Justice Committee on May 16th, 2017

[Antoine Aylwin]

First, regarding your invitation to follow the work of the Standing Committee on Official Languages, I would urge you to read the brief that the Barreau du Québec sent recently. Last fall, I appeared before the committee to talk about the translation of decisions. We're very concerned about this matter.

Second, regarding training for lawyers on issues concerning marginalized people, the École du Barreau had an initiative last year for a person of aboriginal descent. The initiative was successful. We think we can focus on other marginalized groups to guide them through the justice system and help them become lawyers. It should be a way to help people escape marginalization.

This goes beyond law. It's about having models and people to consult later. For us, it's very positive.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

That's a good example. Thank you.

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

Mr. Aylwin, with previous witnesses, I have raised questions concerning the Charter of Rights and Freedoms and legal aid, specifically sections 7 and 15. It's quite a coincidence that just a few weeks ago in my home province of British Columbia a lawsuit was launched by the Single Mothers' Alliance BC in the B.C. Supreme Court. They rely on sections 7 and 15, and they were arguing that the restrictive eligibility requirements in British Columbia, in particular, were affecting some women's rights to security of the person.

There was one case where a woman was trying to escape an abusive husband, and the barriers she faced in the legal system were not allowing her to properly disengage from an abusive spouse. Under section 15, we have equality under the law and the right to not be discriminated against. I'm just curious, do you know of the case? Do you have any thoughts on the constitutional provisions with respect to legal aid? I know there have been court rulings on this, but I'm looking for an opinion from you.

[Antoine Aylwin]

Yes, we heard about the case. I'm not saying we might not intervene in the future. We had discussions in Quebec with regard to new tariffs. With the new new code of civil procedure, the cost of a non-contested divorce tripled. Now it's begging the question of whether the costs are at a level at which people won't be able to divorce because they can't pay the costs of filing it with the court. It's certainly a serious issue. I know the charter cannot be easily amended, but I would like to have a more specific recognition that legal representation and advice should be a fundamental right in this society.

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

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I have a question for Ms. Chamagne. I'd like to talk a little bit more about the cultural barriers to access to justice that you referenced, I believe, in relation to refugees.

Is there a cultural reticence to ask for help, or does the system not recognize the cultural differences of the people it serves?

[Julie Chamagne]

I think it can be a lot of things. I'm trying to think of examples. There are different ways that people have of remembering things. People in many cultures do not have this idea of dates that's so important to our culture and so important to a refugee claim. We've had refugee claimants who are reticent to talk about their trauma, because it's traumatic, because of cultural issues, or, in the case of access to mental health services, because of stigma and cultural issues.

The cultural barriers go both ways. Sometimes I find that the way a person is testifying, which is inherent to their culture, causes some credibility issues, say, about why the person can't remember an important date. This is transposing our cultural values on refugee claimants and their experience. That's what I would refer to. Obviously, it's a case-by-case situation, and it's something that brings in the need for specialized legal clinics. It's something we always have to be mindful of when we're gathering stories and testimonies, and when our clients are testifying.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Would you consider this part of the systemic inequities you mentioned, or would that be a much broader topic?

[Julie Chamagne]

Yes, I think they are. It might vary from province to province, and I can only speak about Nova Scotia and the experiences some of our clients have had there. Lack of cultural competence in government agencies and other organizations is a big reason people don't access the services they might be eligible for. I was talking about the difference between eligibility for services and actual access to services.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I would like to build on something Mr. MacGregor spoke of. He was talking about your remarks that there's no legal aid for refugees.

My understanding is that there's no funding for IRB processes. Is that the entirety of what that means, or is it in some way the fact that these people have not yet achieved permanent residency or citizenship status, which somehow excludes them from other aspects of legal aid?

[Julie Chamagne]

No. To clarify that as much as I can because I'm not a spokesperson for Nova Scotia Legal Aid, refugee claimants and other people without permanent residence or citizenship can access legal aid services in different domains, in family law and criminal law, if they are eligible financially.

It's just the domain that's not funded, and not the person.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

As one final opportunity for you to have a teaching moment, could you explain to me, my not being a lawyer, what the reverse order questioning model is?

You mentioned that the process—

[Julie Chamagne]

Instead of counsel leading our witness, the reverse order questioning that happens at the refugee protection division is the one board member now leading the witness. That can be problematic. It's hard for our volunteer lawyers to get used to it as well.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I stand informed. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. McKinnon.

Mr. Falk, you're next.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair.

Thank you to our witnesses for your testimony here today.

Mr. Aylwin, you indicated there's a disparity between provinces with different rates for similar services. Those rates are established by the provinces?

[Antoine Aylwin]

Exactly.

[Ted Falk, Conservative, Provencher, MB]

Were you suggesting in your testimony that the federal government should mandate this on provinces?

[Antoine Aylwin]

It's not something I suggest. I meant to inform you of the situation right now. We're in negotiation right now. This is a standpoint we've taken in the negotiation to compare from province to province. We're in the process.

I thought it would be useful for you to understand why there are differences across the provinces. The fact that we have a strong public regime may in part explain why we have such a difference, because people have more options in Quebec than they might have in other provinces.

[Ted Falk, Conservative, Provencher, MB]

Would you be in favour of a standardized rate schedule across the country?

[Antoine Aylwin]

I think it would be difficult to apply because when you look at the basket of legal aid, each province will decide what and how they want to cover. I think it's very difficult to compare the decision that may be made by one province to another.

If you're talking about setting regime standards for immigration or criminals, that might make sense, but if you're talking about all legal aid in the civil regime, I'm not sure it's a good idea for the federal government.

[Ted Falk, Conservative, Provencher, MB]

Okay. Good. Thank you.

Ms. Chamagne, thank you for your testimony as well. Can you describe to me any of the best practices your organization has developed in dealing with refugees? I think you have done a little of that throughout your testimony.

[Julie Chamagne]

As I was saying, it's really on a case-by-case basis. We try to work from a very flexible and anti-oppressive standpoint. I think that's important. We obviously talk a lot about what I was saying, which is the holistic approach to service provision, whereby access to justice and other services are taken together so the person can present their best case in front of the Immigration and Refugee Board.

Obviously, we try to maintain a certain professional distance, but also to flatten some of the hierarchies. Establishing that relationship of trust is very good.

[Ted Falk, Conservative, Provencher, MB]

Are you predominantly dealing with people who have come into our country legally and made a refugee claim, or people who have come in illegally, or what?