The New Canadians referred to in this section are new migrants to Canada who are more vulnerable than other migrants and other Canadians in the mainstream of society, because of their differentiating and disadvantaged circumstances. As a result, they face greater barriers to accessing justice. Some New Canadians will experience greater barriers due to their disadvantaged economic and social conditions, for example, lower income levels, employment, education, health and personal safety. Others will experience additional barriers because they are members of certain other groups, such as ethnic groups, who may experience discrimination because they are visible minorities or have traditions, cultures and religions that are distinct from other cultures in mainstream Canada. Certain members within these groups may experience further barriers because of their status within these groups, for example, status accorded to them because of gender, age or sexual orientation.

In addition, certain migrants experience unique barriers to accessing justice because of the design and implementation of Canada’s immigration and refugee laws. These include migrants who immigrate or seek to continue to reside in Canada under the humanitarian stream (mainly refugee and humanitarian & compassionate (H&C) claimants); certain sponsored family members who immigrate to Canada under the family reunification stream of immigration; and certain migrants who enter Canada under the economic stream of migration, in particular, those who enter as temporary foreign workers (TFW). [ACLRC has a separate TAB on TFWs. See: http://www.aclrc.com/questionsanswers/]

In 2015, Canada admitted just under 272,000 new immigrants with permanent resident status, the highest admissions level since 2010. Of those, 62.7% were in the economic class; 24.1% were in the family reunification class, and 13.2% were in the humanitarian class (mainly refugees but also those admitted on (H&C) grounds and other humanitarian grounds): Canada’s 2016 Immigration Levels Plan [IRCC 2016 Report to Parliament], online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/annual-report-parliament-immigration-2016.html.

Alberta admitted just over 47,000 (17.4%) of those new immigrants, the third largest province/territory of resettlement, behind Ontario (38.1%) and Quebec (18%). Of those, approximately 33,000 (5,385 of whom were caregivers) immigrated under the economic class; 9,700 immigrated under the family reunification class; and 4,000 immigrated under the humanitarian class (mostly refugees): IRCC 2016 Report to Parliament.

Canada planned to increase levels of immigration in 2016 to between 280,000 and 305,000 new permanent residents, and plans slightly increased levels of immigration in 2017, to between 280,000 to 320,000 new permanent residents: IRCC 2016 Report to Parliament.

What Does Access to Justice Mean for New Canadians?

The precise meaning of “access to justice” continues to evolve and changes depending on the characteristics of the groups seeking justice. The New Canadians who are the focus of this section have unique legal needs and are marginalized in society because of their differentiating and disadvantaged circumstances. For them, access to justice means having the ability to invoke and effectively participate in justice processes (procedural access); obtaining a fair result when they do (substantive access); and having their unique circumstances and needs recognized and respected by the justice system (inclusive access). This concept of access to justice applies not only to court processes but also to the entire justice system through which law and legal institutions are designed, implemented and operated. Barriers to accessing justice occur when aspects of the design and operation of the justice system fail to adequately take into account New Canadian’s differentiating and disadvantaged circumstances: Emily Bates, Jennifer Bond & David Wiseman, Troubling Signs: in Canada’s Refugee System Reform, (2016) 47 No 1 Ottawa Law Review, [UORAP, Troubling Signs], online, University of Ottawa, https://commonlaw.uottawa.ca/ottawa-law-review/troubling-signs-mapping-access-justice-canadas-refugee-system-reform; see also Law Society of Upper Canada, Access to Justice Themes: ‘Quotable Quotes’ at 4 (October 29, 2013): online: https://silo.tips/download/access-to-justice-themes-quotable-quotes (“[a]ccess to justice extends beyond access to lawyers and courts; […] it requires a range of ways to prevent and resolve everyday legal problems; and […] it includes fair processes and just outcomes”).

As is the case with other marginalized groups discussed under ACLRC’s ACCESS TO JUSTICE TAB, initiatives to address the barriers to accessing justice faced by these New Canadians must consider and address their marginalized status and unique legal needs.

Foundational Laws Affecting New Canadians

Alberta Human Rights Act [AHRA]

Alberta Human Rights Act, RSA 2000, c A-25.5, online at http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-a-25.5/latest/rsa-2000-c-a-25.5.html

The AHRA applies to the actions of the Alberta government and the Alberta private sector. The AHRA recognizes the “fundamental principle that all persons are equal in dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.”

The AHRA protects Albertans from being discriminated against on the foregoing basis in respect of notices (including newspaper ads, posters, publications, etc.); goods, services, accommodation or facilities customarily available to the public; employment practices or employment advertising; tenancy; and membership in a trade union.

More detailed information about rights under the AHRA may be found here and here.

Canadian Human Rights Act [CHRA]

Canadian Human Rights Act, RSC 1985, c H-6, online, https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-h-6/latest/rsc-1985-c-h-6.html.]

The CHRA applies to the actions of the federal government and businesses and organizations regulated by the federal government. Section 2 of the CHRA provides that the purpose of the CHRA is to “extend the laws in Canada to give effect…to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

The CHRA protects Canadians against discrimination based on the foregoing categories in respect of the provision of goods, services, accommodation or facilities customarily available to the public; tenancy; employment practices or employment advertising; membership in employee organizations; notices (including newspaper ads, posters, publications, etc.); harassment; and retaliation.

More detailed information about rights under the CHRA may be found here.

Canadian Charter of Rights and Freedoms [Charter]

Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], online https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html.

The Charter is a bill of rights that forms part of Canada’s constitution and protects individual rights and freedoms from unreasonable and unjustified actions by federal and provincial governments. The Charter is different from human rights statutes, discussed above, which protect individuals from discriminatory actions by the government and private actors.

Section 7 of the Charter guarantees Canadians the right to life, liberty and security of the person.

Section 15(1) of the Charter guarantees Canadians “equality rights.” It guarantees that every individual is “equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.

More information about Charter rights may be found here.

