As part of the CFCJ’s national Everyday Legal Problems and the Cost of Justice in Canada study, over 3,000 people in Canada were surveyed about their attitudes towards and experiences with the justice system in Canada. Specifically, they were asked about the kinds of civil and family justice problems they experience, their methods of dealing with them, and the associated costs they incur to resolve them. The CFCJ is thrilled to announce that the resulting survey data has now been broken down based on the following respondent characteristics: “Age,” “Gender,” “Canadian Region,” “Education” and “Born in Canada“.
Court Delays and Inadequate Funding: An Equation for Vulnerability for Refugees and Asylum Seekers in Canada
Through last year’s R v Jordan ruling, the Supreme Court of Canada illuminated what it dubbed a “culture of complacency” within the Canadian courts. This issue revolves around ongoing delays and has been the subject of many discussions on efficiency in the courts and the importance of timely judicial appointments. While most commentary on this issue centers around criminal law, this post will examine why wait times, as relate specifically to the immigration law system and refugee and asylum claims brought before the Immigration and Refugee Board of Canada, are also a pressing issue.
Refugee and asylum claims have been a seminal topic during the summer of 2017. There are several reasons for this prominence, including dwindling funding to help claimants navigate the legal system and the immigration process and, insufficient resources within the legal system to review older, so-called “legacy” cases in a timely manner. Both have contributed to worsening delays. While the Jordan ruling brought to the forefront the problem with delays for those accused in criminal courts, it provided no remedy for the thousands of pre-2012 claimants in the refugee and asylum system who filed before a new law requiring hearings within 60 days. Additionally, these claimants have faced growing inefficiencies in other administrative processes (discussed further below) that are required as a part of their scheduled court time. The cumulative effect of long wait times as well as additional administrative delays can also be problematic where there are language and cultural barriers.
The core of this post will focus on two of the major factors that have caused wait times to drastically rise: an increase in refugee and asylum claimants and a lack of government funding to ensure adequate resources and efficiency in hearings for claimants who go through the formal legal system. I discuss these issues from the perspective of government officials who lack adequate resources and support as well as from the perspective of the individuals seeking access to legal aid.
Canadian refugee and asylum immigration is currently suffering from an immense backlog, with asylum claims up to five years old still waiting to be heard. If these claimants are heard and successful in their applications, they will be granted residency status in Canada. Permanent residency comes with several benefits, including access to healthcare and lower tuition costs. Due to the delay, some claimants spend years living in a state of uncertainty, shying away from taking significant actions or making commitments, like enrolling in full-time education programs, in the hopes that their circumstances will soon change. A change in immigration status offers a path to additional opportunities for many.
In order to understand the issues within the governmental structure, we need to consider both the increase in the number of claims as well as how claims flow into the court system.
The recent increase in refugee and asylum claimants has placed a significant strain on the court system. Of the cohort of asylum seekers who filed claims in 2012, 5,500 people have not had the opportunity to address their claims in court by 2017. Additionally, crises like the Syrian Civil War continue to drive many from their homes and have forced larger numbers to seek refugee status in Canada. When the number of humanitarian crises around the world increases, the number of refugees and asylum seekers in Canada also often increases. Unfortunately, funding for additional resources has not increased at the level needed to match the growing demands on the immigration law system.
For many refugee and asylum seekers to be heard in Canadian courts, the Canadian Border Services Agency (CBSA) must complete and provide a security screening of the individual. Due to funding and personnel shortfalls, the CBSA has routinely been unable to complete many security clearances. The percentage of scheduled cases that are unable to be heard due to incomplete security clearances has increased from 6% two years ago to 55% this year. What’s more, many of the claimants who will not obtain CBSA security clearances by their scheduled court date only find out about this failure one week before the scheduled date. This short notice period has forced the scheduled court dates for many to go unattended, leading to further delays in the system.
From the second perspective explored in this post, that of an individual seeking access to legal aid, it is important to grasp the necessity of legal aid for many refugees and asylum seekers.
