certain criteria, which would have to be very clearly established.
The Chairman: Agreed.
Mr. Waldman: I haven't thought this through completely, but the criteria would have to include at least minimum standards of admission, which would involve some kind of test that would have to be administered by an independent body.
The problem with OPIC and any of these other organizations is that unless they're created by statute they're self-created, self-governing and have absolute control over themselves. How do you get around the problem of creating a disciplinary organization with OPIC that is independent of the organization? That's what I see as the biggest problem of legitimizing an organization like OPIC when it's not a creature of statute.
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Mr. Goldman: Maybe I could add a few comments. I don't know where the information is coming from - maybe it's coming from OPIC themselves - that you cannot regulate who sends papers into the federal government for visa applications of any sort. I'm not sure that's true.
The Federal Court is a creature of statute. You cannot appear in front of the Federal Court unless you're a barrister and solicitor. Yes, it's a court, and you can't send documents to the Federal Court unless you're a barrister and solicitor if you're getting paid. A consultant couldn't do it.
So why do you want to encourage this sort of thing? What you're doing is opening it up to people who may not be very well qualified. That's the first point.
The Chairman: Let me deal with your concern. I've been advised that regulation of professional groups, immigration consultants or whatever, is the jurisdiction of the provinces, as a starting point. So the Immigration and Refugee Board could decide we're only going to allow lawyers in. Fine, no problem. But that doesn't solve the problem of the guy who says pay me $10,000 and I'll bring your wife over or pay me $2,000 and I'll do whatever.
Mr. Goldman: [Technical Difficulty - Editor] forms you're talking about.
The Chairman: Yes. It doesn't solve that. I think that's one of the reasons this has floated around for fifteen years or whatever.
Mr. Waldman: Chair, I have to run, so I'm just going to make a last comment.
I can tell you that's why it's floated around. Every time we've talked about regulating, the ball has bounced back and forth between the provinces and the federal government. There was the possibility some time ago that the provincial government in Ontario, at least, was going to act, but they backed away. I think they realized the complexity of the problem.
I don't think we'd lose anything by legitimizing certain organizations. The concern I have is that it would have to be done in such a way that the public would have confidence that the organization isn't a closed shop that's regulating itself with complete self-interest.
The Chairman: The researcher has asked to ask a question before you go. We're allowing that if you have time.
Mr. Waldman: I would always take the researcher's question.
Ms Margaret Young (Committee Researcher): You mentioned, in two different contexts, the importance of keeping the disciplinary procedures separate from the organization. I'm not quite sure what you mean. Could you clarify that a bit?
Mr. Waldman: I would be very concerned if the disciplinary body of OPIC or whatever consultation organization were made up only of members of the organization and they had complete control over what happened. There are two reasons, but it's mostly because of the perception of it being a closed shop and the public perception of the effectiveness of any kind of disciplinary body. The Law Society, the disciplinary boards, the medical boards all have lay people who are non-members on them. That's what I meant by that point.
Ms Young: That's fine. It's an accountability measure.
You used the word ``independence'', and I just wondered if you were talking about different structures. But, no, you're talking about public input, public responsibility, accountability, rather than separate organizations.
Mr. Waldman: The structure is of concern, too, obviously. Discipline hearings that are held in the.... I hate to go back to the professional bodies, but there's a format, there are proceedings, it's public. I think there would have to be certain minimum requirements in terms of procedures that would be followed in discipline. If you want the organization to have credibility, if there's a disciplinary matter, it would have to be public, for example, and there would have to be a procedure that would meet the minimum requirements of procedural fairness.
The Chairman: Are lawyers disciplined in public?
Mr. Waldman: Yes, they are. It's new; it's been in the last few years. They are now.
The Chairman: They didn't meet the criteria before.
Mr. Waldman: They did; they are now. In fact, medical disciplinary hearings are also held in public now too. The reason why the comment is on point is that it's a new phenomenon. All disciplinary hearings are moving into public.
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Anyway, I have to run. I'm sorry. I'll be in touch.
The Chairman: Do you know Frank Marrocco?
Mr. Waldman: Yes, I do.
The Chairman: If you get an opportunity, chat with him. I thought their proposal was pretty sound.
Mr. Waldman: I'd like to look it.
The Chairman: We're not going to conclude on this quickly. The minister has asked us to be thorough and bring a really solid, nuts-and-bolts report back to him. So maybe we will call you back.
Mr. Waldman: Maybe what I'll do is speak to Mr. Marrocco. Then I might have some comments and I could contact the researcher at that point.
The Chairman: Yes, or the clerk.
Mr. Goldman: I have just a couple of points I want to make about OPIC. First of all, it is obviously only in Ontario. Out where we are, in B.C., it wouldn't make any difference.
