law society of british columbia v. mangat, [2001] 3 S.C.R. 113, 2001 SCC 67
Law Society of British Columbia Appellant
v.
Jaswant Singh Mangat, Westcoast Immigration
Consultants Ltd., and Jill Sparling Respondents
and
The Attorney General of Canada, the Attorney General for
Ontario, the Attorney General of Manitoba, the Attorney
General of British Columbia, the Organization of Professional
Immigration Consultants, the Canadian Bar Association and
the Association of Immigration Counsel of Canada Interveners
Indexed as: Law Society of British Columbia v. Mangat
Neutral citation: 2001 SCC 67.
File No.: 27108.
2001: March 21; 2001: October 18.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Distribution of legislative powers -- Paramountcy doctrine -- Naturalization and aliens -- Property and civil rights -- Practice of law -- Federal immigration legislation allowing non-lawyers to appear as counsel for a fee before Immigration and Refugee Board -- Provincial legislation prohibiting non-lawyers from appearing for a fee before a tribunal -- Whether subject matter of federal legislation falling within both Parliament’s jurisdiction over naturalization and aliens and provincial jurisdiction over civil rights -- If so, whether provincial legislation inoperative -- Constitution Act, 1867, ss. 91(25), 92(13) -- Immigration Act, R.S.C. 1985, c. I-2, ss. 30, 69(1) -- Legal Profession Act, S.B.C. 1987, c. 25, s. 26.
The respondent M was an immigration consultant carrying on his work through an immigration consulting company (“Westcoast”). He had not studied law in Canada and was not a member of the B.C. Law Society. M and other Westcoast employees engaged in a number of activities involving immigration proceedings, including appearing as counsel or advocate on behalf of aliens, for or in the expectation of a fee from the persons for whom the acts were performed, before the Immigration and Refugee Board (“IRB”). The Law Society brought an application seeking a permanent injunction against M and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. M 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. The judge issued the injunction on the grounds that ss. 30 and 69(1) of 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. The Court of Appeal set aside the injunction. The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act are intra vires Parliament, and whether s. 26 of the Legal Profession Act, 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 to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. In this Court, the respondent S was added to the proceedings on the basis that she is an immigration consultant and was engaged in the same activities as M, given that M became a member of the Alberta Law Society soon after leave to appeal was granted by this Court.
Held: The appeal should be dismissed.
The pith and substance of ss. 30 and 69(1) of the Immigration Act is the granting of certain rights to aliens in the immigration administrative process. The provisions provide rights to aliens to be represented in proceedings before the Adjudication and the Refugee Divisions by either barristers or solicitors or other counsel for a fee. They also allow aliens to have the benefit of the documents prepared by such counsel for use in these proceedings and to be advised on matters relevant to their case prior to the proceedings. Determining whom aliens may choose to represent them before the Adjudication Division and the Refugee Division pertains to the procedural rights of those individuals in quasi-judicial proceedings. Such a matter falls within Parliament’s jurisdiction over naturalization and aliens pursuant to s. 91(25) of the Constitution Act, 1867. The federal legislative jurisdiction in the field of aliens and naturalization includes the power to establish a tribunal like the IRB since that jurisdiction includes the power to make decisions as to who constitutes an alien and who ought to be naturalized. Flowing from this jurisdiction is the authority to provide for the powers of such a tribunal and its procedure including that of appearance before it.
The subject matter of ss. 30 and 69(1) of the Immigration Act also falls within the provincial jurisdiction over civil rights in the province. Sections 30 and 69(1) relate to the legal profession and therefore to professions in general. The provinces have legislative authority to regulate the practice of law under s. 92(13) of the Constitution Act, 1867 as part of their jurisdiction over professional regulation. Lawyers are an integral part of the administration of justice, and thus to that extent provincial legislation in relation to lawyers may very well derive its authority from s. 92(14) as much as s. 92(13). Insofar as appearing before the IRB in the capacity of counsel involves the practice of law, the subject matter is as much covered by s. 26 of the Legal Profession Act as it is by ss. 30 and 69(1) of the Immigration Act.
Since the subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects, the federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict. Where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine. The existence of a double aspect to the subject matter of ss. 30 and 69(1) favours the application of the paramountcy doctrine rather than the doctrine of interjurisdictional immunity. The application of the paramountcy doctrine safeguards the control by Parliament over the administrative tribunals it creates. At the same time, it preserves the principle of a unified control of the legal profession by the various law societies throughout Canada. Immigration in general is subject to a joint federal and provincial jurisdiction. Section 95 of the Constitution Act, 1867 establishes this and itself contains a paramountcy provision. There is no clear boundary between the federal and provincial jurisdiction in this matter generally.
In this case, there is a conflict between the two statutes. Sections 30 and 69(1) of the Immigration Act authorize non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance with both statutes is impossible without frustrating Parliament’s purpose. The Immigration Act must therefore prevail over the Legal Profession Act. Accordingly, the Court grants a declaratory order that ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament and that s. 26 of the Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Division or Refugee Division and the provision of services to that end.
Since the provisions of the Immigration Act at issue are valid and paramount over the provisions of the Legal Profession Act, an injunction against M, Westcoast, and S cannot be granted in respect of the activities complained of. Moreover, the question of an injunction is moot as far as M and Westcoast are concerned. M is now a member in good standing of the bar in the provinces of Alberta and Ontario, which entitles him to represent a client before any hearing of the IRB. Westcoast is now dissolved and no longer exists.
Cases Cited
Distinguished: 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; referred to: Law Society of British Columbia v. Lawrie (1991), 59 B.C.L.R. (2d) 1; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580; Cunningham v. Homma, [1903] A.C. 151; Brooks-Bidlake and Whittall, Ltd. v. Attorney-General for British Columbia, [1923] A.C. 450; In re Nakane and Okazake (1908), 13 B.C.R. 370; In re Narain Singh (1908), 13 B.C.R. 477; R. v. Hildebrand, [1919] 3 W.W.R. 286; In Re The Immigration Act and Munshi Singh, [1914] 6 W.W.R. 1347; Lafferty v. Lincoln (1907), 38 S.C.R. 620; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Hodge v. The Queen (1883), 9 App. Cas. 117; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; O’Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238; Smith v. The Queen, [1960] S.C.R. 776; Attorney-General of Ontario v. Attorney-General for the Dominion of Canada, [1894] A.C. 189; Robinson v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348; Attorney-General for Ontario v. Barfried Enterprises Ltd., [1963] S.C.R. 570; Papp v. Papp, [1970] 1 O.R. 331; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; R. v. Furtney, [1991] 3 S.C.R. 89; R. v. Lewis (1997), 155 D.L.R. (4th) 442; R. v. Romanowicz (1999), 45 O.R. (3d) 506; R. v. Zundel, [1992] 2 S.C.R. 731; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; Crown Grain Co. v. Day, [1908] A.C. 504.
Statutes and Regulations Cited
Adjudication Division Rules, SOR/93-47, s. 2.
Aeronautics Act, R.S.C. 1985, c. A-2, s. 37(2) [ad. c. 33 (1st Supp.), s. 5].
Canada Elections Act, R.S.C. 1985, c. E-2.
Canadian Charter of Rights and Freedoms.
Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.), s. 31.
