The Crisis in Funding Legal Support for Refugees

There is currently a crisis in the funding of adequate representation for refugee claimants in Ontario and the rest of Canada. For years Ontario had one of the most generous, but still very limited, funding for representation of refugee claimants in Canada.

Back in the early 1990’s when I started do refugee work we had 16 hours to prepare the Personal Information Form (PIF) and an additional 16 hours to prepare for the hearing of the refugee claim. There also was additional time for administrative matters, 5 additional hours at each stage. This was a total of 42 hours to prepare a refugee claimant for their hearing. Time at the hearing was also covered as was travel time.

Once upon a time we even had 55 hours to prepare a refugee claimant for their hearing. In the case of larger families, multiple stories and translation issues a discretionary increase was frequently granted. Those days are long gone. With the elimination of the “Credible Basis” hearing we lost the first 16 hours. The Administrative time was also cut. This change left a total of 16 hours to prepare a refugee claimant and his or her family for their refugee hearing, PIFs, story and country documentation all included. Refugee lawyers learned to live with this new system as requests for additional time or discretionary increases were frequently granted.

Canada’s refugee determination system was considered a model for the World. It is important to acknowledge that there were some refugee claimants that took advantage of the system. However, one does not use a hammer to kill a fly. The system eventually weeded out most fraudulent refugee claims. This process did take time and came with some costs. However, it is better to let a few questionable refugee claims through than to return refugees where they face a serious risk of persecution because of their race, nationality, religion, political opinion or particular social group and face imprisonment, torture and even execution.

There is a new reality for refugee claimants. Now only 5 hours are being given for preparation of the PIF, soon to be replaced by the Basis of Claim (BOC) form. The 5 hours includes all members of the same family and includes translation time. Five hours for preparation of PIF/BOC is grossly inadequate. Even if the client spoke fluent English this is not enough time to review country documents and a claimant’s story and prepare the PIF/BOC, review and correct the PIF/BOC and check for omissions which may be used against a claimant at a hearing and prepare a story (maybe more than one) for one person let alone a spouse, and a number of children; this is not possible. The 5-hour time constraint makes professional representation impossible. In addition, all this work has to be done within 15 days of being notified of their hearing date under the new system that is to come into effect on December 15, 2012.

If the refugee claimants do not speak English, when you factor in translation time, you are looking at 2.5 hours of real time to prepare the claimant(s) for what may be a life determining review and decision of their claim for refugee protection. Any lawyer who undertakes to work under these constraints is either professionally negligent, or financially negligent and on their way to bankruptcy. However, this point is obvious and maybe part of a strategy to get lawyers and their legal expertise and resources out of the refugee game.

A point that is frequently ignored is that the new Refugee Appeal Division (RAD) is only a paper review and there will be no time allowed for a hearing. Therefore no pay for a hearing, unlike the current system. The BOC will be reviewed by a bureaucrat and the hearing will be short and to the point with little time spent in the hearing process as refugee claimants are being rushed out the door and deported from Canada. Again tight financial constraints will be imposed.

What this means for the Pre-Removal Risk Assessments (PRRAs) and other types of funding for refugees remains to be seen. My understanding is that since PRRA’s have only 2-3% success rate, they are not presently funded by Legal Aid Ontario. I expect a similar restriction in the other provinces in Canada.

There is now a delay imposed of one year before a PRRA can be filed for a refugee denied the protection of Canada. The current government’s expectation is that the failed refugee claimant will have been deported from Canada before the one year deadline for filing the PRRA has passed. This new process also means that the quality of representation has to be very good in order to be accepted at the first stage of the refugee review process or to win at the RAD. The consequences of poor representation of a legitimate claim for the protection of Canada will be devastating.

Refugees claimants and their lawyers are facing difficult times. Something must be done on an urgent basis.

There has to be a coordinated strategy of lobbying Legal Aid Ontario accompanied by a media campaign and a political campaign. Also like some lawyers have suggested, there is a need for a legal campaign and possibly a litigation challenge to pressure the Federal and provincial governments to take a position and provide a decent level of support for lawyers representing refugees.