Immigration and Refugee Act, Regulations, and Operational Manuals and Bulletins

The Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] is the primary source of law governing immigration and refugee law. It is “framework” legislation, and therefore, its provisions are general and principled: http://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html

The Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations] are more detailed than the IRPA and give more specific guidance: http://www.canlii.org/en/ca/laws/regu/sor-2002-227/latest/sor-2002-227.html

Immigration, Refugee and Citizenship Canada (IRCC) (formerly Citizenship and Immigration Canada (CIC)) Operational Manuals and Bulletins contain the policy of the IRCC. Operational Manuals are drafted by IRCC and provide details on interpretation of the IRPA and IRP Regulations. Although they do not have the force of law, IRCC officials usually consider themselves bound by the Manuals when determining a case. Operational Bulletins contain recent developments that have not yet been incorporated into the Manuals. A link to these bulletins can be found in the Operational Manuals: http://www.cic.gc.ca/english/resources/manuals/index.asp.

Ministerial Instructions are provided for in s. 87.3 of IRPA, are implemented through an Order in Council and drive current immigration and refugee policy.

The Immigration and Refugee Board [IRB], Immigration and Refugee Appeal Board [IRAB] and the courts interpret and apply the IRPA and the IRP Regulations.

United Nations Conventions

Canada has international obligations as a signatory to several United Nations Conventions that protect the fundamental rights of refugees and new immigrants. Immigration and refugee board decisions and court decisions determining immigrant and refugee rights may refer to Canada’s obligations under the following Conventions:

a. Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (in force 22 April 1954) [UN Refugee Convention]: online, http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfRefugees.aspx;

b. Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (in force 4 October 1967) [Refugee Protocol]; online, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx;

c. International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (in force 23 March 1976): online, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx ; and

d. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (in force 26 June 1987): online http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.

The Charter, human rights legislation and UN Conventions have been important in advancing the rights of migrants. However, enforcing rights under the legislation is costly and slow and therefore fails to effectively address the immediate day-to-day legal needs of migrants. Some of these decisions will be discussed in this section, however a more complete discussion can be found in resources referred to in the Annotated Bibliography to this section.

Immigration and Refugee Status under Canadian Law

To understand the classes of New Canadians that are the focus of this section, it is helpful to have a general understanding of how Canadian citizenship law classifies people living in Canada and the rights and obligations that flow from that classification. All persons are classified into one of the following three types of residency status: citizens, permanent residents and foreign nationals.

A Canadian citizen is a person who was born in Canada, born outside Canada to a Canadian citizen parent, or who has been granted citizenship after filing an application for citizenship under the Citizenship Act, RSC 1985, c C-29. Canadian citizens have full rights of citizenship.

A permanent resident is a person who has been granted permanent admission to Canada as an immigrant, but who has not become a Canadian citizen. Permanent residents have the right to live in Canada permanently, provided they satisfy and continue to satisfy certain conditions. They enjoy many of the rights of Canadian citizens except the right to vote, run for office or hold some jobs that need a high-level security clearance: IRCC at http://www.cic.gc.ca/english/newcomers/about-pr.asp. Permanent resident status can be acquired from both outside and inside Canada. Most people acquire permanent resident status while living outside Canada. There are three broad classes or streams by which people can immigrate to Canada: economic, humanitarian and family sponsorship.

Immigrants in the economic class have special skills, expertise, financial capital or business experience needed in the Canadian economy.

Immigrants in the humanitarian class include refugees and other persons seeking H&C protection. The humanitarian class of immigrants is approved for immigration for humanitarian reasons and to satisfy Canada’s obligation under various UN Conventions: Canada Immigration and Citizenship, online http://www.cic.gc.ca/english/refugees/canada.asp. Persons in the humanitarian class of immigrants must go through an approval process and be sponsored by the Canadian government or other sponsors from within Canada before they will be granted permanent resident status and be allowed to immigrate to Canada.

Family sponsored immigrants are approved for immigration to allow families abroad to reunite with their family members in Canada. Family sponsored immigrants must also go through an approval process outside Canada and be sponsored by family members residing in Canada before they are granted permanent resident status and allowed to immigrate to Canada.

A foreign national is any person who is physically present in Canada who is not a Canadian citizen or a permanent resident. Foreign nationals require some form of temporary permit or visa, which allows them to reside in Canada for a limited time and purpose.

Some foreign nationals enter Canada and make a claim from inside Canada for a right to stay in Canada as refugees or on H&C grounds. They will not be allowed to reside in Canada permanently until they have proved to IRCC officials that they fit within the refugee class of immigrants. Until then, they have no rights of citizenship. These foreign nationals are only able to apply for permanent resident status after if it is determined that they fit within the humanitarian class of immigrants.

Some foreign nationals are allowed to enter and reside in Canada for a limited time for the purpose of working in Canada. Temporary foreign workers (TFW) are within this class of foreign nationals. They are granted permission to reside in Canada for a limited time to fill gaps in the labour market. Once the time period expires, they must leave Canada.

Barriers to Access to Justice

New Canadians experience the same generic barriers to accessing justice faced by other migrants and other members of Canadian society. However, the barriers experienced by New Canadians are often disproportionately greater because of their different and disadvantaged economic, social, and cultural circumstances. Laws of general application also create unique barriers because they fail to consider how they affect marginalized groups, including New Canadians. Specific laws apply solely to New Canadians and contain unique barriers. Further barriers arise because of the multitude of laws and the greater number of legal problems experienced by marginalized groups, and because of the negative attitudes of those who design, interpret, apply and implement the laws.

Generic Barriers

Recent Canadian studies on access to justice describe it as being in a state of crisis. They have identified many “generic” barriers to access to justice. Significant among them are the high cost of solving legal problems, in particular the high cost of legal representation, the complexity of the law and legal procedures and the negative attitudes of those in the legal system. More information on the generic barriers to access to justice faced by Canadians can be found here.

Access to justice studies recognize that a holistic approach should be taken in understanding barriers to access to justice; one that considers how the characteristics of particular marginalized groups uniquely affect their ability to access justice. This approach recognizes that factors external to the law can make the law inaccessible, and that problems that are framed as legal may really be caused by other societal problems such as lack of economic resources, education, healthcare or employment: Patricia Hughes, Advancing Access to Justice through Generic Solutions: the risk of perpetuating exclusion, 31 Windsor Yearbook of Access to Justice 1 (2013) [Hughes, Access to Justice and Generic Solutions], online http://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4308.

