Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for July 14, 2010
John McCamus, Rod McDowell, John Rokakis, Barb Jackman, James Yakimovich, Sean Rehaag, Ezat Mossallanejad, Gerri MacDonald, Raoul Boulakia, Rana Khan
Michael Bossin, Geraldine Sadoway, Marcel Castonguay
Legal Aid Ontario
Rod Strain, Maureen Murphy, Angus Grant, Afton Eddy, Heather Morgan
2. Welcome and Introductions
The Chair opened the meeting.
3. Minutes, January 19, 2010
The minutes of the spring meeting were approved.
4. Business Planning Overview of Initiatives: Slide Deck
- The Chair advised that LAO’s business planning process has fallen behind schedule. The financial picture is not good and LAO’s situation changes frequently. The business plan for the current fiscal year has been revised and will shortly be provided to the Board and then to the Ministry. Planning for 2011-2012, which should be underway, is just getting started now.
- The planning environment for 2011-2012 was outlined. A $29.2 Million deficit is being projected for the current fiscal year. The new funding that the Province provided for legal aid in fall 2009 is meant for improvements and new initiatives, and not for addressing the deficit. Much of the new money will be used to improve compensation, as set out in the MOU between the Ministry, LAO and the Criminal Lawyers’ Association.
- LAO has been working hard at streamlining administrative processes, both to save money and to make the system more accessible to clients. The new Client Service Centre (CSC) has absorbed much of the application-taking work formerly carried out in area offices. To ensure consistent decision-making on issuing certificates in cases that are less clear-cut, duty counsel in the courthouses are assisting as well.
- LAO is also piloting a simplified financial eligibility test. The new test will be income-based, simpler to apply, and more transparent.
- LAO is introducing new services in the area of family law, in support of the Ministry’s Four Pillars initiative. In criminal law, LAO has established a new complex case rate and is piloting block fees for standard cases. Phase One of the criminal block fee pilot began in May, and involves about 20 per cent of criminal cases. Phase Two, which is in the planning and consultation state, will include all remaining standard cases. LAO has also published a consultation paper on reducing clinics’ administrative costs.
- It was suggested by members that a good way to reduce CSC wait times would be to involve more agencies in taking applications through SOAP. It was suggested that multicultural and settlement agencies would be a good fit, because they are already helping these clients. They are equipped with computers and the staff include members of the Law Society. The Canadian Centre for Victims of Torture is another front-line service agency that would be interested in participating in SOAP. The staff know the issues that are involved and could assist LAO in saving money.
- One problem with the telephone application process is that clients are told on the phone that they qualify for a certificate but later a letter is sent to them cancelling the certificate. The client often does not read English and does not understand the letter. This is an issue that should be looked at.
- There was a suggestion for a modification for the new area committee process. The area committee meets via telephone but if some members who are located nearby within a region could gather together to phone in to the meetings it might be a helpful improvement.
5. Immigration and Refugee Law Update
- The Chair advised the committee that LAO’s projected cost for refugee certificates in the current year is approximately $20 million. There is a need for LAO to think about how to control its costs in all areas and service lines. The LAO Refugee Task Force was set up early in 2010 to examine the delivery of refugee services and to identify issues and potential solutions. The Task Force was an internal process which explored some ideas but did not result in any decision-making. It was probably a misnomer to call it a task force, because it was really no different from the kind of exploratory policy work that goes on all the time at LAO. The work of the Task Force included a review of files and statistics, as well as research on models used by other jurisdictions.
- Members voiced concern that the work of the Task Force did not include a consultation with the private bar and other stakeholders, such as the Canadian Council for Refugees. Important issues or considerations may be missed without this kind of input, and there is a risk that ideas and approaches may become set in stone. When consultation does not occur, it looks as if the organization has already decided what it is going to do, and this perception can lead to a loss of faith. The Chair acknowledged members’ concerns, but noted that LAO is only considering options at this point and there is nothing concrete that is being considered. He noted there will be a wider consultation if it becomes more likely that actual decisions may be based on the preliminary work of the Task Force.
