{"id":14500,"date":"2026-01-28T10:00:56","date_gmt":"2026-01-28T15:00:56","guid":{"rendered":"https:\/\/cila.co\/?p=14500"},"modified":"2026-01-26T19:39:32","modified_gmt":"2026-01-27T00:39:32","slug":"what-makes-access-to-counsel-so-threatening","status":"publish","type":"post","link":"https:\/\/cila.co\/fr\/what-makes-access-to-counsel-so-threatening\/","title":{"rendered":"What Makes Access to Counsel So Threatening?"},"content":{"rendered":"

Authored by the Canadian Immigration Lawyers Association.<\/strong><\/em><\/p>\n

<\/p>\n

In <\/span>Fraser v. Canada<\/span><\/i>, 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\u00a0shuffle\u00a0work responsibilities to balance family should face worse retirement outcomes than officers who simply never interrupted their careers? The position seems absurd. Yet the\u00a0Department of Justice\u00a0fought this case to the highest court, characterizing it as an improper expansion of pension entitlements beyond legislative intent.<\/span>\u00a0<\/span><\/p>\n

Should immigration clients be denied full representation in matters that\u00a0determine\u00a0whether 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.<\/span>\u00a0<\/span><\/p>\n

The Myth of Expansion of Rights<\/span><\/b>\u00a0<\/span><\/p>\n

There is something intellectually suspect about the\u00a0<\/span>\u201c<\/span>expansion of rights\u201d\u00a0objection. 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,\u00a0recognising\u00a0them is not\u00a0<\/span>\u201c<\/span>expansion,\u201d\u00a0it is\u00a0<\/span>application<\/span><\/i>. The objection presumes what it needs to prove: that the current system is constitutionally sound and complete.<\/span>\u00a0<\/span><\/p>\n

Consider how often this objection has failed. In\u00a0<\/span>Eldridge v. British Columbia<\/span><\/i>, 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.<\/span>\u00a0<\/span><\/p>\n

In immigration law,\u00a0<\/span>Singh v. Canada<\/span><\/i>\u00a0stands 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\u00a0Canadian immigration jurisprudence. Other cases like\u00a0<\/span>Baker v. Canada<\/span><\/i>\u00a0further\u00a0demonstrate\u00a0that procedural fairness must account for substantive human effects of administrative decisions.<\/span>\u00a0<\/span><\/p>\n

These examples reveal a clear pattern: governments resist, courts\u00a0recognise, and history\u00a0ultimately vindicates\u00a0the core principle that legal processes affecting life, liberty, and significant personal interests must respect fairness at every stage.<\/span>\u00a0<\/span><\/p>\n

The Difficult Question<\/span><\/b>\u00a0<\/span><\/p>\n

This raises\u00a0a difficult question. The Department of Justice\u00a0represents\u00a0different departments. When Justice lawyers argue against\u00a0recognising\u00a0rights, they are serving their client\u2019s preference for administrative flexibility and avoidance of\u00a0additional\u00a0costs. But is\u00a0a department\u2019s administrative interest synonymous with Canada\u2019s constitutional interest?<\/span>\u00a0<\/span><\/p>\n

When British Columbia fought\u00a0<\/span>Eldridge<\/span><\/i>, it defended cost control. When\u00a0RCMP\u00a0resisted\u00a0<\/span>Fraser<\/span><\/i>, it defended pension scheme design. These were\u00a0departmental\u00a0interests, not necessarily what the\u00a0<\/span>Charter<\/span><\/i>\u00a0demands or what serves the public good.<\/span>\u00a0<\/span><\/p>\n

CILA<\/span>\u2019s 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\u00a0cases\u00a0these\u00a0departments handle communication with applicants directly, even when those applicants have\u00a0retained\u00a0counsel, and there is no obligation on\u00a0these departments\u00a0to engage with counsel as the exclusive point of contact. This dynamic undermines procedural fairness, burdens applicants with unnecessary hurdles, and\u00a0ultimately drains\u00a0public resources through avoidable appeals and litigation.\u00a0<\/span>\u00a0<\/span><\/p>\n