Constitution Act, 1867, ss. 91, 91(25), 92, 92(13), (14), 95.
Convention Refugee Determination Division Rules, SOR/93-45, s. 2.
Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 140(7).
Expropriation Act, R.S.B.C. 1996, c. 125, s. 14(4)(a).
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 56(5).
Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 29(3).
Immigration Act, R.S.C. 1985, c. I-2, ss. 3, 29(5), 30 [rep. & sub. c. 28 (4th Supp.), s. 9; am. 1990, c. 8, s. 51; rep. & sub. 1992, c. 49, s. 19], 32, 57(1), 61(2), 63.3, 64(3), 68(2), (3), 68.1, 69 [am. c. 10 (2nd Supp.), s. 5; rep. & sub. c. 28 (4th Supp.), s. 18; am. 1992, c. 49, s. 59], 69.1(1), 70, 77(3), 80.1(4), (5), 114(1)(v) [rep. & sub. c. 28 (4th Supp.), s. 29].
Immigration Act, 1869, S.C. 1869, c. 10, preamble.
Legal Profession Act, S.B.C. 1987, c. 25 [now S.B.C. 1998, c. 9], ss. 1, 26, 100.
Patent Act, R.S.C. 1985, c. P-4, s. 15 [rep. & sub. c. 33 (3rd Supp.), s. 4].
Pension Act, R.S.C. 1985, c. P-6, s. 88 [am. 1990, c. 43, s. 26; repl. 1995, c. 18, art. 73].
Pilotage Act, R.S.C. 1985, c. P-14, s. 28(1).
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 47.1 [rep. & sub. c. 8 (2nd Supp.), s. 18].
Status of the Artist Act, S.C. 1992, c. 33, s. 19(3).
Trade-marks Act, R.S.C. 1985, c. T-13, s. 28(1)(f) [rep. & sub. 1993, c. 15, s. 62].
Authors Cited
Bagambiire, Davies B. N. Canadian Immigration and Refugee Law. Aurora, Ont. : Canada Law Book, 1996.
Casey, James T. The Regulation of Professions in Canada. Scarborough, Ont.: Carswell, 1994 (loose-leaf updated 2001, release 1).
Cory, Peter deC. A Framework for Regulating Paralegal Practice in Ontario. Toronto: Ministry of the Attorney General, 2000.
Hogg, Peter W. Constitutional Law of Canada, loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (update 2000, release 1).
Waldman, Lorne. Immigration Law and Practice, vol. 1. Markham, Ont.: Butterworths, 1992 (loose-leaf updated April 2001, issue 37).
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 167 D.L.R. (4th) 723, 115 B.C.A.C. 50, 58 B.C.L.R. (3d) 280, 48 Imm. L.R. (2d) 170, [1999] 6 W.W.R. 588, [1998] B.C.J. No. 2756 (QL), setting aside a decision of the Supreme Court of British Columbia (1997), 149 D.L.R. (4th) 736, 41 B.C.L.R. (3d) 205, [1998] 4 W.W.R. 790, [1997] B.C.J. No. 1883 (QL). Appeal dismissed.
William S. Berardino, Q.C., and Elizabeth B. Lyall, for the appellant.
Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondent Mangat.
Jack Giles, Q.C., and Susan B. Horne, for the respondent Sparling.
Urszula Kaczmarczyk, Kevin Lunney and Brenda Carbonell, for the intervener the Attorney General of Canada.
Michel Y. Hélie, for the intervener the Attorney General for Ontario.
Rodney G. Garson, for the intervener the Attorney General of Manitoba.
Neena Sharma, for the intervener the Attorney General of British Columbia.
Jack Giles, Q.C., and Susan B. Horne, for the intervener the Organization of Professional Immigration Consultants.
Mira J. Thow, for the intervener the Canadian Bar Association.
Malcolm N. Ruby, for the intervener the Association of Immigration Counsel of Canada.
The judgment of the Court was delivered by
Gonthier J. –
I. Introduction
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.
II. Facts
2 At the time of the trial, the respondent Mangat was an immigration consultant holding a law degree from Punjab University in India. He had not studied law in Canada and was not a member of the Law Society of British Columbia. He carried on his work through Westcoast Immigration Consultants Ltd. (“Westcoast”), an immigration consulting company (which no longer exists).
3 Mr. Mangat and other employees of Westcoast engaged in a number of activities with respect to immigration proceedings. They appeared as counsel or advocate on behalf of aliens, for or in the expectation of a fee, reward, or gain from the persons for whom the acts were performed, before the Immigration and Refugee Board (“IRB”). They also drew, revised, or settled documents relating to proceedings before this tribunal, and gave legal advice and held themselves out as being entitled and qualified to provide the services in this regard.
4 In the course of their practice, the respondent Mangat and his associate consultants asked their clients to sign a fee agreement where they acknowledged that the respondents were immigration consultants and not members of the Law Society of British Columbia. The clients were told that they could avail themselves of legal aid services or of the services of a barrister or a solicitor who was a member of the Law Society. If the matter went beyond the IRB to the Federal Court, the respondents’ involvement ceased.
5 On July 14, 1986, the appellant wrote to Mr. and Mrs. Mangat regarding an advertisement placed in the Indo-Canadian Times in which the respondents allegedly offered legal advice on various matters concerning immigration to Canada and held themselves out as entitled to practise law. At the time, the appellant warned the respondents about the penalties for the illegal practice of law and asked for an explanation in writing by August 11, 1986, before taking any remedial action. Mr. Mangat replied on August 8, 1986, stating that neither he nor Mrs. Mangat had ever practised or held themselves out as practising law. He added that they were fully entitled to use the B.A. and LL.B. designations. However, to avoid any further misunderstanding he offered to make some changes to the advertisement, namely to add the words “Immigration Consultants”. The appellant wrote back on September 22, 1986, and stated that the Professional Standards Committee had resolved that it would accept Mr. Mangat’s assurances and that no further action would be taken.
6 Despite this resolution, on March 22, 1994, the appellant brought an application in the British Columbia Supreme Court seeking a permanent injunction against the respondents Mangat and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of British Columbia’s Legal Profession Act. On August 14, 1997, Koenigsberg J. granted the following injunction against the respondents Mangat and Westcoast prohibiting and enjoining them from:
(a) appearing as counsel or advocate for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(b) drawing, revising or settling documents for use in judicial or extra-judicial proceedings for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(c) drawing, revising or settling documents relating in any way to proceedings under a statute of Canada or the province for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(d) giving legal advice for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed; and
(e) offering to or holding themselves out in any way as being entitled or qualified to provide the services listed at paragraphs (a) to (d) inclusive, for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed.
On November 27, 1997, she also ordered that each party bear its own costs because the respondents were singled out as a test case among several potential defendants and because of the vagueness of the disputed legislation.
7 On August 18, 1997, the respondents filed a notice of appeal to the Court of Appeal of British Columbia. On November 27, 1998, the Court of Appeal unanimously vacated the injunction in its entirety, but did so on different grounds. Southin J.A. allowed the appeal on the basis of the doctrine of interjurisdictional immunity. Mackenzie and Hollinrake JJ.A. concurred in the result, but would have allowed the appeal on the basis of the doctrine of paramountcy.
