Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for November 26, 2012
John McCamus, Michael Bossin, Raoul Boulakia, Gerri MacDonald, Sean Rehaag, James McNee
Legal Aid Ontario
Aneurin Thomas, Vicki Moretti, Jawad Kassab, Maureen Murphy, Heather Morgan
2. Welcome and Introductions
The Chair opened the meeting.
3. Minutes, April 16, 2012
The minutes of the April 16, 2012 meeting were approved.
4. LAO Slide Deck and Environmental Scan
- The Chair indicated that a brief overview of the business planning and environmental scanning slide deck would be provided, but that the main focus of the meeting was expected to be a discussion of the upcoming refugee law changes. He noted that the LAO Vice President, Greater Toronto Area (GTA) Region and the LAO Director, Corporate Services Planning and Strategic Initiatives, were attending the meeting to provide information to the committee about what is happening at LAO, particularly with respect to LAO’s consultation paper.
- It was noted that the individual slide decks for all eight advisory committees were included with the main deck, as at the spring meeting, to provide a sense of what is going on in other areas. LAO is happy to answer any questions that members may have about anything that is in any of the decks.
- Highlights of the main slide deck were presented, including LAO’s expenditures and revenues. Law Foundation income is slowly coming back but is not expected to return to previous levels. LAO will come close to balancing its operating budget this year, but there is still a large accumulated deficit that needs to be addressed. LAO is also concerned about the fact that there is no committed government funding to support the final three tariff increases that were agreed to by the Ministry, LAO and the Criminal Lawyers’ Association in their memorandum of understanding. If the Ministry does not fund these increases, LAO could face a $27 million shortfall. The committee felt that it would be difficult for the government, or any elected government, not to honour the memorandum of understanding.
- LAO service line statistics were referred to. Immigration and refugee certificates have increased and family law certificate have decreased. The increase in the number of criminal certificates that is shown in the slides is not entirely accurate, because instead of amending certificates LAO is now issuing a second certificate where a client’s charges are heard separately, and this has resulted in “double counting” of some certificates in 2011-2012.
- LAO is continuing to implement its modernization strategy, with a focus on utilizing technology to maximum advantage and reducing administrative costs. Some of LAO’s major initiatives this year include the introduction of new discretion guidelines, the development of a mental health strategy, a project to explore the integration of licensed paralegals and a review of financial eligibility. It was noted that last year, the annual report of the Auditor General had identified financial eligibility as a problem. LAO does not control its financial eligibility guidelines, which were reduced in the 1990’s and which have remained static since then. The Auditor General recommended that LAO study the issue and that work is now ongoing.
- The LAO Director, Policy, provided more detailed information about the financial eligibility project. The first part of the study, which will be released to the public when it is completed, will contain a statistical analysis of the number of low-income people in Ontario and the number of people who are financially eligible for legal aid. The second part of the project will be a policy study focused on potential ways of expanding eligibility. The third part of the study will focus on how LAO may be able to unlock resources to fund expanded eligibility.
- A member raised a concern that increasing financial eligibility, in the absence of new government funding with which to do so, may simply create pressure to reduce services, and that this is being perceived as disturbing and troubling. The Chair noted that the statistical study that is underway will demonstrate just how terrible the financial eligibility problem is. However, he stressed that LAO is a long way from deciding what can be done about it. It was noted that LAO is obliged to respond to the Auditor General’s recommendation.
5. Immigration and Refugee Law Discussion
- Committee members were not sure what is happening with the implementation of Bill C-31. Based on what members had heard, it was unclear whether or not the government would be in a position to roll out the new system in December. It was felt that the government’s plans were being kept “close to the chest”. The mid-December date seemed problematic to members, in terms of getting the new system up and running.
- It was reported that new Refugee Protection Division members had been hired and that training is taking place now in Toronto.
- Attempts are being made to ensure that as many “legacy cases” as possible will be dealt with before the new system is in place. Afterwards, new cases will be held in the mornings and legacy cases will be heard in the afternoon. In the event of a conflict, however, it has been indicated that the new cases will take priority.
- The Chair invited the LAO Vice President, GTA Region, to provide the committee with an update on the consultation process following the release of LAO’s paper. She advised the committee that, to date, there have been nine consultation meetings around the province, involving private bar lawyers, clinics and agencies: six in the GTA, two in Ottawa and one in the Fort Erie area. She provided the following summary of what LAO has heard so far.
- Regarding initial and Basis of Claim (BoC) services: LAO should consider a summary legal advice (SLA) hotline at port-of-entry sites; SLA and triaging must be performed by subject-matter experts; BoC form and front-end services are critical and should be funded; it is problematic to assess cases based on RPD acceptance rates; different views have been expressed about services for Designated Country of Origin (DCO) cases – some felt these claimants should have more restricted access to services, while others felt these cases should be funded where there is a reasonable chance of success, perhaps being referred to a clinic for an initial merit assessment.
