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Peril and promise : legal aid and securitized asylum policies Morgan, Nancy Mary Jane 2007

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PERIL A N D P R O M I S E : L E G A L AID A N D S E C U R I T I Z E D A S Y L U M POLIC IES by Nancy Mary Jane Morgan A T H E S I S S U B M I T T E D IN PARTIAL F U L F I L L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F L A W S in T H E F A C U L T Y O F G R A D U A T E S T U D I E S T H E UNIVERSITY O F BRITISH C O L U M B I A October 2007 © Nancy Mary Jane Morgan, 2007 ABSTRACT Recent developments in governmental guarantees for legal aid for asylum claimants have corresponded to increased state security measures that restrict refugee claims. This thesis examines the intersection between legal aid, refugee claimants, and securitized and criminalized asylum policies in western states, with a particular focus on the Canadian context. As legal aid becomes a standardized policy response to refugee claimants, its functions are not only of significance to individual nation states, but also to the processes of global migration, and in particular, to international systems of refugee asylum. My argument is that the operation of legal aid for refugee claimants exists on several levels, a duality of purposes that are complexly related and contradictory. On one level, refugee legal aid operates to ensure procedural protection and increase positive outcomes for refugee claimants. On another level, legal aid functions to support developments that seek to control accepted refugee claims. As manifest in migration laws and policies of refugee-receiving nations, these developments are part of the "securitization" and "criminalization" of migration. I argue that legal aid supports the securitization of refugee asylum through its power as a source of legitimacy. As a powerful assertion of state commitments to liberal values and refugee protection, a system of refugee legal aid acts as a legitimacy counterbalance to policies that neglect these commitments in favour of state and societal security. To illustrate my argument that legal aid functions as a support to securitized asylum polices, my primary focus is on legal aid's relationship to the specific asylum polices of Canada, but I also discuss the operation of legal aid in the international sphere, and its use in media reports. As part of the duality of legal aid's operation, I also detail the concrete effects legal aid has on refugee determination tribunal proceedings, in terms of a strong correlation between positive outcomes and legal representation. T A B L E O F C O N T E N T S A B S T R A C T ii T A B L E O F C O N T E N T S iii LIST O F T A B L E S iv C H A P T E R O N E Introduction 1 C H A P T E R T W O Refugee Legal Aid in Canada in the Context of Securitized Asylum Policy 11 2.1 Refugee Determination 11 2.2 Legal Aid System 15 2.3 Securitization of Asylum 21 C H A P T E R T H R E E Theoretical Context: Legitimacy from Legal Aid to Securitization 33 3.1 Theories of Legal Aid 35 3.2 Legitimation 43 3.3 Securitization 54 C H A P T E R F O U R Legal Aid and the Legitimation of Restrictive Refugee Protection Systems .68 4.1 Recent Developments in Refugee Legal Aid 69 4.2 Conflicting Values: Security, Human Rights and Humanitarianism 73 4.3 Refugee Legal Aid and Legitimation 85 4.4 Legal Aid and the Inequity of World Order 91 4.5 The Inadequacy and Consequences of 'Harmonized' Refugee Legal A i d . 9 7 C H A P T E R FIVE Legal Aid, Identity and the Criminalization of Refugees in the Media 102 5.1 Law, Identity and the Media: Theoretical Perspectives 104 5.2 Exploitations of the "Public Purse": the Legal Aid Connection 112 5.3 Legal Aid and the "Mundane Criminalization" of Refugees in the P ress . . 122 C H A P T E R SIX The Canadian Refugee Legal Aid System: Legitimacy and Control 131 6.1 The Need for Refugee Legal Aid 132 6.2 Correlations between Legal Assistance and Refugee Tribunal Determinations 133 6.3 Legitimacy without Substance in Refugee Legal Aid . .143 C H A P T E R S E V E N Conclusion 148 B I B L I O G R A P H Y . . . . . 153 LIST OF T A B L E S T a b l e 6 .1 : A p p r o v e d C l a i m s by L e g a l A s s i s t a n c e S ta tus : A s P e r c e n t a g e of To ta l A p p r o v e d Nat iona l ly 134 T a b l e 6.2: C l a i m s by L e g a l A s s i s t a n c e S ta tus : P e r c e n t a g e A p p r o v e d by S ta tus . . 