Access to legal representation is seen as a critical element of the access to justice crisis, primarily because of the high cost of legal representation. It has long been understood that people living on low incomes cannot afford legal representation. Access to legal representation can sometimes be provided through public legal aid programs, but legal aid funding has not kept pace with the need and is itself described as being in a state of “crisis”: Jennifer Bond, The Cost of Canada’s Legal Aid Crisis: Breaching the Right to State-Funded Counsel within a Reasonable Time (2012) 59:1 Crim LQ 28 [Bond, Legal Aid Crisis]: online, https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2129558; Jennifer Bond, Failure to Fund: The Links Between Canada’s Legal Aid Crisis, Rowbotham Applications, & Unconstitutional Delay in the Provision of State-Funded Counsel, National Journal of Constitutional Law, Vol. 35, No. 1, 2015: online https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2821270. A lack of resources for legal aid services has led to extremely low financial eligibility criteria. Legal Aid Alberta offers coverage for some immigration and refugee matters, however, an individual’s net monthly income must be below $1,668 to be eligible for most services: online, Legal Aid Alberta https://www.legalaid.ab.ca/resources/#eligibility .

The costs of solving legal problems are not solely the costs of legal representation and court proceedings. They also include intangible costs to individuals that are a direct consequence of experiencing a legal problem. These intangible costs can include decreasing physical health, high levels of stress and emotional problems, and strains on family relationships. Legal problems can also lead to loss of employment or housing. These intangible costs can result in persons accessing publicly funded services and programs such as health care, employment insurance, social services and housing subsidies: Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report, 2016 Canadian Forum on Civil Justice, Toronto, Canada [2016 Everyday Legal Problems Overview]: online CFCJ http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf.

Economic, Social, and Cultural Barriers

The economic, social and cultural barriers faced by New Canadians are disproportionately greater than those faced by other migrants or other Canadians in the mainstream of society. If a migrant is seeking refugee status from within Canada, the economic, social and cultural barriers to accessing justice are likely to be substantially greater than those faced by almost any other member of Canadian society. By definition, refugees are fleeing persecution in their countries of origin. Because of this, they are likely to arrive at Canada’s borders with no understanding of Canadian culture and law, little money, no employment, no housing, no literacy in English or French language, and in poor physical and mental health.

Canada recognizes that refugees, both those that are granted refugee status outside Canada (resettled refugees) and those that are granted refugee protection in Canada (in-Canada asylum) often do not have the resources to easily establish themselves. As a result, the federal government, working with a network of partners and stakeholders, provides funds and services to support a broad range of settlement services to support successful integration of all refugees. The federal government provides government-sponsored refugees who immigrate to Canada with permanent resident status with basic income support, if they cannot pay for their own basic needs for housing, food and incidentals. This is typically provided for one year. Privately sponsored refugees must receive such support from their sponsors. However, persons who apply for refugee protection from within Canada presumably do not receive support until after they are granted permanent resident status: IRCC at http://www.cic.gc.ca/english/refugees/canada.asp

The literature on immigrant and refugee settlement issues explains how visible minorities who are not literate in French or English, and unfamiliar with accessing societal systems, including legal systems, have much greater difficulties in integrating in society. Previous experiences dealing with government officials may make New Canadians more distrustful of government officials and systems. In addition, race and their status as immigrants or refugees may make them vulnerable to discriminatory behavior by those in control of economic and social benefits including employment, education, housing, health care and legal benefits: Stephen Gaetz, Street Justice: Homeless Youth and Access to Justice (Toronto: Justice for Children and Youth, 2002) at 43-46.

A study conducted comparing the national average income of immigrants from 1982 to 2010, reveals that the average annual income of live-in caregivers, privately sponsored refugees, government sponsored refugees, and family-sponsored parents, grandparents, spouses and partners is consistently below the Canadian national average. In many cases, it was significantly below the national average: IRCC, Annual income of immigrants relative to the Canadian national average, 1981-2011, online IRCC http://www.cic.gc.ca/english/resources/research/annual-income.asp .

A federal government study examining the labour market circumstances for immigrants during the 2008 to 2011 period compared gaps between the employment rate of immigrants and persons born in Canada. It reveals that a number of factors influence the process and likelihood of convergence between the two, including knowledge of English or French, level and country of education, recognition of foreign credentials, and presence of social networks in Canada, among others. The key determinant was the length of time that immigrants have resided in Canada. Recent immigrants experience significantly lower levels of employment. This narrows over time, but does not disappear: Statistics Canada, Analysis of the Canadian immigrant labour market, 2008 to 2011, online, Statistics Canada at http://www.statcan.gc.ca/pub/71-606-x/2012006/part-partie1-eng.htm.

Of the approximately 65,000 immigrants that immigrated to Canada under the family class, approximately one-third had no proficiency in the English or French language. Of the approximately 35,000 refugees that immigrated to Canada as permanent residents, about one-half had no proficiency in the English or French language: IRCC 2016 Report to Parliament.

Recent Canadian health studies have revealed that immigrants tend to be in better health than the Canadian-born population when they arrive in Canada, but that this declines over time. The relationship between immigration and health is complex, and depends on a number of pre- and post-migration factors such as place of birth and reason for migration. Refugees tended to have higher hospitalization rates for all categories of health factors measured compared to those who migrated voluntarily. This may be due to the fact that refugees have been forced out of their home country, and are more likely to have been exposed to less favourable health conditions including the stress of war, physical and sexual abuse, and hardships experienced in refugee camps such as poor sanitation, nutrition and medical care. Refugees may also experience poorer health due to conditions they face when they arrive in Canada including delays in obtaining health care, language difficulties, and a lack of finances, transportation, and knowledge of the health care system: Edward Ng, Claudia Sanmartin and Douglas G. Manuel, Health Reports – Acute care hospitalization, by immigrant category: Linking hospital data and the Immigrant Landing File in Canada (August 17, 2016): online, Statistics Canada http://www.statcan.gc.ca/pub/82-003-x/2016008/article/14648-eng.htm.

