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

• Author: Bates, Emily
• Position: III. Anticipated Access to Justice Concerns E. Increased Availability of Detention through VII. Conclusion, with footnotes, p. 39-72

5. Increased availability of detention

   The spectre of prolonged periods of mandatory detention under the new system was identified as punitive and likely unconstitutional. (149) Participants raised concerns about unfounded deprivations of liberty, increased risk of prolonged family separation, severe mental health implications, and financial deprivations. They also noted that during periods of detention, adequate access to counsel (and other assistance) can be significantly curtailed as a result of limited visiting hours, security clearance requirements, lengthy commutes, and difficulty establishing contact with a legal service provider. (150) These limitations also have the potential to exert a significant, negative impact on BOC preparation, the evidence gathering process, general hearing preparation, and detention reviews. Participants also expressed doubt about the ability of legal aid agencies to respond to the legal needs of detained claimants, particularly given that it was anticipated that the number of people in detention would increase significantly as a result of the introduction of the DFN and DCO categories. (151)

6. Exacerbation of resource constraints

   Participants expected that the long-standing resource shortages that have characterized the refugee system for years would intensify under the new system. (152) The combination of tighter timelines and new process components promised to further strain already-stretched legal aid funds and participants warned that it would most likely not be possible to provide legal support for all claimants in all parts of the system. (153) The possibility of a dramatic increase in unrepresented claimants was a cause of grave concern.

   Participants also expected that other areas of the services sector would be strained. For example, it was suggested that the already limited availability of low-cost translation and interpretation services would be exacerbated, further inhibiting claimants' ability to navigate the new system and, importantly, present all relevant evidence. (154) The ad hoc and variable assistance provided by front-line workers from non-legal agencies was also identified as being in jeopardy, as a result of the complexity of the new system, the tightened timelines, and chronically constricted funding. (155)

   Access to justice considerations must inform the design and implementation of any effective, fair, and legitimate legal process. The first UORAP environmental scan revealed that in the months immediately preceding implementation of the recent reforms, there were significant concerns amongst those in the refugee support and refugee law sectors about the procedural, substantive, and symbolic dimensions of access to justice in the new refugee status determination process. As December 2012 grew closer, those on the frontlines of the system braced for the impact of the impending changes.

   4. INSTITUTIONAL IMPLICATIONS OF REFUGEE SYSTEM REFORM

   The depth and scope of the 2012 refugee system reforms meant that decision-makers, government agencies, and service providers all had to undergo their own transformations to adjust to a modified operational environment. The result was, to varying degrees, structural reforms, reframed priorities and mandates, and changes in resource allocation. This section considers these institutional implications by briefly examining changes at the IRB, CIC, the CBSA, provincial legal aid agencies, and within the refugee support and non-profit refugee law sectors. It is noteworthy that while many actors in the latter two groups were particularly motivated by access to justice concerns, responses across all stakeholders impacted the ultimate access to justice landscape, regardless of whether they deliberately engaged these issues. The institutional implications of the reforms thus form a key part of understanding access to justice in the new system.

   While a detailed discussion of the operational realities surrounding each stakeholder group is beyond the scope of our analysis, it is important to highlight one significant factor that has had a profound impact across the post-reform system-a radical decline in refugee claims. Over the last 20 years, Canada received an average of 27,000 refugee claims annually. (156) Institutional actors preparing for refugee system reform thus assumed that while hesitancy about the new system might result in a slight drop in claims in early 2013, the overall claim rate would remain reasonably consistent. (157) Instead, claims dropped precipitously, and in 2013 the total claim number was just over 10,000-a 50 percent decrease from 2012. (158) Significantly, claims from DCOs were down 88 percent (159) and only one group arrival triggered application of the DFN regime, (160) meaning that two of the most scrutinized aspects of the reforms were used with far less frequency than predicted.

