Justice Committee on Feb. 9th, 2017

[Mitchell J. Goldberg]

Client demand has fluctuated greatly and, as Maître Valois indicated before, there's been a considerable increase recently as a result of several developments. We expect that the numbers of refugee claimants will be going up, particularly because of what is going on in the United States right now.

In Ontario, there has been great concern about being funded adequately because of the increase in numbers of refugee claimants. One thing that could make the system a lot more efficient is to have more immigration and refugee board members, both at the refugee protection division and at the refugee appeal division. It's unacceptable that right now, people are waiting a year for an answer before the refugee appeal division. At the refuge protection division, more and more people's cases are being postponed. This means more money is being spent on lawyers, because you prepare for a hearing, then it's postponed, then it goes back and people have to start preparing again. This is particularly so in Ontario, where the lawyers are paid by the hour. The system is getting bogged down because of the huge number of postponements.

The key to achieving an efficient and effective system is to make sure that the immigration refugee board is well resourced. That will create huge savings for the provinces in the form of fewer people on welfare, and for the federal government—as I mentioned earlier—in the form of fewer people in detention, as well as in many other areas. You don't have to be brilliant to come up with a very simple way of getting costs down throughout the system.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I also remember hearing from an earlier witness, the Metro Toronto Chinese and Southeast Asian Legal Clinic. In part of their submission, they noted that many clinic clients are immigrant and refugee women living in or fleeing from domestic violence, whose immigration status and income support are often tied to or dependent on their maintaining a relationship with their abusive spouse. We have this nexus of immigration and refugee law with family law, and of course the civil portion of legal aid is tied up in the Canada social transfer, so it's interesting to see that both areas have their struggles.

I also noted that your association, the Canadian Association of Refugee Lawyers, was one of the signatories urging the federal government, notably the Minister of Immigration, Refugees and Citizenship, to suspend the safe third country agreement with the United States.

[Mitchell J. Goldberg]

Yes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

You argued quite forcefully that, because of the executive orders there, the United States could not be considered safe for refugees. We have seen evidence of some refugees fleeing through -22° conditions, over several kilometres, to try to make it to Canada.

We've gone over the state of the legal aid system. Do you see a relationship between Canada's current ability to handle an increased caseload and what the federal government's decision was? Do you think the federal government saw that we'd not be able to handle any more than we're currently taking?

[Mitchell J. Goldberg]

I could tell you that the numbers of refugee claimants have been much higher historically than they have been in the last few years. I'm not sure if this is outside the range of what this committee is studying, but I think it's important to say that, yes, Canada can do a lot more. It's a question of putting the resources in place. It's very true that our group and other human rights groups and lawyers groups have been asking the Canadian government very strongly to suspend the safe third country agreement because the United States is no longer a safe country. We have a report from Harvard Law School, from academics and law students, that was sent to us yesterday—and you may have seen a report about this in the Toronto Star—stating just that. We're providing that evidence to the Minister of Immigration, and we sincerely hope that the minister will see fit to act upon this evidence. It's extremely crucial for the lives of thousands of people who could be impacted.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Okay, thank you.

I think that's about six minutes.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. MacGregor. You actually hit the six minutes.

As we know, the minister has an ongoing duty under the act to keep reviewing it. I'm sure he'll be reviewing the documents that you provided.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

As a follow-up to Mr. MacGregor's question, Mr. Goldberg, what's the difference between an asylum seeker and a refugee claimant, and how does that impact the safe third country agreement?

[Mitchell J. Goldberg]

There's no difference. The United States traditionally uses the terminology “asylum seeker”. In French we say demandeur d'asile.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Mr. Thomas, you gave some very compelling testimony with respect to the challenges we face and stating that funding is not always the answer, but really the implementation of a proper process. You had begun to talk a little about family law. Are there any—and I think there are—gender implications of the lower level of funding for family law as opposed to criminal law? Can you please comment on that?

[Aneurin Thomas]

Yes, certainly.

It's a truism in legal aid circles that criminal services tend to go to men—and, to be even further refined, tend to go to younger men. It's not always true, but proportionally that's the group of society that tends to commit more crimes, and therefore is more eligible for legal aid. On the other side, family law clientele are typically women, typically older women, typically with kids; often a very high percentage of our clients are victims of domestic violence. So there's a gender imbalance there.

You can look it from a gendered perspective, and appropriately so. What should also be considered in the mix, however, is that a lot of other legal aid civil law services, poverty law services, tend to be accessed by women more often than not—concerning landlord and tenant issues, social assistance, and things like that. But that's in Ontario, where, of course, there is not just a criminal program, but a good family program and a very extensive poverty law program. In jurisdictions that are focused primarily on criminal services, with perhaps a bit of child protection work, and maybe a bit of family law, the gender balance is much different. I think it's a very fair inquiry and something that people try to keep in mind when they're thinking about policy priorities.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

You had talked about a national strategy, and some possible recommendations as to how to deal with providing adequate legal aid services throughout the country. We know that different provinces have different challenges. What would you recommend as benchmarks, or the starting point perhaps, for a national legal aid strategy, if such were to be developed?

[Aneurin Thomas]

The CBA has, in my view, made very thoughtful submissions about what those benchmarks should be. I don't have a lot to add beyond that.

I think when you're doing any kind of benchmarking exercise you want to start with something that's reasonable. You don't want to set the bar too high because that's a recipe for long-term disappointment.