135 T a b l e 6 .3 : A p p r o v e d C l a i m s by L e g a l A s s i s t a n c e S ta tus : To ta l A p p r o v e d R e g i o n a l l y : 136 T a b l e 6.4: C l a i m s A b a n d o n e d A M t h d r a w n or O t h e r w i s e R e s o l v e d : B y L e g a l A s s i s t a n c e S ta tus 137 T a b l e 6 .5 : C l a i m a n t s by L e g a l A s s i s t a n c e S ta tus : P e r c e n t a g e of To ta l C l a i m s . . . . 138 T a b l e 6 .6 : M a x i m u m T i m e L imi ts P a y a b l e for L e g a l A s s i s t a n c e 141 iv C H A P T E R O N E Introduction Comparatively, legal aid is not currently a subject of great excitement or activity in the realms of legal and sociological analysis. Although the inception of legal aid, meaning, in its modern form, state-sponsored assistance providing legal counsel or advice, is relatively recent, interest in the subject seems somewhat exhausted. Many excellent books and articles are still published on legal aid issues, and proponents of access to justice remain committed to legal aid as an essential pillar of meaningful entry into legal and social equality. Nevertheless, the true heyday of theoretical consideration of legal aid seems to have passed: the functions of legal aid appear to have been established, the limits well delineated. There seems little else to do but discuss and examine the 'crisis' in legal aid, that is, that legal aid is a good thing, but there is not enough of it to go around. This remains a worthy pursuit, and deserving of much attention. However, legal aid is undergoing something of a renaissance, and merits another, critical, look. This is because legal aid is finding new life in new horizons. Legal aid is of renewed interest because of its expanding scope and importance beyond the insular realm of state "citizens" to those wishing to join the community: refugees and migrants. A s legal aid gains in importance to these individuals, its functions are not only of significance to individual nation states, but also to the processes of global migration, and in particular, to international systems of refugee asylum. This is an interesting development, as refugee asylum is also a subject that has often been asserted to be in a perpetual state of 'crisis'. In its voyage from the protected boundaries of individual states and into the high seas of international 1 territory, legal a id m e e t s this o ther internat ional t raveler , the re fugee, a n d s o m e h o w , the 'c r is is ' of lega l a id a n d the 'c r is is ' of re fugee protect ion are d e e m e d to c o m e to toge ther to fo rm a so lu t ion . In this t hes i s , I e x a m i n e this mee t i ng of lega l a id a n d re fugee c l a iman ts , a n d detai l how lega l a id o p e r a t e s in this context . M y a r g u m e n t is that the opera t ion of lega l a id for re fugee c l a iman ts ex is ts on s e v e r a l leve ls , a dual i ty of p u r p o s e s that are c o m p l e x l y re la ted a n d cont rad ic tory . J i m H a c k l e r s u g g e s t s that legal a id c a n have both "mani fes t " a n d "latent" func t ions , 1 a n d I take up this asse r t i on to a rgue that the man i fes t funct ion of re fugee lega l a id , that is , to e n s u r e p rocedu ra l protect ion a n d i n c r e a s e pos i t ive o u t c o m e s for re fugee c l a iman ts , is on ly o n e half of the equa t i on . T h e o ther half of lega l a id ' s opera t ion in the contex t of a s y l u m , the latent func t ion , is to suppor t d e v e l o p m e n t s that s e e k to contro l a c c e p t e d re fugee c l a i m s . T h e s e d e v e l o p m e n t s , a s man i fes t in migrat ion laws a n d po l i c ies of re fugee- rece iv ing na t ions , wh i ch s e e k to restrict a n d contro l " i r regular", or u n s a n c t i o n e d , m o v e m e n t s of p e o p l e a c r o s s s tate bounda r i es , a re part of the "secur i t i za t ion" of migra t ion. In con tempo ra r y secur i ty s tud ies , secur i ty i s s u e s are c o n s i d e r e d by how they relate to va r i ous " sec to rs " of soc ie ty , inc lud ing state a n d soc ie ta l secur i ty . M y a rgumen t is that legal a id suppor ts the secur i t i za t ion of re fugee a s y l u m , a s it re la tes to s ta te a n d soc ie ta l secur i ty a g e n d a s , th rough its power a s a s o u r c e of leg i t imacy. T h e leg i t imacy that lega l a id p rov ides to secu r i t i zed a s y l u m po l i c ies de r i ves f rom its "mani fes t " func t ion . A s a m e c h a n i s m of p rocedu ra l protect ion for re fugee c l a iman ts , the s ign i f i cance of f ree lega l a s s i s t a n c e for re fugee l ies in its t r e m e n d o u s 1 Jim Hackler, "The Manifest and Latent Functions of Legal Aid" (1992) 2 Int'l Crim. Justice Rev. 58 at 58. 