Is it an offence to advise in forum

[dpenabill]

Seeking or giving advice in a forum like this:

Overall, it is simple: this is NOT a proper venue for either seeking or giving advice.

One can drill into the distinctions between what is legal, what is ethical, what is appropriate, what is reasonable, what is reliable, and the various elements relevant to each of those, or quibble about what is advice versus what is not, but for many reasons, on many levels, this is NOT a proper venue for either seeking or giving advice.

But sure, OK, there is what one might characterize as formal advice and then there is general advice, or friendly advice, advice in the nature of suggestion. Or, advice might be sought or given here wrapped in a cloak of FWIW, which is another way of saying it is a kind of suggestion.

But there is a slippery slope from suggestions or FWIW advice into the realm of inappropriately giving advice. I've found myself sliding down that slope on too many occasions.

Information is not advice. Like advice it can be good or bad, reliable or unreliable, helpful or misleading. But unlike a lot of advice, information does not tell someone what action to take or not take. Information provides facts, background, illumination, explanation, examples, reference to sources, sometimes some analysis, so that the individual can make a more well-informed decision for himself or herself. Sometimes the best decision is to obtain the advice and assistance of an appropriate professional.

Some participants here make a more concerted effort to do the homework, make the investment, and employ some critical caution, so that they can offer the best, most useful information they can. Others not so much.

Amidst useful information often found here, are truthful anecdotal reports based on personal experience. While anecdotal experiences should not be taken to indicate what will happen for anyone else, they do specifically indicate what can happen, and in conjunction with other reports, and with a range of sources (official and otherwise), they provide a lot of context which helps fill in the gaps about what we know . . . and given the lack of transparency in so much of what governments do these days, and IRCC is no exception, there are a lot of gaps to fill.

So, suggestions, information, and sharing personal experiences, all that is well and good. Noting, however, it warrants being cautious about sliding down that slippery slope toward giving advice.

And then there are some things which fall into relatively well-worn tracks, for which there is a general consensus, regarding which there is little or no controversy, for which overt advice is typically given, what might be more or less common-counsel. The advice posted above to rely more on immigration lawyers rather than consultants, for example, is of this sort. (Except consultants probably balk at this and consider it controversial.) Advice that a PR abroad who is in breach of the PR RO should return to Canada sooner rather than later, that is this sort. Sometimes advice is really information, like "a PR needs to spend at least 730 days in Canada during the relevant time period," which is just stating the PR Residency Obligation.


BUT, but, but . . . no, in general this is not an appropriate venue for seeking or giving advice . . . information, emotional support, encouragement, and such, yes, OK

but NOT advice . . . and, in particular, there are at least a couple looming reasons why:

1. There is always a big risk, a very big risk if not likelihood, that undisclosed factors specific to the individual will play a big part in how things go, will change the dynamics and the outcome.

2. Certain advice can indeed lead to criminal liability.

I will elaborate in another post.

 

[dpenabill]

Reasons why advice should not be given in a forum like this:

1. There is always a big risk, a very big risk if not likelihood, that undisclosed factors specific to the individual will play a big part in how things go, will change the dynamics and the outcome.

2. Certain advice can indeed, potentially, lead to criminal liability.


The first of these is the main reason I steer clear of giving advice (but for my occasionally sliding down a slippery slope here and there). Perhaps my biggest concern with forums like this is the tendency to give overly-simplified answers for what often can be very complex questions, or questions prone to various pitfalls (and there are many of these), particularly those answers expressed with declarative certitude, unwarranted certitude.

There are typically scores of what-ifs, then-this contingencies, most or all in turn dependent on numerous other contingencies, which can affect how things go. If not based on the whole story, so to say, any advice about what a person should or should not do is at least suspect. And this forum is not an appropriate venue for sharing all the information even the most astute expert would need to offer a reliable, well-informed opinion in a specific individual's case, let alone sufficient for giving overt advice on what to do.

In contrast, generalized observations about some what-ifs, then-this, clearly couched in general terms and recognizing the potential for particular facts and circumstances to alter the calculation in a specific case, is more in the vein of information and not advice. This provides an explanation for some known general principles and applications, but clearly conveys that what is offered in the forum is not advice about what to do but rather is information to assist the individual in figuring out what to do.


