Thank you very much for the invitation.
I accepted your invitation as president of the Association des juristes d'expression française de la Nouvelle-Écosse. We are very honoured to be testifying before you.
I have been practising law for 25 years, and I accept legal aid certificates. Since I live in Cheticamp, on Cape Breton Island, I regularly get client referrals from the offices in Port Hawkesbury, Sydney and Antigonish. With francophone clients, when the local legal aid office has no bilingual employees, I may get certificates from Halifax, New Glasgow, and elsewhere.
My name and telephone number also appear on the list of lawyers who provide Brydges services, when a francophone lawyer is called on to represent an accused who is arrested outside working hours.
In Nova Scotia, legal aid offices can be found around the province and each one is independent from the others. The staff, however, is hired through the main office in Halifax.
For a number of years, I have been accepting many fewer certificates, largely because of the volume of work it requires and the low hourly rates paid by legal aid. For example, the last bill that I sent to legal aid was for 35 hours of work at $80 an hour, the hourly rate paid by legal aid, even though I worked 40 hours more than that.
When I started practising law, I became aware of a situation that still exists and that disappoints me enormously: the number of trials and requests for service in French is directly linked to the number of francophone, francophile or Acadian lawyers practising in Nova Scotia.
With legal aid, the situation is even more critical, because few lawyers who can practice in French are accepting certificates. In addition, few legal aid lawyers are being hired. At the moment, the legal aid service has one francophone lawyer, another will join her in a month, and there’s also one intern, who may be hired.
When we got in touch with the director of the legal aid service in Halifax in order to find out the number of service requests that are received in French, we realized that the office does not compile those kinds of statistics. We find that unfortunate, because it is very important for those of us living in a minority to have those data.
We do not know how many clients are francophone and, among the clients who could potentially be francophone, we do not know how many of them asked for services in French. We do not have statistics on the number of people who would agree to proceed with a case in French.
In Nova Scotia, the policy is to provide certificates for French-language services only for criminal law cases. Even when a request comes from a francophone client, in a family law case, for example, the policy applies. However, I can tell you that, in my region in Cape Breton, I regularly receive certificates for francophones coming to the legal aid office.
Normally, clients are given a list of bilingual lawyers with whom they can communicate. At the Halifax office, I was also told that, if a request came for a criminal case, they would certainly try to find a bilingual lawyer to accept a legal aid certificate. If need be, they would even provide a certificate to someone from outside the province.
I have talked to people in several offices, including the central office in Halifax. I have been told that job application forms always ask if people speak French, especially when they are looking for bilingual lawyers or staff. Bilingualism is an asset, but in Nova Scotia’s legal aid, no position is designated bilingual.
We do very little such recruitment, except through local newspapers. We do not necessarily approach the universities that train bilingual students, such as the Université de Moncton or McGill.
It is also unfortunate that the statistics do not reflect certain francophone clients who might need legal services. For any language other than English, the “other” box is used, which does not yield representative data.
In my opinion, until there is an active offer of legal services in both languages, at the RCMP for instance or in regions with significant demand, people will never be able to choose between French and English or have their trial conducted in French.
Let me share an anecdote in this regard. During my first 15 years of practice, every client who came to see me, even in my own town, said they were afraid that the judge would hold it against them if they asked for their trial to be conducted in French. In the last 10 years, however, that issue has not come up again, either because I have won a few trials, or because people have learned that is not how it works, either based on my reputation or from the experience of people who have been through the justice system.
I have heard, however, that this is still the case in regions where there is no active offer or where there are fewer francophone lawyers. Through my contacts, I have also learned that there are very few bilingual lawyers who accept legal aid certificates. That is why not many services are offered in French, even in other Acadian regions.
As to the Canadian Human Rights Commission, I have had at least one case related to this aspect of the law. The person assigned to the file was bilingual. Even though the case was settled out of court, we could have continued in French.