- Regarding Refugee Protection Division (RPD) hearings, LAO has heard that representation is important even where there is a 90 per cent success rate; also that there should be representation for DCO claimants who have a reasonable claim as these cases will be contested.
- With respect to the new Refugee Appeal Division (RAD), LAO has heard that meritorious RAD appeals should be funded and that LAO should consider a panel of staff specialists to do this work. Concerning judicial reviews, it has been suggested that LAO needs to consider how it will deal with the expected increase in emergency Federal Court stay applications. LAO should consider a specialized panel of lawyers to assess and proceed with meritorious judicial review applications, without the requirement of area committee approval.
- On the subject of payment options, the input to date has been negative with respect to service contracts, on the basis that they would create competition between lawyers, would create a barrier to participation by new lawyers, and would sacrifice quality for cost savings. Block fees were considered more positively. It was also suggested that LAO could reduce the 16-hour preparation time on a certificate and redistribute the hours to various services, such as preparation of the BoC and preparation for the hearing.
- Regarding unbundling, there were concerns expressed about lack of continuity of service. It has been suggested that LAO should provide plain-language instructions to clients about processes, to ensure that there is a proper transition. The announcement of the closure of the Ottawa RPD hearing office has led to concerns about clients in Ottawa being able to access services for hearings in Montreal.
- Input about alternative service providers to date has suggested that there is scope for paralegals, supervised by lawyers, to do this work. LAO has heard that paralegal training in college does not, however, properly prepare paralegals to work in this area. The idea of immigration consultants providing these services has been rejected. There is some support for staff duty counsel providing services at ports of entry. Clinics indicated that they lack the experience and capacity to take on refugee law services, although some clinics do this work and are interested in continuing to do it, with sufficient resources. It has been suggested that there is a need to work with community service providers, particularly given the short timelines. The Refugee Law Office (RLO) is held in high regard, particularly by agencies. It has been suggested that the RLO could provide expanded services, for example through “mini-RLOs” that could provide assistance at ports of entry. Agencies have suggested that LAO provide support for the provision of student and volunteer services, and have indicated that summary legal advice and public information would be helpful. There was support for LAO continuing to develop web-based information and case-specific research.
- Other feedback from the consultations to date has been that LAO should be more effective at removing incompetent panel members, that LAO should more closely scrutinize applicants who have family members who might be able to pay for legal fees, and that LAO should undertake foundational work to establish the relative cost-effectiveness of different service delivery models.
- Overall, the key messages that LAO has heard during these consultations focus on the importance of quality, continuity, assessment based on merit, and providing some form of assistance to claimants from all countries.
- The Chair invited the committee to provide feedback for the Board’s consideration.
- Members echoed the concerns voiced in the consultation process about assessing claimants based on DCO designation. Using grant rates and DCO to determine whether or not to provide representation was felt to be a bad idea and most likely unconstitutional, particularly since claims based on gender or sexual orientation often come from countries with low grant rates.
- Members also felt that LAO should be more proactive about funding test case litigation. It was suggested that LAO could fund clinic efforts to fight Bill C-31. The point was made that clinics that do refugee work often do the kinds of things that the private bar does not do, and that they would like to continue in this role.
- The point was made that refugee claimants are vulnerable. They are thrown into this process just after arriving in Canada. Assistance at the front end of the process is vital.
- It was noted that the closing of the Ottawa office was a budget decision and not a decision by the Immigration and Refugee Board (IRB). Over 600 hearings were held in Ottawa last year. This was not a well-thought-out decision, and there is a human rights issue involved. Claimants are unable to afford travel to Montreal. There is a lobbying effort underway to keep something open in Ottawa, and support from LAO would be welcome.
- Members said that there were aspects of the consultation paper that they found troubling. The paper comes at a time when more, and not less, resourcing for refugees is needed. The federal government is busy creating a system that will make things harder for refugee claimants, and it would be a catastrophe for LAO to cut its funding at such a time. Yet the paper seems to be focused on cuts. It throws out ideas like using immigration consultants, and allowing the Minister to dictate (based on the DCO list) whether a claimant will be represented by a lawyer. Also, it was felt to be wrongheaded to base decisions on the statistical grant rate that the IRB uses. In some cases, the situation may have changed by the time the client’s hearing comes up. In other cases, having a lawyer does make a difference. It would be wrong for LAO to use those statistics, or the government’s own designation, to decide who can have a lawyer. The point was made that, if anyone needs a lawyer, it is the DCO claimant, because the deck is already stacked heavily against that person.
