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Cutting legal aid for refugee claimants is lose-lose

Wednesday, May 08, 2019 @ 8:33 AM | By Maureen Silcoff

Maureen Silcoff %>
Maureen Silcoff
The first time I worked on a refugee file was in 1983. As a law student at Osgoode Hall Law School’s Community and Legal Aid Services Program, I interviewed a young man who came into the clinic. He had escaped a repressive African country where he was imprisoned and tortured because he attended a peaceful demonstration. My supervisor ended up instructing me to refer him to a lawyer who could take on his case with a legal aid certificate, because the matter was too complex for a law student to handle.

So how is it that the Ontario government is sending non-English speaking, traumatized people to their hearings before the Immigration and Refugee Board without lawyers? If you would arrive in Norway, suffering from post traumatic stress disorder, and had to gather evidence and present a case by yourself in a Norwegian court, would you know what to do?

The Ontario government is also sending people off to the Federal Court to argue questions of administrative law on their own. Could an average person spot a jurisdictional error and decipher the Dunsmuir test?

Beyond that, which tribunal member or judge would be comfortable proceeding with people whose lives are at stake when they have no lawyer? I imagine adjournments will abound.

And when cases do proceed, how efficiently could they be heard when unrepresented refugee claimants are trying, and likely failing, to present their case? Will refugee hearings double or triple in duration?

The Ontario government isn’t even claiming that refugee claimants don't need lawyers. They know they do. Yet, a couple of weeks before the April 11, 2019, budget, they suddenly warned the federal government that they would pull the plug on a long-standing cost sharing arrangement, saying the latter should pay for the entire refugee and immigration program. And then they magically waved a handkerchief and a decades old system simply disappeared.

Days after the budget came out, Legal Aid Ontario announced that because they were instructed to cease the program, effective within hours, they would pull funding for all refugee and immigration cases aside from paying for application forms used to launch refugee claims.

An article in The Lawyer’s Daily, titled “LAO explains changes to refugee services; legal community slams provincial cuts” dated April 18, 2019, referred to CEO David Field insisting that core services be maintained, but stating that appeals will not be covered. Unfortunately, with the exception of funding refugee application forms, the entire program has been decimated, not only appeals. The cuts include legal aid certificates for refugee hearings, judicial reviews, stays of deportation, humanitarian applications, detention hearings, sponsorship appeals and more.

Notably, not only refugee and immigration services are affected by the budget cuts. This year’s entire legal aid budget has been slashed by 30 per cent, despite a proven need for services. The Ontario government attempted to justify the cuts by saying that fewer people are using legal aid. However, Dana Fisher, a legal aid lawyer with the United Society of Professionals, crunched the numbers and disproved that point.

The upshot is that vulnerable people must now fend for themselves.

The consequences could not be higher. Refugee matters can involve life and death situations. Women may be deported and face abusive husbands. LGBTQ persons may be deported and face violent assaults. Teenagers may be deported and face abduction by extremists.

Aside from the unfairness to vulnerable people, the cuts are short-sighted from an economic perspective. They stand in sharp contrast to the province’s declaration that it’s open for business. That’s because both the Business Council of Canada and the Conference Board of Canada have recently articulated that our future financial success depends on more immigrants. When refugees are given the tools to succeed, they can establish themselves and contribute to the growth of our economy. It’s a win, win situation.

When I recently got into a cab, I noticed the name of the driver posted on the back of the seat. It was unusual and rang a bell back to 1983. We started talking and filled in the long gap. He had been granted refugee protection, was married, had children and bought a house in the 905 area. Maybe your kids play soccer with his kids. Maybe you work alongside his wife.

Will we continue to tell these success stories down the road? That depends on how loudly we raise our voices today.

Maureen Silcoff is a partner at Silcoff Shacter in Toronto and practises in the areas of refugee and immigration law. She was a member of the Immigration and Refugee Board for five years and co-chairs the litigation committee of the Canadian Association of Refugee Lawyers.
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