Chapter 12: Refugee and Immigration Law
Most legal aid services in the field of immigration and refugee law are dedicated to providing representation for refugee claimants in quasi-judicial hearings before Members of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB). A limited number of Plan certificates are also issued to fund judicial review applications before the Federal Court (Trial Division) in respect of negative refugee determinations by the CRDD. Up until April 1, 1996, the Plan issued a limited number of certificates to permanent residents of Canada subject to deportation proceedings before the Immigration Appeal Division (IAD) of the IRB. A few certificates were also issued to permanent residents who had failed in their applications to sponsor family members. Certificates for IAD proceedings appear to have comprised fewer than five percent of the total immigration and refugee certificates issued. Due to cutbacks in funding, the Plan has ceased issuing certificates for non-refugee-related immigration matters altogether.
In the early 1980s, the number of inland refugee claimants in Canada numbered 5,000-7,000 per year. The numbers steadily grew, and Singh v. Minister of Employment and Immigration in 1985 imposed a Charter of Rights and Freedoms entitlement to an oral refugee-determination hearing. With the oral hearing came a heightened demand for legal representation, and the annual cost to the Plan rose from tens of thousands of dollars to $1.2 million by 1989.
Beginning in 1986, the number of claimants arriving in Canada (and Ontario) escalated dramatically. In 1989, the federal government established the IRB, and instituted a two-step hearing process for determining refugee claims. Through a project known as the "designated counsel" program, the federal government funded 100 percent of the legal aid costs for the first stage of the process ("the credible basis hearing"); the second stage was funded through the usual sources available to the Plan, but the cost was relatively low because most of the legal work on a claim was done in the course of preparing for the credible basis hearing. In 1994, the first stage was eliminated, and specific federal funding along with it, shifting all the costs of legal representation to the provincial legal aid system.
The number of certificates issued in immigration and refugee law peaked in 1992, at 33,442. They have declined every year thereafter, and in the 1995-96 fiscal year (before the tariff cutbacks of April 1, 1996), only 8,337 certificates were issued. After April 1, 1996, the number of certificates issued has declined even further. The demand for legal aid certificates by refugee claimants has recently diminished, with a sharp decline in the number of refugee claimants entering Ontario (and Canada). However, the cost to the Plan of legal aid does not track the decline in numbers. Despite dwindling numbers of certificates issued after 1992, the cost per certificate escalated sharply. Part of this cost increase was attributable to the elimination of the federally funded first-stage hearing, and part to the impact of Federal Court jurisprudence on the process and content of refugee determinations. In turn, the IRB became more demanding of lawyers in terms of legal argument and documentation, and lawyers docketed more time preparing for hearings. As a proportion of total expenditures on legal aid certificates, refugee and immigration certificates have declined consistently since 1993. They peaked at 12 percent in 1993, and tapered off to seven percent (of a smaller total) by 1996.
This chapter discusses the coverage of refugee and immigration matters under the Ontario Legal Aid Plan, the effect of recent cuts in services, the need for legal representation in this area, and current and proposed delivery models. As a general proposition, we recommend that the general approach of the legal aid system to refugee and immigration matters should be consistent with the general principles advocated in this report. Thus, it is our view that the legal aid authority should establish a needs-assessment and priority-setting process for application by local decision-makers, and an appeals process, in relation to refugee and immigration matters. In this chapter, we offer a number of more specific recommendations for enhancing service delivery in the refugee and immigration law context.
THE NEED FOR LEGAL REPRESENTATION
Refugee claimants risk return to a country where they could face imprisonment, torture, or death because of who they are or what they believe. Some permanent residents in Canada face deportation to a country they may have left as a child, and where they have no friends, family, or community. Other permanent residents must contemplate indefinite separation from spouses and children if sponsorship applications fail.
Refugee determination is meant to transpire in a non-adversarial context. Unless a representative of the Minister of Citizenship and Immigration intervenes (which is rare), no one in the hearing room has an institutional interest in opposing a valid refugee claim. Though, unlike refugee determination, immigration proceedings are adversarial, they still take place in an administrative setting which is ostensibly less formal and more accessible than a conventional courtroom. In principle, the system should be relatively accessible and non-threatening to claimants and applicants.