A growing number of homeless persons are new immigrants or refugees. Even with a stable place to live, navigating Canada’s immigration and refugee scheme is difficult. In addition to the significant barriers faced by all New Canadians, those who are homeless also encounter language barriers and racism on the streets: Gaetz, Street Justice at 43-46.

The lower levels of income, employment, education, and health experienced by New Canadians create a range of barriers for accessing justice, including: a lack of resources for obtaining legal advice and representation; reduced ability to access and understand information about the law, identify options for securing rights, and effectively advocating for themselves; a disproportionately greater likelihood of being affected by laws, programs and policies that govern issues related to low-income, such as income support programs and social housing; and the inability to access many societal benefits, such as health and Canada Pension Plan benefits which are contingent on employment.

Barriers Arising from Inclusion in Other Groups and Status Within These Groups

The experience of barriers to access to justice faced by New Canadians will also vary depending on their membership in other groups. It is therefore important for law and access to justice policy-makers to take into account differences between New Canadians, as well as differences between New Canadian and other migrants and the Canadian population in general.

The disadvantages experienced by New Canadians will be heightened depending upon whether they also belong to other groups identified by their ethnicity, age, gender, or sexual orientation.

Some examples of the additional disadvantages experienced by New Canadians that also belong to various other groups follow.

Ethic and Cultural Diversity

Canada is an ethnically and culturally diverse country as indicated by its immigrant population, the ethnic and cultural backgrounds of Canadians, the number of visible minorities, the wide varieties of languages spoken and the diversity of religious practices: Statistics Canada, Immigration and Ethnocultural Diversity in Canada: online Statistics Canada, https://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-010-x/99-010-x2011001-eng.cfm.

A 2009 study shows that one-fifth of new immigrants face discrimination in various situations once they have arrived. Ethnicity, race, language, and religion are the major grounds of discrimination: Parveen Nangia, Discrimination Experienced by Landed Immigrants in Canada, RCIS Working Paper No. 2013/7: online: https://www.ryerson.ca/content/dam/centre-for-immigration-and-settlement/RCIS/publications/workingpapers/2013_7_Nangia_Parveen_Discrimination_Experienced_by_Landed_Immigrants_in_Canada.pdf

Women

Section 94 of the IRPA requires IRRC to include a gender-based analysis of the impact of this IRPA.

Canada has measures in place to encourage IRCC officials to apply gender-sensitive approaches at all stages in the development and implementation of the refugee program. Women subject to gender-based violence can apply for asylum on the grounds that they face persecution as a result of being a member of a particular social group. IRCC recognizes that gender-related persecution can also include girls who fear persecution for failing to conform to or disobeying, certain gender-discriminating religious or customary laws and practices in their country of origin. Special accommodation is to be provided throughout the process of claiming refugee status for vulnerable persons, including pregnant women or women who are victims of gender-based violence: IRCC 2016 Report to Parliament.

Researchers investigating the use of the legal system by abused women in immigrant communities found that cultural norms, language barriers, and perceived racism in the criminal justice system and social service agencies were all factors that discouraged women from exercising their legal rights: Baukje Miedema & Sandra Wachholz, A Complex Web: Access to Justice for Abused Immigrant Women in New Brunswick (March 1998) at v (Executive Summary), online: Government of Canada Depository Services Program, http://dsp-psd.pwgsc.gc.ca/Collection/SW21-24-1998E.pdf

Women may be deliberately kept without secure immigration status by their abusive partners, and are then detained and deported when their lack of status becomes known to the Canada Border Services Agency (CBSA): Canadian Council for Refugees, Statement for International Women's Day 2016 [CCFR Women’s Day 2016]: online, http://ccrweb.ca/en/statement-international-womens-day-2016.

Both female caregivers and female refugees face long separations from their children due to the exceptionally long delays for processing permanent resident and family reunification applications: CCFR Women’s Day 2016.

The “Designated Country of Origin” regime for refugee claims deems certain countries “safe” and therefore presumes that persons arriving from those countries are not refugees. Because violence against women is widespread in many countries that appear stable and democratic, this has a negative affect on women fleeing gender-based violence: CCFR Women’s Day 2016.

Disability

Refugees and immigrants with disabilities are particularly vulnerable in their interactions with the justice system.

Canadian immigration laws exclude persons from immigrating to Canada if they could be expected to place excessive demands on health or social services, with some exceptions. The Supreme Court of Canada ruled in Hilewitz v Canada (Minister of Citizenship & Immigration), 2005 SCC 57 at paras 54-56, [2005] 2 SCR 706, that medical officers must assess likely demands on social services, “not mere eligibility for them,” as well as the willingness and ability of the applicant or his or her family to pay for the services. The Court directed that officials must make individualized assessments rather than a mere classification of the impairment. However, the Court’s focus on excessive demand for social services, rather than medical services, might diminish the applicability of the decision: Mark C. Weber, Immigration and Disability in the United States and Canada, from the Selected Works of Mark C. Weber, (2015) 32 Windsor Y B Access Just 1 (June 13, 2016): online http://works.bepress.com/mark_weber/18/; and Valentina Capurri, The Medical Admissibility Provision vis-à-vis the Charter of Rights and Freedoms, (2012) 16:1 Left History 91 (the author notes that the removal of immigrants on disability-related grounds may be contested under the Charter butlitigants appear unwilling to make the argument, perhaps because of fear it would not succeed.)

New Canadians with mental disabilities may find it difficult to communicate their needs or to understand the information they are given. This is particularly important given that a significant number of New Canadians are not literate in English or French. Studies have revealed that persons with cognitive disabilities have difficulty telling their stories and that lawyers face challenges in advising clients because of lawyers’ inability to understand the communication and comprehension levels of a their clients: A. Gray, S Forell, and S Clarke, Cognitive impairment, legal need and access to justice, Justice issues paper 10, Law and Justice Foundation of NSW, Sydney (2009) [Gray, Forell & Clarke] online at http://www.lawfoundation.net.au/ljf/app/4016D540ECE363B3CA25756F001DEE70.html#bmk_fnote42.