8 Leave to appeal to this Court was granted on November 10, 1999. Mr. Mangat filed evidence that he has now become a member in good standing of the Alberta Law Society and that his consulting company Westcoast was dissolved when he relocated to Alberta in 1999. As a result, on May 24, 2000, the Court heard a motion by the respondents to quash the appeal as moot and a motion by the Law Society to add the respondent Sparling to the proceedings. Iacobucci J., on behalf of the Court, declined to quash the appeal, but ordered the appellant to pay Mr. Mangat fair and reasonable costs of the motion and appeal, and ordered the addition of Ms. Sparling to the proceedings on the basis that she is an immigration consultant in Vancouver and was engaged in the same range of activities as Mr. Mangat. She is also the current president of the Organization of Professional Immigration Consultants, which appeared as an intervener before this Court.
9 At the appeal hearing, counsel for the respondent Mangat further stated that his client was now a member in good standing of the Law Society of Upper Canada. He added that he had also applied to be a member of the appellant, the Law Society of British Columbia, but for some reason the appellant decided to hold a credentials hearing to determine whether he could be admitted.
III. Relevant Statutory Provisions
10 Legal Profession Act, S.B.C. 1987, c. 25 (subsequently R.S.B.C. 1996, c. 255, ss. 1, 26, 109; now S.B.C. 1998, c. 9, ss. 1, 15, 85(5) to (8))
1. In this Act
. . .
“practice of law” includes
(a) appearing as counsel or advocate,
(b) drawing, revising or settling
(i) a petition, memorandum or articles under the Company Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body,
(ii) a document for use in a proceeding, judicial or extra-judicial,
(iii) a will, deed of settlement, trust deed, power of attorney or a document relating to any probate or letters of administration or the estate of a deceased person,
(iv) a document relating in any way to proceedings under a statute of Canada or the Province, or
(v) an instrument relating to real or personal estate which is intended, permitted or required to be registered, recorded or filed in a registry or other public office,
(c) doing any act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
(d) agreeing to place at the disposal of another person the services of a barrister or solicitor,
(e) giving legal advice,
(f) the making of an offer to do anything referred to in paragraphs (a) to (e), and
(g) the making of a representation by a person that the person is qualified or entitled to do anything referred to in paragraphs (a) to (e),
but it does not include
(h) any of those acts if it is not done for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed,
(i) the drawing or preparing of an instrument by a public officer in the course of his duty,
(j) the lawful practice of a notary public,
(k) the usual business carried on by an insurance adjuster who is licensed under Part 10 of the Insurance Act, or
(l) agreeing to do something referred to in paragraph (d), where the agreement is pursuant to a prepaid legal services plan or other liability insurance program;
26. (1) Subject to subsections (3), (4) and (5), no person, other than a member of the society in good standing, shall engage in the practice of law, except
(a) an individual acting on his own behalf in a proceeding to which he is a party,
(b) as permitted by the Court Agent Act,
(c) articled students, to the extent permitted by the benchers, and
(d) an individual or articled student referred to in section 9 of the Legal Services Society Act.
(2) A person who is employed by a member, a firm of members or the Province and who acts under the supervision of a member does not contravene subsection (1).
(3) The benchers may permit a barrister or solicitor of another province or territory
(a) to act as a solicitor on a particular matter, or
(b) to appear as counsel in the Province on a particular cause or matter
subject to any conditions, including the payment of a fee, required by the benchers.
(4) The benchers may permit a person who holds professional legal qualifications obtained in a country other than Canada, to give legal advice respecting the laws of that country, subject to any conditions, including the payment of a fee, required by the benchers.
(5) The provisions of Part 6 apply to a person given permission under subsection (3) or (4), but the benchers have no power to disbar that person.
100. (1) The Supreme Court may, on the application of the society and on being satisfied that there is reason to believe that there is or will be a contravention of this Act or a rule made under it, grant an injunction restraining a person from committing it, and, pending disposition of the action seeking the injunction, the court may grant an interim injunction.
(2) Subject to the Court Agent Act, a person who, not being a member of the society or a party to the proceeding, commences, prosecutes or defends a court proceeding in his own name or in the name of another person may, on the application of the society or of any person interested in the proceeding, be found in contempt by the court in which the proceeding is brought, and may be punished accordingly.
Immigration Act, R.S.C. 1985, c. I-2
30. Every person with respect to whom an inquiry [by an adjudicator] 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) 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.
114. (1) The Governor in Council may make regulations
. . .
(v) requiring any person, other than a person who is a member of the bar of any province, to make an application for and obtain a licence from such authority as is prescribed before the person may appear before an adjudicator, the Refugee Division or the Appeal Division as counsel for any fee, reward or other form of remuneration whatever;
Adjudication Division Rules, SOR/93-47, s. 2
“counsel” means a person who represents a party in any proceeding before the Adjudication Division;
Convention Refugee Determination Division Rules, SOR/93-45, s. 2
. . .
“counsel” means a person authorized pursuant to subsection 69(1) of the Act to represent a party in any proceeding before the Refugee Division;
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 herein-after enumerated; that is to say, –
. . .
25. Naturalization and Aliens.
. . .
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, –
. . .
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.
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
IV. Judgments Below
A. British Columbia Supreme Court (1997), 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), 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] 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.
13 In addition, Koenigsberg J. held that the interjurisdictional immunity doctrine did not apply in this case on the grounds that it is restricted to cases involving federal undertakings (including federal works, things, or persons). Indeed, constitutional jurisprudence has approached the creation of interjurisdictional immunities consciously, with the design of a flexible federal system in mind. Finally, she noted that the paramountcy doctrine also does not apply given that the potentially conflicting federal legislation is ultra vires.
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.
B. British Columbia Court of Appeal (1998), 167 D.L.R. (4th) 723
1. Southin J.A.
15 Southin J.A. began by noting that the injunction was far too broad in its terms and instead should have been limited to the conduct complained of. She then examined the assumption made by Koenigsberg J. that “practice of law” is a valid head of power. In her view, s. 92 of the Constitution Act, 1867 contained no such provision and the issue has not been squarely settled by this Court. The question must therefore be whether the provincial legislature has the power pursuant to s. 92 (as a matter of civil rights or administration of justice in the province) to prohibit persons from appearing before tribunals established by Parliament under s. 91 (as part of the immigration process).
16 Southin J.A. held that it was an essential attribute of every tribunal to have control over who may or may not appear before it or draw up the papers necessary for its business to be carried on and that it fell within the jurisdiction of the legislative authority which created the tribunal to control all matters relating to that tribunal. Therefore, although there is some support for the proposition that the Legal Profession Act was a valid exercise of the power of a province to regulate civil rights, she concluded that the constitution, organization, practice, and procedure of tribunals established under the Immigration Act were matters within the classes of subjects enumerated in s. 91. She defended this conclusion by noting that a federal tribunal can sit in any province and that it would make no sense to require counsel called in one province to seek approval from the law society of another province before appearing before that tribunal when sitting in that other province.
17 As an aside, Southin J.A. noted that s. 95 of the Constitution Act, 1867 does not appear to confer upon the provinces the ability to legislate concerning the procedure before tribunals established under the Immigration Act and that, in any event, Parliament has already legislated in that respect, in which case the provincial provisions would be repugnant to the federal provisions. She therefore allowed the appeal and set aside the injunction.