In practice, the refugee determination process can be frightening and bewildering. Claimants come from radically different cultural, linguistic, class, and educational backgrounds. The system requires that they compartmentalize their experience into the components of a relatively narrow legal definition, recount their story in a format that will respond to the needs of decision-makers, and establish themselves as credible according to legal and often cultural norms that are often utterly alien to them. Consistency and plausibility are the primary indicators of credibility relied upon by decision-makers. Claimants may, for a variety of personal and cultural reasons, be utterly disoriented by the process and the standards against which they will be judged, and distrustful of state processes, given prior experience in their countries of origin.
The role of legal counsel in this context includes, but is not limited to, conventional legal representation. Lawyers must also establish a trust relationship with their clients that can overcome the fear, mistrust, and possible disinformation that clients bring to the proceedings.
With respect to immigration matters, such as deportation proceedings, the fact that proceedings before an IRB Adjudicator or before Members of the Immigration Appeal Division (IAD) of the IRB are formally adversarial lends force to the need for professional representation where stakes are high. In addition, certain matters involve a degree of legal complexity which can be properly addressed only by someone with legal skill and experience. Similarly, judicial review, whether in relation to a refugee or immigration matter, typically requires legal expertise.
At any given time, a number of immigrants and refugee claimants are currently detained at the Celebrity Inn in Toronto, Metro West Detention Centre in Toronto, and elsewhere in the province. Some are brought into detention directly from the Port of Entry on suspicion that their identity documents are fraudulent. Some of these persons are refugee claimants; others are persons who say they are visitors or students, but are disbelieved. Other people are detained out of suspicion that they will try to enter the United States illegally through Canada, or are suspected of criminality. Another class of detainees have been picked up in Canada. These include persons with failed or abandoned refugee claims, visitors and students who have overstayed their visas, potential refugee claimants who entered illegally and went underground, and refugee claimants or permanent residents who committed criminal offences in Canada and are subject to deportation as a result. Certificates are rarely, if ever, granted for detention reviews. Community legal workers, law students, and on occasion, private lawyers have furnished advice and representation, but the arrangements are patchwork and unsatisfactory in relation to actual representation at detention reviews.
A serious and unaddressed need exists with respect to legal representation for detainees. Clearly, not all people in detention would qualify for legal representation in respect of the immigration process to which they are subject, such as deportation for overstaying a visa. On the other hand, even summary advice in such cases can enable detainees to make informed choices about their options, including a decision to return to their country of origin rather than remain in detention with little prospect of success on the merits of the case. As for detained refugee claimants, those who are released could enter the general pool of claimants who apply for legal aid.
There appears to be a consensus that whoever provides representation to detainees, it ought to be a designated person or persons who do so on a consistent and regular basis. This is critical for purposes of establishing familiarity and competence in dealing with the institutions and the staff who run them. Whether this service is provided by counsel from a community legal clinic, or from the Refugee Law Office (RLO), or by duty counsel, is less critical than simply ensuring that the service is provided.
MODELS OF SERVICE DELIVERY
In Toronto, most CRDD and judicial review cases are handled by the private bar through the certificate system. The Refugee Law Office, set up as a pilot project in 1994, represents a very small percentage of refugee claimants who are issued certificates in Toronto. In Toronto, community legal clinics handle a relatively small number of refugee claims, but do almost all the small amount of immigration work supported by the Plan in Toronto. In Ottawa, refugee claims are split between the private bar and community legal clinics. Community clinics in Ottawa do a significant amount of refugee and immigration work. Legal Aid of Windsor and Community Legal Services of Niagara South also undertake a proportionally significant amount of refugee work, taking into account the relatively low demand for services in those areas. The private bar deals with immigration and refugee matters in the Fort Erie-Niagara region.
The process leading to the denial of legal aid certificates to some refugee claimants raises some concerns. The Plan assesses claimants according to their financial means and those of their family and the merits of their case. In principle, no one objects to screening claimants for financial eligibility. Some criticize any assumption that the extended family may be able or willing to finance the applicant's legal costs. According to the Plan, only two to four percent of rejected applicants have been refused on the grounds that family members could finance legal representation. Ultimately, it is questionable whether such a small return justifies the administrative effort expended by lawyers and the Plan to pursue this avenue of payment, compounded by the additional uncertainty and stress imposed on the applicant.