There is currently a proposal to allow para-legals who have much lower overhead and generally far less legal expertise to be able to receive Legal Aid Certificates. This proposal would at least give the refugee claimants approximately 15 hours of assistance but with a loss of legal expertise and much greater risk for the refugee claimant.

Judicial reviews based on incompetence of counsel will like increase exponentially. However, this is a difficult road to go down and to have a decision overturned due to incompetence of counsel is extremely rare. The Courts seem to bend over backwards to avoid overturning a decision based on incompetence of counsel. Clients are free to choose their own counsel and the associated risks about employing a particular counsel, both good and bad.

Legal Aid Ontario staff are currently under extreme pressure not to grant “discretionary increases” requested by lawyers. This is the new financial reality. Accordingly lawyers have the option of being either professionally negligent for working under Ontario Legal Aid constraints or being financially negligent and on their way to bankruptcy if they provide competent representation and go over the five-hour limit for preparation of a PIF/BOC.

Legal Aid will have to review the refugee claimants story to determine if they will fund an additional 11 hours of work on a Legal Aid Certificate. Given the strict time lines for filing information it is highly doubtful that Legal Aid Ontario will be able to give approval in a timely fashion. Again “discretionary increase” will only be granted in the rarest of cases. The situation is even worse for Judicial Reviews of failed refugee decisions as there is no guarantee of funding whatsoever.

The present position of Legal Aid Ontario on Judicial Reviews is extremely troubling. Legal Aid Certificates will not be granted automatically to cover the filing of the Application for Judicial Review and the preparation of an “Opinion on the Merits” of the case, or “appeal” as most people would understand the process, as is presently the case of a rejected refugee claim. Lawyers cannot be expected to gamble on the chance that Legal Aid Ontario will eventually fund an Application for Judicial Review. For a lawyer to proceed on a judicial review based on the mere speculation that Legal Aid Ontario will later grant a Certificate is to their extreme financial detriment.

Given the current cost cutting fiscal agenda of the Harper government (and their attitude towards refugees) and the limitations and financial constraints the Ontario government is under, and all of the other provinces as well, the granting of Legal Aid Certificates for Judicial Reviews will be very rare. Again lawyers who try to represent refugee claimants under such conditions will be going bankrupt or provide service that is far below the professional requirements of lawyers.

The alternative is that refugee claimants will have to come up with the money to cover the costs of filing a Judicial Review and in all probability the cost of filing the Record and Memorandum of Argument, and if Leave for Judicial Review is granted the costs of the hearing at the Federal Court. Typically this cost is in excess of $6,000.

There is a tremendous need for an effective response. The strategy must include an approach to the Law Society of Upper Canada, The Canadian Bar Association, Canadian Association of Refugee Lawyers, the Canadian Council for Refugees, community groups that work with refugees and represent communities that are at risk of persecution, and of course the Refugee Lawyers Association and most importantly the Canadian public.

Groups representing refugee lawyers in other provinces also must be brought on board since this problem is ultimately the lack of Federal funding for what is exclusively a Federal area of jurisdiction. To make any head way the provinces also need to be brought on side (like the government of Saskatchewan recently voiced its concerns on the cuts to medical care for refugees) and to put real political pressure on the Federal Conservatives to start providing a basic level of support for funding refugee claims. Adequate funding is essential to meet the minimum requirements of fundamental justice and the legal doctrine of fairness. This question also involves the right to counsel which is guaranteed under the Charter of Rights and Freedoms.

An effective and urgent response is needed on this issue. The response may have to include a withdrawal of services of refugee lawyers, like what the Criminal lawyers did to get the attention of the Ontario government and the Courts, to force the Federal Government and the provincial governments to respond to this funding crisis.

It is Canada’s reputation and the lives of legitimate refugee claimants that are at stake.

Edward C. Corrigan is a Barrister and Solicitor and has been active in political matters for more than 40 years. He has a degree in History and a Master’s degree in Political Science. He has published extensively on legal and political matters. In 2000-2003 he served as an elected member of London, Ontario, Canada’s City Council. Read other articles by Edward, or visit Edward's website.