r v. YAZID DJEZIRI, 2020 QCCQ 2043

Translated from the original French Directeur des poursuites criminelles et pénales c. Djeziri 2020 QCCQ 2043 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” No.: 500-61-495785-199 DATE: February 21, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE FANNIE TURCOT PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

YAZID DJEZIRI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On February 2, 2017, CDI College hired Mr. Yazid Djeziri as a recruitment agent for students residing abroad who wished to pursue their studies in Quebec. In this capacity, he came into contact with nine students who mandated him to carry out the college’s admission procedures. [ 2 ] Among other things, these students had to obtain a Québec Acceptance Certificate (“CAQ”) for studies.

Between September 13, 2017, and February 22, 2018, the Ministère de l'Immigration, de la Diversité et de l'Inclusion (“the Minister”) received nine applications for CAQs involving the defendant. [ 3 ] In this context, the prosecution alleges that he acted as an immigration consultant without being duly recognized by the Minister, contrary to

section 12.4.2 of the Act respecting immigration to Québec (the “Act”). [1] [ 4 ] The defendant does not deny that his e-mail address and telephone number were used in the CAQ applications, but he claims that his actions are not covered by the definition of immigration consultant. If they are, he argues that he was not remunerated for his actions. [ 5 ] Finally, he raises a defence of due diligence in that he simply collaborated with the school’s lawyer, who specializes in immigration. ISSUES [ 6 ] Three issues are in dispute: (

a) Do the defendant’s actions fall within the definition of immigration consultant? (

b) What is the effect of the defendant’s remuneration on the notion of immigration consultant? (

c) What actions did the defendant take to prevent the offence? BACKGROUND [ 7 ] At the time of the alleged offences, the defendant was not registered on the Registre québécois des consultants en immigration nor designated as a Regulated Canadian Immigration Consultant (RCIC) or Regulated International Student Immigration Advisor (RISIA). [ 8 ] To reduce waiting periods, and because the students did not have credit cards in Canadian dollars, the defendant advanced the amounts the students needed to open their admission files and to apply for the CAQ. He also allowed his e-mail address, mailing address and cellphone number to be used in all nine CAQ applications.

[ 9 ] Once the admission letters were issued by CDI College, the lawyer submitted the CAQ applications online, writing her name on them. However, to avoid additional delays, she entered the defendant’s telephone number and his address as a mailing address. [ 10 ] The defendant argues that he acted as an agent for the students with the college’s lawyer, sending her the necessary application documents and paying the required fees with his credit card.

He was remunerated for this in accordance with his contract. [ 11 ] He said that he never communicated with Immigration Québec and that he was never remunerated for his services as an intermediary between the college’s lawyer and Immigration Québec. [ 12 ] According to CDI College’s practice, all communications must be made with a single contact person, that is, the future student’s representative, who in this case was the defendant. ANALYSIS (

a) Do the defendant’s actions fall within the definition of immigration consultant? [ 13 ]

Section 2 of the Regulation respecting immigration consultants [2] (the “RRIC”) defines an immigration consultant as a natural person who, for remuneration, advises, assists or represents another person with respect to an application filed with the Minister under the Québec Immigration Act . It is also recognized that immigration consultants can provide assistance as well as [ translation ] “active and competent support to candidates in the preparation of their applications”. [3] [ 14 ] The Act is based on the principle of selection of nationals wishing to settle in Quebec. [4]

Section 1 supports the purposes of this law, in particular, the selection of foreign nationals wishing to stay temporarily or settle permanently in Quebec. [ 15 ]

Section 3 of the Act previously dealt with the purposes of the selection of foreign nationals wishing to settle in Quebec and set out a non-exhaustive list.

Thus, the purpose of this selection is, in particular, to facilitate the conditions of the stay in Quebec of foreign nationals wishing to study having regard to the reasons for their coming and the capacity of Quebec to receive them. [ 16 ] The purpose of the RRIC is essentially to “[govern] the activities of immigration consultants”. [5] The Ministère de l’Immigration, de la Francisation et de l’Intégration argues that the RRIC aims, among other things, to eliminate bad practices and better protect foreign nationals wishing to settle in Québec. [6] [ 17 ] The decision of the Tribunal administratif du Québec in M.M. c.