After initially screening a file, the Plan has three options: first, issue a full certificate; second, reject the applicant for lack of merit; third, issue a three-hour "opinion certificate" which enables counsel to draft a letter to the Plan explaining the merits of the case, after which the Plan will decide whether to issue a full certificate. The practice of issuing opinion certificates appears to yield savings in a negligible percentage of total applications by refugee claimants for legal aid and imposes time, financial, personal, and administrative costs on lawyers, applicants, and the Plan. The legal aid authority should consider whether to continue opinion certificates, or whether it would be more cost effective to simply issue full certificates in all cases where it would currently grant an opinion certificate.
Individuals whose refugee claims are refused have fifteen days to file a notice of application for leave to seek judicial review by the Federal Court (Trial Division). Currently, leave to seek judicial review is granted to well under ten percent of all applicants. Failed refugee claimants are unable to deal with judicial review without expert assistance. Typically, a lawyer can obtain an opinion certificate from the Plan, which pays for four hours' time to prepare an opinion regarding the grounds for judicial review. It usually takes a week to ten days to receive the certificate. This means that the lawyer must file notice before receiving an opinion certificate. The decision about whether to fund judicial review is made by a three-person Area Review Committee for civil appeals. Not all members of the committee are lawyers, much less lawyers with immigration experience. Reliance on local Area Committees with disparate degrees of expertise and infrequent meeting schedules means that decisions about the granting of certificates for judicial review are neither timely nor predictable. Instead of having local Area Committees responsible for civil legal aid deal with judicial review of immigration matters, it may be preferable to constitute a single committee mandated to deal only with judicial review/appeals in immigration and refugee matters throughout the Greater Toronto Area. This committee could be comprised of people with expertise in immigration and refugee law, and be able to respond on an ad hoc basis.
Failed refugee claimants have two avenues of recourse in addition to judicial review. They can apply for consideration under the Post-Determination Refugee Claimants in Canada (PDRCC) program. This assessment is performed by the Department of Citizenship and Immigration. The criteria for evaluation focus on whether claimants would be at risk should they return to their countries of origin, notwithstanding their inability to meet the Convention Refugee definition. Claimants with $500 can also apply for humanitarian and compassionate (H&C) consideration pursuant to section 114(2) of the Immigration Act. Relevant criteria under H&C include settlement prospects in Canada, economic self-sufficiency, and family or personal relationships in Canada. Briefly put, PDRCC looks at risk of return, while H&C examines ties to Canada. The Plan currently funds neither H&C nor PDRCC applications. A few community legal aid clinics may handle applications for those claimants who live within the clinic's catchment area. Vigil, a non-governmental organization with one paid staff member, also provides free assistance to failed refugee claimants who wish to submit H&C or PDRCC applications.
In order to maximize the failed refugee claimant's options, it seems sensible that a lawyer should be able to consider all potential recourses. Rather than confine the Plan's funding to judicial review, legal aid administrators should consider modestly expanding the initial "opinion letter" funding for judicial review applications and permit the following:
- opinion letter on judicial review, and/or
- application for PDRCC, and/or
- application for H&C
Upon review of the file, counsel would decide how to allocate the available time, in accordance with which basis of post-claim review was most promising.
The situation is now pressing with respect to removal of permanent residents. The Plan has not funded these cases since April 1996. Where an applicant does not live within the catchment area of a community clinic that does immigration work, we propose that the legal aid authority consider resuming screening applicants with a view to funding financially eligible applicants who have been in Canada since childhood or adolescence and have little connection to their country of citizenship. These would appear to be the cases where the stakes are the highest, and where the consequences of removal of a permanent resident are most severe.
