Representation for Immigrants and Refugee Claimants
8. Access to representation
Service providers and hearing participants were asked for their assessment regarding access to representation for the various processes in which immigrants and refugee claimants become involved. A summary breakdown of responses with respect to access to representation for refugee claimants is provided in Table 19. As will become apparent from the detailed discussion that follows, the numbers in Table 19 are somewhat misleading, because individual respondents qualified their answers in different ways. Respondents who stated that there are no problems with regard to access, but then went on to note specific concerns, are included in the "no" column. Respondents who stated that there are problems regarding access to representation are all counted in the "yes" column, even although the concerns noted by them vary widely in severity. Differences in individual respondent's subjective perception of the significance of particular concerns make it difficult to provide a definitive breakdown of these responses.
A further caution must be borne in mind as one reads the following summary of respondents' comments regarding access to representation. As might normally be expected, the elaborating comments provided by respondents focus more on the issues identified as problems than on what the respondents perceived to be working well in the present system. As a result, the summary of their comments may give an exaggerated picture of perceived problems regarding access to representation.
In very general terms, respondents from CIC felt that refugee claimants do not have any problems accessing representation or assistance. Only one respondent among the eight from CIC who commented on this issue felt that refugee claimants have any problems accessing required representation. This respondent, a case presenting officer from Nova Scotia, noted that claimants do have problems accessing representation in Nova Scotia, New Brunswick and Prince Edward Island, where immigration and refugee matters are not covered by legal aid. But, in this respondent's experience, claimants have ready access to representation in provinces where legal aid coverage is provided.
Opinions among the 17 IRB respondents who commented on this issue were generally to the same effect as those from CIC respondents, although a number of IRB respondents noted specific concerns. Five of the IRB respondents stated that refugee claimants have ready access to required representation, without noting any qualification to that opinion. Two respondents from the IRB Ottawa office, which is responsible for RPD operations in Ottawa and in the four Atlantic Provinces, felt that claimants in Ontario and Newfoundland have no problems accessing representation. But they noted that claimants do have problems in Nova Scotia, New Brunswick and Prince Edward Island, where legal aid is not available. An RCO and an RPD member in Montreal noted that representation is readily available, but they expressed concern about the quality of representation being provided, especially by unregulated immigration consultants. An RPD member in Vancouver felt that timely access to representation is a problem. A comment from RPD managers in Toronto, which is not included among the responses recorded in Table 19, is also relevant in this regard. These managers, who were interviewed as a group, noted that claimants who are sent to places outside of Toronto because of housing shortages find it difficult to connect with or communicate with counsel.
Opinions of service providers differed from those of CIC and IRB respondents on the question of whether refugee claimants have any problems accessing required representation. Among 51 service providers who expressed an opinion on this issue, 34 felt that refugee claimants have problems with regard to access to required representation. Included in this group were 12 of the 16 NGO respondents, eight of the 12 paralegals and consultants, and 14 of the 22 lawyers who responded to this question. Only four NGO respondents stated that claimants do not have problems in this regard, and three of these qualified their response by noting concerns about timeliness of access, and about problems created because claimants lack sufficient information to know whether the persons they retain as representatives are competent. Two of the eight paralegals and two of the four consultants felt that refugee claimants do not have problems with regard to access to representation.
Many of the lawyers, including four of the nine who indicated that refugee claimants do not have problems with regard to access to representation, expressed concern that low legal aid tariffs are creating problems because many lawyers are no longer willing to act for legal aid clients. Concern about withdrawal of experienced lawyers from legal aid cases was especially notable in Quebec, where most of the service provider respondents expressed grave concern about this as a mounting problem. Six of the seven lawyers interviewed in Montreal noted that very few experienced lawyers in Quebec are willing to represent refugee claimants on legal aid at the tariff rate of approximately $500 per case. They claim that this amount is not even sufficient to cover their fixed overhead expenses for necessary support staff to assist with the cases. In order to generate sufficient income to survive, lawyers - primarily inexperienced junior lawyers - are taking on an excessive number of legal aid mandates. Quality of representation is suffering as a result. Three of the seven NGO respondents from Montreal expressed similar concerns.
