An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
STRUCTURE OF LEGAL AID
Delivery of services
The Legal Aid Society (LAS) is responsible for the administration of legal aid in Alberta. Legal aid is delivered through a mixed model of service delivery. Private bar lawyers provide the majority of legal aid services in what is termed the "judicare" model: lawyers willing to act for legal aid recipients are retained on a certificate basis according to established tariff levels.  LAS staff lawyers in Edmonton, Calgary, Red Deer and on the Siksika First Nation also provide legal aid services. For administrative purposes, some staff lawyers complete records identical to legal aid certificates (maintaining shadow accounts based on tariff levels). Others function as full-time duty counsel.
At present, there is only one paralegal employed by the LAS, as part of an immigration and refugee law pilot project. The pilot is designed to test the efficacy of the newly established "Immigrant Services Co-ordinator" paralegal position. The co-ordinator is responsible for providing procedural and administrative assistance to private bar lawyers in order to permit them more time for substantive work on immigration and refugee law cases (within the limits established by the tariff). The co-ordinator also provides assistance to clients on non-tariff matters, including referrals, procedural advice and filling out forms.
Eligibility for legal aid
Eligibility for legal aid in Alberta is determined on the basis of financial and substantive (merit) considerations.
Financial eligibility is evaluated on the basis of gross family income (including all monies received by the family before deductions) and accumulated assets. Gross income figures are compared to a fixed set of financial guidelines, as reflected in the table below.
|Number of Persons in the Family||Annual Allowable Gross Income||Monthly Allowable Gross Income Contribution Range|
|1||$13,900||$1,158 - 1,792|
|2||$16,800||$1,400 - 2,275|
|3||$22,600||$1,883 - 2,450|
|4||$25,200||$2,100 - 2,717|
|5||$28,900||$2,408 - 2,867|
|6||$31,500||$2,625 - 3,200|
|7+||$34,700||$2,892 - 3,500|
Source: Legal Aid Society of Alberta 2001 Annual Report.
Applicants whose family income exceeds the relevant financial eligibility cut-off may be extended coverage on a contributory basis. This means that legal aid coverage may be granted on the condition that the applicant pays a certain portion of his or her fees. In addition, LAS frequently exercises discretion in favour of applicants whose income and/or assets slightly exceed established guidelines if they are unable to retain private counsel.
If a legal aid applicant is found to be financially eligible, substantive eligibility is considered. LAS provides that applicants
… may be granted legal aid in a civil matter where that matter is subject to the jurisdiction of the Courts, and has merit or a likelihood of success, or both. The case must also be one which a reasonable person of modest means would commence or defend and the circumstances at the time of application must warrant coverage. The legal costs of commencing or defending the action must be reasonable when compared with the relief sought (Legal Aid Society of Alberta 2001 Annual Report).
To assist in the determination of merit or likelihood of success, a legal opinion may be requested. Private bar lawyers are issued opinion certificates for this purpose, usually for three hours of work. If a legal aid applicant is confronted by a pressing deadline (for example, deadlines for the filing of leave to appeal to the Federal Court), an LAS respondent noted that legal aid coverage may be initially extended prior to the determination of substantive eligibility.
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 Alberta.
|Type of Service||Provision of this Service|
|General advice or assistance||To a limited degree. May include referrals and the provision of educational materials.|
|Legal advice or assistance||To a limited degree. May include assistance with forms and the provision of information on immigration and refugee processes.|
|Legal Representation||Yes. Private bar lawyers provide all legal representation.|
|Duty Counsel Representation||No. Some assistance may be available at provincial courts.|
|Public Legal Education||Very little. The majority of this work is done by community organizations serving refugees and immigrants.|
|Public Legal Education||Very little. The majority of this work is done by community organizations serving refugees and immigrants.|
|Translation or Language Assistance||Yes. Translation and interpretation services are offered as a disbursement item. Some language assistance is also available through volunteer programs.|
Prior to the initiation of the Immigrant Services Co-ordinator pilot project, legal aid was not a resource through which advice was provided. The co-ordinator now provides applicants with both general and procedural advice and/or assistance on issues in the immigration and refugee law area. The kinds of assistance offered include referrals to community organizations (generally for settlement services) and advice on what is involved in filing certain kinds of claims, the steps involved, necessary documentation, and so on. The co-ordinator also assists people with the completion of some forms, such as Post-Determination Refugee Claimants in Canada Class applications. It is important to note that the co-ordinator does not advise people directly on their legal claim.
The Immigrant Services Co-ordinator is a staff position that operates outside of tariff structures. Accordingly, the co-ordinator has more scope to try to assist people through non-tariff channels than private bar lawyers. For example, the co-ordinator can assist persons found ineligible for legal aid by referring them to another organization, or advising them on the measures involved in pursuing their claim elsewhere. While this assistance is limited, the current co-ordinator suggested that people leave with a more positive outlook than they otherwise would upon being denied legal aid coverage.
Private bar lawyers provide all legal representation in immigration and refugee cases in Alberta. Accordingly, this work is completed on a certificate basis with the time and remuneration limits established in legal aid tariff guidelines. The responsibilities of the new Immigrant Services Co-ordinator do not include appearances at hearings, but questions have been raised about whether the position should be expanded in the future to include attendance at hearings on eligibility.
The LAS does not employ duty counsel staff lawyers to work specifically in the immigration and refugee law area. However, since duty counsel lawyers are present in Provincial Court, they may provide some assistance in immigration and refugee law matters. For example, refugee claimants or permanent residents confronting criminal issues or deportation may receive duty counsel assistance on their criminal matters at Provincial Court - assistance that may subsequently "spill over" into the area of immigration and refugee law.