In 1995, Parliament enacted Bill C-44, an Act to amend the Immigration Act. Among the changes it introduced were provisions permitting the Minister of Citizenship and Immigration to declare a refugee or permanent resident a danger to the public. This power is exercised in the case of individuals who have acquired a criminal record in Canada since their arrival. The current procedure for issuing a certificate of public danger is rudimentary and opaque. An employee of Immigration Canada forms an opinion that an individual poses a public danger, and forwards the person's file to a delegate of the Minister. In the meantime, the subject is notified in writing that he or she has fifteen days to file any information relevant to the Minister's determination. This reply is forwarded to the Minister's office, where the delegate renders a decision without reasons. There is no appeal from the decision. The issuance of a "public danger" certificate will have drastic consequences for a refugee or permanent resident, resulting in removal from Canada. Most clinics do not take on immigration cases involving criminality. In such circumstances, legal assistance in drafting a submission to the Minister may be critical. A certificate to prepare a "public danger" submission could be issued for a limited number of hours to those for whom the consequences of removal are most serious. Refugees and those who have been in Canada since youth appear the likeliest candidates on this test.
Issues of quality control are a significant concern in the provision of legal aid in immigration and refugee matters. The majority of lawyers who do legal aid work on behalf of refugee claimants, refugees, and immigrants are dedicated people of integrity. They provide high-quality services and, through regional specialization, develop economies of scale and expertise in dealing with claims from certain countries.
Unfortunately, this is not true of all immigration and refugee lawyers. Consultation with non-governmental organizations, individual refugee advocates, and other lawyers confirm that a small but significant number of immigration and refugee lawyers are incompetent or unethical. Refugee claimants are a particularly vulnerable class. The subjects of these complaints are almost invariably lawyers from the private bar.
The Investigations and Complaints Department of the Plan investigates possible abuses of the Plan by lawyers. The department does not deal with competence issues, but rather with complaints that certain lawyers may be overbilling or otherwise defrauding the Plan. Despite the small size of the immigration bar relative to other specialized areas of legal practice, they are disproportionately represented among lawyers investigated, monitored, or prosecuted. Of forty-three lawyers investigated in the past year, seventeen were immigration and/or refugee lawyers. The Plan currently monitors all work done by twenty-seven lawyers, of whom sixteen are immigration and/or refugee lawyers.
From time to time, refugee advocates and other lawyers have reported various incidents of unethical or illegal conduct to the Plan and/or the Law Society. From their perspective, neither body has responded in a timely or interested fashion. The Plan has expressed interest in formulating standards of practice for immigration and refugee lawyers, but the Law Society maintains that this task falls within its own jurisdiction. To date, no standards have been set.
The following ideas for quality control have emerged through consultation and can best be explored and developed through meetings among the bar, the IRB, the Law Society, the Plan, non-governmental organizations, and community/ethnic organizations.
- Inform Claimants
- issue multilingual pamphlets available at Plan offices; take out ads in local ethnic newspapers explaining how legal aid works, what clients are entitled to expect from lawyers, prohibited conduct by lawyers, and so on
- make information available in the languages spoken by refugee claimants; to the extent that clients must rely on someone else to translate the information, claimants are vulnerable to unscrupulous intermediaries
- provide a number/contact person to whom complaints/questions can be directed
- Formulate Standards of Conduct
- formulate a Code of Conduct for the practice of immigration/refugee lawyers, including such matters as disclosure, interaction with clients, billing, and preparing vs. "coaching"
- Coordinate Investigation and Disciplinary Efforts
- use community organizations, the bar, and the IRB to assist in identifying priorities for investigation and evidence gathering
- drop lawyers from the Plan panel who do not comply with the Standards of Conduct
An alternative delivery model to judicare that still utilizes the private bar is to contract out blocks of cases (e.g. twenty-five) from the same country/region to lawyers for a pre-set fee, and allow counsel to tender bids based on quality assurance. On one variant of this model, the fee per case would be set in advance through consultation with the bar, and would not be the subject of bidding. Rather, counsel would bid for the contract based on the pre-set fee. The criteria for selection would be based on quality assurance, not price. Prior experience in the field, expertise in the particular country, a documented plan of action (which may involve use of supervised paralegals), prior history with the Plan, and so on, would all be relevant criteria.
