Immigration detention: Lack of legal representation | Madeleine Andrew-Gee
Thursday, August 20, 2020 @ 10:02 AM | By Madeleine Andrew-Gee
It is time for Canada to also look inwards at the failures of its own immigration detention system, specifically that many detained persons cannot advocate for their rights given their lack of legal representation.
The barriers to accessing legal representation in detention, coupled with the difficulty of navigating a complex administrative process alone, have negative impacts on the outcome of detention reviews. As a country that claims it welcomes immigrants and refugees, Canada must adopt a national approach that provides legal counsel for all detention review hearings to ensure that all people, regardless of legal status, can advocate for their rights.
Immigration detention in Canada
Individuals in immigration detention in Canada are detained through an administrative process, not a court of law, with inadequate safeguards in place to protect a detainee’s rights. The Canadian Border Services Agency (CBSA) can detain a person who is a non-citizen for being considered a “flight risk,” for failing to prove their identity, for being deemed a danger to the public or for being deemed inadmissible to Canada for a ground enumerated in the Immigration and Refugee Protection Act.
Unlike many other liberal democracies, Canada does not have any legal limit on length of detention, meaning individuals in immigration detention can be detained indefinitely.
Once detained, the law mandates that detainees have a detention review in front of the Immigration Division of the Immigration and Refugee Board of Canada within 48 hours. Another review is mandated after seven days and again every 30 days after that until release.
Detention reviews are an adversarial process in which the CBSA, representing the Department of Public Safety and Emergency Preparedness, presents its case for why the individual should remain in detention.
Canada’s immigration detention system has been called out by domestic and international critics for inhumane practices, including detention of children and indefinite detention. In 2017, the CBSA released the National Immigration Detention Framework, which aimed to “to create a better, fairer immigration detention system.” The framework, and subsequent policy directives, brought some important reforms to treatment of minors and alternatives to detention.
Yet, these positive policy developments have not addressed a lack of legal safeguards to protect the rights of individuals in immigration detention nor have they addressed the lack of access to legal representation.
Lack of access to legal representation: Inconsistencies from coast to coast
The negative impact of lack of access to legal counsel on a detained person’s chances of being released was documented in an external audit of the detention review process in 2018. The report asserted that unrepresented individuals were often unable to meaningfully engage in their own detention reviews or adequately present their case.
Detainees would sometimes only be provided with copies of previous decisions or written materials minutes before the hearing started. Inaccessible language, language barriers and a lack of clear explanation of the proceedings were also found to be significant barriers to participation.
These systemic barriers lead many unrepresented individuals to become understandably frustrated with the detention review process. Lack of access to incoming calls at provincial jails, or contact with family and community supports, compounds frustrations with the system.
Some choose to stop participating in or appearing at hearings, which can be held against them later in their immigration proceedings. These significant barriers lead to a higher chance of continued detention.
Province to province, there are large discrepancies in the approach to providing legal counsel for individuals in immigration detention. Some provinces have better, fairer systems than others.
In 2018, only 38 per cent of individuals had legal representation at detention review hearings in the Central Region. In a sample of hearings observed in 2018, only 10 per cent of reviews in Ontario had legal representation present.
Yet, in Quebec and Vancouver there are duty counsel programs. Those regions have much a higher percentage of representation at detention reviews, 76 per cent and 70 per cent, respectively.
Urgent need for national representative program
Canada must implement a national system of legal representation for detention review hearings. On Aug. 7, in Brown v. Canada (Citizenship and Immigration)  F.C.J. No. 835 the Federal Court of Appeal affirmed the need for robust procedural fairness in detention reviews and asserted that this duty of fairness “requires that the affected person know the case they have to meet and have an adequate opportunity to respond.”
One way to ensure individuals in immigration detention have an “adequate opportunity to respond” is to provide quality legal counsel nationally. As stated in the external audit of detention reviews, “the availability of legal aid-funded counsel in all regions would reduce the power imbalance in the hearing room as between detainees and the CBSA and would greatly assist the ID [Immigration Division] in the proper execution of its mandate.”
As our system currently stands, the region where a person is held and the availability of legal counsel may be more determinative of their chances of being released than the actual case against them. This injustice cannot stand in a country that claims to be a welcoming place for all.
In March of this year, Legal Aid Ontario extended its legal services for detention review hearings when it recognized the “high risk that detained clients may face from the COVID-19 pandemic.”
It is time that we recognize the serious harm that people in immigration detention have consistently faced since well before the pandemic. We must extend free, automatic and quality legal counsel to all individuals in immigration detention throughout Canada.
Providing legal counsel to individuals who are detained nationwide will not solve the systemic problems within Canadian immigration detention itself, but it is a necessary step in moving towards a fairer, more transparent immigration system.
This article is the second of a series on self-representation. The first article: Law schools must teach about self-represented litigants | Cassandra Richards.
Madeleine Andrew-Gee is a JD candidate at the University of Toronto Faculty of Law. This summer, Andrew-Gee is working at Downtown Legal Services in the Refugee and Immigration Division. Follow her on Twitter at twitter.com/madeleineag2.
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