It’s easy to imagine how vulnerable immigration or refugee applicants can feel as they work their way through the Canadian system. That’s why it’s crucial to ensure consultants who work with them abide by a strict code of conduct, similar to ethical obligations immigration lawyers must respect, says the Canadian Bar Association’s Immigration Law Section in a letter to Immigration, Refugees and Citizenship Canada about the proposed Code of Professional Conduct for College of Immigration and Citizenship Consultants Licensees.
The Section says it is pleased the regulatory impact analysis statement, or RIAS, “recognizes that the unethical conduct and incompetent service of some consultants and their ineffective self-regulation have seriously harmed immigration applicants and the integrity of the Canadian immigration system.” This has been true for decades.
The CBA has previously commented on these issues, including a resolution in 2020 that in order to protect the public, only lawyers or notaries should be authorized to practice immigration law, and that licensed immigration consultants “may work only under the supervision of lawyers or Quebec notaries.”
“Notwithstanding our view that consultants should not practice independently,” the Section writes, “we welcome IRCC’s efforts to prescribe a comprehensive Code of Conduct and establish rigorous standards for ethics and competence by which all licensees of the College of Immigration and Citizenship Consultants must abide.”
Here are some of the modifications the Section proposed to strengthen the Code of Conduct.
Marketing
Of particular concern is the section in the consultant Code of Conduct dealing with marketing activity “as this is an area where immigration applicants have often been misled in the past both by regulated and ghost consultants.”
In particular, “any action that expressly or implicitly suggests that a licensee is a lawyer, a law firm or is otherwise able to provide services beyond immigration and citizenship consulting services” should be prohibited.
Definitions
The Code of Conduct should not differentiate between a “client” and a “potential client” and it should include a definition of “client document” to prevent occurrences of consultants refusing to give former clients copies of documents such as submission letters sent on their behalf, and to clarify consultants’ obligations to return certain documents to clients.
The Code should not simply include a duty of civility but should specifically require licensees to be civil, courteous and respectful with anyone they deal with in the course of their consulting work.
The word “other” in the prohibition against “dishonesty, fraud or other illegal conduct” should be removed, the Section says, because “not all dishonesty and fraud are technically illegal, but all expressions of deceit and fraud must be interdicted.”
Some definitions in the Code of Conduct for consultants should be modified to be consistent with the language used in codes of conduct for lawyers. These include “fully informed and voluntary” consent of a client, rather than “free and informed,” as well as “relationship of trust and duty of loyalty” rather than the simple “relationship of trust.”
The consultant Code of Conduct should prohibit receipt or payment of a reward for the referral of clients to anyone who is not a licensee. As well, “any referral fees received from or paid to another licensee must be disclosed to the client. These requirements are consistent with the rules on referral fees by which lawyers must abide.”
The Section believes the Code should clearly prohibit “advising a client to intimidate or coerce someone, which is consistent with codes of conduct for lawyers,” and it should phrase that prohibition using the broadest language possible.
Competence, scope of practice
The CBA submission explains where the language on the nature and scope of licensees’ competence should be strengthened “to reflect the knowledge and skills needed to offer advice and representation in immigration matters,” and recommends codifying additional competencies. Those include “legal tests, principles, concepts, criteria and requirements set out in jurisprudence rather than in immigration legislation,” thorough knowledge of Canada’s legal agreements with other countries, a strong ability to investigate facts and consider options, as well as demonstrable proficiency in legal research and application of the law.
In addition, the Code should be amended “to explicitly oblige licensees to decline to act where the client’s matter involves areas of law other than immigration and refer the client to a lawyer or Quebec notary practicing in the relevant domains.”