It can often be difficult for police, lawyers and other persons working in the legal system or for persons working in systems interacting with the legal system to identify that a person has a cognitive impairment. This can result in a number of barriers to access to justice, including substantive barriers which result in the system failing to provide a just result: Gray, Forell & Clarke.

Barriers in the Design and Implementation of Immigration and Refugee Laws

Some specific examples are discussed, showing how the design and implementation of laws specifically affecting New Canadians give rise to barriers to accessing justice.

Convention Refugee Claims Made Within Canada

The process for claiming refugee protection under the IRPA is complex. It is one of the products of significant changes that have been made to the Canadian immigration and refugee law over the last five years. These changes have made it more difficult for refugees to claim refugee status, among other things. Canadian immigration and refugee laws and the IRB’s implementation of these laws have come under fierce attack for creating many substantive, procedural and inclusion barriers to access to justice for refugee claimants.

As discussed above, refugees can apply to be recognized as refugees from either outside or inside Canada.

People who make refugee protection claims from outside Canada must go through an approval process, which requires, among other things, that they establish that they meet the definition of a “Convention refugee” or “protected person”. They must also be sponsored in Canada by the Canadian government or through other forms of sponsorship. Persons who apply and are determined to be refugees from outside Canada arrive in Canada as permanent residents.

This section addresses the initial and unique hurdles faced by persons who make claims to be Convention refugees or persons in need of protection from within Canada. These persons have no permanent resident status. Claims are made by persons attempting to enter Canada at a port of entry (an airport or border crossing) or by persons who are already in Canada, in which case they are made at an IRCC office. It is only when claimants receive a decision from IRCC officials that they may remain in Canada because they have qualified as Convention refugees or persons in need of protection that they are eligible to apply for permanent resident status.

Persons seeking protection as convention refugees or persons in need of protection from within Canada face a number of unique and serious hurdles in establishing their right to remain in Canada, and unique and serious barriers to accessing justice within this system.

1. Determination Hearing

Before a person’s claim for Convention refugee or protected person status can be determined, their claim will be investigated to determine whether they are ineligible to make the claim. Persons may not be eligible to have their claim determined if they: have been recognized as a Convention refugees or protected persons by another country to which they can return; have already been granted protected person status in Canada; arrived via the Canada-United States border; are not admissible to Canada on security grounds, or because of criminal activity or human rights violations; made a previous refugee claim that was found to be ineligible for referral to determine refugee status; made a previous refugee claim that was rejected; or abandoned or withdrew a previous refugee claim. Temporary resident permits may be issued under ss 24(1) of IRPA to persons who are believed to be inadmissible to Canada or who do not meet other requirements of the IRPA. Temporary resident permits are issued for a limited period of time and are subject to cancellation at any time.

If it is determined that the claimant is eligible to make a claim for refugee status, the claim will be referred to IRCC officials for a determination.

2. Detention

Migrants who enter Canada without the permission of the federal government can be taken into detention at their point of entry. They may also be taken into detention if they enter Canada without be detected and are subsequently found to be in Canada without permission. In addition, they may be taken into detention at any time during the process of establishing that they are eligibility to remain in Canada as refugees.

Thousands of migrants are detained in Canada every year. Between 2013 and 2014, 10,088 migrants were detained. Detainees are mostly men but also include women and children. Since the year 2000, at least 15 detainees have died while detained: Petra Molnar, Immigration Detention http://www.thecanadianencyclopedia.ca/en/article/immigration-detention/; Canadian Council for Refugees, Immigration Detention Statistics 2015, March 2016: online http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.

Migrants are detained in immigration holding centres or provincial correctional facilities, where they share facilities and space with convicted felons. Detainees’ personal effects, such as mobile phones, photos and other paraphernalia, are confiscated upon entry. Access to the Internet and incoming phone calls is curtailed: Petra Molnar, Immigration Detention.

Detained persons are not detained because they have committed a crime under Canada's Criminal Code, but for immigration reasons. Migrants may be apprehended by the Canadian Border Services Agency (CBSA) if, in an enforcement officer’s view, the person is: (1) a flight risk, (2) a danger to the public or themselves, (3) undocumented (they do not have acceptable identification papers or their papers conflict with information the CBSA has on file), or (4) are part of an irregular arrival, such as arrival en masse on a boat.

A member of the IRB conducts a detention review hearing within 48 hours of the detention at which the IRB and the detainee are to present evidence regarding the reasons for detention. If a person is ordered to remain in detention, another review of the reasons for detention will be held within 7 days. If a person is again ordered to remain in detention, the reasons for detention are reviewed again after 30 days, and every 30 days after that if detention continues: Immigration and Refugee Board of Canada, Detention Review Hearings, online, http://www.irb-cisr.gc.ca/Eng/detention/Pages/detention.aspx. Canada does not impose any express outer time limit to the total detention period. In other words, it can be indefinite. Some detainees have remained in detention for years: Petra Molnar, Immigration Detention.

An initial issue is whether Canada’s immigration detention system is even legal. Advocates argue that the system contravenes a number of international human rights treaties to which Canada is a party, and should be reformed as a whole. International human rights law provides that immigration detention is a measure of last resort and must be non-punitive, non-arbitrary, conducted with regard to due process and must not sweep up asylum seekers or other vulnerable people: Amnesty International, United Nations Human Rights Committee periodic country review in the summer of 2015: online https://www.amnesty.org/en/documents/amr20/1806/2015/en/.

Research has identified numerous systematic barriers that impede procedural access to justice. A series of barriers collectively reduce the effectiveness of initial and subsequent monthly reviews of detention sentences including: arbitrariness of decision-making in detention reviews; detainee’s difficulty in gathering new evidence while in detention; standard of proof for detainees; and prohibitive release conditions: Petra Molnar and Stephanie J. Silverman, Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada, Refugee Survey Quarterly (2016) 35 (1): 109-127 [Molnar & Silverman, Everyday Injustices].

