Ontario’s cuts to legal aid for refugees expected to lead to constitutional challenge

  • February 07, 2020
  • Shiva Bakhtiary

A version of this article was originally published by The Lawyer's Daily, part of LexisNexis Canada Inc., on July 2, 2019.

In the spring of 2019, the Ontario provincial government defunded Legal Aid Ontario, contending that the federal government ought to cover the full cost of federal refugee and immigration law services. The move required the organization to rely solely on federal funding, which, at the time, was not nearly enough to cover costs.

LAO issued 13,687 certificates for immigration and refugee services last year, covering 13 per cent of the total number of certificates issued. The organization spends about $34 million a year for refugee law services, of which $18 million came from the province. The federal government was originally slated to provide $16 million in funding this year for refugee law work, but the entire program costs about $45 million.

In August, the federal Liberal government announced an additional one-time injection of $25.7 million in funding to address the shortfall. There is still no long-term funding plan.

While refugees and immigration are a federal matter, critics noted that criminal law also falls under federal jurisdiction; and there is no reasoned distinction for eliminating one from provincial funding and not the other.

Sherry Aiken, an associate professor at Queen’s Law, suggested the apparent specific targeting of refugee claimants and immigrants may result in a legal challenge. She explained that the targeting of refugee claimants and immigrants would have a disproportionate impact on one segment of the population. This is “unconscionable”, as it implements a budgetary policy in a discriminatory way and implies that “refugees and newcomers are not entitled to be treated with the same degree of respect.” It is on these grounds that an immediate cut of this nature will likely result in a constitutional legal challenge.

In the case of Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, the Supreme Court of Canada ruled that everyone “physically present in Canada” is entitled to protection of their right to life, liberty and security under s. 7 of the Canadian Charter of Rights and Freedoms. Under our jurisprudence, this would include refugees and migrants physically present in Canada.

Also in the case of New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, the Supreme Court established that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where proceedings are complex, and where the litigant is not capable of self-representation — which are all factors present in many refugee hearings.

Like individuals charged with crimes, refugees have important rights at stake, such as the right to life, liberty and security. If not properly recognized, refugee claimants may be deported to face war, persecution, torture or death. As such, refugees are constitutionally entitled to legal aid.

While these cases do not address which level of government is responsible for providing funding, it is anticipated that the manner in which the Province of Ontario has withdrawn funding will draw charges of discrimination.

Shiva Bakhtiary is a lawyer at Osler, Hoskin & Harcourt LLP and an executive member of the Ontario Bar Association's Young Lawyers Division.