2. Mackenzie J.A. (concurred in by Hollinrake J.A.)
18 Mackenzie J.A. reached the same result as that arrived at by Southin J.A., but by a different route. He held that the relevant provisions of the Immigration Act were constitutionally valid falling within both ss. 91(25) and 95, and stated that the validity of the provisions of the Legal Profession Act was not in issue. However, to the extent that they conflict, the Legal Profession Act was inoperative by virtue of the paramountcy doctrine, rather than being inapplicable by virtue of the doctrine of interjurisdictional immunity.
19 Mackenzie J.A. first noted that the appellant conceded that if the Governor in Council had made regulations licensing other counsel and dealing with their qualifications and standards, the Law Society could not successfully challenge their activities. However, in the absence of such a scheme, the Law Society argued that ss. 30 and 69(1) of the Immigration Act must be interpreted as being limited to unpaid counsel. In Mackenzie J.A.’s view, references to “other counsel” include paid non-lawyers. The fact that ss. 30 and 69(1) do not require “other counsel” to be licensed and that the power to make regulations under s. 114(1)(v) is merely permissive and that it has not been exercised has no impact on the plain meaning of the statutory provision. Concerns about the public interest going unprotected were misplaced, as Parliament gave the Governor in Council power to regulate in this area.
20 While this conclusion disposed of the appeal, given the appellant’s concession, Mackenzie J.A. explored the broader constitutional issues. Accepting that both pieces of legislation are valid, he first held that the doctrine of interjurisdictional immunity was inapplicable in this case. Relying on the rule set out in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, Mackenzie J.A. found that the regulation of legal services provided to persons within the aliens category does not threaten the core of the federal jurisdiction. Moreover, immunity would be inconsistent with the fact that Parliament contemplated a role for provincially regulated lawyers within the Immigration Act and that s. 95 of the Constitution Act, 1867 itself contemplates concurrent federal and provincial jurisdiction with respect to immigration into a province (Mackenzie J.A. found that the federal power over this statute derives from both ss. 91(25) and 95). Instead, Mackenzie J.A. held that the conflict is best resolved under the paramountcy doctrine. Paramountcy, however, only insulates the respondents’ activities from the Legal Profession Act to the extent that they fall within the ambit of ss. 30 and 69(1) of the Immigration Act. Mackenzie J.A. stated that the Law Society might be entitled to an injunction restraining activities that are within the scope of the Legal Profession Act and beyond the protection of the Immigration Act, but the question of a more limited injunction was not addressed in argument and therefore such an order could not be made. Accordingly, Mackenzie J.A. allowed the appeal and vacated the injunction.
V. Issues
21 On September 21, 2000, McLachlin C.J. certified the following constitutional question:
1. Is s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25, constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69 of the Immigration Act, R.S.C. 1985, c. I-2, and its associated Rules and Regulations and, if so, are the latter provisions ultra vires Parliament?
22 A more detailed exposition of the issues contemplated by this question involves asking first whether ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament. If the answer to this question is in the affirmative, it should then be asked whether s. 26 (now s. 15) of the Legal Profession Act is inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act. This reformulation serves the purpose of corresponding to the order of the analysis undertaken here and does not affect the substance of the stated constitutional question.
VI. Analysis
23 First, determining the pith and substance of ss. 30 and 69(1) of the Immigration Act, I conclude that those provisions provide certain rights for aliens before the IRB, namely the right to be represented by barristers, solicitors, or other counsel for a fee before the Adjudication Division and the Refugee Division of the IRB. They also allow aliens to have the benefit of the documents prepared by such counsel for use in these proceedings and to be advised on matters relevant to their case prior to the proceedings. Second, according to the double aspect theory, this subject matter falls within both the provincial jurisdiction over civil rights in the province under s. 92(13) of the Constitution Act, 1867 and the federal jurisdiction over aliens and naturalization under s. 91(25) of the Constitution Act, 1867. Statutes of the two levels of government regulating this subject matter will therefore coexist insofar as they do not conflict. Where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine. In this case, there is a conflict between both statutes. The Immigration Act authorizes non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance to both statutes is impossible without frustrating Parliament’s purpose. The Immigration Act must therefore prevail over the Legal Profession Act.
A. Are Sections 30 and 69(1) of the Immigration Act Intra Vires Parliament?
24 To answer this question, we must engage in a two-step analysis, as was recently done in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 15. The first step is to determine the pith and substance of the impugned provisions. The second step is to classify that essential character under one of the heads of power in the Constitution Act, 1867 to determine whether the provisions come within the jurisdiction of the enacting government. If it does, the provisions are valid.
1. What Is the Pith and Substance of Sections 30 and 69(1) of the Immigration Act?
(a) Legislative Context
25 The objectives of the Immigration Act are enunciated at s. 3 of the Act and include supporting the attainment of demographic goals in Canada, enriching and strengthening the cultural and social fabric of the country, fulfilling Canada’s international legal obligations with respect to refugees and upholding its humanitarian tradition with respect to the displaced and persecuted, and promoting international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.
26 Pursuant to the Immigration Act, the IRB is comprised of three divisions: the Adjudication Division, the Convention Refugee Determination Division, and the Immigration Appeal Division (s. 57(1)). Section 30 relates to proceedings before the Adjudication Division. The Adjudication Division holds inquiries and detention reviews to determine whether an individual is admissible to Canada or whether a removal order should be issued (s. 32). A hearings officer appears on behalf of the Minister.
27 Section 69(1) relates to the Refugee Division. The Refugee Division hears and determines claims to refugee status made in Canada (s. 69.1(1)). An agent or counsel may appear as the Minister’s representative. The IRB may be assisted by a refugee hearing officer, also referred to as a refugee claims officer, who is a member of the IRB and will serve as counsel to the members of the panel (ss. 64(3) and 68.1).
28 The Appeal Division hears appeals from removal orders made against permanent residents and sponsors’ appeals from refused family-class applications for landing (ss. 70 and 77(3)).
29 The hearings before the divisions of this administrative tribunal are quasi-judicial in nature. The proceedings before the Adjudication and Refugee Divisions are to be as informal and expeditious as the circumstances and considerations of fairness permit (ss. 80.1(4) and 68(2)). Adjudicators and members of the panel are not bound by any legal or technical rules of evidence and they may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case (ss. 80.1(5) and 68(3)).
30 Not all of the members of the IRB are required to be barristers or solicitors; nor are they all required to have legal training. The Adjudication Division is not required to have any lawyers or persons with legal training (s. 63.3). At least 10 percent of the members of the Refugee Division must be barristers or advocates of at least five years standing at a provincial bar or notaries of at least five years standing at the Chambre des notaires du Québec (s. 61(2)). In contrast, the Appeal Division’s Deputy Chairperson and a majority of the Assistant Deputy Chairpersons must be barristers, advocates, or notaries of at least five years standing, in addition to not less than 10 per cent of the members of the Appeal Division being the same (s. 61(2)). The officers who appear on behalf of the Minister as well as the refugee hearing officers (who provide help and assistance to the members of the Refugee Division) are not required to be lawyers or to have any legal training.
(b) What is the Subject Matter?
