Right to and Role of Counsel

• Author: Sasha Baglay/Martin Jones
• Pages: 314-328

314

CHA PTER 9

RIGHT TO AND

ROLE OF COUNSEL

A. INTRODUC TION

The right to representation in refugee proceedings before the Immi-

gration and Refugee Board (IRB) is establi shed in the Immigration and

Refugee Protection Act. The Act provides:

Both a person who is t he subject of Board proceedings and the Min is-

ter may, at their own expen se, be represented by a barrister or s olici-

tor or other counsel.1

A similar provi sion governs individuals pursui ng pre-removal risk

assessments.2 The right to representation in other refugee matters, i n-

cluding overseas applications, f‌lows from general principles of com-

mon law and constitutional law. With respect to the latter, Pinard J has

found that the section 7 Charter rights involved in inland refugee pro-

ceedings include “the right to be represented by competent and careful

counsel.”3 Note that this provision neither guarantees that a claimant

1 SC 2001, c 27, s 167(1) [IRPA].

2 Immigration and Refugee Protection Regulations, SOR/2002-227, s 161(1) [Regula-

tions].

3 Mathon v Canada (Ministe r of Employment and Immigration) (1988), 38 Admin

LR 193 at 208 (TD) [Mathon]. On the facts of the c ase, the emphasis wa s very

much on the term “competent an d careful.”