If you keep it under provincial jurisdiction, you're going to have a patchwork across the country and it's really going to create havoc with Immigration Canada, which of course is one unit. It doesn't have different criteria for who can present evidence to it or submissions to it in different places. It has to have the same criteria. So you couldn't say, for instance, you have to be a member of a regulated commission. If there were no regulated commission in B.C., I would guess you'd have no consultants. If there were no regulatory body, you'd have no consultants as an effect.
I can tell you what would happen with applications right now, because people are very creative out there. They'd all send their applications through Ontario. They would be in British Columbia, but they would start sending their applications to Ontario so they could operate in Ontario, even though they would still be living in Vancouver. You don't have to submit the documents to the Vancouver office. You can submit them to anywhere you want.
The Chairman: Or OPIC would set up a chapter in B.C.
Mr. Goldman: It could, if the right regulatory system were set up. Of course they would have to comply with any British Columbian laws in that circumstance.
The Chairman: If the group doesn't mind, could we go back? I want to be clear.... You've asked whose advice it is that it's in provincial jurisdiction.
Mr. Goldman: Yes.
The Chairman: That opinion seems common. We have had it from the researcher, from other lawyers.
Mr. Goldman: It's not 100%. I realize that's the prevailing opinion, but that hasn't been tested, and lawyers like to test everything. I don't think that's a 100% certainty. It may be an 80% certainty.
If it weren't, things would be a lot easier. You would be able to have one set of rules that would surely be applicable to all immigration offices. You wouldn't have to have a patchwork of different qualifications and different disciplinary proceedings across the country.
Mr. Loney (Edmonton North): We have two givens. One, of course, is the growing backlog at the IRB. The other is the increasing number of fraudulent cases coming before the board.
I suppose there are several reasons for that. I'm going back to a statement you made that immigration consultants have a tendency - and it was too broad a statement, in my estimation - because of their lack of expertise and the non-professional area in which they're working.... Mention was made that when real estate went down the tube, there were all these advertisements of lawyers, consultants, and even real estate agents, who were getting into this field. But part of the backlog is because of dealing with these fraudulent cases.
Is it because the immigrant people concerned are approaching the professional immigration consultants and getting bad advice, as you have mentioned? In turn, in my own experience, I know that within the ethnic communities they have a tendency to turn to paralegals, because of language, because of a similarity of background, because of the recommendation by friends or relatives or something like this.
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In your estimation, if there were more lawyers - and I'm talking about competent lawyers - practising immigration law, do you think that would solve part of the problem? So when their case is taken to the IRB, the case is thoroughly prepared.
Again, the stories I have heard as a member of Parliament - and I'm sure Mr. Hanger will agree with this.... We're hearing these stories...in defence of the accusations that many of the appointments to the IRB have been lay people, non-professional people, who really don't understand what they should be doing, that they're bringing the cases in and the preparation is not thorough. They keep sending them back for further investigation for more answers to the questions that are put on a routine basis to the people who are appealing. Do you think if we had more lawyers specializing in immigration law, that would be a step?
Mr. Goldman: Yes.
Mr. Loney: That seems to be the opinion - and I'm speaking as someone from Alberta - of the Law Society itself, because they're setting up another special course at the University of Alberta. About two weeks ago they set up a scholarship for the growing number of students who are applying to specialize in that particular field.
So I wonder if you're in agreement with that, that if we had more lawyers specializing in and practising immigration law.... As you mentioned, let's say a person in the business community has been dealing with a lawyer, whether he's a corporate lawyer or whatever it is, and he's been on a retainer basis perhaps for a number of years, and he has a problem within his family concerning immigration, or his extended family has brought it to him, and it gets to the point of appeal. He's going to go to that lawyer he's been dealing with, whether it's corporate law or whatever, and in most cases - I've seen this - the principal sends an articling student, sometimes with very little preparation. That's to the detriment of the client who is making the appeal.
That's why my personal opinion is that we very definitely need, in view of the accusations that the people on the board themselves are not qualified and are responsible for part of the backlog, competent people specializing in immigration law. You have the so-called fly-by-nighters. They sting a few people for $5,000 each. They don't care about their reputation.
But the other side of the coin, when I said I thought your statement was a bit too broad...there are professional immigration consultants out there, many of whom have been with the department. In most cases it has been brought to our attention - in some cases, anyway - that people like that have entered that field and they really have more expertise and more background than many lawyers and - don't take offence at this - in particular than some of the younger lawyers.
Do you know what I'm saying?
Mr. Goldman: I agree with you. I don't take any offence. That's true. There are consultants out there - and you will hear this from anybody who has been in the field any amount of time - who are better than lawyers. But they're not the problem.
Mr. Loney: This is what we're trying to get to. What is the problem and what is the remedy?
