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Court Delays and Inadequate Funding: An Equation for Vulnerability for Refugees and Asylum Seekers in Canada

Sean Walsh

Wednesday, August 30, 2017

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.