Public legal education
According to an LAS respondent, legal aid does not provide a great deal of public legal education in immigration and refugee law or in other areas.
Translation and language assistance
Private bar lawyers can submit claims for translation and interpretation expenses as a disbursement item in immigration and refugee cases. Since the initiation of the Immigrant Services Co-ordinator pilot program, the co-ordinator is responsible for authorizing expenses in this area. Legal aid clients may be asked to cover some of the cost of translation and interpretation, since this is an area in which legal aid incurs significant expense.
In addition to the disbursement allowance, the Immigrant Services Co-ordinator noted that the Immigrant Aid Society has a language bank - volunteers with a variety of linguistic skills - through which legal aid can access some language assistance. Since the language bank includes only volunteers and not certified translators or interpreters, legal aid cannot rely on them for work with formal documents. However, the bank does provide valuable assistance during informal interview sessions and other preparatory work.
COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
The table below summarizes the immigration and refugee law areas for which there is legal aid coverage in Alberta. Unlike some of the other provinces, Alberta's system for determining what is covered rests largely on the merit testing process. The legal opinions rendered by private bar immigration and refugee lawyers are therefore key to determining whether an applicant will receive coverage. As a representative of LAS explained, the lawyers providing opinions are experts in their field - if they decide there is merit, the case will generally be covered.
In 2000-2001, Legal Aid Alberta received 45,386 applications for all types of legal aid coverage. Of these, coverage was approved for 74 percent (33,799). The remaining 26 percent (11,587) were denied coverage for various reasons. The vast majority of legal aid cases were handled in Calgary and Edmonton.
In the civil area - which includes certificates for civil immigration issues  - 9,412 full certificates were issued in 2000-2001 (not including opinion certificates). Civil certificates accounted for 28 percent of all legal aid certificates. Of these certificates, 8,033 were concluded.
Of the 9,412 civil certificates issued in 2000-2001, 293 new certificates were for a civil immigration matter. Accordingly, civil immigration certificates accounted for 3 percent of all civil certificates in 2000-2001, and 0.9 percent of all legal aid certificates. The number of new certificates is not an accurate gauge of the number of immigration and refugee law cases being handled by legal aid in a given fiscal year because there are ongoing cases initiated in previous years. In addition, the length of many cases in the immigration and refugee law area means that more certificates may be concluded than issued in a given fiscal year.
|Case Type||1999-2000 Civil Certificates||2000-2001 Civil Certificates|
Source: Legal Aid Society of Alberta 2000-2001 Annual Report.
Note: Data has been received on the number of certificates issued and paid in Alberta in the 2000-2001 fiscal year. Due to the coding system used in this province, the data has not been sorted by category.
|Immigration/Refugee Law Issue||Number of Legal Opinions||Number of Applicants Granted Coverage|
|Inland Claims - Eligibility Determinations||44||35|
|Federal Court - s. 46.01 Danger to the Public (at claim)||3||1|
|Supreme Court Appeals||0||0|
Source: Data collection charts for Alberta.
Private bar lawyers handled all of the cases listed in the above table.
One LAS respondent noted that the availability of separate caseload data for immigration and refugee law stages or issues depends on whether an individual data code has been developed for cases in that area. The range of individual codes is reviewed every two to three years, and any legal area in which there is a significant number of cases may be assigned a separate code at that time. In the immigration and refugee law area, the four areas listed above are, at present, the only legal issues for which data is collected separately. However, the respondent did note that the numbers of Convention Refugee Determination cases and Humanitarian and Compassionate cases are increasing, and that data may be collected separately in these areas in the future. This may also lead to some information being collected on Post-Determination Refugee Claimants in Canada Class and Judicial Review cases. Since they are all remedies available to refugee claimants who have been denied status, Judicial Review, Humanitarian and Compassionate applications, and Post-Determination applications are often dealt with simultaneously. In these circumstances, the respondent noted that Humanitarian and Compassionate and Post-Determination coverage tends to be attached to a certificate issued for Judicial Review.
IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY
According to the Immigrant Services Co-ordinator, private bar immigration and refugee lawyers were initially not open to the involvement of an LAS paralegal in their cases. While some lawyers did provide support and co-operation from the outset, with others there has been a period of adjustment. The co-ordinator suggested that some lawyers still do not recognize the value of the services available through the pilot project, and, in particular, the positive repercussions these services have in terms of supporting the work of lawyers and limiting the amount of preparation time they need to spend with clients.
Immigrant Services Co-ordinator position
According to the current Immigrant Services Co-ordinator, the establishment of this new position has resulted in better service for legal aid clients. The co-ordinator's involvement in the provision of advice helps to inform clients about legal rights and processes, and generally assists in ensuring that they are prepared with all relevant documentation and information before seeing a lawyer. In addition, the co-ordinator has taken on an important role within the broader community serving refugees and immigrants by participating in networking activities, sharing materials, and co-ordinating initiatives with other organizations. For example, the Immigrant Services Co-ordinator and other agencies are currently exploring options for the establishment of a pilot project that will provide 24-hour assistance to refugees and immigrants facing immediate problems.
In the view of one LAS staff member, the coverage available for immigration and refugee law matters in Alberta is fairly comprehensive. The use of private bar lawyers to provide legal opinions on merit leaves room for legal aid coverage to be approved for a wide range of cases. In addition, the private bar lawyers on which legal aid relies have a great deal of expertise in the immigration and refugee law area. To the extent that this expertise ensures that their decisions about merit are valid, the respondent believed that the majority of deserving clients will, in fact, receive legal aid coverage. Overall, the respondent suggested that this system provides for effective legal aid coverage in immigration and refugee law matters.
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