Many of the Quebec respondents also reported that lawyers have begun charging legal aid clients additional amounts over and above the legal aid tariff. When claimants are unable to pay the additional charges, some lawyers have refused to do any additional work on their claim, leaving them without representation at their hearing. Lawyers reportedly get around the prohibition against extra billing by charging for preparatory work ostensibly done before the legal aid mandate was issued. Other lawyers assign specific tasks that are not explicitly included in the legal aid tariff to interpreters and clerical staff, who bill the clients directly for these extra services, and the lawyers limit themselves to tasks that are paid for by legal aid. The consequence of this trend, according to respondents, is that access to completely free legal aid representation for refugee claimants who are unable to afford a lawyer has almost ceased to exist in Quebec.
Another development, which has arisen as a consequence of the refusal of experienced lawyers to represent claimants under the legal aid tariff, has been an increase in the number of consultants who are offering their services to refugee claimants. Agents from various ethnic communities are reportedly handing out business cards of certain consultants at the YMCA in Montreal, where newly arrived claimants are housed until they qualify to receive social assistance. Respondents also reported that interpreters are being paid to recruit clients for these consultants. The main problem is that many of these consultants are completely unqualified, and they are not subject to any regulation. Competent consultants who are providing a legitimate and valuable service to immigrants and refugee claimants are as alarmed as anyone else about this trend, and say that there is a pressing need for effective regulation in this area.
Respondents, including claimants, report that it is common practice for some of the more unscrupulous consultants and lawyers to demand additional payments at each critical turn in the development of a case -on the eve of a scheduled hearing, for example. Then, when the clients have exhausted all of their resources, the representatives drop them, possibly seriously compromising the claimants' cases. The sad irony in all of this is that the amounts reportedly being charged to unsuspecting refugee claimants by unqualified consultants are the same or more than the amounts being charged by reputable lawyers and consultants.
One of the four claimants interviewed in Montreal described a situation where, desperate to get out of her home country, she paid $4,000 to a consultant from Montreal who provided her with a letter of invitation that enabled her to come to Canada. When she arrived, she was housed at the YMCA. The consultant filed a false PIF on her behalf under a false name with a false story, even although she had given him her true story. He told the claimant to give him her passport on the pretext that it was dangerous to be carrying a visitor's visa while she was claiming refugee status. He then demanded an additional $500 per month. Fortunately, she met a representative from SARIMM who referred her to a shelter, where she was put in touch with a lawyer. When she came to Canada, this claimant thought everything was being taken care of by the consultant. She believed that she would have no further need of assistance. In her own words:
I knew absolutely nothing and I followed like a sheep. When he told me my passport should be destroyed because it was dangerous to keep it, I believed him. But I didn't know that he would use it for someone else. It's when you know nothing that you can fall into the clutches of exploiters. [translation]
These concerns are not confined to Quebec. Respondents from British Columbia expressed concern that the situation there may deteriorate as it has in Quebec. To date, problems with unscrupulous consultants have been fairly limited in British Columbia, because legal aid coverage is available for most cases. However, with the announced closure of the Immigration and Refugee Law Clinic and anticipated cutbacks in legal aid funding, that situation could change radically. The fact that there are unscrupulous or incompetent consultants (as well as honest and competent ones) in British Columbia, just as there are in Quebec and elsewhere, is illustrated by the experience recounted by another claimant who was interviewed for this study.
This claimant made an inland claim eight months after her arrival in Canada. She was denied legal aid because she had scholarship income. A friend referred her to a consultant. The claimant thought the consultant was a lawyer, and the consultant did nothing to correct this impression. He charged the claimant $6,000 to represent her before the CRDD, and reassured her by showing her reference letters about his past successes. The claimant wrote out her own PIF, which the consultant reviewed with her only briefly. He told her to get documents from home. The consultant failed to have the documents translated and, as a result, they were not accepted in evidence. The consultant did not fully understand the nature of the claim, which was based on spousal abuse. He advised the claimant to rely exclusively on her PIF and not to testify at the hearing. He also declined to call her daughters, who were co-claimants and key witnesses, and he made no submissions at the hearing. Not surprisingly, the claim was rejected.
