Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

Of note:

People detained for immigration violations will now have better access to free legal representation to fight for their release.

Legal Aid Ontario has launched a one-year pilot program to make sure anyone in immigration detention in the province can be represented by a lawyer at their detention reviews.

No advance application is necessary as lawyers with the Immigration Detention Representation Program will be present at the beginning of each detention hearing to offer assistance.

Numerous studies have underscored the importance of legal representation in improving a detainee’s chances of getting released. However, securing a lawyer has often been a problem for those held behind bars and unfamiliar with the system.

“For decades, immigration detainees have fallen through the cracks. For decades, people have languished in immigration detention for longer than they should have because of the lack of legal representation,” said Queen’s University immigration law professor Sharry Aiken.

“You’re locked up and have limited access to the outside world. You may not even have a functional cellphone if you have been detained directly off an airplane. You may not have a local number (of a lawyer).”

According to an audit commissioned by the Immigration and Refugee Board, counsel represented a detained person at only 38 per cent of hearings held in Ontario in 2017. That compares to the 70 and 76 per cent in the regions west and east of the province, respectively.

Canadian border officials can detain inadmissible foreign nationals such as undocumented residents and failed refugee claimants awaiting removal, or permanent residents convicted of serious crime if they believe the individuals are a flight risk or a danger to the public.

According to the latest government statistics for 2019-20, a total of 8,825 people — 5,265 in Ontario alone — were held for immigration violations; 68 per cent in immigration holding centres; 19 per cent in provincial jails; and 13 per cent in other facilities.

The detainees were held for a combined 115,559 days or 13.9 days on average. About three per cent, or 241 of them, were kept for more than 99 days.

COVID-19 outbreaks in jails have put institutional detention under the spotlight, prompting authorities to urge correctional services and the parole board to release some low-risk offenders in order to slow the spread of the virus. Earlier this month, some immigration detainees in Montreal staged a third hunger strike, seeking their release because of fears around the coronavirus.

“Legal Aid Ontario is committed to serving people in detention who need our help, and to ensuring that immigration detainees have access to fair and meaningful detention reviews,” said Aviva Basman, a manager at the Refugee Law Office, which administers the project.

“This pilot program is partly a response to the unprecedented nature of the pandemic and its impact on incarcerated people, who are subject to harsh and restrictive detention conditions. … It is also a response to historically low levels of representation in Ontario and the need to increase access to counsel for this population.”

In December, Legal Aid Ontario announced an increase to the number of hours available on legal aid certificates for lawyers to prepare for detention review hearings.

Counsel may now bill as much as three hours of preparation time for each detention-review hearing, in addition to the time spent in the hearing. Previously, only one hour of preparation time was available for the second and further hearings.

While news of the immigration-detention pilot program is welcomed, Aiken of Queen’s University said it is only “a half measure” given the one-year duration of the initiative.

“I’m pleased to see the project. There’s a need for this. But I am concerned it may not be sufficient,” said Aiken. “It doesn’t appear to have any sustainable source of funding within the legal aid program.”

Source: Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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