Representation for Immigrants and Refugee Claimants
2. Background issues
Before reviewing the detailed findings from the interviews conducted for this study, it is useful to establish the context in which the discussion about representation for immigrants and refugee claimants takes place. A starting point for the discussion is the question whether immigrants and refugee claimants have any legal right to representation or counsel in the legal proceedings in which they are involved. To the extent that such a legal right exists, it is also necessary to establish what this means in practical terms. Another part of the context for this discussion is the issue of which level of government bears responsibility for covering the cost of providing representation to immigrants and refugee claimants who cannot afford to retain counsel on their own. Related to this is the fact that legal aid coverage for immigration and refugee matters is not available in every province, despite the fact that the federal government has jurisdiction over the substantive law and the tribunals that apply that law. The issue of representation for immigrants and refugee claimants must be viewed in the context of a broader debate about different models for delivery of legal aid services and the impact of different arrangements for paying the lawyers who provide these services. Each of these elements is briefly addressed in the sections immediately following.
2.1 "Right to counsel" in immigration and refugee matters
It is widely recognized that individuals who are involved in complex legal proceedings generally require some form of counsel to enable them effectively to exercise their legal rights. Legal proceedings affecting immigrants and refugee claimants can have profound, life-altering implications for the individuals involved in them. For immigrants, these proceedings determine their right to become and remain permanent residents in Canada and to bring other members of their family to live with them in Canada. For refugee claimants, the proceedings determine whether they will be granted asylum in Canada or will be returned to a country where, they allege, they face risk of persecution, cruel and inhumane treatment or punishment, and possibly even torture or death. As newcomers to the country, often not speaking either of Canada's official languages, many immigrants and refugee claimants need assistance and counsel to navigate their way through the complexities of the Canadian legal system.
The principle of "Right to counsel" is widely recognized in Canadian law. In a situation where an individual is subject to arrest and detention, section 10(b) of the Charter of Rights and Freedoms (the Charter) provides a constitutionally guaranteed right for the person
"to retain and instruct counsel and to be informed of that right." In the civil law context, the Supreme Court of Canada has held that the principles of fundamental justice require that persons be provided with state-funded counsel if they cannot afford to retain counsel on their own in circumstances where rights protected under Section 7 of the Charter are affected by the actions of state agents (New Brunswick (Minister of Health and Community Services) v. G.(J.)). In the context of legal proceedings affecting immigrants and refugee claimants, section 167(1) of the Immigration and Refugee Protection Act
"… a person who is the subject of Board proceedings … may, at their own expense, be represented by a barrister or solicitor or other counsel." [emphasis added]
Exercise of the statutory right to counsel in cases involving immigrants and refugee claimants is limited to situations where the persons concerned are able to pay for such counsel. As a practical matter, however, many immigrants and refugee claimants, in particular refugee claimants, do not have substantial financial resources, so the exercise of their right to counsel is largely dependent on the availability of legal aid.
2.2 Jurisdictional issues relating to legal aid in immigration matters
Section 95 of the Constitution Act, 1867 provides that jurisdiction over immigration matters is shared by the federal and provincial governments, subject to federal paramountcy in the event of any conflict between federal and provincial laws in the area. Section 91(25) of the Constitution Act, 1867 provides that the federal government has exclusive jurisdiction with regard to
"Naturalization and Aliens." The federal government has entered into agreements with a number of provinces, most notably with Quebec, regarding various aspects of the management of immigration programs. Under the Canada-Quebec Accord, signed in 1991, the province of Quebec has sole responsibility for selecting all independent immigrants and refugees abroad who want to settle in Quebec. However, the federal government is responsible for setting national standards and goals, defining immigrant classes, establishing immigration levels in Canada, managing entry to Canada, and enforcement
activities (CIC, 2002g).
Under this division of responsibility, enforcement activities are handled by federal authorities, most notably by Citizenship and Immigration Canada (CIC). Adjudication with respect to immigration and refugee matters is handled by an independent federal tribunal, the Immigration and Refugee Board (IRB). This is in contrast to the situation with respect to criminal law, where Parliament has exclusive jurisdiction for setting the substantive law and procedure (Constitution Act, 1867, s.91(27)), while the provinces have jurisdiction over
"the Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both Civil and Criminal" (Constitution Act, 1867, s.92(14)).
Pursuant to this constitutional division of powers, legal aid programs, being a matter relating to the administration of justice, fall within provincial jurisdiction. The federal government provides a portion of the total funding available for civil legal aid programs as part of the Canada Health and Social Transfer (CHST), but the provinces retain wide discretion with regard to how these payments from the federal government are spent. One consequence of this is that there is wide variation among provinces with regard to what sort of legal aid coverage, if any, is available for immigration and refugee matters.