31 Section 30 creates rights for every person with respect to whom an inquiry is to be held before the Adjudication Division to be (a) informed of the person’s right to obtain the services of a barrister, solicitor, or other counsel; (b) to be given a reasonable opportunity to obtain such counsel at that person’s own expense; and (c) to be represented by any such counsel at the inquiry. Section 69(1) creates rights for a person who is the subject of the proceedings before the Refugee Division to be represented at the proceedings by a barrister, solicitor, or other counsel at that person’s own expense.
32 I conclude that the essential character, the pith and substance, of the provisions is the granting of certain rights to aliens in the immigration administrative process. The provisions provide rights to aliens to be represented in proceedings before the Adjudication and the Refugee Divisions by either barristers or solicitors or other counsel for a fee. They also provide rights to obtain services from said counsel in relation to those proceedings. This would include having the benefit of the documents prepared by such counsel for use in these proceedings and to be advised on matters relevant to their case. This is explicitly stated in s. 30 (“services”) and implicitly included in s. 69(1) since representation includes such matters as document preparation and advice in relation to the proceedings. The wording of both provisions may differ but they have the same scope. However, the entitlement is limited to these activities. Other services related to immigration were not in issue in this case and so this judgment should not be interpreted as granting a broad right to practise law in all matters concerning aliens and immigrants without being a member of the Law Society. Having determined the subject matter of the provisions of the Immigration Act, I will now discuss the heads of power under which the subject matter falls.
2. Under Which Head(s) of Power Do Sections 30 and 69(1) Fall?
(a) A Federal Matter Under Section 91(25) of the Constitution Act, 1867
33 Sections 30 and 69(1) relate to the rights of aliens in the immigration process. Determining whom aliens may choose to represent them before the Adjudication Division and the Refugee Division pertains to the procedural rights of those individuals in quasi-judicial proceedings. Such a matter falls within Parliament’s jurisdiction over naturalization and aliens pursuant to s. 91(25). The various rights, privileges, and disabilities attaching to the status of aliens have always been seen by the courts as part of the legislative preserve of Parliament under s. 91(25) (see e.g. Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580 (P.C.); Cunningham v. Homma, [1903] A.C. 151 (P.C.); and Brooks-Bidlake and Whittall, Ltd. v. Attorney-General for British Columbia, [1923] A.C. 450 (P.C.), for the early jurisprudence).
34 Flowing from this jurisdiction over aliens and naturalization is the authority to establish a tribunal to determine immigration rights in individual cases as part of the administration of these rights. Also flowing from this jurisdiction is the authority to provide for the powers of such a tribunal and its procedure including that of appearance before it. The federal legislative jurisdiction in the field of aliens and naturalization includes the power to establish a tribunal like the IRB since that jurisdiction includes the power to make decisions as to who constitutes an alien and who ought to be naturalized. In order to make such decisions while ensuring compliance with the requirements of natural justice and the Canadian Charter of Rights and Freedoms, the federal government must be free to determine the nature and content of, and participants in, a fair procedure for making such determinations.
35 The existence of s. 95 of the Constitution Act, 1867, which establishes federal jurisdiction over “Immigration into all or any of the Provinces” might raise some question as to the specific federal constitutional basis for ss. 30 and 69(1) of the Immigration Act. The case law and literature on s. 95 have tended to focus on the federal-provincial concurrency and conflict related to that section rather than the tension within the federal domain between ss. 91(25) and 95 (see e.g. In re Nakane and Okazake (1908), 13 B.C.R. 370 (C.A.); In re Narain Singh (1908), 13 B.C.R. 477 (S.C.); R. v. Hildebrand, [1919] 3 W.W.R. 286 (Man. C.A.); P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 15-40, and vol. 2, at p. 43-2 (fn. 4); and L. Waldman, Immigration Law and Practice (loose-leaf ed.), vol. 1, at §§ 1.15 et seq.). In In Re The Immigration Act and Munshi Singh, [1914] 6 W.W.R. 1347 (B.C.C.A.), the court turned its mind to the dual existence of ss. 91(25) and 95 but left the matter inconclusively resolved by stating that federal powers of detention over non-citizens could be grounded in either ss. 95, 91(25) or Parliament’s residuary power over peace, order, and good government. D. B. N. Bagambiire in Canadian Immigration and Refugee Law (1996), at p. 9, says that the basis for immigration legislation is s. 95. As support for this statement, he cites the Immigration Act, 1869, S.C. 1869, c. 10, where the preamble says:
WHEREAS the concurrent jurisdiction given to Canada and to the Provinces by the 95th section of the British North America Act, 1867, is, according to arrangements arrived at by the different governments concerned, to be exercised as follows . . . .
The preamble then goes on to list what the federal government and provincial governments may do, respectively, in the area of immigration.
36 It is an overstatement to say that the whole of the Immigration Act finds its constitutional basis in this or that particular section of the Constitution Act, 1867. Provisions of a varying nature can be found in the Act, and the federal constitutional basis for them will vary accordingly.
37 Both ss. 30 and 69(1) relate to the delineation of the procedural rights of aliens, as refugee claimants, permanent residents, or visitors. Since the pith and substance of these provisions is the rights that aliens possess in front of certain divisions of the IRB and the procedure before those divisions, they therefore fall under s. 91(25), given that section’s granting of jurisdiction over aliens and naturalization.
(b) A Provincial Matter Under Sections 92(13) of the Constitution Act, 1867
38 Representation before a tribunal has as its object the determination of legal rights. It falls within the scope of legal representation and the practice of law. Parliament itself has acknowledged that legal aspect by imposing certain quotas of lawyers’ membership in the Refugee Division and Appeal Division, as well as providing a right of representation by barristers or solicitors. Sections 30 and 69(1) relate to the legal profession and therefore to professions in general. The parties agree that the provinces have legislative authority to regulate the practice of law in the province under s. 92(13) as part of the provinces’ jurisdiction over professional regulation.
39 In Lafferty v. Lincoln (1907), 38 S.C.R. 620, this Court indirectly held that the enactment of standards for the practice of law fell within property and civil rights in the province. The main statements to which the appellant refers were not conclusive since they were expressed on behalf of the minority. On the other hand, it can be said that the majority implied that the regulation of medicine was a question of property and civil rights.
40 In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307 (the Jabour Case), at p. 335, Estey J., examining the provisions of the Legal Profession Act, held that he could see “no constitutional consequences necessarily flowing from the regulatory mode adopted by the province in legislation validly enacted within its sovereign sphere as is the case here” (although he acknowledged that none of the parties challenged the right of the provinces to enact the legislation). In Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, Iacobucci and Bastarache JJ., drawing a parallel with the impugned regulations in Black v. Law Society of Alberta, [1989] 1 S.C.R. 591, stated at para. 78 that both Ontario and Manitoba were entitled to set their own qualifications for the exercise of a profession under s. 92(13) of the Constitution Act, 1867. J. T. Casey in The Regulation of Professions in Canada (1994), at pp. 2-1 to 2‑4, states that s. 92(13) is the provincial basis for the regulation of professions.
41 Provincial law societies or bars are entrusted with the mandate of governing the legal profession with a view towards protecting the public when professional services are rendered. In exchange for a monopoly on the exercise of the profession and in accordance with the primary purpose of protecting the public in its dealings with lawyers, the bar must establish criteria for jurists to qualify as members, rules of discipline and mechanisms to enforce them, the contours of professional liability, a system of professional insurance, and guidelines and rules on the handling of trust funds. In this context, the bar is entrusted with policing the illegal practice of law both to enforce its monopoly and to protect the public from imposters. This is the purpose behind s. 26 of the Legal Profession Act (s. 15 in the current incarnation). Insofar as appearing before the IRB in the capacity of counsel involves the practice of law, the subject matter is as much covered by s. 26 of the Legal Profession Act as it is by ss. 30 and 69(1) of the Immigration Act.