A key procedural barrier for accessing justice is the ability to obtain high-quality, affordable legal representation. Access to legal counsel has been found to be the chief determinant of a successful detention bail hearing. Various aspects of the detention system impede access to counsel, including: difficulties with gathering evidence to support the IRB detention reviews while in detention; one-way telephone communication in detention centres; discretionary transfers between detention sites; and increasing use of video- and teleconferencing rather than in-person meetings. It is difficult to access information on available legal counsel from within detention centres, for example because some detention centres do not provide access to the Internet. Information about legal counsel may not be available in a language understood by the detainee. Further, detainees in some detention centres do not have access to interpreters: Molnar & Silverman, Everyday Injustices.

In 2015, the Ontario Court of Appeal ruled in Chaudhary v Canada that immigration detainees can apply to the court for release out of detention based on the principle of habeas corpus, which protects the foundational right for people to seek review and relief from their detention by the government: Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, online, CanLII http://canlii.ca/t/glp6s

This decision signals that while there is a statutory right to detention review, the manner in which such reviews are conducted makes it very difficult for immigration detainees to fully exercise their rights.

3. Refugee Determination Procedure

The process by which a refugee claim is made and assessed by the IRB within Canada is referred to as the Refugee Determination Procedure [RDP]. Refugee claimants must establish that they are Convention refugees under s. 96 of the IRPA or “persons in need of protection” under s. 97 of the IRPA, during the refugee determination process.

Convention refugees are defined in s 96 of the IRPA as persons who are outside their home country or the country where they normally live, and who are unwilling to return because of a well-found fear of persecution based on: race; religion; political opinion; nationality; or membership in a particular social group, such as women or people of a particular sexual orientation.

Persons in need of protection are defined in s. 97 of the IRPA as persons in Canada whose removal to their home country or country where they normally live would subject them personally to: a danger of torture; a risk to their life; or a risk of cruel and unusual treatment or punishment (which are further defined).

The RDP is complex. It requires extensive evidence to be submitted to support the refugee claim. Evidence supporting the claimant’s identity and verifying the basis upon which they are claiming refugee status is often difficult or impossible to access because the claimant has lost documents during their flight to Canada or documents and sources of information in their home country have been destroyed or can no longer be located or accessed. The evidence must be translated into English or French and funds for translation and translators may be very difficult to obtain. Each stage of the RDP requires new forms to be completed, different or new evidence to be submitted, and different legal issues to be addressed. The time limits for collecting evidence, completing the required forms and preparing representations to the IRB for the various steps of the RDP are extremely short. For a flowchart depicting the stages, timelines and avenues by which a person can be granted or denied refugee protection under the RDP, see the Continuing Legal Education of Ontario, Refugee Rights in Ontario website at http://refugee.cleo.on.ca/en/refugee-claim-flowchart.

Because most claimants are poor, unemployed, have low English and French language literacy skills, may have received less education, may be in poor physical and mental health, and come from different cultures, they face significant barriers when confronted by this system. Their circumstances make it difficult for them to assert their rights and participate in the process. This negatively affects the chance of them obtaining a just result. The manner in which the system is implemented fails to recognize their right to be treated with respect and dignity. This has added significance considering that many refugees arrive in Canada traumatized by the violent and oppressive treatment they have suffered in the countries from and through which they flee. The failure to obtain access to justice is of fundamental importance considering what is at stake. By definition, refugees are individuals who face persecution, and the inability to effectively participate in the RDP or an error in the decision-making process could lead to a return to serious harm, including torture and death: UORAP, Troubling Signs at 25.

The University of Ottawa Refugee Assistance Project (UORAP) was formed to spearhead a multi-year, national initiative aimed at mitigating access to justice concerns in the RDP. It has identified six thematic clusters of access to justice barriers:

(1) Systemic unfairness for certain classes of claimants:

Two examples are the “Designated Countries of Origin” provisions and the “Designated Foreign Nationals” provisions: OURAP at 61 – 62.

Designated Countries of Origin (DCO) provisions allow IRCC officials to list countries that the federal government deems to be “safe”. Refugees who come from these countries face shorter timelines for submitting documents to support claims and are denied eligibility for certain procedural protections, such as access to an appeals process. The Federal Court of Appeal has struck down the IRPA provision that refuses applicants from DCOs a right of appeal on the basis that it violates their equality rights under section 15 of the Charter. However, the Court refused to strike down the IRPA provision allowing countries to be declared DCOs and considered under different criteria: Y.Z. v. Canada (Citizenship and Immigration), 2015 FC 892, online, http://www.canlii.org/en/ca/fct/doc/2015/2015fc892/2015fc892.html?autocompleteStr=2015%20FC%20892&autocompletePos=1.

Designated Foreign Nationals [DFNs] are members of a “group arrival” that the federal government designates, on suspicion of human smuggling or for other reasons. If persons are determined to be DFNs, they face mandatory detention, reporting conditions, no right to appeal decisions to IRB Appeal Division, no automatic stay of removal when awaiting leave for judicial review to the Federal Court, and a five-year bar on any application for permanent residence, temporary residence, H&C consideration, travel documents, or family sponsorship, from the date of a positive RPD decision.

(2) Truncated timelines in all aspects of the RDP process:

It is trite to say that the short timelines within the RDP make it more difficult for claimants to effectively respond and participate in the RDP and therefore more difficult for them to obtain a just result: OURAP, Troubling Signs at 62 to 64.

(3) Limited recourse for failed claimants:

For example, the IRPA and IRPA regulations bar many claimants from appealing initial RDP decisions to the Refugee Appeal Division. This creates a significant inequity within the RDP process and a heightened risk that errors in first-instance decision-making will not be corrected: OURAP, Troubling Signs at 64 – 65.

(4) Detention related issues:

Many of these issues are discussed above. There were also concerns with RDP provisions that require detained claimants to file their initial application for refugee status within three days of their arrest. This extremely tight timeline creates obvious challenges for accessing counsel, arranging for interpretation, and receiving supplementary support: OURAD Troubling Signs at 65 – 66.

(5) Resource constraints:

Participants noted, for example, that ongoing resource constraints intersect with time constraints and new procedural steps to cause serious access to justice issues throughout the RDP. For example, the cost and time needed for translations and interpretation was seen as particularly problematic under the RDP, as access to volunteers has become much more restricted as a result of the tight timelines: OURAD Troubling Signs at 66.

