An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
STRUCTURE OF LEGAL AID
Delivery of services
The Legal Aid Commission (LAC) is responsible for the administration of legal aid in Nova Scotia. Services are delivered through a network of administrative, regional and local offices.
Legal aid is organized on a staff lawyer service delivery model. Private bar lawyers are retained on a fee-for-service basis only in the event of conflict of interest, or in cases where a person facing life imprisonment chooses to be represented by a private bar lawyer (criminal choice of counsel).
Eligibility for legal aid
Legal aid legislation in Nova Scotia does not expressly provide coverage of any particular civil issue, and the Act implies broad coverage of most matters.
Merit is the initial criterion for determining legal aid coverage in Nova Scotia. Provided that a case is considered to have merit, monthly income is also a factor in eligibility. Applicants are eligible for legal aid if:
- they receive all or part of their income from social assistance;
- their income is equal to or less than what would be received under social assistance; or
- obtaining legal services would reduce their income to the level of eligibility for social assistance, or cause undue financial hardship (although a client contribution may be required in this circumstance).
In addition to merit and income, there are several additional factors that may be addressed in decisions concerning legal aid coverage in Nova Scotia. These include cost, urgency, an applicant's social milieu, the seriousness of legal or economic outcomes, judicial requests for legal services, the area of law, the nature of the case, the exhaustion of other alternatives, and the potential benefit to the individual.
COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
There is no formal legal aid coverage for immigration and refugee law issues in Nova Scotia. In addition, a legal aid representative noted that there is no coverage available on an ad hoc or discretionary basis through the legal aid system. Landed immigrants in custody on criminal grounds may receive some legal aid assistance for the criminal law issue, but this is not coverage that is explicitly directed towards the immigration and refugee law area.
The LAC respondent noted that the primary reason for the absence of legal aid for immigration and refugee matters is lack of funding. Some federal government funding was available in this area in the late 1980s - particularly for cases concerning the Convention Refugee Determination process - but the services available in Nova Scotia ended with this funding. At present, the question of funding is wrapped up in questions about jurisdiction and federal versus provincial responsibility for immigration and refugee law legal aid. The respondent's understanding is that the province of Nova Scotia is unwilling to take on responsibility for funding this service, and current federal funding is insufficient to permit coverage of immigration and refugee law issues. Although the federal position is that civil legal aid is funded through the Canada Health and Social Transfer, Nova Scotia maintains that these funds are entirely used up in the provision of health and education services.
In addition to lack of funding, the LAC representative noted that there is little demand for legal aid in immigration and refugee law matters in Nova Scotia. This may be because it is generally known that legal aid does not provide coverage in this area, so requests for assistance are not directed to legal aid offices. However, it is also the case that there are few international arrivals in Nova Scotia.
The respondent was only aware of one established community resource for legal assistance in immigration and refugee law issues - a private bar lawyer who runs a legal clinic in the Halifax area - but no referrals to this clinic are given by legal aid staff. This representative suggested that people simply do not come to legal aid with immigration and refugee law issues because it is well known that there is no coverage in this area. The respondent did note that there probably are other community groups providing assistance to new arrivals to Nova Scotia. Indeed, it was suggested that refugees and immigrants are more likely to go to members of their community for assistance than to legal aid. At best, however, available services are essentially a "stop gap measure," particularly since community groups do not have the legal expertise necessary to assist refugees and immigrants with legal questions and processes. Accordingly, legal aid respondents did not consider there to be an established "system" in place in Nova Scotia to handle matters of immigrant and refugee law.
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