Another one of my clients had dealings with the commission for about ten years. Some people there spoke French, but all meetings with the parties were in English. The lawyers suggested by the commission were anglophones; the briefs were written in English only; the senior management had no French-language skills; and there was no active offer of services, even for court appearances.
In closing, I would like to point out that our association opened the Bilingual Legal Information Centre, where people can get information. I do not have the exact figures, but I think about 20% of people request services in French.
Unfortunately, it is very difficult to reach clients who need services in rural regions, such as Cape Breton or southwestern Nova Scotia. The majority of requests for services in French are from the community in Halifax, and they are from immigrants or people originally from other provinces, particularly Quebec and New Brunswick. There are fewer requests for information from people from other Acadian regions.
Thank you very much. I will be pleased to answer your questions.
Thank you, Mr. Chair, and members of the committee, for extending this invitation. It's truly a great honour for our organization to be able to present before the committee today.
As the executive director of a small but mighty not-for-profit, I'm used to engaging in shameless self-promotion and donation requests, but today my goal is to give you some insight into how our organization operates, our successes, some solutions we have found with regard to access to justice for our clients, a few of the challenges we face, and some recommendations from our unique perspective.
Our clinic was founded by local immigration lawyer Lee Cohen in June 2000, in response to the ongoing lack of legal aid for people making refugee claims in Nova Scotia. Today, coming up on two decades, we still have no legal aid for immigration and refugee matters in the province.
We started, like many not-for-profits, humbly and informally out of coffee shops and living rooms, church basements, and tiny shared offices. Today we occupy a house in the north end of Halifax, which was donated to us by one of our volunteers and supporters. We're a grassroots, non-governmental community organization. We provide legal and settlement services to refugee claimants and for certain other risk-based and humanitarian immigration applications. We also engage in advocacy and education initiatives.
We are, you could say, a kind of a privately funded legal aid, but we have a unique model in that we are a volunteer-based organization. We rely on volunteers out of necessity but also by philosophy. It is the community's responsibility and privilege to help those fleeing persecution.
Our core volunteers are community lawyers who take on individual client files on a pro bono basis, and who, with the help of our staff and senior volunteer counsel, are mentored and trained to represent clients in front of the refugee protection division, as well as the refugee appeal division, the Federal Court, the immigration division, and occasionally other forums.
We also have a roster of volunteer interpreters, English- and French-language tutors, mental health counsellors, research assistants, community guides or buddies, and placement students and student interns in domains ranging from social work to political science to accounting to medicine and, of course, law.
We are funded by the Law Foundation of Nova Scotia and private donations, supplemented by in-house fundraising efforts. Our operating budget is almost always under $200,000 a year, and this year it is $167,000.
In Nova Scotia, as you might imagine, we do not see the numbers of refugee claimants seen in bigger centres in provinces such as Quebec or Ontario, but we consistently have 30 to 50 new clients a year, around 75% of whom are first-stage refugee claimants. So far for 2016-17, our success rate in front of the refugee protection division is 83.8%.
Representing refugee claimants is complex and delicate. There can be varying degrees of legal complexities in files, and individuals have other factors that need to be taken into account or addressed or worked around, including trauma, language and educational barriers, cultural differences, and proscriptions. Establishing a relationship of trust takes time and finesse. There's a finite amount of time to complete the requisite forms and story that are the basis of the refugee claim, as well as to gather and compile evidence to corroborate the claimant's fears in front of the refugee protection division, which, as many of you may know, is a quasi-judicial tribunal operating with a reverse-order questioning model.
One of our unique responses to the particularities of this hearing in front of the refugee protection division is our hearing preparation program through which, with the help of our volunteer-lawyer staff and other volunteers, we prepare clients to testify by holding a series of mock hearings. We do this because the refugee protection division hearing has very high stakes. The consequences of a wrong decision from the board can ultimately result in deportation, which can lead to persecution or even death.
