Newcomers to Canada have a legal right to hire a Canadian immigration lawyer to support their visa applications. For decades, however, this right has been infringed upon by various federal government departments.
As such, CILA has commenced legal proceedings against the Ministers of IRCC, ESDC, and Public Safety (the “Respondents”) to strengthen legal protections for access to legal counsel.
Although a newcomer will have voluntarily hired a lawyer, often, the federal government will exclude counsel in its correspondence with the newcomer. Not only is this illegal, but it has serious negative consequences for the federal government and newcomers themselves. In the absence of legal representation, the federal government must often waste precious resources seeking additional application information from newcomer applicants, while newcomers themselves are unable to adequately defend themselves to federal officials.
This dynamic ends up costing Canadian taxpayers tens of millions of dollars in proceedings at the Immigration and Refugee Board and the Federal Court of Canada due to appeals and litigation that could be avoided if the federal government corresponded with immigration lawyers in the first place.
CILA is applying for the Federal Court of Canada to issue the following declarations pursuant to section 18.1(3)(a) of the Federal Courts Act:
1) There is a right to counsel in immigration and refugee applications, interviews and examinations in accordance with the common law and/or sections 7 and 15 of the Canadian Charter of Rights and Freedoms;
2) Section 167(1) of the Immigration and Refugee Protection Act is underinclusive and therefore constitutionally invalid under section 52 of the Constitution Act, 1982;
3) The right to counsel must be legally recognized by: enacting amendments to the Immigration and Refugee Protection Act and promulgating regulations as necessary; and/or the Respondents revising their existing policies or adopting new policies.
“The right to counsel is paramount to a strong and healthy Canadian immigration system”, said Randy Hahn, CILA’s Right to Counsel Special Liaison.
“The Canada Revenue Agency does not circumvent accountants retained by Canadians to complete their tax filings. Why then, do federal departments frequently circumvent immigration lawyers retained by newcomers to represent them?”
While there is no legal bar to individuals retaining and instructing counsel to represent them in these matters, there is no corresponding legal obligation for the Respondents to recognize counsel, interact with them, and accord them participatory rights in interviews and examinations. This Application seeks to confirm the existence of this obligation.
The right to counsel, and the corresponding obligation of the Respondents to recognize it, exists under under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“Charter”) and the common law. It extends beyond the contexts where the right to counsel is already conferred by section 167(1) of the Immigration and Refugee Protection Act (“IRPA”) and section 10(b) of Charter.
Those provisions apply to proceedings before the Immigration and Refugee Board and detentions, but do not apply to immigration and refugee applications, examinations, and interviews. Moreover, the policies and practices of the three Respondents reflect this limitation and do not recognize this right in these contexts. At times, the Respondents’ public policies and messaging actively discourage individuals from retaining counsel.
CILA seeks a declaration from the Court that the right to counsel exists in the contexts not covered by section 167(1) of the IRPA and section 10(b) of the Charter. It would then fall to the Respondents to comply with this declaration by giving effect to this right through effective means. Such means include amending existing policies or adopting new ones, promulgating regulations, and/or enacting amendments to the IRPA itself.
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- Application Record: Click here to read CILA’s Application Record
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