The Charter and Legal Aid Ontario’s Proposed Refugee Law CutsSean Rehaag
Wednesday, June 7, 2017
Legal Aid Ontario (LAO) has announced plans for substantial cuts to its immigration and refugee law services. Other legal aid programs across Canada are no doubt watching this closely, and may be considering similar measures. The proposed cuts, however, may be unconstitutional.
Proposed 40% cuts to Refugee Law Services
Currently, refugee claimants in Ontario who meet the test for financial eligibility can obtain legal aid certificates for assistance in putting together their claim, including drafting Basis of Claim narratives (the key document used in refugee determinations). Most financially eligible refugee claimants also receive legal aid certificates for representation at their refugee hearings, with only a small number refused representation due to merit screening. In addition, LAO funds some other types of representation, including appeals to the Refugee Appeal Division, judicial review of certain immigration and refugee matters in Federal Court, Pre-Removal Risk assessments, Humanitarian and Compassionate applications for Permanent Residence, and immigration detention reviews.
Because of budgetary pressures – both in immigration and refugee law and other program areas – LAO has announced that it will be cutting immigration and refugee law services by 40%, starting in July. The proposed cuts include eliminating all immigration law services outside of refugee law, as well as cuts within refugee law services. For the latter, LAO is asking for advice from stakeholders about how the cuts should be made. To help with these consultations, LAO has put forward a few possibilities. These range from prioritizing Basis of Claim narratives and eliminating representation at refugee hearings, to fully funding legal representation for refugees until a set level of funding for that year runs out and then not giving any further certificates for the year.
The refugee advocacy community is up in arms about the cuts. Many have called on LAO’s funders to step up and fully fund immigration and refugee law services. Others have suggested that there are better ways to achieve cost savings at LAO without reducing services for refugees. These include pushing for improvements to the refugee determination system to reduce costs, cutting services in other program areas, finding efficiencies in LAO administration (including salaries), and reducing the hourly rate of pay for lawyers working on certificates across all program areas.
A constitutional right to publicly funded counsel in refugee cases?
One of the reasons that LAO has proposed cuts to its refugee law program – rather than trying to achieve the same savings through its much larger criminal law program – is because publicly funded counsel is constitutionally mandated in many criminal law cases.
This raises the question of whether there is a constitutional right to publicly funded counsel in the refugee law setting that might prohibit the proposed cuts.
In my view, the answer is yes, at least in some circumstances.
The Supreme Court famously held in Singh v Minister of Employment and Immigration,  1 SCR 177, that the right to life, liberty and security of the person protected by section 7 of the Charter is engaged by the refugee determination process – and thus that the process must comply with principles of fundamental justice.
And in New Brunswick (Minister of Health and Community Services) v G(J),  3 SCR 46, the Supreme Court established the test for when state funded legal counsel must be provided in connection with legal proceedings where section 7 rights are at stake. The Court found that state funded legal counsel is not required in all legal proceedings where section 7 rights are at stake. Rather, state funded legal counsel is only required where an indigent party has exhausted other means to secure counsel, and where counsel is necessary for the individual to effectively participate in the legal proceedings and to ensure a fair hearing. The Court went on to note that whether counsel is necessary for effective participation in a fair hearing will depend on three factors:
- The “seriousness of the interests at stake”;
- The “complexity of the proceedings”; and,
- The “capacity” of the individual involved.
It seems to me that the refugee law context easily meets this test.
First, it is hard to imagine any legal process where the interests at stake are more serious. Refugee law involves life and death-decision making. If Canada gets these decisions wrong, refugees may be deported (in contravention of international law) to countries where they will face persecution, torture or even death.
Second, refugee proceedings are complex. They require a solid grasp of domestic and international refugee law, administrative law, constitutional law, international human rights, national security law, and criminal law – as all these are understood and applied in Canada, source countries and countries of transit. And, while the rules of evidence in refugee hearings are relaxed, gathering and presenting the evidence can be challenging, and often requires specialized expertise and ready access to various professionals to persuasively substantiate claims. Additionally, in substantiating their claims, refugee claimants frequently deal with adjudicators who approach refugee claimants with a culture of disbelief and who regularly use small inconsistencies in evidence as a reason to deny claims – which means that small errors in preparing claims can be fatal. Even in the best of circumstances, refugee determinations generally involve challenges related to communication across cultures, and cross-cultural miscommunications are common. All this and more has led scholars who study refugee determination processes to argue that “[r]efugee determination is one of the most complex adjudication functions in industrialized societies.”
Third, as a group, refugee claimants are seldom well-placed to successfully navigate these complex processes on their own (with some exceptions, of course). Most refugee claimants are under extreme stress because of the high stakes of the refugee determination process, combined with the unfamiliarity and uncertainty of the process. Many have good reason to be distrustful of state officials, given their experience with such officials in their home countries. Mental health challenges, including post-traumatic stress disorder, are common because of the trauma that prompts refugees to flee. Most refugee claimants do not speak, write, or read in English or French. This may be the first time they are engaging with a legal process – and they are doing so in the context of a foreign legal system.
Indeed, given both the complexity of the process and the difficulty that refugee claimants face in navigating that process, it is perhaps not surprising that social scientific research – both in Canada and elsewhere – regularly finds that access to high quality legal representation significantly influences outcomes in refugee determinations.
As such, in addition to meeting the three aspects of the test from New Brunswick, publicly funded counsel for refugee claimants also fits with the underlying rationale offered by the Court for constitutionally mandated publicly funded counsel in section 7 cases. That is, publicly funded counsel must be available to refugee claimants as a constitutional matter because claimants require the assistance of counsel in order to effectively participate in the process and in order to ensure access to a fair hearing. Unless such publicly funded counsel is made available, outcomes in the refugee determination process – a process that is constitutionally required to comply with principles of fundamental justice – will hinge at least in part on whether claimants can afford to pay for a lawyer.
It remains to be seen whether LAO will, in fact, move forward with the proposed cuts. The proposal may just be a strong-arm negotiating tactic aimed at pressuring the Federal government to cough up additional money. Perhaps that tactic will succeed, and the cuts will not be necessary. Or perhaps, if the money does not come through, LAO will reconsider and will locate savings elsewhere.
But if LAO does proceed with the cuts, we can expect constitutional litigation. Based on the test set out in New Brunswick, I think this litigation has a good prospect of overturning the proposed cuts.
Ironically, this litigation fits perfectly within the criteria for LAO’s test case program, which has identified “equal access to, and effective protection of, Charter rights” for refugees as a priority for the coming years.
Perhaps continuing to offer adequate refugee law services, and avoiding funding both sides of expensive constitutional litigation about access to counsel for refugee claimants would be one way for LAO to achieve some cost savings down the road.