Opening Statements - Raj Sharma and Lorne Waldman - Appearance at the Standing Committee on Citizenship and Immigration Studying Immigration Consultants

Mr. Chair:	Good afternoon. Pursuant to standing order 108-2 and the motions adopted by the committee on October 4, 2016 and April 3, 2017, the committee will resume its study on Immigration Consultants. We had Mr. David Arnold from an Australian High Commission scheduled, but I understand that an hour ago we unfortunately received a message that he had to stay on post. There will be a written submission, and if there are any questions that have been prepared for this witness, please submit those questions. They'll be passed on to Mr. Arnold and responded to.
	Before us today, we have Mr. Raj Sharma, Managing Partner, Stewart Sharma Harsanyi and Mr. Lorne Waldman, the Barrister and Solicitor for Lorne Waldman and Associates. Welcome, gentleman. Mr. Sharma, the floor is yours, seven minutes.
Raj Sharma:	Thank you, sir. First of all, I'd like to say that it's an absolute honor and privilege to appear and participate in your study of the legal regulatory and disciplinary frameworks governing and overseeing Immigration Consultants in Canada. By way of background, I am an immigration lawyer in Calgary. Before I went into private practice, I was a Refugee Protection Officer with the Refugee Protection Division at the Immigration Refugee Board. That is Canada's largest administrative tribunal. As a former Immigration Hearing Officer, now as an immigration lawyer, I've done hundreds of hearings, probably less than Mr. Waldman, but still quite a bit.
	My partner and I and our associates appear regularly before the Federal Court of Canada which requires a review of the record below. Over the years, I've also had the opportunity to host a Punjabi language radio show in Calgary. For obvious reasons, immigration is a matter that is very near and dear to my community. I've seen lawyers and Immigration Consultants at all three divisions of the IRB. I've seen their work, transcripts of their hearings, and their applications. I've seen firsthand the consequences of that advice.
	There are good lawyers and bad. There are bad consultants and good ones. In my opinion, very very few consultants are competent enough to represent and advocate for clients at the IRB. I've had the opportunity to review the briefs of the Canadian Bar Association and the Metro Toronto Chinese and Southeast Asian Legal Clinic. I share much of those concerns. I disagree, however, with the CBA call to restrict representation for fees only by lawyers who are members of good standing of Provincial Law Society.
	There's two important concepts at play: access to justice and protection of the public. I've had the opportunity to work with Immigration Consultants that have prior experience in immigration including former immigration officers or CBSA officers, former lawyers, and others that know their limits. They do provide a valuable service. I don't think that lawyers automatically have a monopoly over all aspects of immigration law. The fact of the matter, however, is that ICCRC seems to favor promoting the easy entrance of consultants to the practice of immigration law over the protection of the public.
	Right now, after getting admission to and passing a 320 hour online course, and this is what action call, is what the website says, "The program gives students the opportunity to become part of this exciting field without forcing them to be on campus.” No courses on legal research, evidence, administrative law principles. Once you complete this completely online course, you need to pass the ICCRC exams. By the way, even if you fail the skill exam, you still get three more kicks at the can, so anyone over 18 with the language proficiency test passing this skills exam on day one can represent a refugee before the RPD.
	To represent a refugee means knowing the substantive law in this area, terms of art like state protection, internal flight alternative, exclusion clauses such as crimes against humanity, war crimes, serious international non-political crimes. That same person can also, on day one, appear before the immigration division to represent a permanent resident being charged with a serious crime outside Canada. That requires an equivalency of a foreign charge with the Canadian criminal law.
	A loss at that division could result in the loss of status and removal without a further appeal. That same person can represent a permanent resident at the immigration appeal division with a criminal conviction in Canada or a permanent resident facing allegation of misrepresentation, or a Canadian sponsor appealing against refusal by a visa officer to a family member overseas. There's no way that a six month online course can give you grounding and substantive law to be an effective advocate.
	Look, we don't allow 16 year olds to drive 18 wheelers. There needs to be  graduated licensing for consultants. Just because you can fill out a work permit doesn't mean you can appear and represent an advocate for refugee, a permanent resident facing criminal charges abroad, a permanent resident with a conviction inside Canada, or a Canadian looking to appeal against refused visa to a family member.
	We're relying on Immigration Consultants individuals to self police, to restrict themselves when it is in their financial pecuniary interest to take on work, even work that they are not competent to do so. They've paid thousands of dollars for the education, the skills exam, registration, insurance, marketing and advertising, and more. Obviously, they'll want a return on that investment.