42 While provinces may regulate professions as part of their jurisdiction over property and civil rights, the legal profession is also part of the administration of justice in the province, which s. 92(14) attributes to the provinces.
43 McIntyre J., in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 187-88, said quite explicitly that, as officers of the court, lawyers are part of the administration of justice:
It is incontestable that the legal profession plays a very significant – in fact, a fundamentally important – role in the administration of justice, both in the criminal and the civil law. I would not attempt to answer the question arising from the judgments below as to whether the function of the profession may be termed judicial or quasi-judicial, but I would observe that in the absence of an independent legal profession, skilled and qualified to play its part in the administration of justice and the judicial process, the whole legal system would be in a parlous state. In the performance of what may be called his private function, that is, in advising on legal matters and in representing clients before the courts and other tribunals, the lawyer is accorded great powers not permitted to other professionals. . . . By any standard, these powers and duties are vital to the maintenance of order in our society and the due administration of the law in the interest of the whole community.
There was no serious disagreement with this statement among the other judges. La Forest J. (writing for himself), at p. 203 said: “It is only in the most unreal sense that it can be said that a lawyer working for a private client plays a role in the administration of justice that would require him or her to be a citizen in order to be allowed to participate therein.” I read that statement as saying that the lawyer’s role is not such in the administration of justice as to require citizenship.
44 Lamer J. (as he then was) in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 883, referred to the right to confidentiality enjoyed by a client with his lawyer as being essential to the administration of justice. In MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, both the majority and the minority considered the maintenance of clients’ secrets held by lawyers as being essential to the administration of justice and of the public’s confidence in it (see Sopinka J. at pp. 1245 and 1263, and Cory J., at p. 1270; see also R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at paras. 31-33). Cory J. in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 177, mentioned the importance of counsel’s reputation for integrity within the whole system of administration of justice. In Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512 (Que. Sup. Ct.), which this Court referred to in Canadian Egg Marketing Agency, supra, at paras. 51 and 79, Deschênes C.J.S.C. said that a legislative provision limiting the right of non-Quebec lawyers to appear before courts in Quebec had to do with considerations relating to the good administration of justice.
45 I most recently said in Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 49, that lawyers play an essential role in society and that they are officers of the court. Accordingly, they have the obligation of upholding the various attributes of the administration of justice such as judicial impartiality and independence, as well as professional honesty and loyalty.
46 Lawyers are an integral part of the administration of justice, and thus to that extent provincial legislation in relation to lawyers may very well derive its authority from s. 92(14) as much as s. 92(13). However, since this issue was not central to the case at bar, I will refrain from expanding on this question any further.
47 The subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects. Parliament and the provincial legislatures can both legislate pursuant to their respective jurisdiction and respective purpose. The federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict.
B. Double Aspect Doctrine
48 The Privy Council first enunciated the doctrine of double aspect in the case of Hodge v. The Queen (1883), 9 App. Cas. 117, at p. 130, where it was said that “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91”. Dickson J. (as he then was) canvassed the same doctrine in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at pp. 180-81 where he said:
Because “[t]he language of [ss. 91 and 92] and of the various heads which they contain obviously cannot be construed as having been intended to embody the exact disjunctions of a perfect logical scheme” (John Deere Plow Co. v. Wharton, supra, at p. 338 per Viscount Haldane), a statute may fall under several heads of either s. 91 or s. 92. For example, a provincial statute will often fall under both s. 92(13), property and civil rights and s. 92(16), a purely local matter, given the broad generality of the language. There is, of course, no constitutional difficulty in this. The constitutional difficulty arises, however, when a statute may be characterized, as often happens, as coming within a federal as well as a provincial head of power. . . .
I incline to the view that the impugned insider trading provisions have both a securities law and a companies law aspect and would adopt as the test for applying the double aspect doctrine to validate both sets of legislative provisions, that formulated by Professor Lederman:
But if the contrast between the relative importance of the two features is not so sharp, what then? Here we come upon the double-aspect theory of interpretation, which constitutes the second way in which the courts have dealt with inevitably overlapping categories. When the court considers that the federal and provincial features of the challenged rule are of roughly equivalent importance so that neither should be ignored respecting the division of legislative powers, the decision is made that the challenged rule could be enacted by either the federal Parliament or provincial legislature. In the language of the Privy Council, “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91”. [Emphasis added.]
49 The double aspect doctrine has been notably applied for the following subject matters: highway traffic (O’Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238); provincial securities regulations (Smith v. The Queen, [1960] S.C.R. 776, and Multiple Access, supra); insolvency (Attorney-General of Ontario v. Attorney-General for the Dominion of Canada, [1894] A.C. 189 (P.C.) (Voluntary Assignments case), and Robinson v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753); temperance (Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348 (P.C.) (Local Prohibition case)); interest rates (Attorney-General for Ontario v. Barfried Enterprises Ltd., [1963] S.C.R. 570); maintenance of spouses and children, and custody of children (Papp v. Papp, [1970] 1 O.R. 331 (C.A.)); entertainment in taverns (Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59); and gaming (R. v. Furtney, [1991] 3 S.C.R. 89). See generally Hogg, supra, vol. 1, at pp. 15-11 and 15-12.
50 Both the federal and provincial features of the challenged provisions are of equivalent importance, and so neither should be ignored in the analysis of the division of powers. Parliament must be allowed to determine who may appear before tribunals it has created, and the provinces must be allowed to regulate the practice of law as they have always done. Having determined that there are both federal and provincial constitutional aspects to the subject matter in ss. 30 and 69(1) of the Immigration Act, the sections are validly enacted by Parliament under the double aspect doctrine. Accordingly, the three-step test set out by Dickson C.J. in General Motors, supra, at pp. 666-72, is not applicable since no issue of intrusion into the provincial power arises.
C. Application of the Paramountcy Doctrine
51 There was much argument submitted by the parties regarding the respective preferability of the doctrines of paramountcy and interjurisdictional immunity in determining the manner in which the federal provisions would prevail over the provincial legislation. The latter doctrine has received its classical application in Bell Canada, supra. The authority for the former is Multiple Access, supra.
52 I believe Mackenzie J.A. disposed of this question in a satisfactory manner. Paramountcy is the more appropriate doctrine in this case. The existence of a double aspect to the subject matter of ss. 30 and 69(1) favours the application of the paramountcy doctrine rather than the doctrine of interjurisdictional immunity. While the role for provincially regulated lawyers is non-exclusive, it is nonetheless inconsistent with interjurisdictional immunity, which would exclude provincial legislation, even if Parliament did not legislate in the area. The application of the interjurisdictional immunity doctrine in such a context might lead to a bifurcation of the regulation and control of the legal profession in Canada. The application of the paramountcy doctrine safeguards the control by Parliament over the administrative tribunals it creates. At the same time, it preserves the principle of a unified control of the legal profession by the various law societies throughout Canada. By the very statutory scheme for immigration tribunals in the Immigration Act, Parliament contemplated a role for provincially regulated lawyers. While I have determined the pith and substance of the provisions in question to be in relation to aliens and naturalization under s. 91(25), immigration in general is subject to a joint federal and provincial jurisdiction. Section 95 establishes this and itself contains a paramountcy provision. Thus, there is no clear boundary between the federal and provincial jurisdiction in this matter generally. Finally, the immigration aspects of the legal affairs of aliens are not easily distinguishable from the non-immigration aspects of their legal affairs.