In recent years, asylum and refugee immigration has increased and, as a result, so has the number of immigration claimants that require legal aid assistance. The total amount of asylum claimants increased from 16,115 in 2015 to 23,920 in 2016. This number has continued to grow and, as of August, 2017, there have already been 21,695 claimants. However, the amount of money that both provincial and federal governments allocate to legal aid has not increased in a corresponding manner. This shortfall has caused major legal aid providers, Legal Aid Ontario and the Legal Services Society of British Columbia, to predict a forced suspension of services for refugee claimants due to extensive funding gaps.
Legal Aid Ontario predicts the suspension date of their agency’s services for refugees to be between November, 2017 and March, 2018. For just this agency, the cost of providing refugee and asylum services has increased by more than six-million dollars each year. As a result of mounting increases and stagnant funding, Legal Aid Ontario has racked up significant debt.
The other agency that has predicted a suspension of service is British Columbia’s Legal Services Society (LSS). This Legal Aid provider was originally predicted to suspend operations by August 1, 2017. Just before the projected date, the agency received a $386,000 government funding injection, enabling them to extend their operations until at least mid-November. From 2014 to 2016, the Legal Services Society almost doubled the number of asylum and refugee immigration claims they take on due to the increase.
Since many refugee and asylum claimants have to appear in court, they will continue to access government court services even if Legal Aid is not available to them. With this understanding, it becomes clear that the Legal Aid systems that are set up for refugee and asylum seekers function to help the court in addition to helping these individuals.
Legal Aid is a necessary tool in the alleviation of the current immigration backlog because it helps ensure claimants are heard in an effective manner. Legal Aid helps arrange services such as interpreters, which many refugee and asylum seekers may need. In addition to ensuring efficiency in claims, Legal Aid works to ensure that the many vulnerable individuals do not continue to get passed over in the system due to preventable deficiencies.
Refugee and asylum claimants, unlike most other non-criminal law claimants, may face the most serious repercussions if they are not able to make Canada their home. Canada’s access to justice mandate requires fairness in our legal system. Acknowledging what is on the line for many of these individuals, as well as their precarious situations, ought to illustrate the gravity of ensuring they are heard effectively.
These individuals likely have everything on the line, but continue to be put on hold. Canada has a duty to hear these individuals in a timely manner, which requires more resources in the immigration law system as well as an adequately funded Legal Aid system. If the court system slows down and forces these individuals into a docile state, or the Legal Aid system is inadequately funded, many of these individuals will be put at risk.
Access to Justice: New Book Will Spark Deep Debate about the Meaning, Causes of Injustice
This article originally appeared on The Lawyer’s Daily on August 16, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.
Will we recognize injustice when we see it? And what is injustice anyway? I suspect that these questions are never far from the thoughts of many of us working in the justice system. We hope that we will not be the police officer who pushes too hard to get a suspect’s statement or the prosecutor who wants to “win” too much, or the defence lawyer who misses a path to acquittal or the judge who fails to intervene when justice requires it.
We all recognize the clear cases of injustice — at least after the fact — but what about the ones that are not so clear, such as where the end result seems to be satisfactory, but the way it was arrived at causes us concern.
In his new book: Broken Scales: Reflections on Injustice (American Bar Association, 2017) Joel Cohen, with the assistance of Dale Degenshein, leads us on a course of reflection about these questions in a collection of interviews that present us with the consequences of clear injustices or challenge us to think more deeply about what injustice is.
