An Analysis of Immigration and Refugee Law Services in Canada

Part One: Immigration and refugee law legal aid (continued)

Quebec

STRUCTURE OF LEGAL AID

Delivery of services

In Quebec, the body responsible for administering legal aid is the Commission des services juridiques (CSJ). The CSJ appoints the directors of the eleven regional legal aid centres that co-ordinate the delivery of legal aid services throughout the province. Regional centres establish legal aid offices throughout their assigned areas (there are over 100 offices in 98 cities across Quebec). They also encourage the creation of committees that advise and/or make recommendations to office managers concerning the needs of the economically disadvantaged in their regions. Applications for legal aid assistance are received and processed at both regional centres and the legal aid offices they establish.

Legal aid services are provided through a mixed staff lawyer and private bar lawyer (judicare) model. In most cases, private lawyers are retained if a regional centre lacks sufficient staff, if the case requires a specific area of competence, or if there is a conflict of interest. Both staff and private bar lawyers work on a certificate basis.

Eligibility for legal aid

Financial eligibility is determined on the basis of an evaluation of income and assets (including property, debt, and liquid assets). To obtain legal aid assistance at no cost, the income of the applicants and that of relevant family members must not exceed the amounts set out in the following table.

Household Size Maximum Annual Income
Single person $8,870
Adult and one child $12,500
Adult and two or more children $15,000
Spouses without children $12,500
Spouses with one child $15,000
Spouses with two or more children $17,500

* Reproduced from materials on the Commission des services juridiques Web site (www.csj.qc.ca).

Persons receiving "last resort assistance" - social assistance, employment insurance, or workers' compensation benefits - are automatically eligible for free legal aid services.

Provided that clients meet financial eligibility guidelines, legal aid is automatically available for a range of issues: family matters, youth protection, representation of young offenders, prosecution of a criminal act, and benefit claims related to income support or employment assistance, automobile insurance, employment insurance, or workers' compensation. Legal aid may be provided for certain summary procedures or administrative recourses if the legal aid office believes that it is necessary to provide the legal service requested. For summary procedures, the criteria considered are: (i) the probability of imprisonment for the accused; and (ii) the loss of means of subsistence; or (iii) the best interests of justice given the exceptional circumstances involved in the case (notably its gravity or complexity).

In addition to the above guidelines, an application for legal aid may be refused if:

  1. the applicant cannot establish the probable existence of a right to receive coverage;
  2. the case has little change of succeeding;
  3. the costs involved would be unreasonable in relation to the possible gain or loss of the applicant;
  4. it is unlikely that the judgement sought by the applicant could be executed; or
  5. the applicant refuses a reasonable proposal for settlement of the case.

With respect to immigration and refugee law, the CSJ respondent noted that the role of legal aid is to provide legal representation where there is a risk of a violation of rights (for example, physical and psychological health, detention).

TYPES OF SERVICE PROVIDED IN IMMIGRATION AND REFUGEE LAW ISSUES

The following table describes the types of services available for immigration and refugee law matters in Quebec.

Type of Service Provision of this Service
General advice or assistance See comments below.
Legal advice or assistance Yes. Legal consultation on particular client cases is provided.
Legal Representation Yes. Private bar lawyers handle the majority of immigration and refugee law cases. There is only one legal aid office in which staff lawyers provide services in immigration and refugee law.
Duty Counsel Representation No.
Public Legal Education Yes. Information sessions with community organizations.
Translation or Language Assistance Yes. Interpretation and translation are available as a disbursement item.
Advice

With respect to the provision of general advice, the respondent from the CSJ suggested that this is not really a component of the legal aid services they deliver. However, a representative of the Bureau de l'immigration at Aide juridique de Montréal noted that general advice is in fact provided through this office, particularly in terms of providing referrals to other refugee and immigrant serving organizations in the community. The Bureau representative noted in particular that they refer people to Service d'aide aux réfugiés et immigrants du Montréal Métropolitain (SARIMM). [7]

Although the mandate of legal aid in the immigration and refugee law area is to provide legal representation in hearings and in court, staff lawyers will consult with clients on their legal issues. Certificates are not issued to private bar lawyers for consultations, and the legal advice provided does not include assistance with the completion of forms or applications other than the personal information form (PIF) required for the Convention Refugee Determination process. According to the CSJ representative, this kind of assistance is not covered because it is administrative in nature, as opposed to being a legal intervention.

Legal representation

Although legal aid in Quebec is delivered through a mixed staff lawyer/judicare model, private bar lawyers provide the majority of legal services in the area of immigration and refugee law. There is only one legal aid office in the province in which staff lawyers handle immigration and refugee cases: the Bureau de l'immigration in Montreal.

Initially established as a pilot project, the Bureau de l'immigration was closed as a result of the 1992-93 round of provincial and federal cutbacks, resulting in the elimination of eleven staff lawyer positions. In the absence of staff lawyer services, the private bar was left with what a Bureau representative characterized as a "monopoly" in immigration and refugee law services. When private bar lawyers became increasingly reluctant to cover immigration and refugee cases under established legal aid tariffs, the Bureau was reopened and staffed initially with three lawyers, later with five. More budget cuts in 1999 forced the elimination of two staff lawyer positions, and the office has been operating with three lawyers since that time. Legal aid clients have a right to choice of counsel, and, accordingly, may request the services of a private bar or staff lawyer. If a client does not have a lawyer and does not explicitly request private counsel, they will usually be directed to a staff lawyer.