Québec (Immigration, Diversité et l’Inclusion) [7] states that the RRIC provides a safety net to ensure that applicants for certificates meet the prerequisites for obtaining them. An immigration consultant must respect the standard of conduct established by the enabling statute. [ 18 ] In the absence of a definition in the regulations, the rule is to rely on the usual dictionary

definitions of the terms “ conseiller ” (“advise”), “ assister ” (“assist”) and “ représenter ” (“represent”). The Larousse [8] dictionary defines the French terms as follows : [ translation ] Conseiller (Advise) • Tell someone what he or she should do, recommend something or someone to a person; give advice to do something, suggest; • Give someone advice; direct them, guide them. Assister (Assist) • Support, help someone in their activity; • Help someone or a group that is in need, provide material or moral aid; • In law, to act for someone.

Représenter (Represent) • Have a mandate to act on behalf of someone or a group, defend the person or group’s interests; • One person (the representative) acting legally or contractually on behalf of another person (the person represented). [ 19 ] In R. v. Codina #6 , [9] the Ontario Superior Court of Justice interpreted the terms “advise” and “represent” in section 91(1) of the Immigration and Refugee Protection Act . According to that Court, the term “advise” involves a review of the facts and issues raised in a

given case, as well as personalized recommendations according to the particular circumstances of that case. [ 20 ] The same Court also found that the term “represent” means to act on behalf of another person. It does not relate only to representation before the courts.

The filing of written forms with a governmental decision-maker constitutes representation. [ 21 ] Finally, the Court adds that a person, whether working for a company or self-employed, may not advise or represent a person in an immigration matter if he or she is not authorized to do so. [ 22 ] There is no evidence that the defendant advised the students on what steps to take with the Minister.

The evidence presented does not support the conclusion that the defendant recommended anything to the international students. [ 23 ] According to the Quebec enterprise register, the defendant’s sector of activities is [ translation ] “Advisor on international student admissions and other matters”. This evidence on its own is not enough to conclude that the defendant advised the international students. [ 24 ] What about assistance and representation? [ 25 ] It is true that it was CDI College’s lawyer who saw to the filing of the online applications for the nine CAQs.

However, it is the defendant’s mailing address, telephone number and sometimes his e-mail address that were entered under the heading “Contact information” in

section 2, whereas the first

section concerns the identity of the applicant. [ 26 ] Thus, if the Minister had tried to contact the applicant the respondent would have answered. The Court is of the opinion that putting his contact details in place of the applicant’s constitutes

an act of representation or at least assistance. [ 27 ] The Court is also of the opinion that when the defendant paid the government fees to obtain the CAQs, he assisted the student by providing material aid. (

b) What is the effect of the defendant’s remuneration on the notion of immigration consultant? [ 28 ] The defendant argues that he was not directly remunerated by the students, that the remuneration provided for in the contractual agreements with the colleges was not related to the acts referred to in

section 2 of the RRIC and that, in any event, he never received any remuneration because none of the applications were successful. Consequently, he did not act as an immigration consultant. [ 29 ] What is the situation here? [ 30 ] First,

section 2 of the RRIC does not require that the remuneration materialize. The expression “for remuneration” in

section 2 of the RRIC means that the immigration consultant receives consideration, i.e., remuneration, for the services rendered. [ 31 ]

Section 17 of the RRIC also provides that, “[i]mmigration consultants must enter into a written service contract with a person who resorts to their services” and “[t]he contract must clearly indicate the object and scope of the services to be provided, the remuneration paid by the person to the consultant, the terms and conditions of payment and the costs or other expenses required for the contract to be carried out”. [ 32 ] It is established that a contract for services “is a contract by which ... the provider of services ... undertakes to another person, the client ... to supply a service, for a price which the client binds himself to pay to him”. [10] [ 33 ] Thus, the prosecution need only establish that the defendant performed the acts with which he is charged and that he did them for remuneration.

The fact that the CAQ applications were eventually refused or that the service provider was not paid does not mean that this is the equivalent of acting as a volunteer or for free. [ 34 ] Here, the contractual agreement between the defendant and CDI College stipulated that the defendant, acting as an international student recruitment agent for the college, receive as remuneration for his recruitment services an amount equal to 15% of the base tuition fees payable to the college.

The amount is paid once the student has attended the school for a total period of 30 days and upon receipt of an invoice from the agent. [ 35 ] What of the argument that the defendant was not remunerated directly by the students? [ 36 ] It is relevant to refer to R. v.