We are confronted with and try to balance and address these needs and our limitations on a daily basis with unstable and insufficient funding, which necessitates staff fundraising alongside our direct-service provision to just sustain our programming. This is our reality. It is not unique to us but is the norm for many non-profits like ours across the country.
Our model developed rather organically out of this lack of access to justice. Over the years the lack of access to certain services has also created a robust settlement component within the clinic, as refugee claimants are ineligible for services offered by agencies and institutions that are IRCC-funded. Lack of social, medical, and settlement services oftentimes has a direct effect on a positive outcome in the legal sphere, so we approach our service provision holistically. A refugee claimant who's experiencing homelessness, who has untreated mental or physical health issues, or who has no money for food is not able to prepare their claim in adequate conditions.
Along with the multi-faceted needs of our clientele and the systemic inequities that refugee claimants experience in accessing basic services and justice, we are also responsible for finding, managing, and liaising with other entities, government and non-government, that our clients' situations give rise to or that they interact with. These intersectional situations require trusted and competent advocates or navigators, even when we are dealing with people who are allowed to access these services, as eligibility and true access are two different things.
I have an example that I hope will showcase this crucial role. Last year we took on the case of a woman who fled terrible partner violence from her husband, who was well connected politically in their country of origin. It's a country I can't even mention here, because she's still terrified and still living somewhat in hiding. She came to our organization pregnant with her fourth child, and left directly to the shelter, which we facilitated with the help of staff and volunteers. We then met with her in the shelter for several weeks, with the help of several of our volunteer interpreters—this was not the kind of claim that could be prepared in one sitting—going through the details of terrible memories that were very painful for her to bring up. We brought volunteer childminders so that we could prepare properly and also, obviously, spare the children the terrible details.
For many months we prepared her claim and her subsequent hearing; translated the documents she had; did research on human rights abuses and available protections in her country of origin; had to learn on the fly about emergency family law custody matters; liaised with her family lawyer, the police, and the crown for her ex-husband's criminal justice matter; communicated with the shelters where she was staying to keep them apprised of every stage of her immigration proceedings; managed Department of Community Services income assistance applications; spoke with child protective services; found and helped register the children in new schools; addressed medical needs, including prenatal needs and then newborn needs; and much more.
Happily, I can inform you that she and her children were granted refugee status and are now in the process of applying for permanent residence. But this is what it takes to be safe and to start to rebuild a life. All of this takes time, expertise, understanding, flexibility, and human capital.
This case study sets the stage for our first recommendation. We must acknowledge and value the role that non-profits and community organizations play in enabling access to justice, particularly for disadvantaged and marginalized groups. While robust legal representation is paramount to the success of a refugee claim, there are so many factors at play that the role of a guide or navigator is absolutely indispensable. People taking on these roles are undervalued, overworked, and underpaid—if they are paid at all. Our recommendation would be to examine carefully the role that these community advocates play and create or open federal funding streams to community and not-for-profit organizations who work with people accessing the justice system.
Another recommendation would be to leverage community organizations like ours for the powerful educational tools they are. As I mentioned, we have a huge roster of students from many disciplines, from social work to law, doing placements, practicums, internships, or service learning at our organization during the academic year and in the summertime. This model has the benefit of allowing us to have more power and serve our clients in ways in which a small organization simply cannot without this kind of help to do the following: take clients to medical appointments, call up landlords and set up apartment visits, do in-depth research of persecution against ethnic minorities in Ethiopia, calculate the federal and provincial portion of the HST paid for the last year by our organization, prepare a brief on the availability of mental health services in Guyana, and sift through 1F(a) exclusion case law for a member of the Afghan National Army. All of that is literally just what I can think of that's been done by our summer team over the last week.
I'm using these many examples to demonstrate not only how essential it is for us as a small organization to have this power and these skills and perspectives but also what an amazing opportunity it is for students to be able to learn about refugee claimants and non-profits and apply their theory to real-life situations. My recommendation here is to continue funding work opportunities for students—we have two Canada summer jobs students right now—and, more specifically, to create funding for law student graduates to be able to have paid articles at not-for-profit organizations. This would also help mitigate the articling crisis that many law schools are faced with now.
