By: Mackenzie Coleman, Law Student at the University of Alberta
Under the Immigration and Refugee Protection Act, refugees have the right to be represented at immigration and refugee (“I&R”) proceedings.[1] I&R legal aid “covers the provision of legal advice, assistance and representation for immigration or refugee proceedings” before the Federal Court and before the Immigration and Refugee Board of Canada.[2] Eight provinces (Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario, and Quebec) receive I&R legal aid funding by the federal government.[3] Across Canada, there were 46,233 I&R legal aid cases in 2022-2023.[4] Over the past five years, there has been an increase in I&R caseload volumes and expenditures.
On October 17, 2024, Legal Aid Manitoba received funding of $1.038 million over three years to provide immigration and refugee legal aid services. The services include:
- Preparing the Basis of Claims for refugee claimants, a mandatory document for all claimants;
- Providing legal representation at hearings before the Immigration and Refugee Board; and
- Offering legal assistance for detainees at Immigration Holding Centres.[5]
The Minister of Justice and Attorney General of Canada, the Honourable Arif Virani, says the Government of Canada is committed to building a fair and accessible justice system. Virani states that “through this funding, Legal Aid Manitoba will be able to provide predictable long-term immigration and refugee legal aid services to those in need. This will result in faster resolution of refugee claims and help to maintain the integrity of the immigration and refugee system”.[6]
Legal Aid Manitoba receives this renewed funding from “Justice Canada’s Legal Aid Program, and through a bilateral Agreement Respecting Immigration and Refugee Legal Aid”.[7] The Government of Canada has made it a priority to “ensure access to justice for low-income persons and make sure that the Canadian justice system is fair, efficient and accessible and the public confidence in the justice system is maintained”.[8]
The Government of Canada increased I&R funding across Canada, not just in Manitoba. The federal budget allocated $274 million over five years for I&R. Gabriela Ramo, chair of the CBA’s national immigration law section is hopeful that the funding represents the federal government making I&R issues a priority. Ramo says “there has not been the same general understanding of the importance of legal aid to ensuring fairness and access to justice in the immigration area as there has been in the criminal law area”.[9] This is notwithstanding the severe consequences of migrant claimants not receiving legal aid assistance such as returning to countries experiencing conflict.[10] I&R Legal Aid protects claimants who are unable to obtain representation or get a legal aid certificate. With the growing number of refugee claims happening across Canadian borders, Ramo says the increase in funding could not have occurred at a more prudent time.[11]
However, there are issues related to I&R Legal Aid in Manitoba. One of the primary issues is the low tariff levels. Manitoba has the lowest hourly rate paid by legal aid to private bar lawyers.[12] This results in a lack of lawyers who are willing to do legal aid work which results in delays in proceeding cases. Another access to justice issue is the inconsistent approach to I&R legal aid service delivery. The same situation may not receive the same level of assistance which raises “questions about the equitability of legal aid, as well as the regional distribution of services”.[13]
Across Canada, I&R is experiencing a backlog in cases. Robert Israel Blanshay, CBA immigration section vice-chair of refugee and litigation affairs, says that the increased funding will not be enough to keep up with asylum claims. He says that $272 million in funding across Canada in 2025 and 2026 would address the backlog instead of the $72 million in funding.[14] Blanshay states that while the government is heading in the right direction, the proposed funding does not “really address all the needs of persons who require legal aid dealing with immigration and refugee matters”.[15] He continues to say that this is an access to justice. Blanskay states that “if you want access to justice, you shouldn’t divide people with millions of dollars, that can afford a lawyer, versus people that don’t have anything, that cannot. Everybody [should] get access to justice”.[16]
The Government of Canada has proposed some options to lower the cost of legal aid services. One option is to delegate more tasks to trained paralegals and legal consultants. To the “extent that consultants and paralegals provide a low-cost substitute for legal aid, they have a material impact on legal aid costs”.[17] Another proposal is to increase the options for assisted self-representation for those who do not qualify for legal aid. However, this option is often unsuitable for the I&R context because of the unfamiliarity with the Canadian legal system and lack of ability to work in English and/or French.[18]
Despite these issues, Peter Kingsley, Executive Director of Legal Aid Manitoba states that the “guaranteed funding over the next few years will assist Legal Aid Manitoba in providing high quality legal services for those persons who are at their most vulnerable”.[19] Kingsley goes on to say that with the increasing number of refugees in Canada, it is “vital that the legal representation be available to ensure that our immigration system remains accessible, balanced, and just”.[20]The increase in funding will allow immigrants and refugees to navigate complex legal procedures and ensure fair decision-making – both important aspects of access to justice.
[1] Government of Canada, “Immigration and refugee legal aid” (25 July 2024), online: <https://justice.canada.ca/eng/rp-pr/jr/aid-aide/2023/p8.html>.
[2] Ibid.
[3] Government of Canada, “The Government of Canada renews funding for immigration and refugee legal aid services in Manitoba” (17 October 2024), online: <https://www.canada.ca/en/department-justice/news/2024/10/the-government-of-canada-renews-funding-for-immigration-and-refugee-legal-aid-services-in-manitoba.html>.
[4] Supra, note 4.
[5] Ibid.
[6] Supra, note 3.
[7] Ibid.
[8] Ibid.
[9] Cristin Schmitz, “Ottawa’s proposed $72M for immigration legal aid in 2024 helps but more funds needed, CBA says”, (6 May 2024), online: <https://www.law360.ca/ca/articles/1834163/ottawa-s-proposed-72m-for-immigration-legal-aid-in-2024-helps-but-more-funds-needed-cba-says>.
[10] Ibid.
[11] Ibid.
[12] Government of Canada, “An Analysis of Immigration and Refugee Law Services in Canada”, (3 February 2023), online: < https://www.justice.gc.ca/eng/rp-pr/other-autre/ir/rr03_la18-rr03_aj18/p7.html>.
[13] Ibid.
[14] Supra, note 9.
[15] Ibid.
[16] Ibid.
[17] Government of Canada, “Immigration and Refugee Legal Aid Cost Drivers”, (3 February 2023), online: < https://www.justice.gc.ca/eng/rp-pr/other-autre/ir/rr03_la17-rr03_aj17/p27.html>.
[18] Ibid.
[19] Supra, note 3.
[20] Ibid.