Mr. Goldman: This is the big debate. First of all, if it's provincial jurisdiction, the remedy has nothing to do with this committee. If it's federal jurisdiction, I'm suggesting...I wouldn't be 100% certain. There is a split in the bar. I can tell you this. You are going to hear from a representative from the British Columbia bar on Thursday, Elizabeth Bryson, whose position is that you do have jurisdiction to regulate them. There's a split in the bar.
Most of the immigration bar is focused in central Canada, because with the exception of Vancouver, that's where most of the immigrants go. But you have a weird little variation out there in Vancouver, where a flood of immigrants come in and there's a very small immigration bar - it's nowhere near as big as Ontario's or Quebec's - where we have a different view.
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I hope you don't get the impression that it's a unanimous verdict of the bar, that while Quebec and Ontario.... Mr. Waldman represents part of the Ontario bar. It's really a jurisdictional battle.
We would prefer it if somebody tested that to make sure that it is so. If it wasn't, then you would have a lot of power to do something, such as pass a simple rule such that you'd either have to an immigration consultant with qualifications of some sort, or you'd have to be a lawyer to submit documents to Immigration Canada.
Mr. Loney: We have a body here that we're dealing with that has to be provincially licensed to deal with a federal jurisdiction.
Mr. Goldman: That's what I'm saying. That seems to be the dilemma. I don't understand how that's a solution. Whichever province has the easiest qualifications, that's where everybody is going to sign it. That's what I'm trying to explain. It's a federal board or a federal entity. You're going to get some place where they have no qualifications. Everybody will be saying they are with P.E.I. or whatever. Pick your place.
Consider the Northwest Territories. People can get very creative to say that's where they're entering from and that's where they got their qualifications. They'll open an office in Yellowknife and start submitting documents through their Yellowknife address. You will not solve the problem.
Mr. Loney: What about the problem of applying it to the consultants who are operating outside the country? There's a growing list of consultants in Hong Kong right now. A lot of them are people who have taken early retirement from the department to take advantage of that particular business at this particular time. But what about regulating them now?
Mr. Goldman: Again, if the federal government had the jurisdiction, it would be solved by some sort of accreditation. You would need that to submit documents to the foreign visa post, such as Hong Kong, Thailand, or wherever.
So if you were to use a consultant, the question on the form - this would be just like your Revenue Canada tax form - would say: has somebody been used to prepare this document? In order for that to be a name that would be acceptable to Immigration Canada, as opposed to Revenue Canada, you would need some sort of number or accreditation of some sort. That would be my solution.
I think one of the things that seems to be the impression is that all these experts - they are experts, as they are ex-visa officers who know the rules very well and have been practising for20 years - would lose any source of income of practising as a consultant.
That's not necessarily true. You could have rules that say - this would be just like that for an articling student - you would just have to practice under the supervision of somebody who is qualified. So the papers would pass through a qualified person of some sort, either a consultant or a lawyer.
So you could have all sorts of people out there who submit the documents to the lawyer, and the lawyer reviews them. This happens now a lot.
Mr. Loney: It's like an accountant doing the legal work in a firm that specializes in estates.
Mr. Goldman: Yes, that's right.
Mr. Loney: It's similar to that.
Mr. Hanger: I know as many lawyers who are manipulating the system, too, as there are consultants in the true sense of the word. This is whether the lawyers are considered consultants or not. They actually practise immigration law, and have worked the system to their advantage, if you will.
I believe there was some information that came to us the last time around about the number of consultants who actually do make appearances at the Immigration and Refugee Board. That's rather low compared to the number of lawyers who actually do that. Is that correct?
Mr. Goldman: It depends on where you are. I was just at a hearing today for ten hours in front of the Immigration and Refugee Board, as I was telling you on my way up here.
I was told by board members here, one of whom was extremely experienced, that very few consultants appear before them. In Vancouver it's a big problem; in Toronto it's less of a problem.
I was speaking to Mr. Waldman about this. He said it's not as big a problem as it seems. I don't mean it's a problem in the sense of bad advice, but it's a problem in the numbers coming before the board.
There are a lot of adjournments. The Vancouver - this is an unprecedented one - Immigration and Refugee Board division that deals with appeals, the reunification of families, just passed special policies. It's a policy that just applies to their office. It was just issued about two weeks ago from just the Vancouver office.
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It deals with submission of documents. The consultants were coming before the board. They hadn't prepared, yet documents had to be given to the board in advance. So everything was postponed.
Now, if somebody were to come in for setting a hearing, I'd be setting a hearing in January 1996 because of the delay in Vancouver from consultants showing up at hearings totally unprepared.
So the answer to your question is that it depends on where you are.