(6) Increased use of Ministerial interventions:

It was noted that there has been a rise in Ministerial interventions, which generally involve evidentiary submissions by the Minister with the objective of contesting some aspect of the claimant’s submissions. While claimants may respond, doing so can increase preparation time for counsel and psychological stress for claimants: OURAD Troubling Signs at 66 – 67.

4. Symbolic Attack on Legitimacy of Asylum Seeker Claims

Government discourse surrounding introduction of the recent refugee reforms was accompanied by symbolic attacks on the legitimacy of asylum seekers including accusations of refugee fraud. Such discourse undermines the respect and recognition afforded to refugee claimants legally seeking protection in Canada, and thus, jeopardizes their right to be treated with respect and dignity: UORAP Troubling Signs at 30 – 31.

Temporary Foreign Workers (TFW)

Temporary foreign workers come to work in Canada to fill temporary gaps in the labour market. Workers enter Canada under a TFW Permit. A work permit grants TFW the right to temporarily reside in Canada for the purpose of working here. TFW must leave Canada when the permit expires. Most TFW must come to Canada at the request of an employer who has successfully undertaken a labour market screen, known as a Labour Market Impact Assessment (LMIA) to show that TFW positions cannot be filled from within the Canadian labour market: House of Commons, Temporary Foreign Workers - Report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, (September 2016) 42nd PARLIAMENT, 1st SESSION [HC Temporary Foreign Workers Report], Chapter 2, online, http://www.parl.gc.ca/Content/HOC/Committee/421/HUMA/Reports/RP8374415/421_HUMA_Rpt04_PDF/421_HUMA_Rpt04-e.pdf

Most TFW have no path to obtaining permanent Canadian residence status and no right to resettlement services. Many have low incomes, face language barriers, do not understand their rights under Canadian law, and are dependent upon their employers. Because of their precarious status and lack of access to permanent resident status, they are vulnerable to abuse.

There are currently four streams under which workers can enter Canada under the TFW Program: the high-wage stream, the low-wage stream, the primary agriculture stream, and the stream dedicated to supporting permanent residency. The high-wage stream is for positions where the wage rate offered to the TFW is at or above the provincial or territorial median wage. The low-wage stream is for positions with wages that are below the provincial or territorial median wage. The primary agriculture stream is for positions for migrant workers who can be hired from any country to work for on-farm primary agricultural positions for a maximum period of

24 months. This stream includes the Seasonal Agricultural Worker (SAW) stream through which employers can secure temporary foreign labour from Mexico and various Caribbean countries covered under bilateral international agreements. Migrant workers under the SAW stream can only work in Canada for a maximum of eight months from January to mid-December. The permanent residency stream allows employers to employ TFW and either support an application for permanent resident status, or allow a foreign national to work in Canada while they apply for permanent resident status. The former live-in-caregiver stream is now part of the TFW Program high-wage or low-wage streams and no longer requires the caregiver to live-in. It allows families to hire a foreign caregiver to provide care on a full-time basis, in a private household, to children, seniors or persons with certified medical needs: HC Temporary Foreign Workers Report, Chapter 3.

A number of access to justice barriers for TFW have been identified.

Employer-specific work permits tying migrant workers to one employer often lead to a power imbalance that is conducive to abuse. Most vulnerable are those in low-skilled positions who have language barriers, work in isolation, and are indebted to recruiters. Amongst migrant workers, women are at greater risk of suffering abuse. Temporary foreign workers who are migrant workers, especially those employed in caregiving positions, have reported experiencing a wide range of abuse, including verbal, physical and sexual abuse. Specific examples of abuse include working for no wages, undertaking tasks outside the scope of the employment contract, not receiving vacation pay, and being forced to work more hours or days than required under their contracts. It was reported that female migrant workers hide their pregnancy for fear of losing their employment and status in Canada: HC Temporary Foreign Workers Report at 17 to 19.

Specific features of the Seasonal Agricultural Worker (SAW) Program place TFW in a vulnerable position. Under the SAW stream, employers have discretionary power to repatriate workers when they do not comply with some aspect of the work or for any other sufficient reason. SAW Program workers who are injured at work or become ill often face repatriation and a denial of medical treatment, as provincial health insurance is dependent upon a valid work permit. In addition, migrant workers are subject to employer-specific work permits, a fact that limits their mobility and makes them even more vulnerable: HC Temporary Foreign Workers Report at 17 – 19.

Temporary foreign workers, like other marginalized groups in Canada, are unable to access the justice system to enforce their legal rights because of the disadvantages they face resulting from their lower social and economic status. They are also afraid to report abuses for fear of retaliation from their employers and loss of their TFW Permit: HC Temporary Foreign Workers Report Chapter 4.

Canada had a live-in-caregiver immigration program that allowed foreign nationals to immigrate to Canada under a temporary work permit if they provided live-in care to Canadians for two years, after which they could apply for permanent resident status. Persons applying under this program are almost entirely female. Changes introduced by the previous federal government place caps on applications for permanent resident status, removing the guaranteed pathway to immigration. In addition, there is a backlog of applications waiting to be processed: HC Temporary Foreign Workers Report, Chapter 4; CCFR Women’s Day 2016; Citizenship and Immigration Canada http://www.cic.gc.ca/english/work/caregiver/index.asp.

Migrant workers are not given access to permanent resident status, unlike workers immigrating to Canada for high-wage jobs: Canadian Council for Refugees, online at http://ccrweb.ca/en/migrant-workers.

[ACLRC has a separate TAB on TFWs. See: http://www.aclrc.com/questionsanswers/]

Sponsored Family Members Under Family Reunification Stream

Canadian citizens and permanent residents may sponsor spouses or partners, dependent children, parents, grandparents and other close relatives to become permanent residents under the family reunification stream of immigration. Sponsors must agree to be financially responsible for sponsored family members. This puts the sponsor in a position of control and the sponsored family member in a vulnerable position.

