Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for March 25, 2014
John McCamus, Sean Rehaag, Deyanira Benavides, Maureen Silcoff, James McNee
Michael Bossin, Debbie Douglas, Claudio Ruiz, Raoul Boulakia, Gerri MacDonald, Andrea Sesum, Melissa Loizou
Legal Aid Ontario
Aneurin Thomas, Jawad Kassab, Rod Strain, Andrew Brouwer, Heather Morgan
2. Welcome and Introductions
- The Chair opened the meeting.
- The Chair noted that the focus of the meeting would be primarily on environmental scanning, in accordance with the re-alignment of the committee meeting schedule to reflect LAO’s current business planning timelines.
3. Minutes, October 21, 2013
- The minutes of the October 21, 2013 meeting were approved as amended.
4. LAO Slide Deck and Environmental Scanning Discussion
- The Chair presented an overview of the slide deck, highlighting the key themes, main points related to specific initiatives underway at LAO, and some of the environmental factors that LAO’s planning needs to account for.
- It was noted that the low financial eligibility standard for legal aid continues to be a major problem. Stakeholders have been making representations on the issue, and LAO is hopeful that the province may be supportive. The chart on slide 18 of the deck shows the impact that stagnant financial eligibility, combined with inflation, has had on the number of people that are able to access legal aid services.
- There is good news to report in that LAO has completely eliminated its deficit. Another piece of good news is that the federal-provincial contribution agreement for refugee legal aid services, due to expire on March 31, has been renewed for another three years at current levels. The agreement allocates approximately $11.5 million to refugee legal aid across the country, although the share that LAO receives through the agreement only accounts for between a third and a half of its actual expenditures in this area. Members asked to be informed if there is any change regarding the proportion of the federal contribution agreement money that is distributed to Ontario.
- There was a question about the statistics for refugee claimants set out on slide 12 of the deck. The number of claims shown for Toronto in 2012, as compared to the number for Ontario overall, appeared to members to be very low. It was suggested that the reason may be that the chart on slide 12 includes statistics from Citizenship and Immigration Canada (CIC) but may not include Canadian Border Services Agency (CBSA) border arrivals. The issue may also have to do with the way that Pearson airport arrivals are calculated in the statistics. LAO will revisit the chart and refine it as necessary.
- The committee was advised that the new clinic information management system (CIMS) will be able to produce better information in the future on clinic services that are related to immigration and refugee law. It was noted by a member that there is an inter-clinic working group that focuses on how these services are delivered within the clinic system.
- LAO’s Mental Health Strategy consultation has just concluded. LAO will summarize and analyze the responses, and will post submissions received. A draft strategy will be circulated to stakeholders and will potentially be finalized over the summer.
- In the area of criminal law, one of the things that LAO is looking at is ensuring that criminal lawyers are sufficiently aware of the secondary, or collateral, consequences of criminal convictions. LAO is compiling a list, which obviously includes immigration consequences, and will bring this list back to the committee to review and ensure that the list is comprehensive.
- Alternative fee arrangements, or AFAs, will be piloted by LAO in the year to come in the criminal law area. LAO has held discussions about AFAs with the Criminal Lawyers’ Association (CLA) and has begun to discuss them with the Family Lawyers’ Association (FLA). There are close to 20 criminal lawyers or firms that are currently interested in or entering into AFA agreements. The benefits, for practitioners, include less paperwork and a stable revenue stream based on a lawyer’s prior billing history with LAO. LAO will bring a presentation on AFAs to the next committee meeting.
- Members were interested in learning more about LAO’s process for removing members from a legal aid panel. The existing process for removing someone from a panel is cumbersome and is driven by LAO’s statute and regulations. LAO’s improved panel standards, which will be introduced over the summer and fall months, will simplify empanelment and at the same time bolster LAO’s ability to remove lawyers from the panel. Members said that there needs to be a process that is clear and that can be communicated to clients. It was noted that LAO has just initiated two refugee panel removal proceedings. LAO will look into providing statistical information on panel removals, including the reasons for removal, to the committee.
4.1 Members provided LAO with the following feedback and environmental input
- It was suggested that LAO should consider providing some form of assistance to people who are bringing complaints against their lawyers to the Law Society. Not every client who goes to the Law Society has been able to find a new lawyer to assist them, and when they do, the Law Society only covers the new lawyer’s disbursements and not their time spent preparing the complaint on the client’s behalf. The point was made that clients should always contact LAO’s complaints department and let LAO know what is going on; although a change of counsel raises a red flag, LAO is not always aware of the nature of the problem.
