Feds, lawyers slam Ontario's 'discriminatory' legal aid cuts for refugee claimants

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Legal Aid Ontario’s funding was slashed by 30 per cent in the province’s 2019 budget, prompting criticism from lawyers and the federal government.

The Doug Ford government said the cuts — which mean Legal Aid Ontario will receive $133 million less in this fiscal year than the $456 million it had anticipated — will eliminate funding for refugee and immigration law services.

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The budget stated the cuts are meant to help with “streamlining the delivery of legal aid,” and funding will be reduced by $164 million in 2021-22.

The Ontario Bar Associated slammed “drastic cuts” in a statement Thursday, saying it will continue to support legal aid services in the province.

“We will continue to push for protection of the most vulnerable and a recognition of the value of lawyer services,” the statement read.

How the cuts will affect Legal Aid Ontario

Legal Aid Ontario CEO David Field told Global News the province’s move put the organization in a “challenging” position. He said they are currently trying to figure out how they can continue providing the same services and that “all options are on the table.”

“The focus is going to remain on clients and making sure that we’re able to provide the best quality services and most services,” he said.

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The group works regularly with refugee claimants to help them with the legal process. Fields said Legal Aid Ontario issued about 107,000 certificates last year, and 16,000 of them were related to immigration and refugees.

Field said Legal Aid Ontario will now have to rely solely on federal funding, which is not nearly enough to cover costs. The annual costs associated with certificates and other refugee and immigration services is close to $45 million — federal funding is $16 million.

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While Fields said there was some indication that the group would see its budget reduced, he said the specificity was “unusual.”

“This was unusual in the sense that there was specific instructions on how to address refugees,” he explained. “We were told we were no longer permitted to provide refugee services using provincial funding.”

A possible legal challenge

Sherry Aiken, an associate professor at Queen’s Law, explained that the specific targeting of refugee claimants and immigrants in the budget cuts is “unconscionable.”

“The strings attached to this budget cut are really shocking because the message is, well, refugees and newcomers are not entitled to be treated with the same degree of respect.”

It’s on these grounds, Aiken explained, that the budget cuts will likely result in a legal challenge.

“When the decision about a budget cut a disproportionate impact on one segment of the population, and there was a less impairing way to approach the matter, than the courts are likely to intervene,” Aiken said.

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“Judges will say, ‘OK, Ontario government, you need to cut back legal, fine, but don’t target specifically refugees and immigrants,'” Aiken said. “Once you do that, you are in effect implementing a budgetary policy in a discriminatory way.”

Aiken also noted a Supreme Court of Canada case in 1985, in which it was ruled that everyone “physically present in Canada” is entitled to Section 7 of the Charter of Rights and Freedoms.

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Section 7 lays out “the right to life, liberty and security of the person,” a fair legal process.

In the past, the Supreme Court has also ruled that legal aid be provided by the government in serious situations, Aiken said, and should be decided on a case-by-case basis.

Federal response to cuts

Parliamentary secretary for the Minister of Justice, Arif Virani, told Global News the federal government is “concerned about what’s happened in the budget.”

“Trying to balance your books — even though they’re not quite getting to balance — on the backs of refugees is a problem,” he said. “I am a refugee and someone who founded a legal aid clinic in Toronto prior to becoming an MP, so I take this very seriously. Our government takes access to justice very seriously.”

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Ontario has previously asked the federal government to pay more for refugee services, demanding Ottawa foot the entire bill for temporary housing, social assistance and school spaces for thousands of irregular border crossers who are seeking asylum in the province.

Virani said the Liberal government is already doing its part and has increased legal aid funding for refugee claimants. He said the federal government cannot be expected to make up for all the cuts made by the Doug Ford government.

“We’re being asked to fill that gap on a number of fronts,” he said.

“We’ve seen cuts to autism services, we’ve seen cuts to education, we’ve seen cuts to opioid treatment centres, and we’re now seeing cuts that are on the backs of immigrants and refugees in particular.”

Instead, the Toronto MP said he’d like people such as Ontario’s attorney general, Caroline Mulroney, to address this particular issue.

“I would think people like the attorney general and the premier should also take access to justice seriously. So if they want to have a conversation about legal aid, we’re willing to have that conversation.”

Mulroney did not respond to The Canadian Press a request for comment.

How will this affect refugees and immigrants?

Sean Rehaag, an associate professor at the Osgoode Hall Law School, explained that cuts to legal aid affect low-income individuals who need assistance to legal services.

But he noted that for refugee claimants, the risks associated with not having access are particularly high.

“The outcomes in refugee claims are significantly affected by whether or not the claimant has a lawyer. More people who meet the refugee definition, and would be recognized if they had the proper legal counsel, are not going to be recognized as refugees,” he said.

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Rehaag also noted that if rejected, these individuals may be forced to return to life-threatening situations.

He explained that legal aid services are constitutionally required in criminal law areas, which means the cuts will affect other aspects of the law.

“It’s refugee law, but it’s also things like dealing with evictions, things like workplace discrimination, things like being cut off social assistance.”

Beyond those who need assistance, Rehaag said the cuts will have a “really negative impact” on the legal system itself.

“When people are unrepresented, particularly vulnerable people, the system becomes much less efficient. The various processes try to accommodate people who are not familiar with legal proceedings,” he said.

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Mitigating effects of cuts

Aiken noted that there are other groups that provide services to refugee claimants, such as immigration consultants who are not licensed lawyers.

There are also settlement organizations that are federally funded, Aiken explained, that are also not able to provide legal representation but can help with things like filling out paperwork, or help them navigate the legal system.

“They’re not going to be a substitute for representation,” she explained.

Many lawyers also do some pro bono work, Aiken said, noting that is not a significant amount.

“So what we’re looking at in terms of this cut is just devastating news,” she said.

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Rehaag added that even with other organizations trying to mitigate the damage and Legal Aid Ontario figuring out way of cutting their own costs, the budget cuts will leave quite a big void.

“I think the only realistic way of dealing with this very large cut is to not provide any meaningful service to at least some people who previously would have had legal assistance.”

© 2019 Global News, a division of Corus Entertainment Inc.

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