The claimant subsequently managed to contact another lawyer, who brought a successful application to have the case re-opened. She also brought a successful application in Small Claims Court to recover the fee she had paid to the consultant. However, this case illustrates the problems that even relatively sophisticated claimants can encounter in accessing competent representation when they do not qualify for legal aid, and do not have any information about the professional qualifications of those who offer their services as representatives.
Problems of this sort are not confined exclusively to consultants, but such problem were perceived by most respondents to be much worse with consultants than with lawyers, who, in theory at least, are subject to regulation and disciplinary action by provincial law societies. One of the main reasons that respondents felt so strongly about having lawyers involved in all representation activities, at least in a supervisory role, is that this provides clear standards of service and some prospect for holding the representatives accountable.
In terms of a regional breakdown of responses, three of the six lawyers interviewed in Ontario, as well as three of the five NGO respondents and all four paralegals and consultants from that province, felt that claimants have problems with regard to access to representation. Two Ontario lawyers who were interviewed did not comment on this issue. Only one lawyer in Ontario felt that there are no problems in this regard. Two of the Ontario lawyers noted that lack of information makes claimants vulnerable to being exploited by incompetent counsel and they saw this as an access problem. The third Ontario lawyer who felt that claimants have problems accessing representation saw language and communication as the main problem. This respondent also felt that claimants with mental health problems have difficulty accessing representation. The concerns noted by the consultants and paralegals were the same as those identified by the lawyers.
The general sense among respondents from British Columbia was that legal aid is available for those who require it. However, service providers in British Columbia noted that other factors may be impairing refugee claimants' access to competent representation. Four of the five lawyers interviewed in British Columbia expressed concern that claimants are retaining unqualified consultants to represent them because they do not have accurate information about the availability of legal aid and how to apply for it. One of these four lawyers and the fifth lawyer who was interviewed in British Columbia noted that timely processing of legal aid applications is sometimes a problem. The lawyers' concerns about misinformation were shared by the other service provider respondents from British Columbia. One NGO representative from British Columbia felt that a significant number of claimants who cannot afford to pay for representation are denied legal aid. However, this opinion was not shared by other respondents from British Columbia.
The two NGO respondents in Ontario who indicated that claimants do not have problems accessing representation gave qualified responses. One felt that claimants are having difficulty qualifying for legal aid because Legal Aid Ontario takes the financial capacity of the claimant's relatives in Canada into account when assessing financial eligibility. This concern was shared by one other respondent, who felt that a significant number of claimants are being denied legal aid. The second NGO respondent from Ontario who felt that access to representation is not a problem shared the concerns expressed by other respondents regarding problems encountered by claimants who are ill-informed or misinformed. This respondent felt that NGOs have an important role to play in providing accurate information to refugee claimants. She also noted that claimants in centres outside Toronto are encountering delays of up to six weeks in getting their legal aid applications approved. According to her, this creates major problems for claimants, because they are obliged to file their claims within 28 days after the claim is referred to the RPD.
-  The numbers reported in this table are based on the direct "yes" or "no" responses given to the question:
"In your opinion, do refugee claimants have any problems regarding access to required assistance and/or representation?"
-  Interviews with IRB and CIC managers were focussed on their perception regarding impact of representation, or the lack of representation, on IRB and CIC operations, so the questions regarding access to representation were not included in the interviews with these managers. The managers' comment was incidental to a response to a different question.
-  While provincial law societies do have codes of professional conduct and strong disciplinary powers, there have not been many instances of lawyers who appear before the IRB being disciplined for misconduct or for shortcomings in the quality of services delivered to immigrants and refugee claimants. Some of the IRB managers who were interviewed expressed great frustration with what they perceived to be reluctance on the part of provincial law societies to respond effectively to complaints about competency problems and ethical misconduct that the managers have encountered with some of the lawyers who appear before the Board.
-  This statement reflects the situation at the time the interviews were conducted in June 2002. Legal aid funding in British Columbia is being reduced by over 38 percent over the next three years (Legal Services Society, 2002: 7). Respondents expressed concern that this could significantly affect refugee claimants' access to legal aid in the future.
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