The goal would be not to have lawyers bid down the cost of legal services and grant the contract to the lowest bidder. Such a mechanism may drive down the quality of service in an area of practice where quality control is already a major concern. The goal would be to ensure high quality services at the outset by implementing a selection process that identifies those lawyers who are able and willing to provide competent and efficient legal representation. Block contracting may generate administrative cost savings, so that contracting need not pay lawyers significantly less than what they would average under the tariff. However, resources would have to be devoted to monitoring the quality of services delivered by the lawyers selected. Major challenges to block contracting are implementing a tender and selection mechanism that will appear fair to the bar, and the fact that the process, depending on how it is structured, may deprive claimants of the ability to choose their own counsel.
COMMUNITY LEGAL CLINICS
Community legal clinics set their own priorities within their respective catchment areas. The needs of a geographic community vary from one location to another, and clinics must decide how to allocate their limited resources in accordance with the competing demands within their community. Thus, the availability of community legal services to immigrants and refugee claimants depends on decisions made by the board of a clinic.
All three Ottawa clinics have done more than ten percent immigration/refugee work in the last three years. Of twenty-four general services community legal clinics in greater Toronto, ten have done more than ten percent immigration/refugee work in the last two years. Another three have done more than forty immigration/refugee cases in either 1995 or 1996, but this amounted to less than ten percent of their total case load. Legal Aid of Windsor also handled a significant number of immigration/refugee files, bearing in mind that the demand in Windsor is relatively low.
On occasion, community legal clinics will take on refugee claimants who have been rejected by the Plan. Some of these refugee claims are successful before the IRB. Community legal clinics perform a variety of functions above and beyond representation in immigration/refugee proceedings before the IRB. They may assist in PDRCC applications, advocate for their clients with Immigration officials, or make H&C applications. Community legal clinics, unlike most private lawyers, also make use of supervised paralegals (community legal workers). Depending on their expertise, community legal workers can supply clients with a significant degree of assistance, as well as public education.
Aside from individual case work, community legal clinics are also active in public legal education, and advocate for law reform in various areas. The Ontario Interclinic Immigration Working Group (ICIWG), a network of clinic lawyers and community legal workers doing immigration/refugee work, shares information and strategies with its members, engages in consultations about matters affecting immigrants and refugees, and coordinates law-reform efforts. These are the strengths of community legal clinics. Their major weakness is that not all clinics do such work, and even clinics that do immigration and refugee work may offer a limited range of services that are not covered by the private bar or the Refugee Law Office. An individual with an immigration or refugee problem who cannot get a legal aid certificate cannot get legal assistance if immigration or refugee cases are not a priority for the local community clinic.
REFUGEE LAW OFFICE
The Refugee Law Office (RLO) was established in 1994, with a director, four lawyers, six supervised paralegals, and three support staff. It was constituted as a pilot project to compare cost-effectiveness and quality of service between a staff clinic and the judicare model. An ongoing evaluation of the RLO according to these criteria is being conducted. In order to conduct an effective comparison, the mandate and operations of the RLO were designed to parallel the activities of the private bar. The RLO handles only refugee cases before the CRDD and subsequent judicial review. It does no other immigration work. The employment of multilingual paralegals, it was contemplated, might enable the RLO to allocate certain components of case preparation to paralegals, whose services are less expensive than those of lawyers. Because of their multilingual capabilities, paralegals also interpret and translate. Clients must obtain a legal aid certificate from the Plan in order for the RLO to serve them. A critical pre-condition for the establishment of the RLO was that it not interfere in any way with the principle of "counsel of choice". This meant that the Plan could not direct clients to the RLO. At present, if an applicant for legal aid does not have a lawyer, the Plan will supply a list of counsel that includes the RLO, but will go no further.
Preliminary results from the RLO evaluation indicate that RLO clients strongly praised it. Clients appreciated the multi-ethnic/multilingual mix of staff, and perceived benefits in an office that specialized in refugee cases. In short, the quality of service currently provided by the RLO is more than satisfactory for its clients. This is not surprising, in light of the fact that the lawyers hired by the RLO were among the most highly respected members of the private bar. The most serious problem with the RLO is that at no time has it been able to attract a sufficient case load to operate at full capacity. Moreover, the projected cost savings to the RLO of utilizing paralegals in various stages of case preparation have not materialized. One reason is that the RLO assumed that paralegals would be able to do much of the work involved in expedited claims. The IRB utilizes an expedited process for claimants from countries with very high acceptance rates, or individual claimants with a profile that suggests a high likelihood of success. Instead of proceeding to a full hearing, expedited claims are determined on the basis of a relatively short (thirty to forty-five minute) interview with the Refugee Hearing Officer (RHO). The premise that the Toronto IRB would continue their practice of expediting claims proved unfounded. In recent years, and in contradistinction to every other IRB office in Canada, both Toronto IRB offices have virtually ceased expediting claims.