In 10 chapters, we meet the overzealous prosecutor; the pro bono lawyer who fought the state’s crusade to establish a precedent at the cost of keeping an innocent man in jail; the suspected terrorist who falsely confessed to save his family; the wrongfully convicted person eventually exonerated; the victim of the “red scare” who has never been exonerated; the wrongfully accused police officer; the lone juror refusing to vote for conviction; the CIA operative convicted of violating the Espionage Act; the judge who was wrongly ordered not to sit on certain cases because she had accepted an invitation to a round table of Iranian-American community leaders at the White House; and, finally, a judge not retained in an election because of intense lobbying by anti- gay marriage activists. We are confronted with situations in which fair process and good intentions nonetheless resulted in wrongful convictions. And cases in which the desire to avoid racism and the appearance of bias perpetrated its own type of injustice. And cases in which we are left wondering whether there was any injustice at all. We hear their stories and their own reflections on injustice in their own voices, gently but adeptly guided by Cohen’s skilful interviewing.
For me, the most successful — and the most moving — part of the book is the interview with Kenneth Ireland, a man wrongly convicted of raping and brutally murdering a mother of four children when he was 17 years old. He was exonerated after spending 21 years in jail. His description of the realities of prison life is heart-rending, especially for those of us whose duty has sometimes required us to put people in jail. Reading his description of his anger, of how he survived in prison and how he has tried to rebuild his life reminds all of us in the justice system of the power we wield and the danger that we will make mistakes.
The authors do not provide answers to the big questions about whether we will recognize injustice and what injustice is. Rather, they hope that the interviews and the questions they raise will “add spark to a continuing and important conversation about injustice in America.”
The same ongoing discussion is needed in Canada, too. We have had more than our share of wrongful convictions. We hope that we have learned from them, but the risk is ever present and we need to be reminded that it is. And we have had our own debates about what constitutes injustice. Is it just or unjust when a suspect is acquitted because illegally obtained evidence is excluded from the record? Is it just or unjust when a suspect does not face trial on the merits because the case took too long? Is the result just or unjust when one equality seeking group clashes with another?
This short and highly readable book does not answer these questions either. But it will make the reader keep them at top of mind. And that in itself is the most important thing.
The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.
The Canadian Research Institute for Law and the Family and the Canadian Forum on Civil Justice are Studying the Cost of Resolving Family Law Disputes
The Canadian Research Institute for Law and the Family (CRILF) and the Canadian Forum on Civil Justice are tackling a piece of the access to justice puzzle together by conducting a study on the cost of resolving family law disputes.
“Part of the whole access to justice inquiry has to involve the accessibility of different dispute resolution processes and their relative costs,” said John-Paul Boyd, executive director of the CRILF, adding that this often leads to questions about prioritizing funds.
“For example, we have legal aid programs across Canada since the late ’60s [and] early ’70s and those legal aid programs are by and large directed towards providing legal assistance to people who are litigating. In terms of where we, as a society, spend our dollars in the justice system, we spend it maintaining the courts. And it’s not that anyone is suggesting that the courts have no value or that courts are going the way of the dodo, they’re not. Courts are necessary … but just looking at Canadian funding priorities, honestly it’s a bit perplexing to realize that we spend the lion’s share of our money on justice in the civil context on funding a system, which from my experience, is costly and destructive to families.”
Boyd said the institute is studying the costs of resolving disputes through collaborative processes along with the cost of intermediation and arbitration. He said the study is trying to “paint a better picture” of what costs are to clients as that data in not readily available.
“We’re taking a two-pronged approach,” he said. “First we’re gathering data from lawyers, mediators and anybody who’s a member of the CBA’s family law subsections in Nova Scotia, Ontario, Alberta, and B.C. We’ve sent those members a very lengthy survey that asks questions about lawyers’ preferences in terms of dispute resolution and their perceptions as to the cost of themselves, the cost of third party experts and the cost of third party dispute resolution professionals like mediators and arbitrators.”
He said the survey is trying to gauge whether lawyers believe that collaborative processes are suited for high conflict families and whether litigation is capable of handling extremely complex social issues. He added that the institute’s second approach is to conduct a social return on investment analysis on the four different dispute resolution processes by looking at a small number of families who have gone through these processes themselves.