Mr. Hanger: Yes, that's in terms of the numbers, whether they're lawyers or consultants, going into the hearing room. I'm not saying this in a detrimental sense to the lawyers when I say that there can be as many bad lawyers as consultants involved in this business.
We've run into it. I've had people who came into my office with the same complaint of overcharging and no performance. Cases were argued that were never going to go anywhere. What do you with those? Often many of them go no further than a complaint being laid with maybe a member or someone else.
I see that this problem may not be driven away by just regulating consultants.
Mr. Goldman: If a lawyer is, as you've used it, manipulating the system to the extent that they're compromising the ethical standards that have been set for them, they should be disciplined and have their licence yanked. They should not be lawyers.
I've heard stories of lawyers doing things that are similar to what consultants do. I agree with you that if they're doing that they should not be practising.
Mr. Hanger: You may feel strongly about that, but I know the system does not allow it to be any other way, especially if it comes to legal aid. The legal aid flows fast and free as long as you can put in the legitimate forms.
Do consultants get legal aid for any immigration case?
Mr. Goldman: No. Legal aid, as it's set up, is only available to lawyers.
Mr. Hanger: In a way, that's probably why it cuts their numbers out of the Immigration and Refugee Board hearings. It's because of that reason.
Mr. Goldman: That's right. People who aren't able to pay a lawyer couldn't pay a consultant. They'd have to go to a lawyer for legal aid.
Mr. Hanger: Is there some way of regulating the whole thing just by regulating the flow of cash? Take the money away and all of a sudden the whole business dries up.
Mr. Goldman: It's something I've never really considered. Do you mean that you couldn't get paid to submit forms to Immigration?
Mr. Hanger: For instance, if it was a refugee claim and the hearing went ahead and the applicant was refused and told he was not a refugee, should legal aid flow beyond that point?
Mr. Goldman: It's severely restricted on that point. After a claim is refused, you have to apply to legal aid.
In British Columbia there are only two people who will approve whether legal aid will pay for the appeal. You have to show there's a likelihood of success. So they really restrict the funding for appeals by saying they're not going to pay you, and the person's so poor that they can't pay you.
Mr. Hanger: I guess I'm wondering if it goes beyond....
Mr. Goldman: If the person can pay, they can go to a consultant just as well as they can go to a lawyer.
Mr. Hanger: Yes.
The Chairman: We're running short of time. Was there a final point?
Mr. Goldman: I probably will get a copy of the submission of Mr. Marrocco. I'm sure I'll be making some sort of written submissions at a minimum.
I wonder if the submission of OPIC is that the marketplace would be better served if there were regulated consultants. I think that's a non-issue. The marketplace won't be any different. You'll have a bigger choice if you're a client. You could either go to a consultant or you could go to a lawyer. However, I don't think the fees would be any different.
The Chairman: Their point was that if you walk into a store, you can choose between two types of beef. One's been inspected, as there's a stamp of approval on it, while one hasn't. So you buy the one that's been inspected and has a stamp of approval on it. Their point was that the immigrant community would then go only to qualified people, knowing that they're qualified because they have this stamp.
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Mr. Goldman: I think that argument is faulty, because they don't go to lawyers now. They don't go to lawyers now knowing that they are qualified, that they have passed three years of university.
The Chairman: There are lots of good consultants.
Mr. Goldman: Yes.
The Chairman: So they go to these consultants. They know you don't necessarily have to go to a lawyer to get good service.
Mr. Goldman: That's correct, but what I'm saying is that there are lots of people out there who will say they are lawyers, and there are no teeth.... Well, there are teeth from the Law Society - you can't do that - but it's a drawn-out procedure that's not really effective. A lot of consultants say they are lawyers. There'll be a lot of people who will say they are accredited consultants when they're not. There will have to be some sort of teeth to prevent people from doing that.
The Chairman: Let me ask you then to summarize in two minutes, given all these obstacles we're dealing with, what you would do if you were the minister. What law would you pass?
Mr. Goldman: I've suggested, number one, with barrister work, no non-lawyer should be able to appear before the board. If I had federal jurisdiction, I would make a uniform rule for people who submit documents to immigration, the other 90%. The people who present documents to Immigration Canada have to have some sort of accreditation, with teeth, the usual disciplinary forces.
If you don't have the jurisdiction, we're just speaking in air here because it won't make any difference. It would then come down to each particular province, and in my submission it would be a disaster. You would have the loose link in the chain being the huge funnel through which documents are submitted.
The Chairman: We may be able to get provincial consent to give us jurisdiction, some sort of administrative agreement.
Mr. Goldman: Yes, that could do it. But I think you need some sort of federal jurisdiction to be dealing with that other 90%.
The Chairman: I'm sorry, but we have to go. The main committee is meeting to consider a report on gender-based refugee claims. Thank you very much. We appreciate your coming.
The meeting is adjourned.