Public proceeding of the Board

Immigration and refugee law advisory committee: Meeting minutes for November 18, 2008

1. Participants

Members

John McCamus, Rod McDowell, Ezat Mossallanejad, Gerri MacDonald, Raoul Boulakia, Jenny Gullen

Regrets

Barb Jackman, John Rokakis, Geraldine Sadoway, Rana Khan

Legal Aid Ontario

Rod Strain, Angus Grant, Heather Morgan

2. Welcome and Introductions

The Chair opened the meeting.

3. Minutes, April 8, 2008 and Follow-up meeting Minutes, June 18, 2008

The minutes of the spring meeting and the follow-up spring meeting were approved.

4. LAO Advisory Committees Proposed new Terms of Reference

  • The Chair invited members to provide input on the proposed new advisory committee terms of reference. The Board has reviewed them, and they are now being circulated to the committees for input before a final version is approved.
  • The following input was provided:
    • It was asked whether the terms of reference as provided would preclude the Board from adding new advisory committees if the Board felt they were needed. The Chair said that they would not preclude the Board from doing so. Human rights law and its implementation, and the bringing to justice of persons who have committed crimes against humanity, were suggested by one member as potential areas for future committee expansion.
    • Some members questioned whether the committees could contribute fully to the business planning process without being able to see an actual draft business plan document. If the business plan is confidential and cannot be shared with the general public, and if advisory committee members are considered to be the general public, then there would seem to be a disconnect in asking the committees to provide advice on business planning. The risk of disclosure is inherent in any consultation process. The Chair indicated that this is a new process which is still under development and the proper approach has not yet been determined. It was suggested that one approach might be to ask committee members to sign confidentiality undertakings before viewing business planning materials. Members generally felt that providing the committees with document excerpts, which was another suggested approach, would not facilitate broader connection-making across disciplines and would therefore not allow the Board to receive the best possible advice from the committees. It was felt to be important that the committees be able to see the larger picture.