RLO lawyers and staff spend much more time per client than do members of the private bar. As of May 1996, the cost per RLO case was approximately 170 percent of the cost per case for the private bar working on Plan certificates. In 1996/97, the RLO received 119 CRDD certificates, or 3.12 percent of the total number of CRDD certificates issued in Toronto. During the same period, it obtained around 20 judicial review certificates, or about 4.5 percent of the total. The main hypothesis to explain why the RLO has not been able to attract a sufficient number of clients relates to the method by which refugee claimants choose lawyers. It appears that "word of mouth" is a key factor in refugee claimants' choice of counsel. According to the RLO evaluation, 60 percent of clients who use a private lawyer obtain the referral from a previous client, a relative/friend, a fellow national, or a translator. Only 25 percent of the RLO clientele obtained a referral from the same sources. While the RLO has made efforts to publicize its existence, it is arguable that it underestimated the need for systematic and regular outreach.
The restricted mandate of the RLO precludes it from using its resources to meet needs which are currently unaddressed or under-addressed by the private bar and community clinics. Chief among these are the needs of detainees. Although the RLO can represent refugee claimants in detention, its mandate does not permit it to represent other detainees. As noted earlier, effective representation of detainees requires that a limited number of persons be routinely assigned to the detention centres. Such individuals can develop the familiarity and ongoing relationship with the institutions that are required to facilitate representation, summary advice, information, and advocacy on an ongoing basis. The RLO is not currently organized to provide this service, but could do so if its mandate were expanded. Similarly, the RLO could also take on certain other immigration matters, such as deportations or "public danger" certificates, subject to time and resource availability. In so doing, the RLO could "fill in the gaps" for persons who fall outside the catchment areas of community legal clinics that do immigration and refugee law.
The assumption that the relationship between the RLO and the private bar is primarily competitive also overlooks the opportunities for the RLO and the bar to complement each other. For example, the paralegals at the RLO possess the expertise and experience to provide high-quality research with respect to a number of source countries. It is not always efficient for lawyers to employ paralegals themselves. Lawyers may end up doing research on their own, for which they bill the Plan, or which they do for free. Paralegals at the RLO could provide research services to the private bar. In addition, the more research funnelled into the RLO, the RLO will be better able to consolidate a body of research for use by all counsel. This could prevent the needless repetition of effort and the expense incurred by lawyers working in isolation.
An encouraging example of an apparently well-functioning Staff office in the immigration context is the B.C. Immigration Law Clinic (ILC), which was set up in Vancouver in 1995. Three lawyers, one paralegal, and one support person staff the clinic. It handles about 10 percent of all refugee claims in Vancouver. Its mandate differs from that of the RLO, and it provides a useful illustration of different ways in which Staff Offices can function. In British Columbia, certificates are issued for inquiries, detention reviews, deportation, and refugee claims, but not for sponsorship appeals. The ILC is located in the same building as the B.C. Legal Services Society (the B.C. equivalent of the Plan). The Legal Services Society issues certificates for private lawyers as well as the ILC. It does not direct clients to the ILC, but the fact that the ILC is one floor above the Legal Services Society office provides a practical incentive to legal aid recipients at least to "check out" the clinic. The ILC handles all immigration matters covered by legal aid. Law students handle sponsorship appeals because these are not covered by the legal aid tariff. In addition, students deal with other legal problems of immigrants and refugees, such as landlord and tenant, wrongful dismissal, and income security. The ILC has no difficulty sustaining a busy case load. Indeed, the director indicated that the ILC could handle cases more efficiently if it had one more paralegal and support staff. About half to three-quarters of the case load consists of refugee claimants. No systematic evaluation of the ILC has been undertaken, and thus it is not possible to comment on the cost-effectiveness of the ILC, although it clearly has been more effective that the RLO.
