Constitutional clash brewing as Ottawa targets immigration bar with up to $1.5 million in admin penalties - Law360 Canada
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Bar organizations are warning Ottawa that a new administrative monetary penalty regime to be applied to legal professionals — featuring penalties of up to $1.5 million for immigration and refugee lawyers determined by federal officials to have participated in clients’ misrepresentations — will be constitutionally challenged if lawyers are not exempted from the proposed regulations, which are expected to come into force later this year.

Bar organizations are warning Ottawa that a new penalty regime to be applied to legal professionals — featuring penalties of up to $1.5 million for immigration and refugee lawyers determined by federal officials to have participated in clients’ misrepresentations — will be constitutionally challenged if lawyers are not exempted from the proposed regulations, which are expected to come into force later this year.

The proposed regulations prohibit a legal professional, who represents or advises someone for payment, from misrepresenting or withholding information, advising them to misrepresent or withhold information, or communicating misleading information.

The new administrative penalties regime would apply to the country’s approximately 12,000 immigration consultants and to all immigration lawyers.

The Canadian Bar Association, the law societies of Ontario, B.C. and Newfoundland and Labrador, the Canadian Immigration Lawyers Association (CILA), and the Canadian Association of Refugee Lawyers (CARL) wrote to Immigration Canada objecting to applying the proposed penalty regime to legal professionals.

The Canadian Immigration Lawyers Association says “the proposed regulations would be unconstitutional and illegal in their application to lawyers.”.

The baseline penalties for the two types of violations are significant: $15,000 for misrepresentation and $5,000 for representation or advice without authorization.

Consequences for those found to have violated the regulations would include Immigration Canada publishing on its website their names and business information, as well as the nature of the violation(s) and the penalties imposed

https://www.law360.ca/ca/articles/2322169/constitutional-clash-brewing-as-ottawa-targets-immigration-bar-with-up-to-1-5-million-in-admin-penalties

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    Among the legal organizations’ expressed objections and flaws they contend mar the proposed regime in its application to legal professionals:

    • IRCC’s proposed broad powers to inspect and search, based on an IRCC officer’s determination that there are “reasonable grounds to suspect” a violation, and to demand documents from lawyers, without safeguards, as well as the lack of any mechanism to allow lawyers to fully and effectively defend themselves, without breaching established principles of solicitor-client confidentiality;
    • unfairness, expense and other negative impacts on legal professionals, and the risk of inconsistent results by needlessly subjecting them to dual regulation;
    • failure to respect the fundamental principles of independence of the bar as well as solicitor/client privilege/confidentiality, which are protected by the common law and the Constitution;
    • the lack of procedural protections and accountability;
    • IRCC’s lack of neutrality vis-à-vis immigration and refugee lawyers who advocate for clients, often in opposition to IRCC and its counsel, including representing in court those accused of offences, including misrepresentation. “Granting the same entity the authority to discipline the very lawyers who challenge it creates a glaring conflict of interest — comparable to allowing Crown counsel to oversee the discipline of criminal defence lawyers,” the CBA asserts in its submission to IRCC; and
    • Ottawa exceeds federal jurisdiction by purporting to regulate and penalize lawyers and paralegals doing paid immigration and refugee work, including by naming violators and publishing particulars on IRCC’s website, an interference with a lawyer’s ability to practise law, which is the exclusive preserve of law societies.