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Ontario’s cuts to legal aid for refugees: Possibly unconstitutional | Shiva Bakhtiary

Tuesday, July 02, 2019 @ 2:34 PM | By Shiva Bakhtiary

Shiva Bakhtiary %>
Shiva Bakhtiary
The Ontario provincial government has called on the federal government to cover the full cost of refugee and immigration law services. Legal Aid Ontario (LAO) is now prevented from doing refugee and immigration law with provincial funds. The organization will now have to rely solely on federal funding, which is not nearly enough to cover costs.

LAO issued 13,687 certificates for immigration and refugee services last year, covering 13 per cent of the total number of certificates issued. The organization spends about $34 million a year for refugee law services, of which $18 million came from the province. The federal government is providing $16 million in funding this year for refugee law work, but the entire program costs about $45 million.

It is true that refugee and immigration is a federal matter. But so is criminal law. It is difficult to see a reasoned distinction for eliminating one from provincial funding and not the other. This is not about jurisdiction.

The specific targeting of refugee claimants and immigrants can result in a legal challenge. Sherry Aiken, an associate professor at Queen’s Law explained that the targeting of refugee claimants and immigrants would have a disproportionate impact on one segment of the population. This is “unconscionable” as it implements a budgetary policy in a discriminatory way and implies that “refugees and newcomers are not entitled to be treated with the same degree of respect.” It is on these grounds that an immediate cut of this nature will likely result in a constitutional legal challenge.

It’s worth noting the case of Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177, where the Supreme Court of Canada ruled that everyone “physically present in Canada” is entitled to protection of their right to life, liberty and security under s. 7 of the Canadian Charter of Rights and Freedoms. This includes refugees and migrants physically present in Canada.

It is also worth noting the case of New Brunswick (Minister of Health and Community Services) v. G.(J.) [1999] 3 S.C.R. 46 where the Supreme Court of Canada established that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where proceedings are complex and where the litigant is not capable of self-representation — all factors that are present in many refugee hearings.

Like individuals charged with crimes, refugees have important rights at stake such as the right to life, liberty and security. If not properly recognized, refugee claimants may be deported to face war, persecution, torture or death. As such, refugees are constitutionally entitled to legal aid.

The world considers Canada as a welcoming nation for those seeking safety, security and freedom. It is now left to the federal government to uphold that image.

This is part two of a two-part series. Part one: Misguided cuts to Legal Aid Ontario’s funding.

Shiva Bakhtiary is a  lawyer at Augustine Bater Binks LLP, a litigation firm in Ottawa.

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