An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
STRUCTURE OF LEGAL AID
Delivery of services
P.E.I. has no legal aid legislation – the Legal Aid Program (LAP) is administered by the provincial Department of Justice. P.E.I. is the only province that administers legal aid directly through a government department.
In the criminal and family areas, four Avocats salariés located in two offices provide legal services, including both full Représentation and summary Conseils. These lawyers travel to other locations if there are requests for assistance. Avocats de pratique privée are retained for legal aid cases only in the event of a scheduling problem or a conflict of interest.
Eligibility for Legal Aid
Eligibility for legal aid is determined according to a flexible means test. The test is conducted by staff lawyers, who weigh the seriousness of the legal proceedings and then consider whether an applicant’s present means should be sufficient to obtain private counsel within the time required. Applicants may be considered financially eligible if they are without funds and require immediate assistance to preserve their legal rights, or if they cannot afford a lawyer without impairing their ability to keep themselves and their dependants fed, clothed, sheltered, and living as a family. There is no prescribed procedure for appeals on eligibility issues.
COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
P.E.I. does not provide any formal legal aid coverage for immigration and refugee law issues. In addition, an LAP representative noted that there is no coverage available on an ad hoc or discretionary basis through the legal aid system. Legal aid was formerly available for some immigration and refugee law issues – primarily when people were detained or were facing deportation – but this service has not been provided for at least the last five years (the respondent was not sure about the exact date of this change). Coverage was ended in this area because providing assistance in these cases required the province to stretch the provisions of the federalprovincial criminal legal aid cost-sharing agreement to an uncomfortable degree. According to the respondent, the federal government eventually made it clear that immigration and refugee law was not covered by this agreement.
More generally, the respondent suggested that conversation and debate about the terms of the federal-provincial cost-sharing agreement has been virtually continuous over the last two decades. In his words, the agreement has been “continuously renegotiated” since 1973. These discussions primarily turn on the fact that the agreement covers only criminal law, while funding for family law, civil law and other issues is (allegedly) delivered through the Canada Health and Social Transfer (CHST). However, the respondent’s position was that CHST funds are barely sufficient to cover the basic services like health and education, leaving the province to fund programs like non-criminal legal aid in their entirety.
The legal aid program respondent noted that there is little demand for immigration and refugee law legal aid in P.E.I. because the province has no port of entry. With no international airport or seaport, new arrivals have to come through one of the other provinces to access P.E.I.
Accordingly, even if legal aid coverage were extended into the immigration and refugee law area, it is unlikely that there would be a great number of cases annually. At present, legal aid does not receive complaints about the lack of coverage for immigration and refugee law cases.
In the 1980s, the P.E.I. respondent noted, legal aid coverage was provided for some Inland Claims cases concerning the removal and exclusion of inadmissible persons. However, coverage for such matters ended in the 1990s when it became clear in criminal legal aid negotiations with the federal Department of Justice that immigration and refugee law was not a part of the costsharing agreement for criminal legal aid. The Department of Justice considered representation for Inland Claims to fall within the category of civil legal aid and, accordingly, within the scope of provincial responsibility. The respondent also recalled discussions with federal immigration officials about the transferral of Port of Entry refugee claimants to Halifax or Montreal for processing. However, these discussions were essentially hypothetical in nature, since P.E.I. has no international port and did not receive any Port of Entry claimants.
Overall, the P.E.I. legal aid representative suggested that there is a very low demand for services in the immigration and refugee law area. Occasional publicity around isolated instances of illegal migration may temporarily raise the profile of (the lack of) refugee and immigrant law services, but there is little ongoing need for these services. As such, the extension of legal aid coverage into the immigration and refugee law area has not been seen as a priority for the P.E.I. legal aid plan. However, the respondent did note that providing services in this area would likely increase in urgency if the number of illegal migrants grew significantly. At present, extending some legal aid coverage to immigration and refugee law issues would not pose a large problem as long as demand for these services remained low. However, if the demand for services grew significantly, while the amount of funding and areas of coverage remained limited, the situation would get much worse.
The legal aid representative did not know of any community organizations involved in providing services to the refugee and immigrant community, whether of a legal or settlement nature. Accordingly, no suggestions were forthcoming about the strengths or weaknesses of the current “system” for delivering services to refugees and immigrants – essentially, there is no system. The respondent did note that, for community organizations to take on the provision of legal services in the area of immigration and refugee law, they would require some legal training, particularly for issues involving hearings and other more technical legal proceedings.
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