Paralegals and other professionals do not provide legal representation in legal aid cases in Quebec. Paralegals are primarily involved in assessments of eligibility for legal aid and in the process of assigning cases to private bar lawyers. Occasionally, paralegals may also act as assistants to staff lawyers, but they never provide legal representation.

There is no duty counsel service in the area of immigration and refugee law in Quebec. Duty counsel coverage is provided only for criminal law matters. Respondents did not highlight any crossover between criminal duty counsel and certain immigration and refugee law cases.

Public legal education

The CSJ respondent did not describe the provision of public legal educational materials as a large component of the work of legal aid in Quebec. A representative of the Bureau de l'immigration noted that the office runs information sessions for community organizations on immigration and refugee law issues, but that it does not distribute educational materials or brochures other than those describing the services of the Bureau.

Translation and language assistance

Translation and interpretation are covered by legal aid as a disbursement item up to certain maximums. The CSJ representative noted that while lawyers must obtain authorization for amounts in excess of established limits, these services are never refused.

The Bureau respondent noted that while the office does not offer any language assistance internally, it will cover the cost of translating documents (for example, birth certificates, personal information forms, marriage certificates) as well as some interpretation. Given the expense involved, however, efforts sometimes have to be made to contain costs in this area by limiting the number of translations and/or the duration of interpretation sessions.

COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES

According to the CSJ representative, the majority of immigration and refugee law cases for which legal aid is provided concern refugee status matters (estimated at 95 percent), principally for Immigration and Refugee Board hearings or detention hearings and reviews.

Table: COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
Stage Activity Legal Aid Coverage
Port of Entry S. 20 Admissibility Interviews No.
Eligibility determinations No. This is an administrative procedure that is handled by the Ministry of Immigration (Ministère des Relations avec les citoyens et de l'immigration - MRCI).
Inland Claims S. 27 Inland Violations of the Act Yes.
Eligibility Determinations No.
Convention Refugee Determination Division Personal information form preparation Yes.
Determination Hearings (preparation and attendance) Yes.
Other Hearings (preparation and attendance) Yes.
Immigration Appeals Division Appeals Yes.
Adjudication Immigration Inquiries Yes.
Detention Hearings (first and other instances) Yes.
Humanitarian/Compassionate Applications No. This is considered an administrative proceeding and will not be covered by a certificate.
PDRCC Applications No. This is considered an administrative proceeding and will not be covered by a certificate.
Danger Opinions* Submissions to the Minister No. This is considered an administrative proceeding and will not be covered by a certificate.
Federal Court Judicial Review and Appeals Yes.
Supreme Court Appeals Yes. The reasonableness of the case and the chance of success are evaluated. These cases are rare.
Appeals to International Tribunals Appeals No.

* Formerly Appeals to Citizenship and Immigration Minister.

No data has been received to date from the Quebec legal aid representative.

IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY

Problem areas
Private bar "monopoly"

In general, legal aid system representation in Quebec is split fairly evenly between staff and private bar lawyers. In the case of immigration and refugee law, however, the private bar handles 90-95 percent of cases. As a result, the private bar enjoys almost complete control over representation in this area and, when problems arise, they are able to use what the CSJ respondent characterized as "pressure tactics" to try to effect changes. This situation is not ideal, for many reasons. The CSJ respondent noted that legal aid staff worry that private bar lawyers will take advantage of their clients. One example cited is that private bar immigration and refugee lawyers may falsely report to their clients that the legal aid tariff does not cover all of the fees incurred for a case, thereby obliging the client to cover the shortfall.

Lack of staff lawyers at the Bureau de l'immigration

The representative of the Bureau de l'immigration noted that the office does not have enough staff lawyers to handle all of the requests for assistance that it gets from people across the province. This causes particular problems in the immigration and refugee law area, given the tight deadlines for many aspects of the process - if a client cannot get an appointment with the Bureau in time, the case has to be referred to a private bar lawyer. This further cements the dominance of this group in the immigration and refugee law area.

Success stories
Comprehensiveness of legal aid coverage

Both the CSJ and the Bureau de l'immigration respondents commented that, generally speaking, the legal aid system for refugees and immigrants is working well. People arriving in Canada have access to legal representation from the beginning to the end of the immigration or refugee process, and legal aid does not receive many complaints about the coverage that is provided.


[7] SARIMM offers both front-line settlement services as well as more specialized assistance (including some legal services). These services are offered through the Refugee Assistance Service, the mandate of which is "to provide social services to refugees and new arrivals throughout the Montréal area." SARIMM's primary clients are refugee status claimants, persons with refugee status, temporary residents experiencing serious problems, and persons with precarious status. The organization also provides services to specific user groups through contracts with various government agencies, including the Immigration and Refugee Board and the Quebec Ministry of Immigration (MRCI - Ministère des Relations avec les citoyens et de l'immigration). SARIMM is affiliated with the Côte des Neiges CLSC.

Date modified: