Talk:Conflict of Laws & Parliamentary Supremacy

Immigration Applications & the Paralegal Scope

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 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 and Refugee Protection Act (S.C. 2001, c. 27) 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.

...

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 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

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.