Legal Aid Manitoba wants non-lawyers empowered to argue refugee claims

Legal Aid Manitoba doesn't believe someone should need a law degree to plead the case of refugee claimants who want to stay in Canada.

The organization has asked the Immigration and Refugee Board of Canada for permission to use trained advocates rather than lawyers to represent asylum-seekers, at least in some cases, after a surge in refugee claims last year as more people walked across the border into Manitoba.

The federal department says it is barred by legislation from granting the request. But Tim Valgardson, chairman of Legal Aid Manitoba, says discussions between the parties are continuing.

"I really hope that it's not a roadblock, that the parties can sit down and really look at the big picture."

Legal Aid Manitoba is arguing it can save money by empowering a staff member to prepare for a claimant's refugee board hearing.

Assistance at every step

The advocate would prepare a legal aid application, complete the basis of claim form and ultimately provide representation during the hearing.

Their work would be supervised throughout the process by a trained lawyer, Valgardson said.

He's adamant that claimants would not receive substandard help. 

"If we believed that the paralegals we would train and put in place would not be doing an adequate job or a good job for our clients, it's not a road we would go down," he said.

"People are going to get good representation."

Welcome Place, which provides housing to many asylum-seekers, believes the pilot project has merit.

Ghezae Hagos Berhe, who works at the centre with refugee claimants, says Legal Aid's idea to invite an advocate to help with the preparation of refugee claims is encouraging because they sometimes struggle to find lawyers for their clients. He wouldn't comment on whether non-lawyers should take part in the hearing. 

"The root of the problem is the lack of financial incentive," he said. "That is true for refugee claims and it actually gets worse when it comes to appeal cases for rejected refugee claim cases."

Currently, the lawyers that Legal Aid hires for immigration matters receive a tariff of $80 per hour that's capped around 13 hours. An estimated cost savings through the new pilot project was not provided.

An official says the private bar would still have a role to play as the 100 or so cases the advocate would handle is a fraction of the number of asylum seekers that requests Legal Aid's assistance.

The agency oversaw 989 legal matters, which translated to more than 1,100 people, during the 2017-18 fiscal year when the number of irregular border crossings peaked in Manitoba. 

This total more than triples the number of cases in 2016-17.

Reduction in Legal Aid claims

By mid-November of this year, Legal Aid's volumes dropped 24 per cent by the same time period in 2017-18, as the flow of border crossings slowed.

Valgardson is hopeful Legal Aid's idea will find favour in Ottawa. He said the agency already uses advocates to provide representation services in the areas of residential tenancies and welfare appeals. 

"What we're trying to do is ensure, on the limited budget we have, we can represent as many people as we can." 

In Legal Aid's interpretation, the agency believes the Immigration and Refugee Protection Act (IRPA) allows the use of non-lawyers. Section 91 places "an entity, including a person acting on its behalf" in the same standing as a lawyer to provide representation or advice, an official says.

Also, the five-year Legal Aid agreement between Manitoba and Canada states the province has the authority to determine how legal aid is made available, the organization is arguing.

It raises all sorts of issues if the claims are denied and refugees say, 'I wasn't represented by a lawyer.'- Kenneth Zaifman, Winnipeg immigration lawyer

Two Winnipeg immigration lawyers don't support the idea. 

"I have serious concerns regarding both the intention and the details of the project," Alastair Clarke wrote in an email.

"Section 91 of IRPA is designed to protect vulnerable people from poor representation."

Kenneth Zaifman questions whether an advocate would save much money when a lawyer is still looking over their work.

He believes Legal Aid can find efficiency by working with existing refugee or immigrant agencies to hire in-house lawyers who become experts at refugee hearings. 

Inadequate representation?

Otherwise, "I think it raises all sorts of issues if the claims are denied and refugees say, 'I wasn't represented by a lawyer,'" Zaifman said.

The Immigration and Refugee Board of Canada reiterated that lawyers are necessary in a letter to Legal Aid, a spokesperson told CBC News last month.

But "the IRB is interested in hearing from stakeholders to explore new and innovative ways to improve efficiency, with the objective of improving the timeliness of refugee protection decisions, without sacrificing the fairness of proceedings and the quality of the decisions," she added in an email.

After the first 11 months of the year, 399 irregular migrants were apprehended by the RCMP while crossing into Manitoba between official ports of entry. A total of 1,018 people were stopped by Manitoba police in all of 2017.