Criminal liability:

(Offered at the risk of giving this too much attention, and apart from other provisions which make it unlawful for persons to provide consultant services without being properly authorized, which are about unauthorized consultants who are getting paid or otherwise compensated for their services.)

There was a lot in Bill C-24 which did not get a lot of air time (too much oxygen was sucked out of the room by red herrings like unfounded arguments that the intent to reside clause could be used to revoke the citizenship of naturalized citizens) at the time it was pending, and which has been given little attention since.

One of those provisions which did not get much attention and which is now part of the Citizenship Act is Section 29.2, making counseling misrepresentation and misrepresentation an offence, and which for example makes it an offence that could be punishable by up to five years in prison for refusing to answer a question during an interview.

It is another part of Section 29.2 that is relevant to this discussion, and that is Subsection 29.2(2)(b). It is mind-boggling how broad this offence is.

It appears to make it a hybrid offence, that is one which can be prosecuted as an indictable offence or as a summary offence, again the maximum imprisonment could be five years, to give someone false or misleading information with the intent to induce the person to make a citizenship application, or to deter a person from making a citizenship application.

First some background: Part of what Bill C-24 aimed to accomplish was related to other legislation the Harper government was adopting, including other provisions governing the role of immigration consultants. The purported need for a crackdown on crooked consultants was loud and vehement, and the Harper government adopted some fairly strict provisions to govern consultants going forward (I forget the timeline for implementing all the changes). But some concessions were also needed to avoid an all-out backlash . . . immigration consultants vastly outnumber lawyers engaged in immigration and citizenship law, and are thought by some to have a substantial influence in some immigrant communities.

So, in the middle of these provisions which make it an offence to, in effect, facilitate or counsel acts related to citizenship fraud (cracking down on crooked consultants), or to make misrepresentations to IRCC, or as I already noted, to even refuse to answer a question in an IRCC interview, there is Subsection 29.2(2)(b) which makes it a potentially indictable offence to give erroneous information to someone with the intent to induce that person to apply, or to discourage that person from applying for citizenship.

This in effect allows consultants to warn amateurs or volunteers, be certain your advice is correct (that is, not false or misleading), because if it is not, you could go to jail.

There have been no media stories indicating this provision has been used to prosecute someone. It seems unlikely that the current government would use this provision to go after those who are just trying to be helpful.

I make mistakes, too many mistakes, but I do not worry much about this provision being used to prosecute me. I worry a lot more about making mistakes, about giving erroneous or misleading information or (when I slip) advice, leading to problems for someone.

My guess is that if there is a risk of being prosecuted, that would arise in a situation where someone is perceived to be stepping on a consultant's toes, so to say, and the consultant is pushing for prosecution.

That said, again it is staggering how broad this offence is. Note, for example, to commit the offence it is not necessary that anyone was actually influenced or induced to do anything. Basically, the offence is committed by encouraging someone to apply for citizenship, or discouraging someone from applying, and citing, to them, something which is not true or which is misleading, even if that person totally disregards the advice. The way the provision is worded, it does not appear to require that the person offering the information even needs to know that the information is false or misleading.

So under current law, someone might, for example, advise a person to not apply for citizenship because they are under a peace bond, thinking peace bond means there is a prohibition, but that could be false or misleading since a peace bond does not necessarily mean there is a prohibition (depends on the underlying circumstances resulting in the peace bond, and its particular terms), suggesting for example they should wait. That person then goes to a consultant, conveys to the consultant what was told to them, and the consultant feels like too many people have been giving out free advice at the local community centre and decides to push to make an example of the person who gave this advice.

I'm guessing this is an unlikely scenario (these days consultants are embroiled in problems with their administration and oversight, there are continuing challenges related to allegations of widespread fraud (some BC consultants were recently in the news for a fraud prosecution), and I believe some lawyers are pushing to eliminate non-lawyer consulting altogether, so consultants have plenty of battles to wage as it is). And that in any event, the RCMP (I think this would fall under their jurisdiction rather than local law enforcement, recognizing that in some jurisdictions RCMP provide local law enforcement services) would not likely pursue such a case without a lot more cause, without substantial indications of more extensive and serious wrong doing.

