Reasonable Doubt: Canadian-born or not, justice is for everyone
In the summer of 2009, Moussa Touré, a 27-year-old citizen of the Republic of Guinea, joined a grassroots movement opposing the candidacy of Moussa Dadis Camara in Guinea’s 2009 presidential elections. Touré mobilized other youth to participate in a peaceful demonstration that was held at a stadium complex on September 28, 2009.
During speeches at this event, soldiers and red berets swarmed the stadium and opened fire on the crowd; at least 157 people were killed. Women attending the event were gang-raped and mutilated by soldiers. Touré’s friend was shot in the head. Touré himself was beaten with a rifle, leading to a ruptured eardrum and subsequent hearing loss. He was tied up and taken to a squalid prison in which he remained for a month until a soldier who knew Touré’s mother assisted him in escaping.
The United Nations International Commission of Inquiry issued a report calling the September 28, 2009 massacre a crime against humanity.
On December 7, 2009, Touré fled Guinea and came to Canada on a false passport. Despite the UN Report, medical and psychological evidence, and evidence of his involvement with the grassroots organization, the Refugee Protection Division denied Touré’s claim for refugee status.
Touré sought judicial review of the decision from the Federal Court of Canada. His application for judicial review was granted.
Touré is just one of thousands of examples of foreign nationals who have meritorious claims deserving of a fair hearing.
Many people risk their lives seeking safe haven in Canada. Often they are suffering from severe physical and psychological injuries, have limited education and language skills, and minimal or no financial resources.
Most Canadians would find navigating Canada’s legal system and representing themselves at a hearing daunting. Now imagine the task many refugees face, tackling an unfamiliar legal system in an unfamiliar language.
British Columbia provides some legal aid for certain immigration matters, but unfortunately, the legal-aid funding available is sorely lacking.
Not unlike the funding available for criminal matters (as Laurel Dietz set out in her article last week), the legal-aid funding available for immigration matters does not reflect the amount of work put into these files.
Take, for instance, a refugee claim. A typical claim will receive 16 hours of legal aid funding. Yet an enormous amount of work goes into a refugee claim hearing: the claimant must complete forms setting out the basis of the claim and a comprehensive narrative. Supporting evidence must be gathered, which could include documents from the applicant’s home country (nearly impossible to locate for many claimants), medical expert reports, and witness testimony. The witnesses must be prepped for their appearances, and finally, there is the actual time spent at the hearing.
"You could easily spend 16 hours on the forms alone," says Laura Best, a prominent immigration lawyer practicing in Vancouver. Best has had considerable experience representing refugee claimants and notes that the funding available does not reflect the amount of work involved in these applications.
Humanitarian and Compassionate grounds applications are similarly under-funded with each application only receiving nine hours of legal aid funding. These applications can be very complicated and will require extensive research and supplementary documents.
Best notes, "You could easily spend 60 hours preparing a H&C application. [When I do an H&C application] in my mind, it’s basically pro-bono."
The Legal Services Society, the organization administering the legal aid program, makes efforts to get practitioners additional funding for more complex cases, but the organization is limited to the confines of its budget.
In addition to the issue of insufficient funding, many individuals deserving of legal aid may exceed the very low financial threshold to qualify. A single person who nets more than $1,480 per month will likely be refused legal aid.
Legal aid in this province is underfunded, and the consequences of insufficient access to legal services are dire, particularly for refugees whose lives may be at stake. Many refugees in Canada may be in similar situations to that of Moussa Touré but will not have access to the support and resources that would enable them to pursue their claims. When foreign nationals are denied representation we are undermining our justice system as a whole.
Canadian-born or not, the integrity of our justice system rests on ensuring everyone receives a fair hearing.