2 importance to Canada 's refugee protection program and to refugees themselves. Canada 's tradition of refugee protection reflects this country's humanitarian convictions and international obligations, including its status as signatory to the United Nations 1951 Geneva Convention Relating to the Status of Refugees.2 The guiding principles found in the Refugee Convention, which have been incorporated into Canada 's Immigration and Refugee Protection Act (IRPA),3 safeguard refugees from being returned to a country where they would face serious persecution for reasons of race, religion, political opinion, nationality or membership in a particular social group. Under the Immigration and Refugee Protection Act, Canada pledges to the assistance and fair treatment of asylum applicants. First and foremost, the refugee objective of the IRPA is to save lives and protect people who are displaced and persecuted. Other objectives include fulfilling international obligations, offering safe haven to those in fear, expressing Canada 's humanitarian ideals through fair consideration of asylum applicants and establishing "fair and efficient procedures" to uphold the integrity of the protection system, while respecting the "human rights and fundamental freedoms of all human beings". 4 Further, the legislation is mandated to be construed and applied in a manner complying with Canada 's Charter of Rights and Freedoms and "international human rights instruments to which Canada is signatory." 5 A s a signatory to the Refugee Convention, Canada also agrees to 2 Convention Relating to the Status of Refugees, 1951, 189 U.N.T.S. 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 1967, 606 U.N.T.S. 267 (entered into force 4 October 1967) [Refugee Convention]. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. 4 Ibid, at s. 3(2)(a)-(e). 5 Ibid, at s. 3(3)(d), (f). 3 ex tend to re fugees the s a m e t reatment ava i lab le to na t iona ls in te rms of a c c e s s to cour ts , inc lud ing lega l a s s i s t a n c e . 6 T h e h igh level of commi tmen t m a d e under the Immigration and Refugee Protection Act a n d Refugee Convention is a n a c k n o w l e d g e m e n t of the gravi ty of the responsib i l i ty to p rov ide a s y l u m to t hose in d a n g e r a n d r e c o g n i z e s this duty a s a co rne rs tone of in ternat ional h u m a n rights p ro toco ls . L e g a l a id is vital to the fa i rness of C a n a d a ' s re fugee protect ion s y s t e m , a n d thus , to the human i ta r ian a n d h u m a n rights v a l u e s e m b o d i e d in our leg is la t ion. R e f u g e e c la iman ts a re sub jec t to legal p r o c e e d i n g s that will h a v e p ro found c o n s e q u e n c e s for their future safety ; spec i f i ca l l y , they mus t a p p e a r be fore a q u a s i -judic ia l t r ibunal hear ing that de te rm ines their el igibi l i ty unde r C a n a d i a n re fugee protect ion gu ide l i nes . T h e i s s u e s at t h e s e hea r ings c a n be c o m p l i c a t e d a n d re fugees are d i s a d v a n t a g e d by l imited k n o w l e d g e of the off icial l a n g u a g e s a n d the legal s y s t e m . A s s u c h , it is w ide ly a s s e r t e d that e x p e r i e n c e d a s s i s t a n c e is n e c e s s a r y for re fugees e n g a g e d in c o m p l e x de te rmina t ion p r o c e e d i n g s . 7 B y statute, r e fugees m a y e n g a g e c o u n s e l at their o w n e x p e n s e ; howeve r , d u e to their c i r c u m s t a n c e s in their h o m e count r ies a n d the fo r ced m a n n e r of their depar tu re , re fugees mos t often h a v e l imited f inanc ia l r e s o u r c e s . 8 T h e e x e r c i s e of re fugees ' statutory right to c o u n s e l , therefore , is " largely d e p e n d e n t on the avai labi l i ty of legal 6 Refugee Convention, supra note 2 at art. 16 (2). 7 John Frecker et al., Representation for Immigrants and Refugee Claimants: Study Report (Department of Justice. Canada.) (Ottawa: Minister of Public Works and Government Services, 2002) at para. 2.1. 8 IRPA, supra note 3 at s. 167 (1). 