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Opinion Ontario’s legal aid cuts will leave refugee claimants more vulnerable

John Evans is counsel at the law firm Goldblatt Partners

One of the lessons I learned as a judge was how much courts depend on lawyers for fairly and accurately deciding cases. Their skills in presenting the evidence and their knowledge of the law are indispensable to the administration of justice.

Ontario recently announced a drastic cut to legal aid funding and its complete and unilateral elimination for refugee and immigration cases.

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Without legal aid, many litigants will be unrepresented by a lawyer and their access to justice limited, to the prejudice of litigants and the administration of justice.

In no other area of the law is this more true than in the determination of refugee claims. As a judge for 15 years of the Federal Court and of the Federal Court of Appeal, I must have reviewed hundreds of decisions by the Immigration and Refugee Board and immigration officers.

A mistaken refusal of a refugee claim can result in a claimant’s removal from Canada and return to her country of origin, where she may face imprisonment, torture or even death by reason of, for example, her race, religion, ethnicity, gender or sexual orientation. Accurately determining whether a claimant meets the legal test for refugee status presents unique challenges, both factual and legal. For a claimant without a lawyer they are likely to be insurmountable.

The Immigration and Refugee Board has the most difficult fact-finding job of any administrative tribunal or court in Canada.

Most of the evidence relevant to a refugee claim will be abroad. Claimants often have little, if any, ability in English or French or any understanding of Canadian legal processes. Many are still traumatized by their experience in the country they are fleeing and by their often-hazardous journey to Canada. They may have no supporting family or social network here, and minimal financial resources. Claimants’ fear of officials in their home country may prevent them from telling their story fully to a board member or from looking the decision maker in the eye, thereby creating a false impression of being untrustworthy. Refugee claimants are among the most vulnerable participants in our legal system.

Lawyers’ professional skills in identifying relevant evidence and presenting it cogently enable refugee decision makers to navigate around these obstacles to accurate fact-finding.

If the board rejects a claim, but the claimant believes an error was made, they can seek judicial review by a court, but the court is stuck with the facts as found by the tribunal unless the findings can be shown to be unreasonable. By the time a case comes before a reviewing court, it will generally be too late to repair the results of an unrepresented claimant’s ineffective efforts to tell their story and to marshal the relevant evidence at the refugee hearing.

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In my experience, it is very difficult for a lay litigant to take a reviewing court carefully through a tribunal’s evidential record and demonstrate that there was no evidence before the tribunal that could reasonably support a crucial finding of fact. For the unrepresented refugee claimant, it will be virtually impossible.

Lawyers also play a vital role in assisting the board and the federal courts on the interpretation and application of the law. Refugee law is very complex. The Immigration and Refugee Protection Act alone has more than 200 densely packed sections. It must be interpreted in the light of international human-rights law and is subject to the protections provided by the Canadian Charter of Rights and Freedoms. Arguing cases in this area also requires knowledge of administrative law, a set of principles that even seasoned litigators find difficult.

Ontario’s withdrawal of legal aid funding from refugee claimants is unlikely to be the last word. By virtue of its role in the administration of justice in the province, the government has traditionally shared responsibility with Ottawa for legal aid funding for refugee claims made in Ontario, since refugee determination is within the federal sphere. The federal government will now have to step up its level of funding. For one thing, the Charter requires refugee decisions to be made in accordance with the principles of fundamental justice. Rejecting the refugee claims of those who cannot afford a lawyer offends this constitutional standard. It also tarnishes Canada’s international record in the field of human rights. What is clear is that neither claimants nor the justice system are well served by these cuts. They are short-sighted and should be reversed.

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