Law Society calls on federal government to take steps to protect public
Supreme Court of Canada dismisses appeal on immigration consultants
The Supreme Court of Canada has held that sections of the Immigration Act allowing non-lawyer immigration consultants to appear before the Adjudicative and Refugee Divisions of the Immigration and Refugee Board, and to provide related services for a fee, are paramount to the unauthorized practice provisions of the Legal Profession Act: The Law Society of British Columbia v. Jaswant Singh Mangat, Westcoast Immigration Consultants Ltd., and Jill Sparling 2001 SCC 67 File No.: 27108 (www.lexum.umontreal.ca/csc-scc/en/rec/html/mangat.en.html).
In dismissing the Law Society's appeal of a judgment of the B.C. Court of Appeal, the Supreme Court of Canada found that the pith and substance of ss. 30 and 69(1) of the Immigration Act is the granting of certain rights to aliens in the immigration administrative process. The provisions provide rights to aliens to be represented in proceedings before the Adjudication and the Refugee Divisions of the Immigration and Refugee Board, by either barristers or solicitors or "other counsel" (which extends to non-lawyers) for a fee. The provisions further allow clients to obtain services from those "counsel," including documents those "counsel" prepare for use in the proceedings and advice on matters relevant to their case prior to the proceedings.
These provisions of the Act fall within the federal jurisdiction over aliens and naturalization. As they relate to the legal profession, these provisions also fall within provincial jurisdiction over civil rights in the province and may also fall within provincial jurisdiction over the administration of justice.
The Court found a conflict between the federal Immigration Act and B.C.'s Legal Profession Act since sections 30 and 69(1) of the Immigration Act authorize non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance with both statutes was impossible without frustrating Parliament's purpose, and the Immigration Act provisions accordingly prevail under the doctrine of federal paramountcy. As such, the unauthorized practice provisions of the Legal Profession Act are constitutionally inoperative to non-lawyers acting within the scope provided by the Immigration Act.
The Court noted, however, that other services related to immigration were not at issue in this case. The Society will review the judgment in relation to other services of immigration consultants.
The Law Society is urging the federal government to take steps to protect the public interest against the risks of unregulated immigration consultants in wake of the decision.
The federal government has been aware of these risks for years. As a 1995 Parliamentary Committee noted:
In contrast to lawyers, immigration consultants have no tests for competency for practice; they have no code of conduct; they have no negligence insurance; there is no compensation fund for defrauded victims; there are no trust accounts; there are no formal complaint mechanisms; and there are no disciplinary procedures to deal with unethical or incompetent individuals. On every score, members of the public are unprotected.
"Immigrants and refugees are an extremely vulnerable portion of Canadian society and they need to be represented by people who are licensed, regulated and ethical," said Second Vice-President Howard Berge, Q.C. in a public statement issued October 18. "We don't think the federal government ever intended to create an environment in which immigration consultants are not regulated at all."