Date: 20010108
Docket: A-888-97
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
A.B.
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE ATTORNEY GENERAL OF CANADA
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
Heard at Toronto, Ontario, Monday, November 20, 2000.
Judgment delivered at Ottawa, Ontario, on Monday, January 8, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
ISAAC J.A.
Date: 20010108
Docket: A-888-97
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
A.B.
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE ATTORNEY GENERAL OF CANADA
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
The question raised by this appeal is whether section 7 of the Charter imposes an obligation on the respondent Ministers to finance counsel's preparation of a case prior to an immigration inquiry that may lead to the removal of an impecunious person who has been granted refugee status in Canada, when the complexity of the case requires more preparation time than that funded under a provincial legal aid scheme.
A.B., the appellant, is a citizen of Ethiopia and was granted refugee status in Canada. However, the processing of his application for landing as a permanent resident was halted when the Minister of Citizenship and Immigration ("the Minister") alleged that he had committed war crimes outside Canada and was thus a member of an inadmissible class under paragraph 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2. A report was made under section 27 of the Act and the matter was referred to an immigration inquiry, as a result of which A.B. could be subject to deportation. The appellant was arrested and detained pending the inquiry. The Adjudicator commenced consideration of the Minister's allegations on July 30, 1997, but the inquiry was adjourned later that day.
A.B.'s counsel was granted a legal aid certificate under the Ontario Legal Aid Plan for an unlimited number of hours for attending at the inquiry and 16 hours of preparation, the maximum available under Schedule 3, F. Immigration and Refugee Matters, item 15.1 of the Legal Aid Act, R.S.O. 1990, c. L.9. The certificate was refused by the appellant's solicitor because it did not appear to be adequate. It has since expired.
Counsel states that, because of the complexity of the case, he has already spent more than 40 hours in preparation and more time is still required. There is apparently no right of appeal under the Ontario Legal Aid Plan against the number of hours of preparation specified in a certificate. However, after a hearing has been completed, an application may be made to the legal accounts officer for discretionary additional funding. Such funding is only provided in exceptional cases.
The appellant applied to the Minister for additional funding, but the application was refused on May 7, 1997. As a result, A.B. commenced three separate proceedings, the procedural complexities of which are not relevant to the disposition of this appeal. In substance, A.B. sought orders setting aside the Minister's decision and declaring that either the Minister, or the Attorney General of Canada, was obliged by the principles of fundamental justice to provide sufficient funds to enable him to be represented by competent and adequately prepared counsel at the immigration inquiry. The reasons given for the disposition of this appeal are equally applicable to the related appeals, A-922-97 and A-923-97.
The Motions Judge granted a motion to strike the appellant's statement of claim; the decision is reported at (1997), 142 F.T.R. 161 (F.C.T.D.). In his reasons for decision he noted, first, that legal aid is a provincial responsibility and that there is no statutory or common law duty on the Minister to provide public funds to enable a person involved in proceedings under the Immigration Act to retain counsel. Like the common law duty of fairness, section 30 of the Act merely provides that persons may be represented by counsel at an immigration inquiry at their own expense.
Second, turning to the constitutional argument, the Motions Judge distinguished cases in which persons accused of criminal offences have been held to have a right under section 7 to state-provided counsel. The Judge held that the loss of the right to liberty and security of the person potentially facing those at risk of being deported is not so serious as to attract the same level of procedural protection under the principles of fundamental justice as in criminal proceedings which can result in the imprisonment of the accused. Accordingly, he concluded (at page 170, paragraph 30):
| In the circumstances of this case, in my opinion, s. 7 does not raise a duty for the respondent to provide, in advance of the inquiry, assurance of funding, even funding that might be accepted by the applicant as reasonable, for preparation by counsel to represent the applicant. |
The Motions Judge certified the following question pursuant to subsection 83(1) of the Immigration Act:
| Where a Convention refugee in Canada is subject to an Immigration Inquiry in relation to allegations that he has committed an act or omission outside Canada that constitutes a war crime or a crime against humanity within paragraph 19(1)(i) of the Immigration Act, and provincial legal aid has committed some, but not adequate, funding for the pre-hearing preparations by counsel, is either of the respondent Ministers, required to fund services of counsel for the refugee as a matter of law, in particular in light of s. 7 of the Canadian Charter of Rights and Freedoms? |
The only issue argued at the hearing of the appeal was the constitutional question certified by the Motions Judge. In my opinion, despite the intervening decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, the Motions Judge was correct to conclude that section 7 did not oblige the Minister to provide public funds to pay for any additional time that his counsel needed in order to prepare adequately for the immigration inquiry hearing, even if, as counsel alleges, the extra expenses were the result of the Crown's failure to proceed promptly and to produce documentary evidence in support of its case.
However, my reasons for reaching this result are somewhat different from those of the Motions Judge. As the Motions Judge recognized, legal aid is a provincial responsibility. Hence, in my opinion, any constitutional duty to provide funds for legal representation is normally borne by the relevant Province. It is true, of course, that the legal proceeding in question is before a federal administrative tribunal and that the potential threat to the individual's liberty or security of the person emanates from administrative action taken under by federal legislation. However, this is not sufficient to impose a duty on the Minister to provide counsel when funding has already been granted for this purpose under a provincial legal aid plan.
Since 1996, the federal government has contributed to legal aid in civil matters through Canada Health and Social Transfer payments to the provinces. Previously, civil legal aid was identified as an item of special need under the Canada Assistance Plan. Legal aid for criminal matters, and for those involving young offenders, is the subject of cost-sharing agreements between the federal government and individual provinces.
In my opinion, it would be unwarranted to impose on the federal government an additional constitutional obligation to provide legal aid when funding is already provided under a provincial scheme to which the federal government has contributed, in part, no doubt, because some civil proceedings for which individuals may seek funding are brought under federal legislation.
The decision in G.(J.) (supra) undoubtedly extends to proceedings of a civil nature the section 7 right to be represented by state-provided counsel, although whether it includes the proceedings involved in this case is not a question that I need answer. However, the reasons in G.(J.) (supra) do not speak to the issue before us, namely, whether the right to be provided with counsel at public expense is available against federal authorities in respect of a federal matter that is covered by the applicable provincial legal aid plan.
For these reasons, section 7 of the Charter does not guarantee the right to state-provided counsel in the circumstances of this case. Accordingly, I would answer the certified question:
| Where a Convention refugee in Canada is subject to an Immigration Inquiry in relation to allegations that he has committed an act or omission outside Canada that constitutes a war crime or a crime against humanity within paragraph 19(1)(i) of the Immigration Act, and provincial legal aid has committed some, but not adequate, funding for the pre-hearing preparations by counsel, is either of the respondent Ministers, required to fund services of counsel for the refugee as a matter of law, in particular in light of s. 7 of the Canadian Charter of Rights and Freedoms? |
in the negative and dismiss the appeal, together with the related appeals, A-922-97 and A-923-97, all without costs.
"John M. Evans"
J.A.
"I agree
A.J. Stone J.A."
"I agree
Julius A. Isaac J.A."
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