Reasonable Doubt: It makes fiscal and moral sense for the government to increase legal-aid funding for refugees

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      This past week, the Legal Services Society, responsible for administering legal aid to people in British Columbia, posted a three-page notice advising that as of August 1, 2017, they would no longer be taking any new applications for legal representation from people with refugee claims or immigration problems.

      In short, if they do not stop taking applications on that date, they will not be able to continue to pay for the services they have committed to people.

      The fiscal year for Legal Services begins April 1. After only five months of accepting applications this year, LSS can forecast that they won’t have enough funds to finish the year if they take on any new clients.

      Drastic measure shocks

      This is shocking news. Cutting off services to new clients completely is the most drastic measure LSS can take to stay on budget. LSS is prohibited by the provincial government to incur a deficit. LSS is also not permitted to reallocate funding from criminal or family cases to top up the immigration-and-refugee service. LSS will often consider other options before cutting off service, such as refusing to extend contracts, not approving appeals, and being even more stringent with approving cases for services.

      If a client’s case was approved before August 1, 2017, the services for the client will be able to continue but must be completed by the end of the fiscal year: March 21, 2018. Applications made before August 1, 2017, will still be processed even if they are not approved by that date.

      LSS has advised that they will reinstate services as soon as they receive more funding from the federal government; otherwise, they will not reinstate services until the beginning of the next fiscal year: April 1, 2018. The LSS explains the predicament it finds itself in by pointing out that in the 2016-'17 fiscal year, it issued 860 contracts for services. This was up from 350 contracts for services in 2013-2014.

      Global refugees make up bulk of case increase

      LSS cites the global refugee crisis as the reason for the increase in demand for services and states: “About half of LSS’s refugee clients come from Iraq, Afghanistan, Iran, and Turkey. About one-quarter come from Central and South America.”

      People who qualify for immigration-and-refugee legal-aid services are those who are facing an immigration proceeding that may result in their removal from Canada as well as people who may wish to claim refugee status. People claiming refugee status who qualify for the service can have a lawyer to help them fill out forms and prepare for a refugee-claim hearing, and also have a lawyer represent them at their hearing.

      Lawyers assisting clients for immigration-and-refugee matters get paid between $83.90 to $92.29 per hour (depending on their years of experience). For refugee claims, a lawyer will get up to 16 hours of preparation for one claim. If the lawyer is representing more than one client at a single refugee hearing, then the lawyer receives eight hours of additional preparation for the second client and four hours for any additional client.

      Tasks that fall under the terms “preparation” hours include interviewing a client, taking instructions from the client, completing the Basis of Claim and any additional Citizenship and Immigration Canada (CIC) or Canada Border Services Agency (CBSA) forms, attending interviews with the client at CIC or CBSA, and preparing for a hearing before the Refugee Protection Division (RPD).

      Lawyers average less than $2,000 per case

      For people facing an immigration proceeding that could result in their removal from Canada (other than potential refugees), lawyers are given 10 hours of preparation time.

      On average, a lawyer will earn about $1,950 per contract and will earn about $17,300 per lawyer a year.

      It is only the refugee applications that have increased. The demand for services for those facing removal from Canada has remained steady.

      Who are these refugee claimants?

      Most vulnerable are affected

      LSS’s statement describes the people who receive services as “vulnerable individuals who speak limited if any English or French; belong to a cultural minority; are traumatized due to persecution, domestic violence, or torture; and face housing and financial challenges upon arrival in Canada with limited access to settlement services. These clients are often unfamiliar with Canadian principles of fairness and justice, have little education and low levels of literacy, and cannot effectively represent themselves.”

      Without legal representation, there will be increased costs and stresses on the immigration-and-refugee system. If people facing the barriers LSS describes represent themselves, hearings will take longer and other officials and community resources will have to spend more time with each claimant in order to make sure a claim is properly heard.

      How does LSS determine if a person qualifies for legal aid funding?

      A refugee claimant has to financially qualify and also has to have a chance at being successful at their hearing. In LSS’s words: “The test for referral to a lawyer is whether a person of modest means would pay privately for the case given the ultimate chance of success and the risk the person faces in his or her country of origin.” So, how important is it to stay in Canada and is there a chance of success?

      Who is responsible for the funding shortfall?

      Federal government needs to step up

      The federal government makes the immigration-and-refugee laws and they are responsible for funding immigration-and-refugee legal aid. The federal government gives the provinces $900,000 for legal aid; B.C. tops up this amount with an additional $800,000. Last year, the federal government gave an additional $530,000 to meet the need for services. LSS has made the case for additional funding for this year but has not had any additional funding confirmed. LSS now projects that it needs an additional $1.07 million in funding to get through the year.

      Leaving aside the moral issues about failing to give refugees meaningful access to justice, studies in other jurisdictions have shown that every dollar spent on legal aid saves multiple dollars in other areas of the justice system. It makes fiscal sense for both levels of government to step up.

      More importantly, it’s the right thing to do. Given its location in the world, Canada has been fairly well buffered from the global refugee crisis. We’re not experiencing anything on the level of Italy, Greece, and other European countries, but, nonetheless, the cracks in our system are starting to show under the strain of the increase in refugee claimants making it to Canada.

      If Canada is going to throw its doors open and welcome refugees (and pat ourselves in the back in the process), we better put our money where our mouth is and make sure we are willing to properly fund the fair processing of these claimants when they get here.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Laurel Dietz practises family law and criminal defence with Dogwood Law Corporation in Victoria, B.C. Reasonable Doubt appears on on Fridays. She can be followed on Twitter at You can send your questions for the column to its writers at