I have a recommendation on immigration detention. Obviously that's been in the news. I won't belabour the point. However, it is a huge access to justice issue, especially for provinces like ours, where immigration detainees are held without legal aid and where they are held in the general population of criminal facilities.
My last recommendation is around language as access to justice. Words themselves mean nothing to people who can't understand them. Funding interpreters so that this work is not downloaded to community organizations, family members, or communities, which is problematic in so many ways, is essential, as is opening up eligibility for federally funded English-language learning to refugee claimants.
I think the success rate at the moment is 55%. When you consider that more than half will be going on to live permanently in Canada and don't have access to the LINC program for years, in some cases it would be a win-win situation and increase people's sense of belonging and ability to join the labour force more quickly.
Thank you very much. I'm happy to elaborate, clarify, and answer your questions as well as speak to some other ideas and recommendations that I might have.
I have prepared my testimony in English, but I am ready to answer questions from members in French.
Thank you very much.
Mr. Chair, former minister of justice, members of the committee, thank you.
The Barreau du Québec is the professional body that represents 26,000 lawyers in Quebec. Its mandate is to protect the public, in particular by governing the legal profession. Public protection also includes a societal aspect. Access to justice is an important societal issue that is related to our mandate.
We are pleased to contribute to the work of the Standing Committee on Justice and Human Rights with respect to legal aid since it is an issue that involves both justice and human rights. It is a fundamental issue. In 2002, the chief justice of the Supreme Court of Canada ruled that legal aid is an essential public service for all low-income Canadians. We must look at it in the same way as health care and education. The health of our justice system and public confidence in it depend on this.
Still relevant, these remarks are often used to call for the reform of legal aid as an essential service. As you know, the law is the foundation of democracy and of social cohesion, to the extent that the public has access to it. Access is often through legal aid.
More recently, a report from British Columbia took up the cause again.
It states the following:
||We need to build a broad consensus which recognizes that legal aid is an essential public service. Along with education, healthcare, and social assistance, it is the fourth pillar of our steadfast commitment to a just society.
The Barreau du Québec believes in this principle and makes representations to various orders of government for it to be recognized.
Limited access to legal aid has a significant impact on the people who are deprived of fundamental rights, including equality before the law. Vulnerable people are convicted or waive their rights owing to a lack of adequate representation. There is also a substantial cost to the court system when individuals represent themselves.
In a society founded on the rule of law, it is essential for everyone to have appropriate representation. The state has a duty to provide such representation to the most disadvantaged and most vulnerable members of society. Quebec's legal aid network was established to provide legal services to all disadvantaged individuals, especially to the economically disadvantaged. It was created in the 1950s, when the legal aid system was based on lawyers providing services free of charge.
In the early 1970s, however, it became apparent that the system was lacking and that broader action was needed. Quebec's legal aid system as we know it today was created in 1973. The system in Quebec is hybrid in nature and includes permanent legal aid lawyers and lawyers in private practice who accept legal aid cases for which they are paid a negotiated rate.
I think Quebec's system differs from that in other provinces in that regard, as public-sector funding ranges from 40% to 55% every year. It is a hybrid system combining private practice and public practice.
The Quebec act respecting legal aid and the provision of certain other legal services had two related objectives: the individual defence of disadvantaged persons by lawyers and notaries, and the provision of legal information to disadvantaged persons with respect to their rights and obligations. The competition between permanent legal aid lawyers on salary and lawyers in private practice has helped keep costs down and reduce the bureaucratization of the system.
The first part of our presentation provides information about the system in Quebec, what is happening now, and the current discussions with the provincial government. We will then talk about the federal contribution, that is, the role the federal government should play with respect to legal aid.