Boyd said the CRILF and the Canadian Forum on Civil Justice started discussing this study last November and began drafting the survey to send to lawyers in March. He said the institute’s goal is to have the study done by December at which point it will make recommendations to provincial and federal governments.
“We aim our recommendations at different places depending on the context,” he said. “We’ll also be making this information publicly available and speaking about it to governments, to decision-makers, to lawyers and to judges because this is all part of the access to justice puzzle. It’s part of the overall effort that’s being undertaken across Canada to finally collect some data on access to justice and the experience of people who have family law disputes.”
Boyd pointed out that lawyers who take the survey can be assured that the information collected is kept confidential. He said the information provided by legal professionals is important because Canada has very little data on lawyers’ experiences with family law and clients’ observations about dispute resolution processes.
“It’s really only in the last five or six years that efforts have been undertaken to collect actual empirical information about the court and other dispute resolution processes,” he said.
Boyd said that beyond the study and the recommendations it might produce it is important for lawyers to encourage government to spend tax dollars in a “sane and rational manner” on dispute resolution processes that cause the least conflict and result in the most enduring resolutions.
Lawyers interested in taking the survey and contributing to the CRILF study can do so here.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca)
Making A2J Matter to the Public
The Action Committee on Access to Justice in Civil and Family Matters launched the #justiceforall campaign designed to raise public understanding of accessible justice challenges as a component of a healthy democracy.
A next step in transforming the A2J landscape is to engage the public by raising awareness of the importance of justice issues in Canada. Building a public understanding of the importance of legal health and the predictability of legal issues throughout one’s life will benefit individuals and will transform the access to justice conversation into an issue relevant to citizens, decision makers, and voters. As long as access to justice challenges are only understood within the justice system, the possible solutions will be limited to the scope of influence, resources and imagination of the justice system.
The Action Committee is asking the A2J leaders in Canada, to help raise the profile of A2J efforts. If you are a leader in A2J, a bencher, a legal academic, a judge or a lawyer with a personal following, we would also welcome your participation in collectively raising this issue. To participate in the social media campaign or add a button on your website, there are links, instructions and graphics available at: www.calibratesolutions.ca/actioncommitteecampaign
Starting a public conversation about access to justice will shift the perception of the issue to a holistic understanding of the law as a part of daily life that can be understood and managed throughout one’s life, often with the help of legal professionals.
Intéresse le public de A2J
Le Comité d’action sur l’accès à la justice en matière civile et familiale a commencé la campagne #justicepourtous vise à faire réaliser au public que l’accès à la justice est, en fait, l’accès aux solutions de leurs problèmes juridiques de tous les jours et un élément d’une saine démocratie.
L’étape suivante dans la transformation du paysage de l’accès à la justice est de mobiliser le public en sensibilisant les gens à l’importance des questions de justice au Canada. Sensibiliser le public à l’importance de la santé juridique et à la prévisibilité des problèmes juridiques au cours de leur vie profitera aux individus et permettra de transformer les discussions sur l’accès à la justice en une question concrète et pertinente pour les citoyens, les décideurs et les électeurs. Tant et aussi longtemps que les défis en matière d’accès à la justice sont seulement compris par le système de justice, les solutions possibles seront limitées au champ d’action, aux ressources et à l’imagination du système de justice.
Le Comité d’Action vous demande, comme un des A2J leaders au Canada, nous aider à faire connaître nos A2J efforts parmi le public. Si vous êtes un leader, un conseiller, un juge ou un avocat avec un personnel suivant, nous accueillerions aussi votre participation soulevant collectivement à cette question. À participer à la campagne de medias sociale ou mettre un bouton sur votre site nous avons des liens et le graphisme sont tout disponibles à: www.calibratesolutions.ca/actioncommitteecampaign
Lancer un dialogue public sur l’accès à la justice changera la perception du problème et amènera une compréhension plus globale de la loi comme étant un élément de la vie quotidienne qui peut être compris et géré tout au long de la vie d’une personne, souvent avec l’aide de professionnels de la justice.