   Three aspects of these figures are important to emphasize as part of our discussion regarding the institutional implications of the reforms. First, the drop in claims meant that all stakeholders benefited from less resource-strain than anticipated. (161) This had particularly positive impacts on potential access to justice deficits, as institutional resource allotment per claimant was generally higher across all aspects of the system as a result of the decline in demand. Second, there are strong indications that these low claim numbers are a temporary phenomenon. Compared to the 10,000 claims in 2013, Canada received over 13,500 claims in 2014, an increase which may indicate a gradual return to historical figures. (162) Finally, programs or institutions that receive annual budget allocations on the basis of demand from the previous fiscal year may end up with a smaller overall budget and diminished per-claimant capacity, if claim totals eventually approach pre-reform levels. (163)

   The sudden decline in refugee claimants significantly affected the operational environment of each of the actors described below, and may have blunted, or at least delayed, some potentially detrimental impacts of the reforms. Institutional implications of the system changes were nonetheless unavoidable, however, and these are briefly canvassed here.

1. The Immigration and Refugee Board

   The IRB is the administrative tribunal responsible for carrying out Canada's RSD process, including rendering first-instance and appeal decisions on refugee claims. (164) In the several years preceding refugee reform, the number of claims finalized by the IRB ranged from 15,000 to over 33,000 per year. (165) Refugee protection activities represented approximately 70 percent of all IRB program spending during this period, (166) with an average expenditure of approximately $3,500 per claim. (167)

   The IRB described the 2012 reform as "one of the most significant transformations in its history." (168) Subsequent to passage of the BRRA in 2011, the IRB created a refugee system reform plan for its transition, (169) which included the creation and administration of the RAD, (170) new procedures for hiring RPD decision-makers, (171) a plan for the closure of the Ottawa hearing room, (172) and implementation of faster timelines and a slew of new procedures. (173) As part of this planning, the IRB modelled around the need to clear a backlog of over 30,000 "legacy claims," (174) while simultaneously processing an expected intake of 21,500 new claims each year. (175) It allocated $30.8 million-almost 20 percent of its operational budget-for refugee system reform implementation. (176) Recognizing that transition needs would be profound and continual, it also allocated significant ongoing funding for reform implementation. (177)

   By the end of fiscal year (FY) 2013-14, the IRB reported that average claim processing time had been reduced to approximately four monthswell below the 20-month pre-reform average, but outside the timelines envisaged in the new regulations. (178) Delays in the CBSA's Front-End Security Screening processes were deemed largely responsible for this situation, (179) which saw the IRB miss its timeline targets on a high percentage of cases in the first 18 months of the new system in particular. (180) During this same period, however, the number of legacy claims in backlog was reduced by almost half. (181) Training has been a core focus at the RPD, where 80 per cent of decision-makers are new, (182) and at the RAD, where the process is new and the caseload is increasingly complex. (183) Finally, as stipulated in the legislative reform, the IRB has been preparing to take on responsibility for PRRA determinations in the near future. (184)

   Like other stakeholders in the refugee sector, the IRB radically overestimated the number of claimants it would need to process in the post-reform system and benefited significantly from the sudden reduction in claimants. (185) The IRB now estimates that annual refugee arrival numbers will rise to approximately 16,000 annually by 2015-16, and it has revised its operations on the basis of this figure. (186)

2. Citizenship and Immigration Canada and the Canada Border

   Services Agency

   Two different government agencies are responsible for supporting Canada's immigration and refugee system, and each was impacted by the reforms. While publicly available information about the refugee-specific activities of these agencies is limited, some general information is available and is summarized below. (187)

   CIC is responsible for inland refugee intake and admissibility screening, (188) PRRA determinations, (189) and H&C applications. (190) With the support of this department, the Minister of Citizenship and Immigration may also intervene in refugee claims. (191) Between 2007 and 2011, CIC's refugee protection programming stream comprised between five and eight percent of its annual expenses. (192) CIC received over $17 million in funding to facilitate refugee system reform. (193) Supported by these funds, the department...