As to Quebec's system, our representations reflect marginalized groups. Even though the eligibility thresholds reached minimum wage in 2016—which is catch-up from previous years—, the fact is that certain aspects of the 40-year-old system should be changed to ensure that it is still the best way of meeting the needs of the most disadvantaged members of society.
Quebec is the only province that uses annual income as opposed to monthly income to determine eligibility for legal aid. When a person requires legal services, however, it is often because their income has dropped, which goes unnoticed if one considers the person's income for the whole year. That is one of the challenges we face in Quebec as regards access.
The issue of designated clientele is another consideration. In its Reaching Equal Justice Report, the Canadian Bar Association defines the group as people living in marginalized conditions. According to Judge Cromwell's report, the poor and the vulnerable are particularly prone to legal problems.
According to the Supreme Court justice, individuals with lower income and members of vulnerable groups experience more legal problems than higher income earners and members of more secure groups. This reality concerns the legal community, and one of the solutions lies in the creation of specialized clinics to more effectively support the most disadvantaged members of society.
Ontario is being applauded for its efforts to set up legal aid centres specifically for certain client groups.
the African Canadian Legal Clinic, the South Asian Legal Clinic of Ontario, the Metro Toronto Chinese and Southeast Asian Legal Clinic, the Centre for Spanish-Speaking Peoples, and the Aboriginal Legal Services in Toronto.
These initiatives are designed to help singled-out client groups. The approach is in line with that set out in the Reaching Equal Justice Report. The cornerstone of the report is human justice based on human rights, in other words, taking into account all of the legal problems, challenges and disputes that both individuals and small businesses experience.
The first step would be to prioritize assistance for those with essential legal needs and to adopt the specialized clinic approach to avoid the stigmatization of those client groups. A comprehensive effort is necessary to disseminate legal information on a broader scale and to continue tailoring the information to people living in marginalized conditions, including those from racialized groups. Although the resources are sometimes in place, they are not accessible to these populations.
Ms. Chamagne discussed the problems with translation and interpretation. People who are unable to receive assistance in English or French in Quebec do not have access to these resources.
I addressed the fact that monthly income is used to determine whether a person qualifies for legal aid. The situation has been this way since 1996. As you can imagine, it creates numerous challenges for individuals who have lost their jobs and are experiencing financial hardship. People in these situations can experience a variety of legal problems: they may have been denied wage loss insurance or employment insurance; they may be unable to pay their rent; they may be accumulating debt or dealing with collection agencies; and so forth.
Service coverage is another factor. The range of services covered by legal aid has been reduced. For example, summary conviction offences, under criminal law, are no longer covered. That has an impact at the federal level, as well, given that some offences involve federal legislation just as much as provincial legislation. Legal aid is covered only when the individual faces the possibility of going to jail or losing their means of livelihood, or when exceptional circumstances exist.
We believe these conditions are much too restrictive. How many people plead guilty because they don't have access to a lawyer's services and cannot afford to defend themselves despite having sound arguments in their defence? Such situations can arise in cases of systemic or indirect discrimination including racial profiling.
How many people representing themselves have slowed down or delayed the legal process? This gives rise to additional costs, which may be difficult to calculate but are a familiar reality for any lawyer with courtroom experience who has watched an individual represent themselves.
Furthermore, consideration must be given to the ongoing negotiations regarding the fees of private practice lawyers for legal aid services. Quebec's lawyers are demanding the right to be compensated for legal aid work at rates comparable to those of their counterparts in other provinces, which is not currently the case. A flat fee is paid for many services regardless of the number of hours worked. That deters lawyers in private practice from accepting legal aid mandates. The statistics are telling: the number of private practice legal aid mandates has dropped markedly over the years, as has the number of lawyers accepting legal aid mandates.
Looking at the 15-year period between 2001 and 2016, we see a 20% decrease in the number of lawyers accepting legal aid mandates, despite the fact that the Barreau's membership rose by 37% during the same period. The difference is significant in terms of the drop in the number of lawyers accepting mandates.