2.3 Legal aid coverage for immigration and refugee matters
Legal aid plans in six provinces, British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador, provide coverage for immigration and refugee matters, although the specific proceedings covered vary from province to province. These provinces, particularly Ontario, British Columbia and Quebec, have been pressing the federal government to assume a greater share of the responsibility for covering the cost of providing this coverage. They contend that, since immigration is a matter in federal jurisdiction and since all legal proceedings relating to immigration and refugee matters are dealt with by federal tribunals, the federal government should cover a greater share of the legal aid cost in this area. The federal government, in turn, is of the view that these expenses are funded through transfers to the provinces as part of the CHST.
Because the overwhelming majority of refugee claimants and new immigrants arriving in Canada settle in Toronto, Montreal and Vancouver (CIC, 2001: 6), the burden of providing legal aid coverage for immigrants and refugee claimants falls most notably on the three largest provinces, Ontario, Quebec and British Columbia. In the fiscal year ending on March 31, 2002, Legal Aid Ontario spent $16,457,406 on immigration and refugee matters, representing approximately 6.8 percent of the total legal aid budget, or 11.3 percent of the certificate budget, in Ontario for that year (Mary Marrone, personal communication, January 22, 2003). In addition, the Refugee Law Office budget was $680,575. The comparable expenditure figure for British Columbia was $4,435,750, representing 4.9 percent of the total legal aid budget in that province (Thomas Fisk, personal communication, August 19, 2002). Comparable figures for Quebec are not available at the time of writing.
2.4 Service delivery models for legal aid
Legal aid services are delivered in a variety of different ways. Under the judicare model, which is the service delivery model most commonly used in Canada, the legal aid authority authorizes individuals who qualify for legal aid to retain a lawyer in private practice to represent them. The legal aid authority issues a certificate that confirms that the lawyer will be paid for the particular matter for which legal aid has been approved. The amount to be paid is established in accordance with a tariff of fees that lawyers are permitted to charge for specific services. Under the staff model, legal services are provided by lawyers (and sometimes by paralegals) working on salary for the legal aid authority. Some jurisdictions use a mix of the two models, providing some services through staff and contracting out other services to lawyers in private practice on a case-by-case basis under judicare arrangements. (Currie, 2000).
Within the judicare model, there are several variants of how services are contracted and how fees are paid. Some tariffs specify an hourly rate that can be charged. The tariff may also specify a cap on the number of hours that can be billed for particular services, for example for case preparation or client interviews. Other tariffs specify a flat fee for particular services. In addition to these variants, legal aid plans sometimes contract services from lawyers in private practice on a block basis, paying a specified amount for representation services on a defined block of cases. The amounts paid under these contacts may be set in advance by the legal aid authority or they may be set by negotiation or through a competitive bidding process.
In British Columbia, Ontario and Alberta, legal services in immigration and refugee matters are paid for predominantly under the hourly fee variant, subject to time limits for specific services. Quebec and Manitoba pay a flat fee for most legal aid services relating to immigration and refugee matters. British Columbia has had some limited experience with the block contract variant, which was used to deal with the Chinese migrants who arrived by boat in an organized smuggling operation in 1999. While this experiment appears to have been cost-effective, members of the legal profession in British Columbia have expressed serious concerns about the quality of representation that was provided under this arrangementand the experiment has not been repeated. Newfoundland delivers legal aid services to immigrants and refugee claimants exclusively through staff lawyers.
There are also variants within the staff model. British Columbia and Quebec provide some services through clinics staffed by lawyers employed directly by the legal aid authority . Legal Aid Ontario (LAO) provides some services through the Refugee Law Office (RLO) in Toronto. The RLO is operated by staff lawyers and paralegals working on salary for LAO.
Legal Aid Ontario also funds 72 independent community legal clinics where staff lawyers and community legal workers (CLWs) or paralegals provide team-based legal services (Legal Aid Ontario, 2002b: 4). These community clinics differ from staff-based offices such as the RLO in Toronto or the IRLC in Vancouver, both in their mandate and in their governance structure. In addition to their role in providing legal representation to individual clients, community clinics play an active role in public legal education and policy advocacy. Community clinics are also managed by boards of directors drawn from the communities that they serve. Each clinic operates independently from Legal Aid Ontario, and the individual boards of directors set the mandate for each clinic with a view to responding to the needs of the local community in which the clinic operates. A limited number of the 72 clinics across Ontario include representation of immigrants and refugee claimants within their mandate. Some of these clinics utilize the services of law students to supplement the services provided by staff lawyers and CLWs (Zemans and Monahan, 1997: 120-130).