53 The respondent Sparling brought to the attention of this Court the decision of the Ontario Court of Appeal in R. v. Lewis (1997), 155 D.L.R. (4th) 442, where Rosenberg J.A. applied the interjurisdictional immunity doctrine in holding that provincial legislation could not limit the range of persons qualified to be auditors for the purpose of the Canada Elections Act, R.S.C. 1985, c. E-2. While the latter Act permitted a wide range of accounting practitioners, as defined by provincial legislation, to carry out an audit for federal election candidates, such a task was reserved for chartered accountants by the provincial legislation.
54 The result achieved in that case is certainly agreed with by this Court. However, the same result could have been achieved by the more supple paramountcy doctrine rather than the interjurisdictional immunity doctrine, especially since the federal legislation was itself resorting to provincial definitions of accounting professionals in determining the range of persons qualified to act, thus creating a role for provincial regulatory legislation.
1. Is Section 26 of the Legal Profession Act Constitutionally Inoperative to Persons Acting Under Sections 30 and 69(1) of the Immigration Act and its Associated Rules and Regulations?
(a) Does the Immigration Act Authorize Non-lawyers to Act for a Fee?
(i) The Expression “Other Counsel” Is Not Restricted to Lawyers
55 The term “other counsel” in ss. 30 and 69(1) cannot be a simple repetition or another way of expressing the concept of lawyers. It is plain from the structure of the Act that this expression is used in contradistinction to the terms “barrister and solicitor”. Lawyers are either barristers or solicitors, so “other counsel” must mean non-lawyers.
56 Section 114(1)(v) refers directly to any person, other than a person who is a member of the bar, which demonstrates that Parliament has contemplated a role played by non-lawyers in the immigration process. The fact that the Governor in Council has not yet established a licensing system in this area pursuant to s. 114(1)(v) is irrelevant to the meaning of ss. 30 and 69(1). As Mackenzie J.A. pointed out for the British Columbia Court of Appeal, there is nothing in those provisions which requires other counsel, whether they act for a fee or not, to be licensed. Moreover, s. 114 is only permissive. It cannot incorporate a licensing requirement for “other counsel” in ss. 30 and 69(1). Quite to the contrary, the fact that s. 114(1)(v) creates only the possibility for the regulation of a “person, other than a person who is a member of the bar of any province” reveals Parliament’s primary intent to permit a class of people to be representatives and render services in that capacity, and its secondary intent to allow for the regulation of that class of people.
57 As further confirmation of this interpretation of “other counsel”, s. 2 of the Adjudication Division Rules defines “counsel” as “a person who represents a party in any proceeding before the Adjudication Division”, and therefore the term is not limited to a member of the bar of a province. Since s. 2 of the Convention Refugee Determination Division Rules merely refers back to s. 69(1), the provision in the Adjudication Division Rules is the most revealing as to the scope of the term in both ss. 30 and 69(1).
58 This interpretation is consistent with the constitution of federal tribunals generally. Many federal tribunals allow representation by counsel other than barristers or solicitors: “agent” before the Civil Aviation Tribunal under the Aeronautics Act, R.S.C. 1985, c. A-2, s. 37(2); representative of an RCMP member (who also must be a “member”) before the Royal Canadian Mounted Police Public Complaints Commission under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 47.1, or any other board; “representative” in any proceedings under the Pension Act, R.S.C. 1985, c. P-6, s. 88; “representative” before the Pilotage Authority under the Pilotage Act, R.S.C. 1985, c. P-14, s. 28(1); “person of the offender’s choice” in hearings before the National Parole Board under the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 140(7); “agent” in hearings before the Canadian International Trade Tribunal under the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.), s. 31; “agent” in proceedings before the Canadian Artists and Producers Professional Relations Tribunal under the Status of the Artist Act, S.C. 1992, c. 33, s. 19(3); “patent agents” before the Patent Office under the Patent Act, R.S.C. 1985, c. P-4, s. 15; and “trade-mark agents” before the Trade-marks Office under the Trade-marks Act, R.S.C. 1985, c. T-13, s. 28(1)(f). All of these non-lawyer roles involve some aspect of the traditional practice of law. Representation by non-lawyers is consistent with the purpose of such administrative bodies, which is to facilitate access to and decrease the formality of these bodies as well as to acknowledge the expertise of other classes of people.
59 In the same vein certain provincial statutes within British Columbia allow non-lawyers to appear before administrative tribunals: Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 29(3) (“agent” before the Health Care and Care Facility Review Board); Expropriation Act, R.S.B.C. 1996, c. 125, s. 14(4)(a) (“agent” before the inquiry officer appointed by the Expropriation Compensation Board); and Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 56(5) (“agent” at an inquiry by the Information and Privacy Commissioner).
60 Non-lawyers may provide a very useful service to people who are subject to IRB proceedings. It may be difficult to find lawyers who are fluent in other languages, as well as familiar with different cultures. The provisions of the Immigration Act itself call for proceedings to be as informal and expeditious as the circumstances and fairness permit (ss. 68(2) and 80.1(4)). The possibility to choose to be represented by a non-lawyer may be conducive to informality and expeditiousness. In his recent report, A Framework for Regulating Paralegal Practice in Ontario (2000), the Honourable Peter Cory, at p. 44, took note of the fact that some non-lawyers (paralegals specifically) could converse with people appearing before the IRB in their native language. He found that paralegals play a very important and useful role before the IRB.
(ii) “Other Counsel” Can Act for a Fee
61 Sections 30 and 69(1) provide that the person who is subject to the proceedings may, “at [that] person’s own expense” be represented by counsel. This expression may be understood as meaning only that the federal government will not bear any expense associated with the retention of such counsel. However, it also implies that Parliament precisely anticipated the possibility that those “other counsel” might charge a fee, and therefore Parliament enacted legislation to avoid being responsible for the costs.
62 Section 114(1)(v) clearly provides that the Governor in Council may make regulations requiring any person, other than a person who is a member of a bar of any province, to make an application for and obtain a licence from a prescribed authority before the person may appear before the IRB as counsel for any fee, reward, or other form of remuneration. Although that regulatory authority has not yet been established, it does not limit the scope of ss. 30 and 69(1). While it may very well be preferable to regulate those persons, there is no obligation for the government to regulate them. In saying that “other counsel” may represent and in empowering the Governor in Council to make regulations, Parliament has explicitly and definitively legislated in the area.
63 This issue was addressed in R. v. Romanowicz (1999), 45 O.R. (3d) 506, where the Ontario Court of Appeal held that the use of the words “counsel or agent” (ss. 800 and 802 of the Criminal Code, R.S.C. 1985, c. C-46) meant that non-lawyers were authorized by law to act for a fee. Although the provisions in the case at bar use “other counsel” instead of “agent”, the provincial legislation cannot limit the language of the federal legislation to unpaid counsel.
