Law360 Canada (November 3, 2026, 11:29 AM EST) --
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| Sergio R. Karas |
Ottawa’s new administrative monetary penalty regime gives Immigration, Refugees and Citizenship Canada (IRCC) powerful tools against fraudulent and unauthorized immigration representatives. Its express recognition of solicitor-client privilege and Quebec professional secrecy is welcome, but the regime’s legality will ultimately depend on how those protections operate in practice.
On Oct. 28, IRCC brought into force a new administrative penalty regime for paid immigration and citizenship representatives. It applies to licensed immigration consultants, lawyers, other authorized representatives, and people who provide paid advice or representation without authorization — including those operating outside Canada.
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The policy objective is legitimate. Ghost consultants and dishonest representatives can inflict devastating consequences on applicants while undermining the integrity of Canada’s immigration system. But the government has chosen to place lawyers, Quebec notaries, regulated consultants and unauthorized operators within the same federal enforcement machinery, despite significant differences in their legal relationships with clients.
A regime with significant teeth
The new rules target unauthorized paid advice or representation and knowing involvement in misrepresentation, including providing false or misleading information for an applicant or helping an applicant do so. Failure to comply with a document requirement during an inspection is itself a separate violation.
The regulations establish base penalties of:
- $5,000 for unauthorized paid advice or representation;
- $15,000 for knowing involvement in misrepresentation; and
- $10,000 for failing to provide documents required during an inspection.
An additional $15,000 “impact” amount may apply where the misconduct caused an error in the administration of the legislation, and any financial advantage obtained through the violation is added to the calculation. Prior findings produce a multiplier, while combined penalties are capped at $1.5 million per notice of violation.
The process begins when an officer has reasonable grounds to suspect a violation and requires relevant documents. If the officer later has reasonable grounds to believe a violation occurred, IRCC may issue a preliminary notice. The representative has 30 days to respond or request an extension. A notice of violation may then be issued on a balance of probabilities, followed by 30 days to seek review by a governor-in-council-appointed reviewer. Judicial review remains available after the reviewer’s decision.
The consequences are not merely financial. IRCC will publish the representative’s name, business or employer, violation, penalty amount and payment status. A dedicated online registry is expected in 2027.
Lawyers, notaries and consultants are not the same
The central legal difficulty is that the affected professional groups do not stand on the same footing.
Lawyers owe broad professional duties of confidentiality, but they also hold information protected by solicitor-client privilege. That privilege belongs to the client, not the lawyer, and protects confidential communications made to obtain or provide legal advice. It is a substantive legal right, not simply a rule of professional conduct.
Quebec notaries occupy a distinct civil-law position. Under Quebec’s
Notaries Act, they are legal advisers and public officers required to keep professional confidences “absolutely secret.” Section 9 of Quebec’s
Charter of Human Rights and Freedoms separately protects professional secrecy and directs tribunals to ensure that it is respected.
Regulated immigration consultants, by contrast, are subject to a strong confidentiality obligation under s. 28 of the federal
Code of Professional Conduct for College of Immigration and Citizenship Consultants Licensees. But regulatory confidentiality is not, merely by virtue of the consulting relationship, solicitor-client privilege.
That distinction matters. A consultant may usually rely on client authorization or a regulatory exception when responding to an investigation. A lawyer or Quebec notary cannot unilaterally waive the client’s privilege or professional secrecy simply because disclosure would make it easier to defend against an IRCC allegation.
The final regime adds an important safeguard
IRCC’s final guidance expressly recognizes litigation privilege, solicitor-client privilege and the professional secrecy of advocates and notaries. A lawyer, Quebec notary or supervised student-at-law who cannot produce relevant documents — or cannot adequately contest alleged facts without disclosure of protected information — may submit an affidavit explaining that impediment.
This is a meaningful improvement over the December 2024 proposal, which contained no comparable express affidavit mechanism. It responds, at least partly, to concerns raised by the Canadian Bar Association and Canadian Immigration Lawyers Association that counsel could otherwise face a $10,000 non-production penalty while being legally unable to disclose the very material needed for a defence.
But an affidavit is only the beginning of a privilege-protection system. IRCC’s published description does not explain what legal consequence follows from the affidavit, how disputed privilege claims will be independently determined, whether the affected client will receive notice, or whether an officer may draw an adverse inference from the representative’s inability to produce privileged evidence.
Those questions are critical because the privilege belongs to the client. The representative under investigation may have interests that diverge from the client’s, particularly where the representative is alleged to have participated in misrepresentation.
The constitutional standard is demanding
The Supreme Court of Canada has repeatedly held that solicitor-client privilege and the professional secrecy of legal advisers must remain as close to absolute as possible. State interference must be limited to what is absolutely necessary.
In
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, the court invalidated aspects of a federal regulatory regime that exposed law-office material to state inspection without adequate safeguards. The fact that the scheme was regulatory did not reduce the expectation of privacy in privileged communications.
In
Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, the court applied the same principles to administrative production demands directed at Quebec lawyers and notaries. It identified constitutional defects where clients received no notice, the burden of protecting privilege fell entirely on the legal adviser, disclosure was not shown to be absolutely necessary, and the regime lacked measures to minimize impairment.
Those cases do not necessarily mean that IRCC’s new regime is invalid on its face. The better and more legally defensible conclusion is narrower: its investigative and enforcement operation risks unlawful intrusion if the affidavit mechanism is treated as a procedural formality rather than a substantive shield for the client’s rights.
IRCC should therefore administer the regime on the basis that privileged documents cannot be compelled, non-production based on a bona fide privilege claim cannot itself ground liability, and no adverse inference should arise merely because a lawyer or notary refuses to sacrifice the client’s protected information. Where privilege is disputed, an independent process — not the investigating officer — should determine the issue before disclosure or publication occurs.
The government is entitled to pursue fraud and unauthorized practice aggressively. But it cannot do so by collapsing the distinction between legal advisers and other paid representatives. The new affidavit protection is a constructive step. Whether it is sufficient will depend on whether IRCC respects privilege not simply as an evidentiary obstacle, but as a fundamental right belonging to the client.
Sergio R. Karas, principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian citizenship and immigration law by the Law Society of Ontario, division chair of the ABA International Law Section, past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and a fellow of the American Bar Foundation.
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