In a new legal aid system, the RLO could undertake a more systematic and concerted strategy of public education and publicity. This might include establishing regular contact with shelters, community organizations, etc. Establishing linkages with various communities seems indispensable to the effective operation of any refugee law practice. The RLO could provide on-site summary advice, including information about how to apply for legal aid. This type of work takes significant amounts of time, often outside regular working hours, and requires transportation.
Another proposal, which is patterned after Staff Offices in Manitoba and Quebec, is to shift all initial screening for legal aid certificates in immigration and refugee matters in Toronto to the RLO. Applicants who make their application at other area offices would continue to be screened in the usual fashion. Under this model, the RLO would assume responsibility for screening all applicants in the Toronto area for legal aid and making recommendations on eligibility for legal aid to the Area Director. Applicants who already had counsel and otherwise qualified would be issued a certificate for their counsel of choice. Applicants without counsel who qualified for legal aid would be given the option of utilizing access to the services of the RLO.
There are several advantages to this proposal. First, the staff performing the screening at the RLO would have regular involvement with refugee cases. Their experience and exposure to the daily practice of refugee law gives them an advantage in initial screening for eligibility (particularly for merit).
Second, the fact that applicants for certificates would have to physically go to the RLO provides the RLO with automatic visibility and exposure to the various communities of refugee claimants. This may, in turn, result in more claimants choosing to utilize the services of the RLO, without directing them or otherwise interfering with the principle of counsel of choice.
- The legal aid authority should establish a needs-assessment and priority-setting process for application by local decision-makers, and an appeals process, in relation to refugee and immigration matters in accordance with the principles set out in this report.
- With respect to the issuance of legal aid certificates for refugee determinations, the legal aid authority should consider whether the current process of screening claimants to determine whether family members could finance legal representation is cost-justified. Similarly, the issuance of "opinion certificates" to enable counsel to draft a letter to the Plan explaining the merits of the case rather than full certificates should be reviewed to determine whether this is cost effective.
- In the event of a negative refugee determination, the legal aid administrators should consider modestly expanding the initial "opinion letter" for funding for judicial review and permit: (a) an opinion letter on judicial review; and/or (b) application for consideration under the Post-Determination Refugee Claimants in Canada (PDRCC) program; and/or (c) application for humanitarian and compassionate consideration.
- The legal aid system should provide legal aid services for detainees, at least with respect to an initial detention review, through the Refugee Law Office.
- With respect to deportation proceedings, legal aid should resume screening applicants with a view to funding financially eligible applicants who have been in Canada since childhood or adolescence, and have little connection to their country of citizenship if this qualifies as an overall priority for the legal aid system. Similarly, legal aid certificates for preparation of certificate of "public danger" submissions to the Minister of Citizenship and Immigration should be considered for a limited number of hours to those for whom the consequences of removal are the most serious (refugees and those who have been in Canada since their youth).
- The legal aid authority should consider whether there are cost savings to be realized from contracting-out blocks of cases from the same country or region to lawyers or law firms for a pre-set fee (to be determined in consultation with the bar), and allow counsel to tender based on quality-assurance commitments.
- The legal aid authority should adopt a range of quality control strategies, including: (a) information vehicles explaining to claimants how legal aid works, what clients are entitled to expect from lawyers, and providing a number/contact person to whom complaints/questions can be directed; (b) formulating standards of conduct for the practice of immigration/refugee lawyers; (c) coordinating investigation and disciplinary efforts.
- The mandate of the Refugee Law Office, established as a pilot project in 1994, should be substantially extended to include not only refugee determinations, but detention reviews, deportation proceedings, applications for consideration under the Post-Determination Refugee Claimants in Canada program, applications for humanitarian and compassionate consideration, and certificates of "public danger" submissions. In addition, all initial screening for legal aid certificates in immigration and refugee matters in Toronto should be undertaken by the Refugee Law Office (renamed the Immigration Law Office), with successful applicants for legal aid then having the choice of using the services of the RLO (ILO) or private counsel.