Authored by the Canadian Immigration Lawyers Association.
In Fraser v. Canada, the Supreme Court ruled that female RCMP officers who reduced their hours to care for children deserved equal pension treatment. Would anyone today argue that officers with caregiving obligations should be entitled to less? That women who shuffle work responsibilities to balance family should face worse retirement outcomes than officers who simply never interrupted their careers? The position seems absurd. Yet the Department of Justice fought this case to the highest court, characterizing it as an improper expansion of pension entitlements beyond legislative intent.
Should immigration clients be denied full representation in matters that determine whether they can stay in Canada, reunite with their families, or escape persecution? Should newcomers navigating complex legal processes be prevented from accessing the lawyers they have hired at their own expense? The Canadian Immigration Lawyers Association says no. The question is whether we will rehearse the familiar script where what seems obvious in retrospect is fiercely resisted in the present.
The Myth of Expansion of Rights
There is something intellectually suspect about the “expansion of rights” objection. It assumes the status quo is correct and frames any judicial recognition as illegitimate activism. But this reasoning is circular. If rights exist in the Charter or common law, recognising them is not “expansion,” it is application. The objection presumes what it needs to prove: that the current system is constitutionally sound and complete.
Consider how often this objection has failed. In Eldridge v. British Columbia, the province argued that requiring sign language interpretation in hospitals would improperly expand health services. The Supreme Court disagreed: providing healthcare without interpretation discriminated against deaf patients and violated equality rights. The duty to accommodate was not an unwarranted expansion but a correction of discriminatory exclusion.
In immigration law, Singh v. Canada stands as a foundational case where the Court held that refugee claimants were entitled to an oral hearing under principles of fundamental justice. What was initially resisted as unnecessary became a cornerstone of Canadian immigration jurisprudence. Other cases like Baker v. Canada further demonstrate that procedural fairness must account for substantive human effects of administrative decisions.
These examples reveal a clear pattern: governments resist, courts recognise, and history ultimately vindicates the core principle that legal processes affecting life, liberty, and significant personal interests must respect fairness at every stage.
The Difficult Question
This raises a difficult question. The Department of Justice represents different departments. When Justice lawyers argue against recognising rights, they are serving their client’s preference for administrative flexibility and avoidance of additional costs. But is a department’s administrative interest synonymous with Canada’s constitutional interest?
When British Columbia fought Eldridge, it defended cost control. When RCMP resisted Fraser, it defended pension scheme design. These were departmental interests, not necessarily what the Charter demands or what serves the public good.
CILA’s application points out that the current system often excludes counsel from meaningful participation in correspondence and interviews with Immigration, Refugees and Citizenship Canada, Employment and Social Development Canada, and Public Safety Canada. In many cases these departments handle communication with applicants directly, even when those applicants have retained counsel, and there is no obligation on these departments to engage with counsel as the exclusive point of contact. This dynamic undermines procedural fairness, burdens applicants with unnecessary hurdles, and ultimately drains public resources through avoidable appeals and litigation.
What CILA Actually Argues
CILA challenges a system where clients may hire counsel but departments are not required to deal with those counsel in immigration and refugee applications, interviews, and examinations. These contexts are currently outside the guaranteed right to counsel found in section 167(1) of the Immigration and Refugee Protection Act and section 10(b) of the Charter, which are limited to hearings before the Immigration and Refugee Board and detentions.
CILA seeks declarations that:
- There is a right to counsel in immigration and refugee applications, interviews, and examinations in accordance with common law and sections 7 and 15 of the Charter;
- Section 167(1) of IRPA is under inclusive and therefore constitutionally invalid;
- The right to counsel must be recognised through legislative or regulatory reform or revised departmental policies.
This is not about government funding or imposing services at the taxpayer’s expense. Applicants already retain counsel at their own cost. The issue is whether IRCC, CBSA and ESDC must meaningfully engage with those counsel in processes that affect fundamental rights and interests.
Why Is This Objected To?
So why do Department of Justice frame this recognition as wrong? It cannot be purely cost-based: clients pay their lawyers. It cannot be convenience: counsel can clarify legal issues, reduce errors, and often speed resolution. Could it be that some officials prefer unrepresented individuals because it simplifies interviews or reduces the perceived legal complexity of decision making? If so, that should be acknowledged plainly.
Administrative convenience is a legitimate value. So are fairness, equality, and respect for individual dignity. When those values conflict, which should prevail? The Charter and common law do not permit bureaucratic expediency to override rights without compelling justification.
What is inherently wrong with access to a lawyer?
In twenty years, will anyone defend the position that immigration clients who hired lawyers should have been denied meaningful representation? Or will this look like defending discriminatory pension rules for mothers, or refusing interpretation for deaf patients, positions that seem indefensible once we truly recognise what was at stake?
The Department of Justice is right to serve its client. But Canada’s interest is not necessarily identical to the IRCC’s institutional interest. The Charter exists precisely because administrative convenience cannot always prevail. Sometimes what governments frame as dangerous expansion becomes necessary correction of constitutional violations.
The question remains, what is inherently wrong with access to a lawyer during all aspects of the immigration process that it has to be stopped?
