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Legal aid ping pong harms vulnerable refugee claimants | Stephen Kaduuli

Wednesday, August 21, 2019 @ 1:23 PM | By Stephen Kaduuli

Stephen Kaduuli %>
Stephen Kaduuli
In its spring budget, the Ontario government cut Legal Aid Ontario (LAO) funding by $133 million and said it will no longer provide provincial funds for refugee and immigration cases. LAO is mandated to promote access to justice for refugee claimants among other vulnerable Ontarians.

The cuts would mean that claimants would have been denied timely representation by legal counsel. Their inability to access representation would have jeopardized their refugee claims to the Immigration and Refugee Board (IRB) because it is a complicated process that requires knowledge of the Canadian legal system. It would have resulted in inefficiency, backlogs and disruption in the administration of justice.

The IRB had earlier warned that the cuts would affect the board’s operations due to the expected rise in the number of refugee claimants without legal representation. Approximately 70 per cent of refugee claimants in Ontario have over time been represented by lawyers funded by legal aid.

Last week, Prime Minister Justin Trudeau announced that the federal government will fill the funding gap created by the budget cuts with a “one-time top-up” of $26.8 million specifically for immigrant and refugee legal services. Of this, Ontario will receive $25.7 million, $200,000 will go to Manitoba and $1.6 million will go to British Columbia. Erin Simpson, of the Canadian Association of Refugee Lawyers, said the funding is “a huge step in the right direction.” Shalini Konanur, of the South Asian Legal Clinic of Ontario, said “Access to justice is the single right that makes every other right possible,” and that “If you cannot have access to justice it is virtually impossible for the vulnerable communities that we work with to assert their legal rights.”

Historically, the responsibility of funding LAO has been shared between the federal and provincial governments. LAO gets most of its funding from the provincial government and the Law Foundation of Ontario (LFO). The Ontario government gives LAO a portion of the funding it gets from the federal government under a cost-sharing agreement. LFO gives LAO 75 per cent of the interest earned on lawyers’ and paralegals’ trust fund balances. Federal government contributions are part of a cost-sharing arrangement between the two levels of government for all legal aid services. The funding that LAO receives from the provincial government includes funds from this arrangement.

The annual costs associated with refugee and immigration services is close to $45 million, of which federal funding has been $16 million. However, the Ontario government now argues that the refugee system’s associated legal costs are the federal government's responsibility. The federal government, on the other hand, maintains that legal aid is a provincial duty. Trudeau said they “will engage in reflection and conversations in the coming year about how to ensure long-term sustainability for legal aid for refugees and immigrants.”

On the face of it, the federal government has provided this money to avert the consequences that vulnerable refugee claimants would have encountered in making their claims. Trudeau drove this point home when he said that “Conservative politicians like to say they're ‘for the people’, and then they end up cutting services for the most vulnerable.” But in his rebuttal, Ontario Attorney General Doug Downey said that he was disappointed that the funding is not for the long term and that Trudeau is simply playing politics. He added that “I think the public will be naturally suspicious of the timing, right before an election.”

He cited a report from his office that showed that the federal government provides other provinces with 70 to 90 per cent of their refugee and immigration legal aid costs, while Ontario receives only about 35 per cent of the costs. He added that the contribution of $16.9 million last year left Ontario with a $25 million gap. He also said that if the amount announced is in fact the total funding Ontario will get, the province has no responsibility to pitch in and cover the $20 million shortfall in funding.

It is counterproductive to play political ping pong with the lives of the most vulnerable, and they should not be used for political expediency. Funding legal aid should be shouldered by both levels of government and should not be treated as a partisan issue. The adult way of handling it is to sit down and lay out clear modalities of how to fund legal aid in all provinces going forward.

The Canadian Bar Association’s #LegalAidMatters campaign calls upon the federal government to show leadership by committing to stable, sustainable legal aid funding for everyone who needs it and to adopt funding principles for a national, integrated system of public legal assistance.

Ultimately, determining funding levels is the responsibility of all federal, provincial and territorial governments.

Stephen Kaduuli is the refugee rights policy analyst at Citizens for Public Justice. He is a social scientist with paralegal training. He is very passionate about public justice issues including refugee and forced migration issues, poverty reduction and access to justice. 
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