Let us now turn to the federal government's involvement in legal aid. For our purposes, the government can facilitate better legal aid schemes mainly through financial support. With that in mind, the two elements I will talk about are immigration law cases and specialized clinics, which I touched on earlier.
I'd like to take this opportunity to recognize the reinstatement of the court challenges program, which was something the Barreau du Québec had been calling for. The ability to obtain funding for these kinds of cases contributes to access to justice.
Quite frankly, until just recently, I didn't know that the federal government funded legal aid services in cases involving immigration law and criminal law. According to the statistics we were able to obtain, in 2014-15, the commitment with respect to criminal matters was $23.4 million, in Quebec alone. For its part, Quebec contributed $134.1 million to the legal aid program.
Our first request is that steps be taken towards greater information transparency. A few years ago, a number of years ago, actually, the federal government contributed 50% of the funding and the province provided the other 50%. The transfers were then consolidated under federal-provincial agreements. Subsequently, during our negotiations with the Quebec government, it was challenging for us to find out what the federal government's contribution was and to make sure that the money went to Quebec's legal aid system. The issue is actually quite topical given that we are in negotiations right now and need the data in order to evaluate the system.
Of course, the federal government has a role to play in criminal law and immigration law. However, when the government decides, for better or for worse—I'm not here to pass judgment—that minimum sentences should be imposed and when it introduces further immigration legislation, making the practice of immigration law even more complex, it makes lawyers' jobs even harder. The complexity of immigration law has skyrocketed in recent years, and so too have the legal needs. The federal government is nevertheless responsible for ensuring that affected individuals have access to legal aid services and that those services are adequately funded.
The people eligible for legal aid in immigration matters are often facing serious threats. I mentioned human rights earlier. They are at risk of being removed or deported, have been denied citizenship, and have been separated from their families and loved ones. The hardship they face is beyond anything we can imagine. The requirements have multiplied and grown more complex over the past few years. It is our view that the federal government should take that new level of complexity into account when deciding how much it will contribute to legal aid.
Turning now to specialized clinics, I would point out that such clinics exist in the health sector and are tailored to the specific cultural needs of patients. Adopting a similar approach in the legal sector would only have positive effects. It would take into account Canada's multicultural and indigenous reality. Increased federal funding for legal aid should be geared towards communities that are often marginalized. Private specialized clinics require a commitment by the federal government. The purpose of these specialized centres is to provide representation to specific groups, with experts helping not just poor, but also marginalized, clients.
I will now summarize our recommendations.
First, legal aid funding should take into account new legislative requirements in immigration and the increased complexity of immigration law cases.
Second, federal legal aid funding should support private specialized clinics geared towards marginalized communities and groups.
Third, the method used to calculate federal legal aid funding should be available and the funding should be subject to greater transparency.
My fellow colleagues, thank you for mentioning that Supreme Court judges must now be bilingual.
The court challenges program is a priority for Minister and Minister . When I was sitting on the Standing Committee on Official Languages, as parliamentary secretary, it was an important issue for us.
I agree with you when you say it's a benefit for the community and for the principle of access to justice. I'm happy to hear you say it.
As you know, the Standing Committee on Official Languages is studying the issue of access to justice in full compliance with the Official Languages Act. I encourage you to follow its work closely.
First, I want to make a suggestion. Then, I'll ask Ms. Chamagne a question.
We saw that the Association des collèges et universités de la francophonie canadienne, or ACUFC, wanted more francophone doctors. This association said that not enough francophones were registered in medical programs. The ACUFC then surveyed all the medical students across the country, regardless of their language of study. According to this survey, 642 francophones and francophiles said they wanted to provide services in French during their medical career. This amounts to one third of the students across the country.
I strongly encourage the justice system and your colleagues to do the same thing with all the law students, because I think assets can be found.
As you said, we can train people once they've learned the language, but not the other way around.
Ms. Chamagne, I want to know whether you've had the opportunity to work with aboriginal people or people from the LGBTQ2 community on issues concerning refugees?