What CILA Actually Argues<\/span><\/b>\u00a0<\/span><\/p>\n

CILA challenges a system where clients may hire\u00a0counsel\u00a0but departments\u00a0are not required to\u00a0deal with\u00a0those counsel\u00a0in immigration and refugee applications, interviews, and examinations. These contexts are currently outside the guaranteed right to counsel found in section 167(1) of the\u00a0<\/span>Immigration and Refugee Protection Act<\/span><\/i>\u00a0and section 10(b) of the Charter, which are limited to hearings before the Immigration and Refugee Board and detentions.\u00a0<\/span>\u00a0<\/span><\/p>\n

CILA\u00a0seeks declarations that:<\/span>\u00a0<\/span><\/p>\n

    \n
  1. There is a right to counsel in immigration and refugee applications, interviews, and examinations\u00a0in accordance with\u00a0common law and sections 7 and 15 of the Charter;<\/span>\u00a0<\/span><\/li>\n
  2. Section 167(1) of IRPA is under\u00a0inclusive and therefore constitutionally invalid;<\/span>\u00a0<\/span><\/li>\n
  3. The right to counsel must be\u00a0recognised\u00a0through legislative or regulatory reform or revised departmental policies.\u00a0<\/span>\u00a0<\/span><\/li>\n<\/ol>\n

    This is not about government funding or imposing services at the taxpayer\u2019s expense. Applicants already\u00a0retain\u00a0counsel at their own cost. The issue is whether\u00a0IRCC,\u00a0CBSA\u00a0and ESDC\u00a0must\u00a0<\/span>meaningfully engage<\/span><\/i>\u00a0with\u00a0those counsel\u00a0in processes that affect fundamental rights and interests.<\/span>\u00a0<\/span><\/p>\n

    Why Is This Objected To?<\/span><\/b>\u00a0<\/span><\/p>\n

    So why\u00a0do\u00a0Department\u00a0of Justice\u00a0frame this\u00a0recognition as\u00a0wrong?\u00a0It cannot be purely cost-based: clients pay their lawyers.\u00a0It cannot be\u00a0convenience: 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.<\/span>\u00a0<\/span><\/p>\n

    Administrative convenience is a legitimate value. So are fairness, equality, and respect for individual dignity. When those values conflict, which should prevail?\u00a0The\u00a0<\/span>Charter<\/span><\/i>\u00a0and common law do not permit bureaucratic expediency to override rights without compelling justification.<\/span>\u00a0<\/span><\/p>\n

    What is inherently wrong with access to a lawyer?<\/span><\/b>\u00a0<\/span><\/p>\n

    In twenty years, will anyone defend the position that immigration clients who hired lawyers should have been denied meaningful representation?\u00a0Or will this look like defending discriminatory pension rules for mothers, or refusing interpretation for deaf patients,\u00a0positions that seem indefensible once we truly\u00a0recognise\u00a0what was at stake?<\/span>\u00a0<\/span><\/p>\n

    The Department of Justice is right to serve its client. But\u00a0<\/span>Canada<\/span><\/i>\u2019s interest<\/span><\/i>\u00a0is not necessarily identical to the\u00a0IRCC\u2019s\u00a0institutional interest.\u00a0The\u00a0<\/span>Charter<\/span><\/i>\u00a0exists precisely because administrative convenience cannot always prevail.\u00a0Sometimes what governments frame as dangerous expansion becomes\u00a0necessary\u00a0correction of constitutional violations.<\/span>\u00a0<\/span><\/p>\n

    The question\u00a0remains, what is inherently wrong with access to a lawyer during all aspects of the immigration process that it\u00a0has to\u00a0be stopped?<\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

    Authored by the Canadian Immigration Lawyers Association.<\/p>","protected":false},"author":115,"featured_media":13633,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[6],"tags":[423,526,24,256,732],"class_list":["post-14500","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-thought-leadership","tag-access-to-counsel","tag-federal-court-of-canada","tag-ircc","tag-irpa","tag-right-to-justice"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/posts\/14500","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/users\/115"}],"replies":[{"embeddable":true,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/comments?post=14500"}],"version-history":[{"count":3,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/posts\/14500\/revisions"}],"predecessor-version":[{"id":14503,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/posts\/14500\/revisions\/14503"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/media\/13633"}],"wp:attachment":[{"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/media?parent=14500"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/categories?post=14500"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cila.co\/fr\/wp-json\/wp\/v2\/tags?post=14500"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}