- It was noted that websites and summary legal advice services will not assist people who do not speak English or French. Summary legal advice may be helpful at ports of entry, but after that people need representation. Lawyers often have to do extra work to undo problems that were caused by a client’s having received summary legal advice. Models that work well in the areas of criminal and family law may not necessarily work in refugee law, because people have just arrived in Canada and do not speak the language. Emphasis should be placed on providing services at the front end.
- A member said that if cuts, and not rights, are the main priority, that will make the discourse much more difficult. There was an appeal for the Board to recognize how serious the issues are, and to make a commitment to ensuring that rights are protected. Instead of arguing for more funding for legal aid, LAO seems to actually be arguing against itself and what it does well, by suggesting that perhaps people do not need lawyers.
- LAO was urged to articulate, clearly, the principled position that it is taking. If LAO’s position is that it cannot afford to provide representation to every person who has a meritorious claim, then it should say so explicitly. It should admit that this means that some people will be returned to a place where they will be tortured. If LAO’s position is that claimants from DCO or low grant rate countries do not have meritorious claims, then it should spell that out as well. There will be constitutional challenges to a decision by LAO that it will not fund meritorious claims.
- The LAO Director, Policy, indicated that there is a legitimate consultation process going on, and that it is not accurate to suggest that LAO’s mind is made up. The paper does not trivialize the needs of anyone; instead, it asks how it can meet those needs effectively within fixed funding. Such a position does not preclude LAO from seeking additional funding; however it accepts that LAO needs to work with the cards it has been dealt. LAO has heard the committee’s position on quality, and about using a more explicitly merit-based approach. While no commitments can be made, these matters will be on LAO’s radar. Members were urged to provide LAO with ideas for getting more value for money. The letter that the Refugee Lawyers’ Association sent to LAO did not talk about any potential alternatives to the private bar service model or acknowledge that there could be any different way of doing things.
- Members indicated that it is fair to ask whether the existing system is in fact the best possible system. There is no problem with supervised paralegals doing more, and the RLO does an excellent job. Everyone would like to see a better system. It is difficult to have these kinds of conversations, however, in the context of the priority being cost-cutting. For example, LAO does not do enough to ensure quality of service, and there are real problems with the quality of some certificate services. One member said that having a specialized panel for RAD appeals and judicial reviews, with District Area Directors having discretion to approve funding, is a good idea, because there are a lot of poor quality services being provided. Another member said that using contracts could help to improve quality, but if the priority is just cost-cutting, then contracts will only ensure mediocre services. People need to know what the context is for this discussion. LAO needs a system that works, and not just a system that is the cheapest. Clinics and the RLO could be part of a holistic design, but it does not make sense to say “flip everything over to the RLO” because the RLO does not have that many lawyers. In British Columbia, legal aid moved away from a staff and clinic model in favour of the private bar model. LAO should be careful about implementing reform for the sake of reform. LAO has an effective private bar that can be strengthened. The bar is not hostile to improvements, it just wants to be sure that these really are improvements.
- A member stated that the biggest problem with the consultation paper is that it does nothing to push back against what the federal government is doing, and never acknowledges that the new system is a direct attack on refugees. Another member said that the paper has come out at what is really the bleakest moment for refugees, adding that it would not be surprising if the bar becomes discouraged, particularly after LAO announced changes to refugee services in August, to be effective in early September, without prior consultation with the bar. It looks as if there is a genuine consultation process going on now, but there is a perception out there, because of what happened in September, that LAO has already made up its mind. Members understand that LAO is not obliged to consult with the committee, but since it has a committee, why would it not want to reach out? It was noted that one committee member resigned when the September changes were announced, and that another had considered resigning. The Chair said that LAO is aware of these frustrations, adding that LAO welcomes the committee’s advice and hopes that members will remain open to further discussions. Members indicated that they believe the consultations are important and that they are willing to continue the dialogue. The point was made by a member that LAO and the bar are both under considerable pressure, and that sensitivity is needed on both sides. The Chair agreed with these comments.
- Members asked what was going to happen next. The LAO Director, Corporate Services Planning and Strategic Initiatives, said that consultations are scheduled to conclude by December 10th, and that LAO expects to post the feedback, in its raw form, by December 20th. The feedback will be used to create a model proposal. A member asked about plans for cost-cutting; the Chair said that the Board has not picked a number or been asked to pick a number. However, costs have been going up, new cost pressures are on the way, and LAO is confronted with cost pressures across the system. There is no one on the Board, however, who does not think that LAO should be providing high quality services. In terms of planning timelines, LAO is not sure, because the implementation date for the new system is unknown. A member suggested that LAO should develop two plans, one for a December implementation of C-31, and one for a delayed implementation.
6. Discussion of Potential New Members
Members were invited to send suggestions for new committee members to LAO Policy Counsel assisting the advisory committees.
7. Other Business
A member noted that the Refugee Lawyers’ Association is holding elections at the end of November. As of November 30 there will be a new President and new executive members.