Sponsored spouses and partners who have been in the relationship for two years or less and who have no children in common with their sponsor at the time of the sponsorship application are granted a conditional permanent resident status, as opposed to full permanent resident status. Sponsored spouses or partners with conditional permanent resident status must live together with their sponsors in a legitimate relationship for two years from the day they were granted that status. After the two years has expired, they are eligible for permanent resident status. Sponsored spouses and partners with this status are more likely to suffer abuse by their sponsors and fail to report it for fear of losing their immigration status. Since its implementation in 2012, this measure has made sponsored spouses, particularly women, more vulnerable to abuse and forced some to stay in abusive relationships in order to avoid losing status in Canada: Canadian Council of Refugees, Conditional Permanent Residence: Failure in Policy and Practice: online, Canadian Council of Refugees http://ccrweb.ca/sites/ccrweb.ca/files/cpr-report-2015.pdf.

The federal government is proposing changes to these provisions with the objective of addressing concerns that have been identified: http://www.cic.gc.ca/english/department/acts-regulations/forward-regulatory-plan/new-sponsored-spouses.asp

Number of Laws Affecting New Canadians

New Canadians are affected by a greater number of laws, systems and bureaucracies dealing specifically with their rights and obligations, than other citizens of Canada, for example, immigration and refugee law and laws providing social benefits. These laws are complicated, lengthy and technical, and create extensive bureaucratic structures. This makes it more difficult for them to understand the law, compared to other Canadians, and therefore increases their barriers to accessing justice.

 Power Imbalances Between Persons Administering Laws, Policies, and Bureaucracies, and New Canadians

New Canadians rely heavily on social systems and services to survive. They generally have little power or resources compared to the governments or organizations that administer these services and run the risk of being denied essential benefits if they make a complaint against those who control these systems and services.

Canadian studies indicate that some Canadians, particularly those with fewer resources and marginalized groups, do not view the justice system as fair, accessible or reflective of them or their needs: 2016 Everyday Legal Problems Overview.

 Lack of Government Funding for Human or Financial Resources to Ensure Appropriate Functioning of Legal, Economic, and Social Benefits

Governments fund organizations that provide economic, social and legal assistance. If organizations to which benefits are provided are not granted sufficient funds to function effectively, persons accessing these services, including New Canadians, have fewer resources with which to access justice. For example, lack of legal aid funding means that the very poor cannot afford legal representation.

Disproportionately Greater Number and Types of Legal Problems Experienced

Legal and non-legal problems adversely affect people’s lives and marginalized groups experience a disproportionately greater adverse effect because of the greater number and types of legal problems they experience and because legal problems may cause non-legal problems and visa versa.

One paper summarizes the following important findings of surveys of everyday civil legal problems in connection with the unmet legal needs of the poor and vulnerable:

(i) there is an important connection between unresolved legal problems and broader issues of health, social welfare and economic well-being;

(ii) age, country of birth, disability status, personal income and education level are statistically independent predictors of reporting legal events;

(iii) in some studies, gender, ethnic background and Aboriginal status were shown to influence the experience of civil legal problems;

(iv) legal problems tend to “cluster”, meaning that problems tend to co-occur and can be grouped together;

(v) people who experience one legal problem are much more likely to experience more than one and this is especially true for low income people and members of disadvantaged groups; and

(vi) while every group experiences civil needs, the poorest and most vulnerable experience more frequent and more complex, interrelated civil legal problems: Action Committee on Access to Justice in Civil and Matters, Family Justice Reform A Review of Reports and Initiatives, Canadian Forum on Civil Justice, online Canadian Forum on Civil Justice, http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Family%20Justice%20Reform%20Review%20-%20April%2015%20Final.pdf

Attitudinal Barriers

Marginalized groups report experiencing fear of the legal system, and negative attitudes by those in charge of implementing laws and legal policies: Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmap for Change, (2013): online, Canadian http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

Attitudes may be paternalistic, judgmental, stigmatizing, stereotyping or invalidating. Attitudinal barriers may affect how laws and legal policies and procedures are implemented. New Canadians may be denied or delayed in exercising their rights under the law because of the attitudes of justice system workers, service providers and others who implement the law. Attitudinal barriers may result in New Canadian receiving poor treatment from those providing services, interpreting or applying laws and policies or deciding which services will be provided or how those services will be delivered.

For example, New Canadians seeking social support services such as health care, housing, and income supplements may be treated with suspicion and contempt, which may lead to persons in the system interpreting and applying laws, or delivering services provided for by the laws in ways that frustrate or deny rights to these services.

Where Are We Going and What Has to be Done

The most significant barrier that New Canadians face to accessing justice is the inability to access affordable legal representation and clear legal information dealing with their specific problems. There are some avenues through which affordable legal services can be obtained, for example, through legal pro bono services, collaborative lawyering, unbundled legal services, and duty-counsel services. Although these solutions are and will be helpful, they may not be affordable for persons in marginalized groups, some are underfunded and many are often not immediately available. Given the very serious personal consequences of immigration and refugee matters, it is necessary that resources be readily available. See ACLRC’s “Finding a Lawyer”.

Alternative legal services are also available that allow people to access the services of specialists who are not lawyers but knowledgeable and experienced in an area of law. This includes the use of paralegals, community legal workers, and immigration consultants. Although these services are no doubt helpful, they do not replace the need for legal representation.

A third category of access to justice initiatives seeks to provide legal support services by delivering legal information to the public through websites or through front line workers who are often not legally trained. These services include a broad range of governmental and non-governmental service providers providing access to legal information and assistance through self-help guides, drop-in centres, and web resources. This third category of initiatives are innovative, and perhaps most likely to provide the affordable and immediate legal assistance that is required by marginalized groups. Because immigration and refugee law is governed under federal law, legal support services delivered through websites in other provinces and territories can also be used in Alberta, although one must be careful not to rely on jurisdiction-specific information. Again, although this will assist front-line workers to assist New Canadians and may be helpful to some New Canadians, they are not helpful to New Canadians who are not fluent in the languages in which the materials are provided. They will also be less helpful to New Canadians who cannot access computers or lack transportation to the offices of front-line workers.

Given the large number of serious barriers New Canadians face in accessing justice, much more will have to be done if the justice system is to be responsive to their needs.

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