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| Cédric Marin |
This is not merely an immigration law issue. If left unchallenged, the framework IRCC proposes could become a precedent for other federal departments to regulate lawyers who practise in federally governed fields. The implications for solicitor independence, self-regulation and solicitor-client privilege are profound. This should concern every bar in Canada.
When federal bureaucrats come for the bar
The administrative penalties regime grants IRCC sweeping powers: fines of up to $1.5 million per notice of violation, warrantless “inspections” of business premises based on mere suspicion, and the authority to compel “any relevant documents,” including those subject to solicitor-client privilege, with no statutory protections.
Lawyers found liable will be publicly listed on IRCC’s website, including their name, address, employer, type of violation and penalty amount. Officers appointed by the Governor in Council, not independent adjudicators, would decide liability, and the review process explicitly bars the submission of new evidence. For what is framed as a compliance mechanism, the process and consequences more closely resemble quasi-criminal sanction, imposed without the safeguards lawyers would be entitled to under their existing professional regulatory regimes.
Backward solution to the wrong problem
Even more troubling is the complete reversal of the problem the regulations were meant to solve. The 2017 Starting Again report by the House of Commons Standing Committee on Citizenship and Immigration focused exclusively on immigration consultants. It found serious gaps in oversight and discipline in that profession. Lawyers were not the subject of those concerns, and the committee made no recommendation to extend federal regulatory reach to them.
Indeed, IRCC’s own internal documents and its consultations with the Office of the Privacy Commissioner all pointed to a regime that would apply to consultants. Yet by the time the draft regulations were published, lawyers had been swept into the framework without explanation or justification. The very profession never cited in the original problem has now become the most heavily penalized under the proposed solution.
Blatant disregard for the Constitution
The inclusion of lawyers in IRCC’s AMP regime is not simply misguided, but outright unconstitutional. In Law Society of British Columbia v. Mangat, 2001 SCC 67, the Supreme Court held that while the federal government may regulate representation before federal tribunals, it has no authority to regulate the legal profession more broadly. That jurisdiction lies squarely with the provinces. This foundational division has been repeatedly reaffirmed, including in Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 and Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7.
The independence of the bar is a constitutional principle, not a matter of administrative convenience. It exists to preserve the rule of law by ensuring that lawyers can act without fear of state reprisal, especially when advocating against that very state. Yet the AMP regime proposes to grant IRCC the power to inspect, investigate and penalize immigration lawyers, including those actively challenging the department’s conduct in Federal Court or before tribunals.
Conflict of interest is indefensible
The threat to bar independence cannot be overstated. Immigration lawyers regularly challenge IRCC decisions, seek judicial review of departmental actions and advocate zealously for clients whose interests directly oppose the government’s position. Granting that same department disciplinary authority over these lawyers creates an obvious and intolerable conflict of interest.
This parallels allowing Crown counsel to discipline criminal defence lawyers, a proposition that would rightly provoke universal condemnation from the profession.
Solicitor-client privilege under attack
The AMPs regime authorizes warrantless inspections and document demands that fundamentally conflict with solicitor-client privilege. Lawyers facing investigation must choose between breaching their foundational duty to clients or facing $10,000 fines for each non-compliance.
The AMPs contain no safeguards for privileged information. Unlike law society disciplinary processes, which include statutory protections for privileged materials, IRCC officers may demand “any relevant document” without judicial oversight or privilege screens.
The problem is compounded by the fact that immigration lawyers are directly involved in immigration applications: they prepare forms and documents, and submit the very applications, forms and letters that IRCC now proposes to scrutinize through its AMPs regime.
The lawyer’s work product is the very subject of enforcement. This is unlike nuclear safety, where lawyers advise on reports they did not author, or agriculture and food safety, where lawyers advise on compliance but are not the ones growing, processing or selling food. In immigration, the “business” of compliance (submitting applications, drafting submissions, assembling evidence) is inseparable from the lawyer’s professional role. Compelling, examining and investigating those documents is effectively investigating the lawyer’s advocacy for their client. Yet here, there are no protections at all.
Other federal regimes, whether CRA, CBSA’s AMPs, EVAMPA, FINTRAC compliance or federal labour penalties, do not embed privilege screens either, but they at least recognize privilege as a live issue by relying on parties to assert it and on later review by a tribunal or court to resolve disputes. That framework is imperfect, but it preserves judicial oversight.
Even though IRCC is, in effect, investigating a lawyer’s own work, its AMPs regime goes further still: it singles out the lawyer’s work and offers no safeguards whatsoever for solicitor-client privilege.
This leaves lawyers in an impossible position: either compromise client confidentiality to defend against allegations or maintain privilege while being unable to mount a full defence. The Supreme Court has repeatedly emphasized that solicitor-client privilege is “nearly absolute” and can only be breached in clearly defined circumstances with minimal impairment. IRCC’s regime turns that principle on its head.
A test case for other ministries?
The issue here is not just about IRCC or immigration law. The broader question is: If one federal department can assert disciplinary power over lawyers who practise before it, what stops the rest from doing the same?
Imagine if the CRA could sanction tax lawyers who challenge reassessments. Or if Employment and Social Development Canada could discipline labour lawyers who file workplace complaints. Each department could invoke the same rationale, protecting vulnerable clients, ensuring system integrity, deterring misconduct. The logic of IRCC’s overreach applies with equal force across the federal government.
The chilling effect
Beyond constitutional concerns lies practical impact. Lawyers may avoid complex files or temper their advocacy to avoid IRCC scrutiny. The regulations’ subjective standards of what constitutes “misrepresentation” often depend on legal interpretation. This creates uncertainty, which often results in conservative legal practice instead of zealous advocacy.
Public interest litigation could particularly suffer. Lawyers challenging systemic departmental failures or seeking precedent-setting decisions may hesitate when facing potential penalties from the very department they oppose.
Unresponsive government
The legal profession has not been silent. The Federation of Law Societies of Canada has been raising serious objections to this regime for years. Yet when the regulations were published in the Canada Gazette, IRCC falsely claimed that the federation “did not register any concerns.” This was not a miscommunication. It was a deliberate misrepresentation of the federation’s well-documented opposition, through formal letters and direct communications with departmental officials and the minister’s office.
The Canadian Bar Association has also issued a comprehensive and forceful response, warning of the regime’s constitutional defects, jurisdictional overreach and disregard for solicitor-client privilege. Every law society in Canada has echoed these concerns. From Newfoundland and Labrador to British Columbia, the message has been clear: the proposed framework is incompatible with the constitutional principles that govern the regulation of the legal profession.
And yet, the government has brushed all of it aside. Without justification, without transparency and without regard for constitutional limits, it is pressing ahead.
What must be done
Every bar in Canada should treat IRCC’s regulations as the thin end of the wedge. At a minimum, lawyers must be carved out of the regime. Federal departments cannot be permitted to claim disciplinary jurisdiction over members of provincial law societies, period.
But the problem does not end there. If Ottawa insists on retaining such powers over lawyers in one area, the precedent will inevitably spread. The only safeguard is to insist that the entire regulations be withdrawn. This is not about shielding lawyers from accountability: law societies already discipline misconduct, with robust procedures, constitutional safeguards and independence from government. It is about preserving the rule of law by ensuring that no federal department becomes judge, jury and executioner of its own.
Cédric Marin, of Marin Immigration Law, is on the board of directors of the Canadian Immigration Lawyers Association.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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