Talk:Conflict of Laws & Parliamentary Supremacy

Immigration Applications & the Paralegal Scope (Down the Rabbit Hole)

As I discussed in my previous article Immigration applications are clearly outside the current scope of the paralegal license. There has been a great deal of misinformation with respect to the role of Parliamentary Supremacy and conflict of laws with respect to the Immigration and Refugee Protection Act (S.C. 2001, c. 27) ("IRPA"), so my goal here is to clear up the confusion.

In the now repealed Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 ("IA") section 30 and 69 of the Federal Act appears to authorize the provision of legal services. Section 30, and 69(1) state:

30. Right to counsel

Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense.

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69(1) Right to counsel

In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.

The Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 was challenged In 2001 in a case called Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113 the Supreme Court of Canada took a position on the ability of Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 to authorize the practice of legal service. At paragraph 14 the court states:

14 Since she found that a number of the respondents’ activities constituted the unlawful practice of law within the meaning of the Legal Profession Act and were therefore outside the ambit of the Immigration Act, Koenigsberg J. issued the injunction on the grounds that the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament.

Earler in the same decision the court took a strong position on how conflicts of laws are to be understood,

1 The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, are intra vires the federal Parliament, and whether a provision of the Legal Profession Act (then S.B.C. 1987, c. 25, s. 26; now S.B.C. 1998, c. 9, s. 15) which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.

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A. British Columbia Supreme Court (1997), 1997 CanLII 2112 (BC SC), 149 D.L.R. (4th) 736

11. Before Koenigsberg J., the respondents Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. Koenigsberg J. held that the threshold question was whether the Immigration Act authorizes the practice of law. She concluded that the Immigration Act does not authorize the practice of law and therefore does not shield the respondents from the requirements of the Legal Profession Act. She held that, there was no rational connection between the stated policy of the Immigration Act or the requirements that hearings be conducted as informally and expeditiously as possible and the authorizing of untrained, unqualified, or unregulated persons to appear before the IRB representing persons for a fee. She held that although unpaid agents could represent aliens, ss. 30 and 69(1) authorize the paid employment of other licensed counsel, and that only lawyers are licensed in the absence of an alternative licensing regime established under s. 114(1)(v) of the Immigration Act. Relying on the reasoning of the Court of Appeal of British Columbia in Law Society of British Columbia v. Lawrie (1991), 1991 CanLII 659 (BC CA), 59 B.C.L.R. (2d) 1, she stated that the protection of the public is best served by requiring that persons appearing before immigration tribunals as counsel be licensed, and that the objectives of the Immigration Act are not served by authorizing a different class of professional to represent persons. Finally, having regard to constitutional norms, this interpretation avoids creating a conflict between federal and provincial laws.

12. While Koenigsberg J. disposed of the appeal on this basis, she nevertheless considered the constitutional issues in the event that she erred in her conclusion. She accepted that both the Legal Profession Act and the Immigration Act are each a valid exercise of power within the constitutional jurisdiction of the respective governments, specifying that the Immigration Act fell within ss. 91(25) and 95 of the Constitution Act, 1867. Applying the framework set out in General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, she then held that the Immigration Act is a valid regulatory scheme, but one that makes a substantial intrusion into the provincial power with respect to the regulation of law in the province because the creation of an unregulated profession of the practice of law leaves the public unprotected. In her view, without ensuring a standard for the practice of law by creating a licensing body, there was no rational connection between such an intrusion and the stated policy or the requirements that hearings be conducted informally. She concluded that ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers.

The Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 was superseded by Immigration and Refugee Protection Act (S.C. 2001, c. 27). In the IRPA there is a similar provision to the one found in the Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69. Section 91 (1) of the IRPA states:

91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

The problem with reading section 91(1) in isolation is that it would ignore the fact that Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113 makes it clear that "...ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers..." (see paragraph 12). Federal legislation does not and cannot authorize the practice of law where the jurisdiction is vested with the provinces. This issue was brought up again in Law Society of Ontario v Leahy, 2018 ONSC 4722 (CanLII), specifically at paragraph 1 the court states:

[19] The Supreme Court held that to the extent that there was a direct conflict between the BC law and the Federal law, the Federal law was paramount, but that absent a direct conflict the two laws could remain in force and co-exist. In that case, the Court found that there was a direct conflict with respect to one part of the arrangement since the Immigration Act permitted non-lawyers to provide legal services for compensation whereas the LPA prohibited them from providing those services. However, the Court went out of its way clarify that non-lawyer appearances were limited to proceedings before the IRB, and emphasized that the Immigration Act did not permit the practice of immigration law by non-lawyers for any other purposes (including appearances before the Federal Court).