Some of the benchmarks I would recommend to you are fairly simple, such as what percentage of each province's population is financially eligible for legal aid. That's an important measure of the scope of legal aid services. The percentage of clients who may be self-represented, particularly in family court, is another important measure of the access to justice. How many lawyers are participating in the legal aid program is a measure of the health of the sustainability of the legal aid program, particularly in a program that relies heavily on the private bar.

I think those are the kinds of measures that are thoughtful and a good place to start. They're something that can be counted comparatively easily, and they're something to build upon going forward.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Do you think that self-regulated bodies, such as the Law Society of Upper Canada, in your instance, have a role to play? I know they do contribute somewhat to access to justice and legal aid, but do they have a bigger role to play? For example, with regard to articles, could self-regulated bodies use creative ways to kill two birds with one stone, such as finding article placements while also providing legal aid for those who need it?

[Aneurin Thomas]

That's a little out of my field. I'll give you my observations from Ontario. The Law Society of Upper Canada actually takes its access-to-justice mandate quite seriously. It takes its training mandate, its continuing professional education mandate, quite seriously as well. There are often, as you no doubt know, debates about the scope of articling and law practice programs and those sorts of things. What I think the bar and the regulated profession have to do is to ensure that there are a sufficient number of young lawyers going into areas of legal aid law, which from the planning perspective is a real area of concern. There just aren't as many lawyers going into our kind of work these days.

[The Chair, Liberal, Anthony Housefather]

You have time for one short question, Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Is there any policy or any consideration that would help young lawyers come into that area of law?

[Aneurin Thomas]

Yes, there are things like loan repayment assistance programs. Debt is a big issue. It often precludes young lawyers who are coming out of law school with their BAs and with a heavy debt from going into work that isn't paid as well, such as public interest work.

There are ways to promote articling away from big firms. There are ways to promote articling in rural and remote parts of the province. There are ways to promote articling in criminal law, family law, refugee law. There are policy matters that can be taken to promote the development of a bar doing public interest work, and I think that steps should be taken to do so.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much for that.

[The Chair, Liberal, Anthony Housefather]

We've finished our first round. I think we'll now do some short “snappers” of questions, where I'll go to whichever committee members have questions. I ask committee members to try to get their questions out quickly, and I ask the witnesses to give quicker answers if possible, so we get to everyone's questions.

I know, Mr. Grewal, that you had a question.

[Raj Grewal, Liberal, Brampton East, ON]

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Welcome to the committee, by the way. It's a pleasure to have you here.

[Raj Grewal, Liberal, Brampton East, ON]

It's a pleasure to be here. Thank you so much.

Thank you to the witnesses for coming today.

I practised law for about a year on Bay Street in corporate mergers and acquisitions, but I didn't go to law school to practice corporate mergers and acquisitions. I went to law school because I felt that it would give me an opportunity to correct some wrongs that I felt were happening in society. I did a JD/MBA. The cost of it was quite high, so I found myself on Bay Street before I was elected to the House.

In my experience as a member of Parliament, the best part of the job is being able to help people. In my constituency office, we've stopped seven deportations, and we're working on our eighth.

Equally, I will say, the most disappointing part of the job is when I'm not able to help somebody because of the system and sometimes as a result of poor legal advice that the constituent has received.

My question is for the Canadian Association of Refugee Lawyers. Do you keep data on your success rates? Also, do you interact with the offices of the members of Parliament? We do have resources that could help to try to alleviate some of your caseload. I'm working with your association on a case right now in my neck of the woods. I'd just like your comments on that and on how we can partner across the country—the 338 offices—to help solve some of your issues.

[Mitchell J. Goldberg]

Thank you for that question.

On behalf of the Canadian Association of Refugee Lawyers, I'm happy to say there were two cases in which we were the litigants, the parties, not just intervenors. I'm very happy to say we have a 100% success rate. One of them was the doctors' case I mentioned earlier, when the former government decided to slash health care for refugee claimants and the Federal Court concluded that it was cruel and unusual treatment, that lives were at risk, that the government was intentionally inflicting suffering on a vulnerable group. Those were the conclusions of Justice Mactavish of the Federal Court. That was our case, along with our partners, the Canadian Doctors for Refugee Care.

In the other case, we challenged the constitutionality of the former government's designated country of origin regime, which discriminated on the basis of country of origin. That law is actually still in place. We're very much hoping the government will remove that. We've had encouraging signs from the Minister of Immigration that in fact it will be scrapped. In that case, the Federal Court decided that denying an appeal on the basis of your country of origin was a violation of the charter and was discriminatory.

To answer your second question, yes, many of us do work with our members of Parliament on individual cases. I'm glad to say that since the last election it has been a successful thing. It used to be something that didn't help, and now it does in many compelling cases across Canada. As an association, we have been in very close contact, as I mentioned, with the former immigration minister, Mr. McCallum, and Mr. Hussen, the current immigration minister, as well as many members of Parliament. We'll be be meeting with many of you, many members of Parliament, next week when several of us will be coming to Ottawa. We've also met with Public Safety Minister Goodale. We've very much appreciated the opportunity to have this kind of dialogue and sharing of information and working together to improve the determination process and refugee protection across Canada.

[Raj Grewal, Liberal, Brampton East, ON]

Thank you.