Codina #6 , [11] in which the Ontario Superior Court of Justice defines the term “for consideration” used in subsection 91(1) of the Immigration and Refugee Protection Act . [12] [ 37 ] Similar to the offence charged against the defendant, subsection 91(1) of this statute states that “no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act”. [ 38 ] The terms “directly or indirectly” are connected to the idea of representation and advice, not with the idea of consideration. [ 39 ] And yet, the Court states that the consideration does not have to be paid directly to the person who represents or advises another for the offence to be committed.

The consideration can be paid to a third person: “A payment does not have to be a direct payment to an accused to constitute consideration within the meaning of this offence”. [13] [ 40 ] The Court is of the opinion, like the Ontario Superior Court of Justice, that the remuneration does not have to be paid directly. The offence is committed once the evidence establishes the commission of the acts performed for remuneration, no matter where the remuneration comes from.

[ 41 ] However, it is also necessary that the remuneration be associated with the commission of the acts set out in

section 2 of the RRIC, namely, the acts of advising, assisting or representing another person in relation to an application presented to the Minister under the Act. [ 42 ] The defendant argued that the remuneration provided for in the contract is connected to his collaboration with the school as a recruitment agent, and not to his involvement in the CAQ applications. [ 43 ] The contract between CDI College and the defendant ensures that the remuneration is conditional on the student’s attendance at the school for 30 days.

The Court is of the opinion that the defendant is not acting as a volunteer when he aids and assists the international students in their steps with the Minister to obtain a CAQ.

The financial inducement is directly attached to the success of the complete process, so much so that the defendant will be paid only once the student has a CAQ, if the student does not already have one, and a visa, and has attended the school for 30 days. [ 44 ] In addition, the contract provides that the defendant must keep the college updated by submitting a monthly report on the progress of the students who are waiting for a temporary resident permit (student visa). The contract also provides that the student must complete a power of attorney confirming the defendant’s status of representative.

Moreover, the defendant must clearly explain his relationship with the college to the student and the fact that he will be remunerated based on the student’s registration. [ 45 ] Given these facts, the Court finds that the defendant acted for remuneration when he assisted or otherwise represented the students in the context of their applications with the Minister. (

c) What actions did the defendant take to prevent the offence? [ 46 ] The defendant submits that he acted with due diligence since he committed the acts charged against him in collaboration with the lawyer for CDI College, who specializes in immigration. [ 47 ] The defence of due diligence is assessed according to an objective standard. [14] The Court must assess the defendant’s conduct against that of a reasonable person in similar circumstances.

It should be noted that the concept of diligence is based on a citizen’s civic duty to take action to find out what his or her obligations are: “Passive ignorance is not a valid defence in criminal law”. [15] [ 48 ] In accordance with his duty, the defendant, acting in a specialized area, should have been aware of the obligations imposed upon him or at least have tried to become aware of them. No evidence was adduced before the Court regarding any inquiries made to this lawyer or to anyone else.

It was not shown that this lawyer was a specialist in immigration. [ 49 ] The only evidence adduced in connection with this lawyer is the fact that the defendant acted as an agent for the students with the school’s lawyer, sent her the necessary documents for the applications, and paid the required fees himself.

The evidence also reveals that the school’s lawyer wrote the defendant’s telephone number and address in the CAQ applications. [ 50 ] There is no evidence of an opinion obtained from the lawyer regarding the status or the need to register as an immigration consultant, and no evidence of consultation or evidence of having acted in accordance with such an opinion. [ 51 ] In sum, no evidence of due diligence was adduced in this file.

The case law is consistent in this regard: the defendant must take concrete and positive measures to ensure compliance with the law. [ 52 ] The Court concludes that the defendant did not establish due diligence in relation to this offence.

FOR ALL THESE REASONS, THE COURT: [ 53 ] FINDS the defendant guilty of the offence as charged; __________________________________ FANNIE TURCOT Presiding Justice of the Peace Mtre Simon Lavoie For the prosecution Mtre Kamel Balti For the defendant Date of hearing: October 31, 2019 [3] Comité consultatif externe relativement à l’encadrement des consultants en immigration, Rapport du Comité consultatif externe relativement à l’encadrement des consultants en immigration : présenté à la ministre de l’Immigration et des Communautés culturelles (April 2005), online: < http://www.mifi.gouv.qc.ca/publications/fr/dossiers/EncadrementConsultantsImmigration-Rapport200504.pdf >.