5. Business and Strategic Planning: Environmental Scan

  • The Chair invited the committee to provide input on environmental factors that may have an impact on LAO and legal aid clients. The following input was provided:
    • More people will qualify financially for legal aid when the economy is bad.
    • More refugees have become aware that if they can get inside Canada without crossing a land border, they can make an inland claim. This will have an impact.
    • Border pressures are not likely to decrease. There are now close to 400 claimants a month coming through Fort Erie. The refugee centre in Buffalo, Vive, has a 120-person capacity and 140 people are there now. People who are unable to get into the refugee centre are being put up in hotels, and U.S. Immigration is picking them up.
    • Fort Erie NGOs are in the process of developing a protocol on health issues for refugees at the Port of Entry. CBSA has no protocol. The protocol is being developed with the refugee centre in Buffalo, Vive. Recently there was a situation with a refugee child who came to the border with chicken pox. This almost resulted in the border being closed to refugees for several days.
    • Due to the IRB hearing backlog, some people are getting jobs and dropping off of legal aid. Some are moving to Alberta but they maintain an Ontario address, perhaps because they want to have their hearing in Ontario. Clients who leave Ontario must transfer to legal aid in their new province, or, if they wish to have an Ontario hearing, they must pay privately for Ontario counsel; otherwise they should be reported to LAO. Although Ontario keeps no statistics on the number of certificates that are withdrawn because a client has moved out of province, B.C. legal aid has seen an increase in refugee claimants applying for legal aid, and many are apparently transfers from Ontario.
    • The IRB has been appointing and training new members, and is starting to schedule more hearings now, so the backlog will be starting to clear. The Board is still 20 per cent short of a full complement, which is 75 members. At the low point, there were only 39 members. A member offered to provide LAO with updated numbers when she receives them. An increase in JRs will likely be seen as the hearing backlog starts to go down.
    • The world economic crisis may bring more people to Canada, and to the Toronto area. Fewer visitors are likely to return home. This will result in more enforcement, more detention and thus more pressure on legal aid. People are also more likely to flow into Ontario from other parts of Canada, for example from the maritime provinces, as the economy worsens.
    • Lawyers may tend to bill legal aid more quickly because of the poor economy.
    • There is greater demand for medical referrals for clients who are victims of torture. A finding that a claimant is a victim of torture cannot be made without medical evidence. This increased demand will have a financial impact on LAO.
    • There has been an acceleration in rejection of backlogged humanitarian claims and decision-making on PRRAs, and a trend towards a swift move to deportation, often within two weeks. Legal aid decisions for these claimants must be made on an urgent basis. It would be helpful if an expedited process for issuing a certificate could be put in place for these situations involving a stay, where time is short. Usually these decisions must be made by an area committee. Perhaps an expedited process could be piloted in the GTA. A relatively small number of cases are involved and it was estimated that it would not cost a great amount of money.
    • If the appeal to the Supreme Court on the Safe Third Country Agreement (STCA) is successful, it still would not have an impact before 2010.
    • Despite a drop in refugee numbers when the STCA was first implemented, the numbers have been steadily creeping back up towards former levels. This was felt to be because the word has gone out to refugee-producing communities about the kinds of refugee claims that are still possible. We are now seeing a similar number of claims as before the STCA, but from a smaller number of countries - such as Haiti, Zimbabwe and Mexico. More of the claims from these countries are legitimate than are accepted. The Mexican acceptance rate is very low, between 6 and 10 per cent. Statistics from Fort Erie do not reflect the Mexican influx because Mexican claimants are flying into Canada. CBSA would have statistics from Pearson airport.
    • Focused research packages on countries such as Haiti would help. Through the RLO, LAO assisted in creating a package on Mexico that was very helpful. If people could work together and pool resources to put packages together, perhaps the results could be passed on to the RLO to be made available to others. This would cut down on research, save money and improve advocacy. Also, the IRB allows lawyers to forward information for inclusion in their own packages, so this could be a conduit for getting material to the IRB as well. This idea will be put forward at the next meeting of the RLA executive.

6. Committee Membership 2009-2011

Suggestions were made for potential new committee members. Members were invited to email any further suggestions for new members to LAO Policy Counsel assisting the advisory committees. The Board will be addressing committee membership in January.

7. Action Items and Updates

A brief update was provided.

8. Committee Agenda Items

8.1 Persons in Limbo

  • LAO was asked to consider the lack of options for legal aid funding for persons who have been living in Canada in immigration limbo, some for as long as 20 years. This problem has a huge social cost. There is little leeway for area director discretion; it may be possible to get an opinion certificate.
  • One issue that was identified is that there are different kinds of cases, some more complicated than others. For some clients, who are from moratorium countries or who cannot get landed status simply because the immigration office is giving them a hard time, filing an application for mandamus may be all that is needed: they may be landed immediately after waiting for ten years or more. For others, who may be considered a security risk, mandamus is usually not considered to be the best approach. It may be necessary to seek ministerial relief, a process that is long, drawn-out and discretionary.
  • This issue should be looked at more closely. It would be helpful for LAO to hear more from lawyers who work on these cases, and to hear more from NGOs, in order to get a better perspective on the categories of cases that exist, the issues involved, and the potential cost of making coverage available. A member offered to forward the name of a contact person at OCASI.

8.2 Scooping at legal aid offices

  • It was reported that scooping is occurring at some legal aid offices in Toronto. Consultants or agents on commission go into legal aid waiting rooms and scoop up clients, by asking them for money or steering them to specific lawyers. LAO staff at the affected offices may not notice that this is happening on their premises or they may not understand the significance of what they see.
  • This information will be given to the Investigations Department. If people are aware that this is happening they should raise the issue with LAOs complaints office.

9. Next meeting

No date was selected for the next meeting. Members will be contacted by e-mail to select a date.