- Members emphasized that the RLA would be willing to be involved in any external consultation process, concerning the work of the Task Force, the potential impact of new legislation, or any issue concerning the provision of refugee law services. The RLA is capable of consulting its members and responding to LAO quickly. The RLA would also like the opportunity to meet with the LAO Board, and has requested to do so. The Chair said that the Board has received requests to meet with a number of stakeholder organizations, and that these requests, including the RLA’s request, will be brought to the attention of the Board.
- It was noted by members that the appointment of new members to the RPD seems to be resulting in more negative decisions. Leave applications are often denied. This practice is being tracked and may be challenged as a misuse or abuse of discretion. In the meantime, these negative decisions will save LAO money.
- The committee discussed the potential impact of Bill C-11, and members provided information they had received from the RPD concerning the timelines and likely processes. At this time it looks like it will be 18 months to two years before implementation occurs. Initially the RPD was budgeting for a four-hour initial interview, but they have been hearing from stakeholders that this is not realistic, based on how long it takes to prepare a PIF. The RPD has committed to consultation. They are thinking about creating a form for recording background information such as family information; they may use a modified PIF.
- The RPD appears to have been considering setting up a model for supporting Bill C-11’s short timeline for the initial interview. In earlier consultations with members of the RLA, they suggested setting up centres in places outside Toronto, such as Windsor and Niagara. These ideas might be useful to LAO in considering a model for giving people competent assistance as quickly as possible. A centre with rotational duty counsel providing advice might be an option. In Toronto, the airport would be a good place to establish such a centre.
- The potential role of counsel at the initial interview was discussed. The RPD has been saying that there is a right to counsel, but that interviews will not be postponed in the absence of counsel. Claimants will be provided with a recording of the interview, which may be given to counsel. Claimants will have a right to consult with counsel, but counsel are not supposed to participate in the interview. This view may be open to legal challenge. It is not possible to be effective counsel without being able to participate. Also, if there is no federal funding for counsel at the initial interview, based on the view that it is “only an interview”, this is effectively a denial of the right to counsel. A lack of federal funding would put LAO in a difficult position. As well, there will not be time for opinion letters with the fast timeline for the initial interview.
- It is anticipated that remand to torture will be an issue under Bill C-11. It would assist greatly if LAO could extend eligibility to include international remedies.
- PRRAs will go to the RPD, which is a significant change. There will be efforts to remove people more quickly.
- Implementation of C-11 will bring a sudden uptick in costs for LAO. The transitional provisions of Bill C-11 will apply only to claimants whose hearings have commenced at the time of implementation. Those claimants will be able to proceed under the old system. There could be a rush of people trying to get in under the old system if an announcement is made about imminent implementation. Also, the timeframe under the new system will be compressed. There will be people still coming through the old system and at the same time there will be a wave of people entering the new system, coming through at a faster rate. There will also be an increase in applications for test case funding, to challenge C-11. LAO needs to be ready to get the message out that it needs more funding if there is a sudden increase in costs.
6. Other Business
- The Chair advised that the restructuring at LAO has caused backlogs and delays in making lawyer payments, mainly on accounts involving discretion. If members of the refugee bar are having problems with late payments, they should advise LAO.
- Members were invited to provide feedback regarding attaching dockets to their online billing accounts. It was noted that family and criminal lawyers who were consulted at their spring advisory committee meetings indicated that this would not be a problem for them. Members indicated that they would not be in favour of attaching dockets to online accounts, and did not feel that it should be necessary, given that there are regular audits, unless there is a real problem with the existing system. Members indicated that for lawyers who prepare handwritten dockets, attaching online dockets would be more time-consuming and costly because the dockets would need to be typed. Members indicated that they would be happier faxing or scanning their handwritten dockets than preparing typed ones, but that there could also be issues with reading faxed or scanned materials.