Troubling signs: mapping access to justice in Canada's refugee system reform.

• Author: Bates, Emily
• Position: Abstract through III. Anticipated Access to Justice Concerns D. Limited Recourse for Failed Claimants, p. 5-38

IN 2012, CANADA'S REFUGEE System underwent a significant transformation. Throughout the period of reform, refugee advocates, researchers and support workers expressed concern that the changes would individually and cumulatively exacerbate existing access to justice deficits for refugee claimants. Drawing on experience from the authors' involvement with the University of Ottawa Refugee Assistance Project, as well as dedicated supplementary research, this paper begins by outlining a social context conception of access to justice and then explores how access to justice issues were considered as part of the refugee system reform process, including what deficits experts foresaw arising as a result of that reform. The paper then details institutional responses to the new system, before providing insights on the access to justice deficits experts indicated refugees were actually experiencing two years after implementation of key reforms. This analysis draws on a variety of primary and secondary sources, including an actual claimant file which is used to both explore key access to justice concerns and illustrate the vital importance of more in-depth study in this area.

EN 2012, LE SYSTEME canadien de traitement des refugies a fait l'objet d'une reforme majeure. Tout au long de cette periode de reforme, les avocats, les chercheurs et les travailleurs de soutien en matiere de droits des refugies, ont exprime de vives preoccupations quant a l'incidence de ces changements. Ils ont en effet insiste sur le fait qu'ils risquaient d'exacerber de facon a la fois individuelle et collective les obstacles et deficits a l'acces a la justice pour les demandeurs du statut de refugie. A partir de l'experience que les auteurs tirent de leur participation au Projet d'assistance pour les refugies a l'Universite d'Ottawa, ainsi que de leurs recherches approfondies complementaires, ils amorcent leur article en replacant la conception de l'acces a la justice dans son contexte social et explorent ensuite la maniere dont les questions d'acces a la justice ont ete considerees comme partie integrante du processus de reforme du systeme de traitement des refugies, ce qui comprend les lacunes que les experts entrevoient en consequence de cette reforme. L'article detaille ensuite les reponses institutionnelles a ce nouveau systeme, avant de fournir des pistes de reflexion concernant les obstacles a l'acces a la justice auxquels, selon les specialistes, les refugies se heurtent dans la realite deux ans apres la mise en vigueur des principales reformes. Cette analyse se fonde sur une diversite de sources primaires et secondaires, notamment un authentique dossier de demande de statut de refugie qui sert a explorer les preoccupations cruciales relatives a l'acces a la justice et a illustrer l'importance vitale de mener une etude plus approfondie de ces enjeux.

CONTENTS Troubling Signs: Mapping Access to Justice in Canada's Refugee System Reform Emily Bates, Jennifer Bond & David Wiseman I. Access to Justice in the Refugee Context II. Consideration of Access to Justice in Refugee System Reform A. Legislative history and key changes to the RSD system B. Consideration of access to justice during the legislative process 1. Compliance with Canada's human rights instruments 2. Impact of shorter timelines on access to justice 3. Impact of new RSD process on need for legal aid 4. Rhetorical discourse surrounding the changes III. Anticipated Access to Justice Concerns A. Systemic unfairness for certain classes of claimants B. Structural changes in the claims process C. Truncated timelines in all aspects of the RSD process D. Limited recourse for failed claimants E. Increased availability of detention F. Exacerbation of resource constraints IV. Institutional Implications of Refugee System Reform A. The Immigration and Refugee Board B. Citizenship and Immigration Canada and the Canada Border Services Agency C. Legal Aid D. Refugee support sector and non-profit refugee law sector V. Actual Access to Justice Concerns A. Systemic unfairness for certain classes of claimants B. Truncated timelines in all aspects of RSD process C. Limited recourse for failed claimants D. Detention-related issues E. Resource constraints F. Increased use of Ministerial interventions VI. Access to Justice in Antoine's Case A. Antoine's Case VII. Conclusion The Canadian refugee system has recently undergone a significant transformation. Over the past five years, nine pieces of government-sponsored legislation have been introduced in this area, (1) resulting in major changes to the way refugee claimants are able to make and appeal their claims or access complementary forms of protection, (2) are removed subsequent to an unsuccessful claim, (3) and are treated during their time on Canadian territory. (4) A cornerstone of the reforms is legislation that creates, for the first time, distinctions between claimants on the basis of country of origin (5) or circumstance of arrival, (6) and which imposes strict new timelines on all aspects of the refugee status determination (RSD) process. (7) Introduction of these reforms was widely publicized, with the Canadian government portraying the sweeping changes as a necessary response to delays, backlogs, weaknesses, and inefficiencies that rendered the previous RSD process vulnerable to abuse by so-called "bogus" or "queue-jumping" refugee claimants who threatened to undermine the system's integrity or pose a risk to national security. (8) In the months prior to implementation of the new system, refugee advocates (many of whom also called for some changes to the status quo) expressed concern about the government's proposals on a variety of grounds. (9) Amongst these grounds was widespread agreement that many of the changes would make things worse for some of the world's most vulnerable persons.