- LAO was advised that the number of refugee claimants may not remain low. The example was provided of what happened after the Safe Third Country Agreement came into effect in 2004/2005. The number of claims dropped initially, but rose up again after people realized that there were other ways for them to apply.
- LAO should consider the impact of recent changes to citizenship legislation. There has been an increase in denials of citizenship applications. CIC has the numbers, and the Parkdale clinic is doing some work on this issue. The main reason for the increase in denials is the new language requirement that was introduced last year. Many people cannot afford to appeal a denial and so they simply re-apply, which is less expensive, only to be refused again. This is also driving the number of denials up.
- LAO was informed that, as removals are likely to increase in the future, the number of stay applications that are needed will also rise. LAO should reconsider the current tariff allocation for a stay application; six and a half hours only covers about a quarter of the work that is actually required.
- Ministerial interventions in hearings should be expected to be a key driver.
- It was suggested that LAO’s panel standards should be considered by LAO as an environmental factor, because the “best practices” set out in the standards, if followed properly, drive up the amount of time that it takes a lawyer to provide services. It is not possible to follow the best practices within the 16 hour limit.
5. Refugee Services Transformation Update and Discussion
- The LAO Executive Lead, Refugee Services Transformation, provided the committee with an update on refugee services transformation, beginning with the key objectives set out on slide two of the update deck and the overview of key accomplishments on slides 3 and 4.
- LAO’s priorities for 2014/2015 were also identified for the committee. LAO will be working with the committee on its plans for a refugee reform/test case program, as well as on the refugee panel standards initiative.
- LAO’s plans for the Refugee Law Office (RLO) as a Centre of Excellence, and the RLO’s strategic plan for 2014-2017, were also reviewed. The strategic plan will be posted on LAO’s website.
- The refugee services statistics deck, also included in the meeting materials, was also briefly reviewed. The drop in the number of certificates issued for judicial review (JR), as shown on slide 2, was noted; LAO’s assessment concluded that the decline in 2013/2014 was definitely related to LAO’s elimination of JR opinion certificates. However, it was noted that because the statistics shown for prior years included (former) opinion letter certificates, the drop in the number of actual judicial reviews is not likely as steep as suggested by the slide.
5.1 Members provided feedback and suggestions:
- There was a question from a member about how judicial reviews will be handled by LAO in the future; options include the creation of a judicial review panel.
- A member noted that a merit review process for judicial review applications may be difficult to establish because the evidence suggests that merit does not drive outcomes on judicial reviews: instead, much depends on the judge and the lawyer. The member suggested that LAO should consider permitting judicial review in all cases. LAO would be interested in seeing any statistics or other evidence that has been gathered on this point. The point was made that merit screening is more dangerous for clients now because there is no longer a “safety net” for people who are refused legal aid; a refusal means that they will be deported without any further review. A member noted that LAO would not refuse a certificate to a person charged with murder on the basis of “no merit” and that the considerations should be no different in a case where a person may be killed or tortured on return to their country of origin.
- The LAO Executive Lead, Refugee Services Transformation, advised that few LAO refusals are based on merit. Most refusals are based on financial eligibility. Members’ concerns about merit screening will be noted and looked at by LAO. LAO will provide the committee with information on how many Refugee Protection Division (RPD) denials are based on financial grounds, and will report back on LAO’s policy on looking at financial resources that a claimant may have outside of Canada.
- Members asked whether LAO has any additional transformation plans in mind for refugee services. The LAO Executive Lead, Refugee Services Transformation, indicated that all of the plans for the coming year have been identified in the transformation slide deck.
6. Action Items
- Members would like to be informed if there is any change regarding the proportion of the federal contribution agreement money that is distributed to Ontario.
- LAO will revisit the statistics on refugee claimants shown in the chart on slide 12 of the general slide deck and refine as necessary; the chart may not include information from CBSA.
- LAO is compiling a list of secondary consequences of criminal convictions and will circulate the list to the committee for review.
- LAO will bring a presentation on AFAs to the next committee meeting.
- LAO will look into providing statistical information on panel removals, including the reasons for removal, to the committee.
- LAO will take a closer look at the concept of merit screening for judicial review applications, taking into account the points raised by members.
- LAO will provide the committee with information on how many Refugee Protection Division (RPD) denials are based on financial grounds, and will report back on LAO’s policy on looking at financial resources that a claimant may have outside of Canada.
7. Other Business