64 The Immigration Act and the Rules and Regulations made thereunder make no distinction between barrister and solicitor who could act for a fee and other counsel who could not. If Parliament had intended to limit the meaning of “other counsel” to unpaid non-lawyers, the section would have been drafted differently so as to make it clear that the phrase “at [that] person’s own expense” only referred to barristers and solicitors and not to other counsel.
65 This interpretation is also supported by the text of ss. 29(5) and 69(5) of the Immigration Act. Where “person” is used in these provisions, the Act acknowledges that person’s right to be paid by commanding payment from the public purse in the circumstances provided therein. If the term “person” in these provisions implies publicly paid representation, then “other counsel” is even more clearly unrestricted in terms of remuneration. I have already discussed the fact that “counsel” is defined in the Adjudication Division Rules as a person who represents a party in proceedings. Had Parliament wanted to declare that “other counsel” means only unpaid persons, it would have said so by using distinctive terms in ss. 30 and 69(1).
66 In response to the comment of Koenigsberg J. at the trial level, at para. 42, I consider irrelevant the principle of statutory interpretation whereby a statute should be read in a manner that will uphold the constitutionality of the relevant legislative provisions. This principle only applies when both competing interpretations are reasonably open to the court: R. v. Zundel, [1992] 2 S.C.R. 731, at p. 771. In this case, to adopt the interpretation consistent with the constitutional norms would be repugnant to the text and context of the federal legislation. Even if one accepts that the competing interpretations need not be equally reasonable in order for the presumption of constitutionality to have effect, I think that ss. 30 and 69(1) do not provide any support for a restrictive interpretation of “other counsel”, i.e. for the drawing of a line between non-lawyer representatives who charge a fee and those who do not. The “words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Iacobucci J., quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21).
67 As I mentioned above, there is no obligation for Parliament to regulate the “other counsel”, even though it may be wise and advisable to do so. The enactment of ss. 30 and 69(1) and of s. 114(1)(v) illustrates Parliament’s intention to address the subject of who may appear before the IRB. Aside from the situations where Parliament refers to provincial legislation (as it does for barristers and solicitors), the federal government has defined “other counsel” as being “a person”, and the provinces cannot intervene in that sphere. Moreover, by the enactment of s. 114, Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers.
(b) Is There an Operational Conflict?
68 As I mentioned above, the controlling authority with respect to federal paramountcy is Multiple Access, supra. At pp. 189-91, Dickson J. explained that a central assessment to be made in the application of this doctrine is to ascertain whether there is a conflict between the federal and provincial legislation. If there is none, then paramountcy is of course not relevant.
69 There will be a conflict in operation where the application of the provincial law will displace the legislative purpose of Parliament. The test is stated at p. 191: “one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other”.
70 In Bank of Montreal v. Hall, [1990] 1 S.C.R. 121, this Court reiterated the test of the “actual conflict in operation” (p. 151) and the rationale for the application of the doctrine of paramountcy. At p. 152, La Forest J. held that the question before the Court was reducible to asking whether there is an actual conflict in operation “in the sense that the legislative purpose of Parliament stands to be displaced in the event that the appellant bank is required to defer to the provincial legislation in order to realize on its security”. The Court put a gloss at pp. 154-55 on the argument that compliance with both laws was possible by obeying the stricter one:
For, as we have seen, dual compliance will be impossible when application of the provincial statute can fairly be said to frustrate Parliament’s legislative purpose.
. . .
A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal acts are in conflict, and, hence, repugnant. That conclusion, in my view, would simply beg the question. The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible.
71 In M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961, Binnie J. at para. 41 applied the reasoning of the Privy Council in Crown Grain Co. v. Day, [1908] A.C. 504, as “rationalized” by Hogg, supra, vol. 1, at pp. 16-6.1 to 16-7:
[O]n a superficial analysis, the dual compliance test is not satisfied: the two laws imposed no duties on the parties to litigation, and both laws could be complied with by the losing litigant in a mechanics lien case not taking an appeal to the Supreme Court. But if the laws are recast as directives to a court that has to determine whether or not an appeal to the Supreme Court is available, the contradiction emerges. A court cannot decide that there is a right of appeal (as directed by federal law) and that there is not a right of appeal (as directed by provincial law). For the court, there is an impossibility of dual compliance and therefore an express contradiction. [Emphasis added.]
Applying this reasoning to the facts before him, Binnie J. concluded, at para. 42: “In summary, we have here an ‘express contradiction’ within the extended meaning of the relevant jurisprudence” where a federal farm Act gives the farmer a short standstill period but the relevant provincial Act allows for immediate foreclosure.
72 In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB to comply with both acts.
73 This case should be distinguished from 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40. In that case, it was possible to comply with the federal, provincial, and municipal statutes or regulations without defeating Parliament’s purpose. As previously shown, in this case, it is impossible to comply with the provincial statute without frustrating Parliament’s purpose.
(c) Extent of the Conflict
74 As this case dealt with hearings before the Adjudication and Refugee Divisions only, I would hold that the Legal Profession Act’s prohibition on non-lawyers from collecting a fee to act as representatives and to provide services in that regard is inoperative to that extent. The provision of services means document preparation and advice on matters relevant to the individual’s case.
D. Remedy
75 As I have found the provisions of the Immigration Act at issue to be valid and paramount over the provisions of the Legal Profession Act, an injunction against the respondents Mangat, Westcoast, and Sparling cannot be granted in respect of the activities complained of. Moreover, the question of an injunction is moot as far as the respondents Mangat and Westcoast are concerned. Mr. Mangat is now a member in good standing of the bar in the provinces of Alberta and Ontario, which entitles him to represent a client before any hearing of the IRB. He has no intention of returning to his former work of immigration consultant. Westcoast is now dissolved and no longer exists.
76 The Court finds that there is a basis to grant a declaratory order that ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament and that s. 26 (now s. 15) of the Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Division or Refugee Division and the provision of services to that end.
77 The respondent Sparling is entitled to party and party costs while, as decided by Iacobucci J. in the motion to quash the appeal for mootness, solicitor-client costs should be granted to the respondent Mangat.
VII. Disposition
78 For the foregoing reasons, I would dismiss the appeal with party and party costs to the respondent Sparling and solicitor-client costs to the respondent Mangat.
79 I would answer the constitutional question as follows:
Q. Is s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25, constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69 of the Immigration Act, R.S.C. 1985, c. I-2, and its associated Rules and Regulations and, if so, are the latter provisions ultra vires Parliament?
A. Section 26 of the Legal Profession Act is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. It is not necessary to determine whether this disposition is constitutionally inapplicable. The provisions are intra vires Parliament.
Appeal dismissed.
Solicitors for the appellant: Fasken Martineau DuMoulin LLP, Vancouver.
Solicitors for the respondent Mangat: Sugden, McFee & Ross, Vancouver.
Solicitors for the respondent Sparling: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Toronto.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of Attorney General, Vancouver.
Solicitors for the intervener the Organization of Professional Immigration Consultants: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitors for the intervener the Canadian Bar Association: Mayland McKimm & Associates, Victoria; Zaifman Associates, Winnipeg.
Solicitors for the intervener the Association of Immigration Counsel of Canada: Gowling Lafleur Henderson LLP, Toronto.