Holding Refugees Hostage at Legal Aid Ontario

Legal Aid Ontario is in a mess. In what should have been a good news story, LAO received new funding to enhance access to justice in recent years. Using this money, LAO created new programs and increased financial eligibility thresholds for existing programs. But LAO miscalculated demand for legal services and gave out more legal aid certificates than they could afford. The result: a deficit.

LAO now says that the deficit is not their fault. The big problem is that Canada has become increasingly welcoming towards refugees (you saw Trudeau’s tweet, right?). There is “unprecedented demand” for legal aid from refugees and immigrants, and LAO isn’t getting enough more money to deal with that demand. So, they have announced a 40% cut to refugee law services.

This story has some holes. It is true that there are more refugees around the world today than there have been at any time since WWII. However, only a tiny portion come to Canada. In 2016, Canada received 23,000 refugee claims, and around 35,000 are expected in 2017. That’s more than the numbers in the early years of the new refugee determination system established by the former Conservative government (e.g. 13,500 per year from 2013-2015). But many of the Conservative government’s anti-refugee policies were found to be unconstitutional, and the harshest policies have now been dismantled. A better comparison would be to the number of claims made prior to governmental attacks on refugee rights, which show that the numbers are simply returning to their typical levels (e.g. 32,000 per year from 2000 to 2009 – including 44,000 in 2001).

Comparisons between expenditures on refugees and other governmental expenditures also show that the number of refugee claims are not overwhelming. Refugee law services represent only a fraction of LAO’s budget (around 6% last year). And these costs are insignificant compared to the budgets of the Ontario (0.02%) and Federal (0.009%) governments.

So, if the numbers of refugees coming to Canada aren’t unusually high and if the cost of legal representation for refugees is modest, why is LAO blaming refugees for their budgetary woes and announcing massive cuts?

Simple. LAO is fighting over funding with the Federal and Provincial governments. In the past, when LAO threatened cuts to refugee law services, both coughed up more cash. Faced with budgetary pressures across all their programs, senior managers at LAO have decided that holding refugees hostage is their best bet.

This is unconscionable.

When people make refugee claims, they say that if they are deported they will face persecution, torture, or death. The rights and interests at stake couldn’t be higher. Moreover, social scientific research shows that high quality legal counsel is a key driver in refugee claim outcomes. This is not surprising. As a group, refugees are highly vulnerable. They frequently do not speak English or French, often have little familiarity with Canada’s legal system, and may be suffering from post-traumatic stress disorder or other mental health challenges. As a result, most refugee claimants would face serious obstacles if forced to navigate the refugee determination system on their own.

In this context, a 40% cut to refugee law services would be a disaster.

So, what should be done?

In the short term, the Federal and Provincial governments should provide increased funding to avert the disastrous cuts.

Longer term, though, negotiations between LAO and its funders can’t be based on unprincipled threats against vulnerable groups. A new funding framework should be established, tied to metrics like the number of refugee claims, number of immigration detentions, and number of removal proceedings. As part of such a framework, LAO should commit to allocating resources between its programs based on the seriousness of the rights and interests at stake in legal proceedings, and based on the vulnerabilities of clients. This would, for example, prevent LAO from threatening to cut refugee law services while maintaining services for relatively minor criminal law offences – as it is currently doing.

In addition, LAO’s immigration and refugee law programs should be subject to a public, transparent and evidence-based evaluation to ensure that limited resources are being used efficiently to produce high quality legal services.

And the LAO Board should be revised to better reflect the community that LAO serves. In the description of the skills and backgrounds of current Board members on the LAO website, the word “refugee” is conspicuously absent. That should be fixed.

Finally, public organizations that mismanage their finances require shakeups. A review of whether there is value for money in LAO senior management should be undertaken. The Sunshine List shows that salary levels and number of senior management positions far exceed what is typical for social justice organizations working in poverty law. Moreover, individuals in senior management at LAO should be held accountable for making decisions that resulted in a deficit, and for adopting an unconscionable negotiating tactic of holding refugees hostage for increased funding – even if that tactic ends up working.

Sean Rehaag is an Associate Professor at Osgoode Hall Law School, where he specializes in immigration and refugee law, and access to justice.

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