This paper draws on ongoing work by the University of Ottawa's Refugee Assistance Project (UORAP) to map access to justice issues in Canada's new RSD system. (10) Specifically, it discusses the concept of access to justice and outlines a general framework for its application in the refugee context, and then uses this framework to consider both the extent to which access to justice deficits were anticipated in the new RSD system and the extent to which experts perceive there to be deficits in the system now that it is operational. It also provides analysis of how access to justice considerations factored into the process of reform itself and documents the institutional implications of the recent changes. Cumulatively, the mapping undertaken in this paper reveals troubling signs that Canada's new refugee system poses significant obstacles to the attainment of refugee access to justice. (11)

The paper proceeds in six parts. Part I introduces a multi-dimensional conception of access to justice for application in relation to the RSD process, emphasizing the relevance and role of the social context of refugees. Part II explores the government's failure to consider a variety of aspects of access to justice as part of the recent reform process. Part III shares views from the first of two community-based "environmental scans" undertaken within the refugee support and refugee law sectors. (12) This first scan was conducted in the months immediately preceding introduction of the new RSD system and identified anticipatory access to justice deficits. Part IV explores some of the institutional implications of the RSD reforms by considering responses by, and impacts on, a variety of actors including the Immigration and Refugee Board (IRB), Citizenship and Immigration Canada (CIC), the Canada Border Services Agency (CBSA), provincial legal aid agencies, and the refugee support and non-profit refugee law sectors. (13) Part V shares views from a second environmental scan that occurred two years after the reforms were introduced and which included identification of perceived access to justice deficits in the new system. Finally, Part VI contains a preliminary analysis of the access to justice dimensions of an actual claimant's file. This analysis elaborates the particular impact of this individual's social context on his ability to support his claim for refugee protection and illustrates the way various access to justice deficits may present themselves in this context. It also previews the UORAP's ongoing research of the access to justice dimensions of a collection of case files decided under Canada's new RSD process. Although it is that ongoing research, rather than this paper, which will ultimately grapple with the question of whether the new RSD process provides sufficient access to justice for refugees, this paper concludes with some reflections on the potential broader implications of the troubling signs for refugee access to justice that are appearing under the new system.

1. ACCESS TO JUSTICE IN THE REFUGEE CONTEXT

   The concept of "access to justice" has been the subject of four decades of legal scholarship in Canada, (14) and the persistence of access to justice deficits has now become a key issue in policy debates relating to the Canadian legal system. (15) Although no firm consensus has emerged about the best definition of the term itself, a leading analysis identifies three basic dimensions to the concept: procedural access to justice (defined as an ability to invoke and participate in justice processes); substantive access to justice (defined as an ability to attain fair outcomes); and symbolic access to justice (defined as being accorded respect and recognition by the system as a whole). (16) The core applications of these three dimensions have traditionally centered on court procedures, but the scope of applicability has gradually expanded to a point where access to justice can now serve as a standard for "every institution where law is debated, created, found, organized, administered, interpreted and applied." (17)

   In the specific context of refugee...