But for those with a bit of paranoia in their veins, this is the kind of criminal offence which is indeed chillingly broad.

Again, I am not suggesting anyone need panic about confirming every element and aspect of the law and rules governing grant citizenship before giving advice encouraging or discouraging the making of a citizenship application. I view this provision as just one more example of problematic, overreaching, bad legislation adopted during the Harper-era. But when there are provisions like this on the books, sooner or later someone is going to drag a more or less innocent person over-the-coals, at the least threatening punishment.



For reference:
Subsection 29.2(2)(b) states:
(2) Every person commits an offence who knowingly
(b) communicates directly or indirectly, by any means, false or misleading information or representations with the intent to induce a person to make, or deter a person from making, an application to become a citizen, to obtain a certificate of citizenship or another document establishing citizenship or to renounce citizenship;

See http://laws-lois.justice.gc.ca/eng/acts/C-29/page-9.html#h-10

 

[dpenabill]

Caveat: I should have noted that Section 29.2 was, obviously, mostly aimed at crooked consultants. And Subsection 29.2(2)(b) in particular likewise.

Obviously, legitimate, authorized consultants get a lot more competition from unauthorized, crooked consultants, than they do from the do-gooder at the local community centre.

It is how poorly drafted and broad the provision is which opens the door to interpretations which could apply this to anyone who happens to give some advice which turns out to be wrong. Someone says their father is a Canadian citizen, so the friendly-adviser encourages the person to make an application for a citizenship certificate, telling the person they are a citizen by descent, forgetting that it makes a difference whether that person's father was born in Canada, or naturalized, and if not, the person is not a citizen by descent. The friendly-adviser has communicated misleading information (a person born to a Canadian citizen is for sure also a Canadian citizen by descent) inducing a person to make an application for a certificate of citizenship.

Again, I highly doubt the latter would result in a criminal prosecution. But the disquieting breadth of the letter of this law is troubling.

While many whine about how much the Senate has wrangled over Bill C-6, and sure some of that has been partisan obstruction, at least they were engaged and doing their job. This is illustrated in part by the amendment to remedy the lack of fair procedure in current citizenship revocation proceedings. In contrast, Bill C-24 literally spent just a few days before the Senate. And it was a huge, broad-sweeping piece of legislation, the most sweeping revision of citizenship law in over three decades. The majority Conservative caucus mandated a vote, a vote with virtually no review or assessment or oversight, rubber-stamping the Harper-Alexander legislation which was bloated, ill-conceived in many respects, and rife with provisions like this one, Section 29.2, poorly composed and grossly over-broad, and at least arguably draconian (making it an offence punishable for up to five years imprisonment merely for refusing to answer a question at an interview).

(edited to correct example)

 

[cprak0]

Hi recently I went to one registered immigration consultant with one of my friend

I told him I have little knowledge because I am regular member of this forum and some times if I know the answer

I advise them


He give me so funny and surprise answers : he said

It a offence to advise without having licence

Also he said he could call police if he know any one do this

I told him in forum we help each other and no payment involvedmemt here

But he said still shouldn't do it

Can any seniors explain the positive or negative side the above matter

I had an agent for my PR application when I didn't know the existence of this forum. Oh, I so wish I had known this existed. There are way more knowledgeable people on this forum and ready to help for free than the agents who apparently want to just fill the forms and pocket their money. They seem all very helpful until you sign the contract and then there is little much they seem to care. I would always have these kinds of fora a run for their money. They better take more interest in each case and provide more professional advice and try to know more of every client, and not just the rules. Most people on the forum know the rules of the IRCC...

 

[cprak0]

I had an agent for my PR application when I didn't know the existence of this forum. Oh, I so wish I had known this existed. There are way more knowledgeable people on this forum and ready to help for free than the agents who apparently want to just fill the forms and pocket their money. They seem all very helpful until you sign the contract and then there is little much they seem to care. I would always have these kinds of fora a run for their money. They better take more interest in each case and provide more professional advice and try to know more of every client, and not just the rules. Most people on the forum know the rules of the IRCC...

Dpenabill's words are apt as well. Again most cases are usually straight forward and really don't need an agent representation. It is for those people that this forum does the best.

