Operational Bulletin 437 – June 13, 2012

The Importance of the Solicitor–Client Privilege Relationship

Issue

Section 10 of the Immigration and Refugee Protection Regulations (IRPR) specify various requirements. These requirements concern applications made under the Immigration and Refugee Protection Act (IRPA). In particular, these requirements deal with the:

• Form for applications made under the Immigration and Refugee Protection Act (IRPA) and,
• Content for applications made under the Immigration and Refugee Protection Act (IRPA)

Bill C-35 came into effect recently. As a result the authorities also made an amendment to subsection 10 (2) of the Immigration and Refugee Protection Regulations (IRPR). The amendment required applicants to disclose:

• The name and contact information of any authorised representative, who,
• Has or is currently providing advice, for consideration, on matters related to:
• The Immigration and Refugee Protection Act (IRPA) and,
• The particular application

This Operational Bulletin (OB) guides officers on the recent regulatory amendments and on their interpretations. In particular, it pertains to the amendments made to the following paragraphs of the Immigration and Refugee Protection Regulations (IRPR):

• Paragraph 10 (2) (c.3) and,
• Paragraph 10 (2) (c.4)

Background

Bill C-35 (An Act to Amend the Immigration and Refugee Protection Act) came into effect on June 30, 2011. This Bill deems as an offence any situation where:

• Anyone other than an authorised representative
• Advises or represents a person
• In connection with an application or proceeding under the Immigration and Refugee Protection Regulations (IRPR)
• For a fee or for any other consideration

The authorities were aware that they would need to align the Immigration and Refugee Protection Regulations (IRPR) with the recent changes to the Immigration and Refugee Protection Act (IRPA). Therefore, they amended paragraph 10 (2) of the Immigration and Refugee Protection Regulations (IRPR).

As per the current Immigration and Refugee Protection Regulations (IRPR), paragraphs 10 (2) (c) states that:

2) The application shall, unless otherwise provided by these Regulations,

(c) indicate the class prescribed by these Regulations for which the application is made;

(c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;

(c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91 (2) (a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;

(c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91 (2) (a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

(c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91 (4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person;

The Instructions

As mentioned earlier, the authorities made certain regulatory amendments to paragraphs 10 (2) (c.3) and (c.4) of the Immigration and Refugee Protection Regulations (IRPR). These amendments only apply to the advice or representation concerning a specific application that:

• An applicant submits to the Government and,
• Needs an interpretation in a manner consistent with a solicitor – client privilege

Therefore, the applicant needs to provide this information to the Government. Based on this information, the Government would be able to correspond with the applicant’s counsel, should the need arise.

In particular, the Government does not require the immigration applicant or the applicant’s counsel to inform the Government of the essence of any solicitor – client communications. As a result, the amendments ensure that the officials need not be aware of any discussions. This is with particular reference to those discussions between the applicant and the applicant’s representative, which might be subject to the solicitor – client privilege. Instead, the amended disclosure requirements aim at ensuring that the officials are aware of the coordinates of the applicant’s representative.

Therefore, paragraphs 10 (2) (c.3) and (c.4) do not apply in situations where:

• The applicant has sought legal advice regarding other areas of the law that have no links to immigration matters
• Such legal advice could pertain to:
• Criminal law
• Family law
• Wills and estates

In particular, officers would need to be care not to misinterpret the wordings of the regulatory amendments. Thus, they should ensure that they do not mistake the wordings of the regulatory amendments as authorising the officers to seek information on the essence of any advice given by a solicitor to a client. This is regardless of whether the solicitor operated:

• As a representative in an immigration application or,
• As a representative in an immigration proceeding

It is also regardless of whether or not the solicitor filed an application or not.

The regulatory amendments prescribe the IMM 5476 (Use of Representative) as the form applicants must use at any stage of an application under the Immigration and Refugee Protection Act (IRPA). Applicants could use this form for disclosing the name and contact information of any authorised representative. This is applicable as long as the authorised representative is providing representation or advice for a fee or for any other consideration.

Officers would also need to note that the solicitor – client privilege extends to individuals acting as agents for the solicitor too. This would typically include people such as:

• Legal assistants and,
• Other staff members belonging to the solicitor’s office

The law office bears the responsibility for determining which individuals would be the responsible professional named on the IMM 5476 (Use of Representative) form. This would be valid in cases where the law office employs the following professionals to whom Bill C-35 might apply:

• A lawyer
• An immigration consultant and / or,
• A paralegal

Source: Citizenship and Immigration Canada (CIC)