BRITISH COLUMBIA BRANCH, CANADIAN BAR ASSOCIATION
October 1999
The Right-and Cost-Of Representation
Vol. 11 • No.5
New tide of migrants raises legal and policy issues
INSIDE President's Co lumn
2
Section Talk
3
From t he Bench
6
Practice Talk
7
Legislative Update
9
Execut ive Comm itee 1999/2000 17 Q&A: No Quick Fixes
21
Guest Co lumn: Real Time Billi ng Blues
24
Law Foundation of BC
25
Lawyer in t he Commu nity
26
Bar Photos
27
Class ified Ads
28
Optio ns For Lawyers: Hin di Greenberg 28
Outside the Lower Mainland in BC call us TOLL FREE: 1·888·687·3404
ince July 20, 1999, four boats carrying human cargo have arrived off the shores of BC. Almost 600 men, women and children have soughtby whatever means available to them-a new life in Canada. BC' s official response has been based on principles of international human rights and the Supreme Court of Canada ruling that anyone stepping foot in Canada has the same basic rights as any Canadian. At a political and public level, criticism has been loud, frequent and harsh. Editorial cartoons, media commentary and politicians hav e attacked the Canadian approach to the problem of dealing with illegal migrants. Most distressing to the profession however, are concerns about behind-the-scenes infringements of the migrants' rights; the impact of $1 million in unbudgeted Legal Aid expenses over the next two years (based only on the four boats to date); and extremely negative public portrayals of immigration lawyers. BC Reform MP Keith Martin was quoted in the Ottawa Citizen as saying that migrants should not be allowed to consult immigration lawyers, who only counsel them to lie. Branch Immigration Section Chair Gordon Maynard is outraged: "Counsel are very aware of their responsibilities, and the integrity that goes with the position. The role of counsel is not to give a story to a claimant, but to ensure that they understand the law and process, and that they are dealt with in accordance with the law. The issues involved can be serious, even lifethreatening, and it is important that individual rights and due process be protected."
The Immigration Bar is deeply concerned with the position of the Department of Citizenship and Immigration that the migrants have no right to counsel for the purposes of their initial interview and Senior Immigration Officer (SIO) interview. The Bar is concerned that the migrants do not imderstand the law, and do not understand that they must initate their claims before the SIO interview is concluded. Failure to initiate the regugee claim before issuance of a removal order by the SIO is a bar against any future claim. The Department is interpreting these interviews as though they are interviews at an airport entry. The Supreme Court of Canada's Deghani ruling stated that in conducting these primary and secondary interviews, the Charter right to counsel is not engaged as the person is not detained. The SCC leaves open that if counsel were ready and willing to attend at the secondary interview, that it would be appropriate. The Department is taking the approach that the detention of boat migrants are not, iri fact detentions, and that they are equivalent to port-of-entry examinations. "We are hearing accounts of counsel being available, but interviews being conducted without access to counsel. Counsel are being told they can attend SIO interviews but not participate," says Mr. Maynard. "There is no question that the process is fundamentally different from an airport interview. It is detention. This is arguably contrary to the Charter entitlement of right to instruct counsel upon detention." Q~