 

[Natan]

When dealing with an attorney and/or consultant (I retain nearly a dozen attorneys/consultants at any given time), I have found it exceedingly prudent to:

1. Not pay for any services in advance, except, perhaps, a small deposit to establish a legal relationship. (Once paid, the incentive to be responsive is removed.) I NEVER, EVER pay a consulting fee to an attorney when I'm vetting them to determine if they're a good match, including while providing them with case information for them to review during the vetting process. (Do you charge companies to interview you for a job?)

2. I prefer to pay by the hour instead of flat fees. (The more work done, the more time spent on the phone with me, the more the professional gets paid, which is an incentive to be responsive and productive.)

3. When using a payment plan, the last payment occurs after the work is completed. I never agree to paying specific amounts on specific days. Periodic payments are made in an amount commensurate with the percentage of work completed during the installment period, with an eye on how much work remains to be completed and making sure to owe enough to cover the remaining work. (The incentive to earn money remains strong as the professional has to be both productive and responsive to receive further payments.)

4. I always retain the right to fire the professional without notice. By not paying for work not done, I minimize my losses when I have to fire someone. (You'll never get your money back from an attorney. Owing them money gives you something to haggle over after the relationship ends. If you document everything about your relationship, it makes it much harder for them to win in court -- and good attorneys do not like going to court against their ex-clients.)

--
On another issue, when I mention to immigration attorneys that I hang out on forums like this one, they often groan and advise against it. It's not that they are necessarily being self interested, but that the cases being made on these forums are generally false and misleading (e.g., they often lack critical/material information or are so subjective as to lack resemblance to the actual "legal" case), that these forums cannot be relied on for even anecdotal evidence. For those of us who have well exercised critical thinking skills, significant exposure to immigration law/processes, and are familiar with the pitfalls of using such forums, they can be very helpful.

--
As a bow to dpenabill's interesting and informative posts in this thread, please note that the above is not legal advice and is simply the opinion of this poster.

 

[links18]

It is against the law to practice law without the appropriate license. The question then is whether or not what people on here do is "practicing law"? Of course, it is probably not reasonable to expect someone who isn't an attorney to necessarily know if what they are doing is practicing law.

 

[Bargeld]

It is against the law to practice law without the appropriate license. The question then is whether or not what people on here do is "practicing law"? Of course, it is probably not reasonable to expect someone who isn't an attorney to necessarily know if what they are doing is practicing law.

Aye, thus the wall of text at the top of this page is really a waste of time.

 

[Natan]

Aye, thus the wall of text at the top of this page is really a waste of time.

I have NEVER found reading dpenabill's posts a waste of time, quite the contrary. dpenabill is far and away the most knowledgeable and respected voice in this forum.

 

[CanV]

Hi recently I went to one registered immigration consultant with one of my friend

I told him I have little knowledge because I am regular member of this forum and some times if I know the answer

I advise them


He give me so funny and surprise answers : he said

It a offence to advise without having licence

Also he said he could call police if he know any one do this

I told him in forum we help each other and no payment involvedmemt here

But he said still shouldn't do it

Can any seniors explain the positive or negative side the above matter

I challenge your lawyer to take me to court... show him this message. Actually fire him too, after you ask him why he is lying

 

[Bs65]

Maybe the advice to anyone on here that finds themselves being paranoid about this is to put a disclaimer appended to any reply such as 'the opinion expressed here is my own personal opinion and should only be interpreted as such'. You can often see such a line on Twitter and various other forums that any reply is simply a conversation and not advice. Can always add in 'without prejudice' I guess meaning no liability for an opinion expressed if really paranoid.

 

[niting80]

But I help lots of my friends to fill up the form etc

But do you think it just example:

If he tell police this is an offence or not

Becaus I didn't take any money

I told him I helped lots of my friend

I think that's just a BIG BS!! Even IRCC has forms asking if you sought help from friends and family filling the form for you, then submit one more document.... Why would IRCC do it, if it wasn't allowed.

IRCC wants people to be able to fill the forms themselves without needing to pay anyone.

This guy is just trying to scare you. Any decent guy won't do that. My advice - stay away from this consultant, find somebody else! He just wants to make his money.