[20] Accordingly, the Mangat case never did authorize a non-lawyer such as the Respondent to practice law in the Federal Court. Now, however, even the limited exception which that case left open for practicing before the IRB has been removed. The old version of the Immigration Act has been repealed and has been replaced by IRPA. Section 91(2) of IRPA now restricts practice before the IRB to lawyers and paralegals who are members of a provincial law society (or of the Chambre des notaires du Quebec), or members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The Respondent is not a member of any of those organizations.

[22] In the first place, this is not a conflict that triggers the federal paramountcy doctrine. As the Supreme Court stated in the leading case of Multiple Access Ltd. v McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 SCR 161, 191, federal statutes are declared paramount, and the provincial statute inoperative, where “‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” That is not the case here. The IRPA does not affirmatively authorize an unlicensed person to provide legal services, whether for free or for a fee.

[23] In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.

The purpose of section 91 (1) of the IPRA sets restrictions as to who may appear or who may provide legal advice or legal services, the IRPA does NOT create an authorization to provide legal advice or legal services.

The takeaway from the above is that no matter how much we as paralegals want to interpret the LSO by-laws to suggest we can prepare an immigration application the sad fact is we cannot. We need to amend the LSO by-laws to permit paralegals to prepare immigration applications and that is the reality.

As a bencher I will be pushing to have immigration application work part of the paralegal scope but until the amendments are made DO NOT prepare immigration applications unless you are authorized as a licensed immigration consultant.

We need change, lets make that happen.

Shaun D. Harvey, B.A
Paralegal (Bencher Candidate 2023)

The Authority of Immigration Consultants of Canada Regulatory Council (ICCRC)

Immigration and Refugee Protection Act S.C. 2001, c. 27,

3 (3)(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

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4 (1) Except as otherwise provided in this section, the Minister of Citizenship and Immigration is responsible for the administration of this Act.

(1.1) The Governor in Council may, by order, designate a minister of the Crown as the Minister responsible for all matters under this Act relating to special advocates. If none is designated, the Minister of Justice is responsible for those matters.

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8 (1) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act. The Minister must publish, once a year, a list of the federal-provincial agreements that are in force.

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10 (1) The Minister may consult with the governments of the provinces on immigration and refugee protection policies and programs, in order to facilitate cooperation and to take into consideration the effects that the implementation of this Act may have on the provinces.

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91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

College of Immigration and Citizenship Consultants Act S.C. 2019, c. 29, s. 292

4 The purpose of the College is to regulate immigration and citizenship consultants in the public interest and protect the public, including by

(a) establishing and administering qualification standards, standards of practice and continuing education requirements for licensees;

(b) ensuring compliance with the code of professional conduct; and

(c) undertaking public awareness activities.

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77 A person, other than a licensee, must not

(a) use the title “immigration consultant,” “citizenship consultant,” “international student immigration advisor” or a variation or abbreviation of any of those titles, or any words, name or designation, in a manner that leads to a reasonable belief that the person is a licensee;

(b) represent themselves, in any way or by any means, to be a licensee; or

(c) unless the person is a person referred to in paragraph 21.1(2)(a) or (b) or subsection 21.1(3) or (4) of the Citizenship Act or paragraph 91(2)(a) or (b) or subsection 91(3) or (4) of the Immigration and Refugee Protection Act, knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Citizenship Act, the submission of an expression of interest under subsection 10.1(3) of the Immigration and Refugee Protection Act or a proceeding or application under that Act.

78 On application by the College, if a court of competent jurisdiction is satisfied that a contravention of section 77 is being or is likely to be committed, the court may grant an injunction, subject to any conditions that it considers appropriate, ordering any person to cease or refrain from any activity related to that contravention or ordering the person to take any measure that the court considers appropriate.

Citizenship Act R.S.C., 1985, c. C-29

21.1 (1) Every person commits an offence who knowingly, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.

(2) Subsection (1) does not apply to

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province; or

(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

(3) Subsection (1) does not apply to a student-at-law who offers or provides representation or advice to a person if the student-at-law is acting under the supervision of a person described in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with a proceeding or application under this Act.

CONSTITUTION ACT, 1867 30 & 31 Victoria, c. 3 (U.K.)

91 It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

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2. The Regulation of Trade and Commerce.

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27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

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29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

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92 In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

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(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

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13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters of a merely local or private Nature in the Province.

The Law

Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69

30. Right to counsel
Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense.

...

69(1) Right to counsel
In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.

Immigration and Refugee Protection Act S.C. 2001, c. 27

10.1 (3) A foreign national who wishes to be invited to make an application must submit an expression of interest to the Minister by means of an electronic system in accordance with instructions given under section 10.3 unless the instructions provide that they may do so by other means.

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91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

(3) A student-at-law does not contravene subsection (1) by offering or providing representation or advice to a person if the student-at-law is acting under the supervision of a person mentioned in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.