	My recommendation is to split the baby. In the United Kingdom, the legal profession is split between solicitors and barristers. Solicitors do transactional type of legal work. This is probably what 320 hours of an online course will allow for a consultant to provide advice on and assist in completing immigration applications. Barristers represent clients as an advocate before a court or a tribunal. This requires training in evidence, ethics, court practice and procedure, legal research. There's no way that 320 hours of an online course will allow for a consultant and maybe a mock interview module to allow a consultant to practice competently before the IRB.
	There should be a different process to license certain immigration practitioners or advocates to appear before the IRB. These individuals should either possess direct prior substantial experience and/or prospective immigration advocates should be required to complete substantially the courses and undergo articles or train under the supervision of a lawyer or a consultant that has the requisite experience.
	Frankly, I think regulation has failed because the ICCRC sets up consultants to fail. They are knowingly or ignorantly, take your pick, arming their members with a knife and allowing them to go into a gun fight. Ultimately, it is the refugee claimant, the spouse separated from her partner for years, the permanent resident facing removal and loss from a status, and loss of status from a country that he has called home for decades that will pay the price. Thank you for your time. I look forward to answering any questions that you may have of me.
Mr. Chair:	Thank you Mr. Sharma. Mr. Waldman, the floor is yours, seven minutes please.
Mr.  Waldman:	Thank you. I just want to say, I hadn't discussed this with Mr. Sharma, but you'll be surprised to see that our positions are very similar. I'm going to build on what Mr. Sharma just told you. I agree completely with him. The problem with the immigration consultant situation is that there's a perception that the regulatory body, the ICCRC, has not done enough to properly protect the public. There are still many instances of abuse and there are many examples of incompetent representatives. That applies to processing, but far much more so to the examples Mr. Sharma gave you, people who appear before the board.
	I think it's important to note like, Mr. Sharma did, that it's not only a problem with consultants. There are incompetent lawyers. There are three lawyers in Ontario who have been recently disciplined due to incompetent representation of hundreds of Roma refugee claimants. I was an expert witness on two of the three cases, so I'm well aware of the problem and the scope of the incompetence. Two of the lawyers received six month suspensions and one was disbarred. This to say that the problem of incompetence is not one that's restricted to consultants.
	Having said that, I agree with Mr. Sharma. A lawyer, before he's licensed, has to get an undergraduate degree, three years of law school, an articling, a ten month to one year or articling, and then pass a professional competence exam is far different from the 320 hours that you need to do before you can apply to write the consultant's exam. I agree again with Mr. Sharma. The CBA recommends doing away with consultants. I can say that I have a broader perspective even than Mr. Sharma having been practicing for close to 40 years.
	Before consultants were regulated, they existed, and if we try to stop regulating, they will continue to exist. I think given the choice between regulating and not, we're far better off regulating, but we have to regulate better. How do we regulate better? In order to improve the regulation, and again I'm picking up on what Mr. Sharma said, the government must do more. The government has the power in the regulations to set proper minimum standards in place to ensure that anyone who is licensed as a consultant meets minimum standards of education.
	I'm not going to tell you today what I think those would be, but I agree that they have to be far more than the 320 hours, especially if people are going to represent people at the Immigration and Refugee Board. There has to be a minimum standards of study followed by a period of practicum. A lawyer, before he or she can practice as a lawyer, has to do a period of articling. Consultants pass the exam and the next day they can hang out the shingle. This is completely unacceptable.
	How do we achieve this? We achieve this by enacting regulations. Now, the Immigration Act, Section 91, allows the government to promulgate regulations in relation to the ICCRC. I looked at the wording and I'm not sure if in its current form the regulatory power is sufficient to allow them to put in place the type of regulations that I'm suggesting. You might have to look at that more carefully, but what I'm suggesting to you is that the government put into the regulations minimum standards, minimum standards of education, minimum requirements that a consultant have to do a certain minimum period of practicum before he or she can be licensed.
	We require this because, I agree with Mr. Sharma, the ICCRC has not put in place sufficient requirements to ensure that consultants are competent, and I also agree with Mr. Sharma that there's a fundamental difference between a consultant who does processing and a consultant who appears before the Immigration of Refugee Board. There should be different requirements of competence. There should be additional training required before a person represents someone before one of the tribunals of the Immigration and Refugee Board.
	All of this can be done by putting in place minimum requirements in the legislation that any consultant would have to meet in order to become a member of the ICCRC. This way, the government would ensure that any consultant is qualified and wouldn't be dependent on the ICCRC alone to set the minimum qualifications because, I agree with Mr. Sharma, the qualifications that are now set requiring an online course of 320 hours is not enough to protect the public.
	Finally, I think the regulations should allow the government to also enforce or conduct audits in addition to the enforcement powers of the ICCRC. The government should not only be dependent on the ICCRC to deal with situations of abuse, when CBSA or CRC becomes aware of a consultant who is doing illegal activities, they should be free to conduct audits and enforce the regulations to ensure proper representation. Thank you.