"The first thing we do, let's kill all the lawyers."
William Shakespeare
King Henry VI, Part 2 (1623)
One can imagine a sign with Shakespeare's quote hanging in the carpeted lobby of Immigration Canada (CIC).
The Charter ordains, at §10(2) that:
"Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."
Granted immigration applicants aren't generally arrested or detained when they apply for entry, but the Charter quote indicates that legal representation is deeply imbeded in the Canadian rule of law.
And yet the very wording of the CIC welcoming notice on their webpages, as of August 24, 2009, all but tells applicants to not hire a lawyer:
"Warning: Don’t be the victim of a scam. Read this important notice.
"Immigration representatives are people who offer immigration advice or assistance to visa applicants, usually for a fee. You do not need to hire an immigration representative. It is up to you. The Government of Canada treats everyone equally, whether they use the services of a representative or not. If you choose to hire a representative, your application will not be given special attention by the immigration officer.
"Be careful who you ask for advice. Get an estimate in writing."
The same web page includes a link to another page, How To File a Complaint, which details (with hyperlinks) how to file a complaint to the law societies in regards to lawyers.
According to one immigration lawyer in Vancouver, the legal representation form in regards to a client has to be first sent to Vegreville, Alberta as part of the initial CIC processing.
The words lawyer, barrister or even legal counsel are ignored by the CIC who insist on their own terminology: representative. This may be because the CIC, as a further shot across the bow of the bar, encourages college-trained paralegals to act before them. These paralegals, assuming proper conduct of the immigrant's case, cannot either suggest, or take Federal Court proceedings in the event of CIC's error or heavyhandedness.
The 2009 version of the Immigration and Refugee Protection Act has almost 300 sections of law - piece of cake for a trained lawyer but Mount Everest for any paralegal, especially when the facts of a case are novel or require interpretation or cross-referencing with other federal statutes or regulations - to which the paralegal ought only to respond "huh?".
No lawyer can represent an immigration applicant until both the wannabe immigrant and the proposed legal counsel formally advise CIC of the representation. Surprise: there is a required form with a military style acronym, IMM5476. The form must state whether or not the lawyer is being paid or not, and include the lawyer's law society number and full particulars as to law firm address.
So far, so good.
However, contrary to any other Court in Canada, the CIC checks for good standing of the lawyer and will not allow representation until this is done, usually taking 6 weeks to 6 months, even though the status of a British Columbia lawyer can be checked on the Internet. I checked my own status and it took 13 seconds (see adjacent image of actual report).
This alone is a strong disincentive against the right to legal representation in immigration proceedings. Compare this with any other civil proceedings, even those involving the federal government. In my 25 years of practise (the first 15 of which there was no Internet access), my signed stationery has always sufficed. To my knowledge, I have never had anyone check to see if I was in fact a charlatan guilty of practising law without a license and if it was ever done outside of my knowledge, I would never of allowed it to delay my representation as delay is almost always is a detriment to the recognition of legal rights.
In the meantime, the Vancouver lawyer has no status and cannot manage the case before the CIC. She cannot send or receive communications in the immigration file until she is confirmed.
The Vancouver lawyer, who wishes to remain anonymous, signed the form as did the client, identifying herself fully including particulars of her law society status.
Then, CIC lost the form and would not allow the lawyer to fax her copy.
It had to be the original which, of course, was lost and could not be regenerated as the would-be immigrant was off-shore.
In the meantime, the CIC will not recognize the lawyer so she cannot communicate, effectively cutting the client's right to legal representation before the CIC and it's well trained officers.
The CIC demanded a new original. The client was on a one-year work permit which had expired. The application was for an extension and this lovely Canadian Catch-22 meant that the foreign national must represent himself because getting his lawyer of choice simply cannot be done in the time required.
CIC rules get weirder:
- According to the Vancouver immigration lawyer, the CIC will not entertain any speaker phone communication, hearing impaired be damned.
- According to the CIC policy manual, the use of representative form is specific to a lawyer (or an immigration consultant) and not a law firm or successor lawyer. In the event of death of the immigration lawyer, the right to represent the immigrant has to wait for a new form. In the meantime, the immigrant is orphaned; essentially denied legal counsel.
CIC's practise is to prefer direct communication directly with the immigration applicant, whether there is legal representation or not.
Under the rules of conduct of most, if not all Canadian law societies, other lawyers cannot communicate directly with the "other side" but must go through their lawyer. For example, Rule 6 of the Ontario lawyer rules of conduct:
"... if a person is represented by a legal practitioner in respect of a matter, a lawyer shall not, except through or with the consent of the legal practitioner, approach or communicate or deal with the person on the matter, or attempt to negotiate or compromise the matter directly with the person."
CIC has an army of government lawyers, most members of the Law Society of Upper Canada, but they represent the immigration officers, most with undergraduate degrees.
Immigration decisions are often life-and-death decisions made in the ominous shadow of a complex federal law with international overtones and with a heavy Charter undertow: enough to make any LL.B. dizzy let alone a B.A.
No offence, but the immigration bar - much like the defence counsel in criminal law - are not prepared to ascribe God-like qualities to the abilities of immigration officers to render fair, just and lawful decisions.
And yet from CIC's perspective, better to manage the application with a college-graduated consultant than against a Charter-sensitive immigration lawyer not afraid at all to defer instead to the Federal Court.
It's a frustrating ignominy mostly because for immigration litigants, time is of the essence as they seek the approval of the defendant (CIC) in any court challenge of the system. Nor are they in any position to finance a legal battle against Canada's largest law firm: Justice Canada.
And in the sometimes old boys' clubs of law societies, not only is immigration law not sexy but there seems no David with the moxy to stand for a sling-shot duel with Goliath.
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