The Legal Aid Society in Alberta is currently running a pilot project under which a staff paralegal has been assigned to provide support services that would otherwise have to be provided by members of the private bar working under legal aid mandates (Cheryl Blunden, interview, July 30, 2002). In another pilot project, three paralegals, two working full-time and one part-time, employed by the Manitoba Interfaith Immigration Council, are handling PIF preparation for most refugee claimants in Winnipeg. Private practice lawyers paid by Legal Aid Manitoba represent these claimants at their refugee determination hearings. The preparatory work done by the paralegals enables the lawyers who are representing claimants to spend less time on each case (Janis Nickel, interview, May 19, 2002).
In addition to these delivery models, volunteer-based services have sprung up in centres where legal aid is not available or where there is a perceived need for additional services. The most notable example of this is the Halifax Refugee Clinic (HRC), which was established by Lee Cohen, a senior immigration lawyer in Halifax, to fill the void created by the total absence of legal aid coverage for refugee claimants in Nova Scotia. The HRC is funded by private contributions, including grants from the Catholic Pastoral Centre and the Law Foundation of Nova Scotia (Lee Cohen, personal communication, July 16, 2002). It provides representation services to refugee claimants almost entirely through volunteers. Mr. Cohen and other lawyers, working on a pro bono basis, provide basic training on refugee law and advocacy for the other clinic volunteers, who then act as counsel for refugee claimants at their hearings (Lee Cohen, interview, July 16, 2002).
A salaried paralegal working for a non-government organization (NGO), the Immigrant and Refugee Support Centre in Saint John, is providing representation services for most refugee claimants and low-income immigrants in New Brunswick. The few complex cases that the paralegal does not feel competent to handle are referred to a local lawyer in Saint John or to Mr. Cohen in Halifax (Leticia Adair, interview, May 18, 2002).
Lawyers working on a volunteer basis at Calgary Legal Guidance, a clinic organized by an NGO in Calgary, provide basic legal advice to walk-in clients. The lawyers at this clinic do not represent clinic clients at hearings or work extensively with them on case preparation, but they do try to provide basic explanations about legal issues and help the clients to find counsel who can represent them (Jean Munn, interview, July 15, 2002).
The Saskatchewan Refugee Coalition assists refugee claimants in finding legal representation despite the absence of any publicly funded legal aid program. Lawyers in Saskatoon have responded to the problems created by absence of legal aid by accepting deferred payment of their fees and by taking cases on a non-paying basis. In accepting deferred payment of fees, these lawyers are accepting a considerable risk that they will not be paid for their services, particularly if the claim is not accepted (Helen Smith-McIntyre, interview, July 30, 2002).
A number of other NGOs that provide settlement services to immigrants and refugee claimants across the country also provide limited assistance and representation support. But most of the staff and volunteers at these organizations do not have any legal training, so there are limits to the services they feel qualified to provide.
Respondents from a number of settlement organizations that are dependent on the federal government for most of their funding pointed out that they find themselves in a very difficult situation, because funding agreements with the federal government limit them to providing services for landed immigrants. Strictly speaking, they are precluded from providing services to refugee claimants, yet some of their most needy clients are in this group. Respondents reported that they try to get around this limitation by utilizing the limited funds they receive from other sources to assist refugee claimants while devoting all of their federal funding to providing services for landed immigrants.
The work being done by volunteers and by NGOs that are functioning on very limited budgets is filling a pressing need. But the people who are providing these services are the first to point out that their services are not a realistic substitute for legal representation, properly funded by legal aid. A number of respondents from these settlement organizations expressed concern that they are being used by government to provide a cheap substitute for the legal aid that is sorely needed by the clients they serve.
2.5 Tariff variations
Amounts paid for representation services in immigration and refugee matters vary widely under the different legal aid tariffs. For example, lawyers in Quebec are limited to a flat fee of $170 for preparing a refugee claim involving a single claimant. They can charge $50 more for each additional family member included in the claim. This amount covers all time spent interviewing the claimant and other witnesses, if any, and time spent to prepare and file the claimant's Personal Information Form (PIF). Lawyers can charge $285 for the first day of a hearing into the claim, plus $150 for each additional half-day. If the panel requests written submissions, a lawyer can bill an additional $150 (Commission des services juridiques, 2000). The legal aid authority has discretion to pay more than the amount prescribed in the tariff, but supplementary payments are authorized only in cases where a lawyer can make a strong case for receiving such payment (Diane Petit, personal communication, September 8, 2002).
The Manitoba tariff, which is also based on a hybrid of an hourly rate and flat fees for particular services, provides $480 for preparation and the first half-day of attendance for a refugee hearing at the Refugee Protection Division of the IRB. This is based on a nominal allowance of 10 hours total working time at a rate of $48 per hour, but, for all intents and purposes, it is a flat fee because it is virtually impossible to complete the required work within 10 hours. The Manitoba tariff provides for payment of a further $135 for each additional half day of hearing, including all preparation and attendance (Gerry McNeilly, interview, July 29, 2002).
The tariffs in Ontario, Alberta and British Columbia, which are all based on a prescribed hourly rate with maximum allowances for specific tasks, are considerably more generous. For refugee claims, as an example, Legal Aid Ontario allows up to 16 hours preparation time, plus actual time spent at the hearing (Legal Aid Ontario, 2001: 3). Hourly rates in Ontario range from $70.35 for lawyers with less than four years experience at the bar to $87.94 for lawyers with ten years experience (Legal Aid Ontario, 2002a). The comparable tariff in Alberta allows up to 25 hours in total for all hearing preparation and attendance, at an hourly rate of $72 (Pat Bard, e-mail to Austin Lawrence, March 1, 2002). The British Columbia tariff allows up to 10 hours general preparation plus 5 hours for hearing preparation (e.g., client interviews) and actual time spent at the hearing. The hourly rate under the LSS tariff in British Columbia is $80, but this is subject to a 10 percent holdback. (Legal Services Society, 1999: 3-4). The LSS has announced that it will replace tariff holdbacks with a 10 percent reduction to all tariffs in the 2002-03 fiscal year (Legal Services Society, 2002f: 7). Newfoundland and Labrador, the only other province that provides legal aid coverage for immigration and refugee matters, relies exclusively on staff lawyers to provide the required representation (Nick Summers, interview, May 25, 2002). Legal Aid Manitoba, which in other areas of law makes extensive use of staff counsel, issues legal aid certificates to lawyers in private practice for all immigration and refugee cases (Gerry McNeilly, interview, July 29, 2002).
-  This decision deals with the right to state-funded counsel in a civil law, as opposed to a criminal law case. In holding that a right to state-funded legal counsel may exist for civil law matters as well as for criminal law matters, the Court limited its ruling to the context of the specific legal proceedings in issue, namely proceedings between a government agency and a biological parent regarding temporary Crown wardship of children.
-  S.C. 2001, Chapter 27, assented to 1 November 2001, came into force on 28 June 2002. This Act replaces the Immigration Act, 1976-77, R. S.C. 1985, c. I-2.
-  The total expenditure figure against which this percentage was calculated does not include charges for one-time transition expenses related to reorganization of the legal aid program in British Columbia.
-  Under another variant, which is widely used in Britain but has not been tried in Canada, the legal aid authority franchises certain lawyers in particular market areas to provide services at an agreed price, subject to specified quality assurance and reporting standards (Legal Aid Board, 2000: 35-37)
-  This concern, which was noted by all of the lawyers in Vancouver who were interviewed for this study, has been officially communicated to the Legal Services Society in British Columbia.
-  Outside counsel might be retained if there are insufficient staff resources to handle the caseload, but this happens so rarely that it is not a factor (Nick Summers, interview, May 25, 2002).
-  LSS staff lawyers handled approximately 8 percent of all immigration and refugee cases approved for legal aid in British Columbia. Almost all of these cases were handled by lawyers and paralegals working at the Immigration and Refugee Law Clinic (IRLC) in Vancouver. (LSS: 2002f: 7). The LSS is currently in the process of winding down ILRC operations as part of a massive restructuring that has been forced by a drastic reduction in funding received from the government of British Columbia. Four staff lawyers employed by the Centre communautaire des services juridique in Montreal handle approximately 10 percent of all immigration and refugee legal aid cases in Quebec. The other 90 percent are handled by members of the private bar (Claude Hargreaves, interview with Pierre Duquette, June 14, 2002).
-  In fiscal year 1999-2000 the RLO handled approximately 280 cases (Macdonald, 2001: 9). That represented approximately 3 percent of the 8,731 certificates in relation to immigration and refugee matters issued by Legal Aid Ontario in that year (Legal Aid Ontario, 2001: 6). That percentage subsequently declined considerably. The number of certificates in immigration and refugee matters increased to 12,885 in fiscal year 2001-02 while the RLO capacity remained at around 300 cases (Mary Marrone, personal communication, September 27, 2002). Data is not available on the number of community clinics in Ontario that handle immigration and refugee cases, or on the percentage of all immigration and refugee cases in Ontario handled by these clinics.
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