4 aid."9 Thus, national commitments to justice, as well as international and humanitarian obligations, require a reliable and effective refugee legal aid system. However, the provision of free legal assistance to refugee claimants has a deeper significance than upholding international and domestic rights obligations. Legal aid, in its various purposes, embodies values that are at the heart of liberal democratic society. Theoretical considerations on the function of legal aid in society demonstrate that the provision of free legal assistance corresponds to principles that underlie the organizational structure and legitimacy of liberal states: equality before the law, the recognition of individual rights and worth and the fair distribution of resources. A system of legal aid for refugee claimants is thus integral to bringing legitimacy to the treatment of asylum seekers on the international stage, as well as to domestic policies. The legitimacy that legal aid, in its manifest function, brings to state policies that pertain to refugee claimants, also, conversely, figures in the latent function of asylum legal aid. This latent function of legal aid operates at cross-purposes to its manifest function, in that legal aid lends legitimacy to harsh and restrictive asylum policies that work to restrain the numbers of accepted asylum claims. As a powerful assertion of state commitments to liberal values and refugee protection, a system of refugee legal aid acts as a legitimacy counterbalance to policies that neglect these commitments in favour of state and societal security. The ways in which legal aid works in this manner are diverse: as a foil to counteractive forces to securitization, human rights and humanitarianism; as a lightening rod of public disapproval in its Frecker, supra note 7. 5 pe rce i ved exp lo i ta t ion; a n d a s an integral c o m p o n e n t of the larger s y s t e m of re fugee regula t ion. T a k e n together , the opera t ion of legal a id ' s latent funct ion in regard to re fugees is c o n s i d e r a b l e . In f o c u s i n g pr imar i ly o n this latent func t ion , this t hes i s p resen ts a s o m e w h a t s in is ter p icture of lega l a id , in wh ich it l o o m s large in relat ion to C a n a d i a n affairs; howeve r , lega l a id is admi t ted ly on ly o n e sma l l a s p e c t of a m u c h larger c o m p l e x of legal re la t ionsh ips . W h a t I will try to i l lustrate is h o w law, inc lud ing mo re per iphera l lega l m e c h a n i s m s s u c h a s lega l a id , c a n opera te to s imu l t aneous l y fulfill a n u m b e r of func t ions ; t h e s e c o n t e m p o r a n e o u s func t ions a re s o m e t i m e s u n e x p e c t e d a n d d iscordan t , s u g g e s t i n g that the p u r p o s e a n d effect of lega l ins t ruments mus t b e c lose l y sc ru t in i zed to revea l al l p o s s i b l e face ts . I a l s o d o not m e a n to sugges t that legal a s s i s t a n c e , or C a n a d a , for that matter, is a n insti tut ion ent i re ly without redempt ion . L e g a l a i d , a s R i c h a r d A b e l c o m m e n t s , is not al l "peri l " : it a l so con ta ins a great d e a l of p r o m i s e . L e g a l a id is p rom is ing b e c a u s e it t rans la tes the a d a g e of "equal i ty be fo re the law" into a reality, by he lp ing to e n s u r e that that all ind iv idua ls , inc lud ing re fugees , h a v e mean ing fu l a c c e s s to the legal s y s t e m . A s s u c h , it p rov ides r e fugees with the oppor tun i ty to fully e x e r c i s e their r ights a s sub jec ts of the law, a n d g i ves them s o m e legal m e a n s to e x e r c i s e contro l ove r their l ives. B y the s a m e token , the re la t ionship b e t w e e n C a n a d a a n d re fugees is not al l fear , cont ro l , a n d e c o n o m i c sel f - in terest , but a l s o about truly-felt human i ta r i an i sm a n d c o n c e r n for o thers . A s part of this recogn i t ion , I h a v e tr ied to e m p h a s i s the duality of a s y l u m legal a i d , in that it is at o n c e a c ruc ia l 6 source of extremely valuable protections and positive ideals, and a mechanism that can have unexpectedly negative uses and results. To illustrate my argument that legal aid functions as a support to securitized asylum polices, I look at legal aid in a number of different contexts as it relates to refugees. My primary focus is on legal aid's relationship to the specific asylum polices of Canada , but I a lso discuss the operation of legal aid in the international sphere, its use in media reports, and its concrete effects in refugee determination tribunal proceedings. I begin this analysis in Chapter Two of this thesis, where I start to establish the groundwork for my argument by outlining the process of refugee determination in Canada , and how legal aid provisions work with this system. I will also expand on the concepts of "securitization" and "criminalization", and analyze how recent restrictive migration policies have worked to diminish asylum opportunities for potential refugees, both in Canada and internationally. In this latter analysis, my focus will be on the substance of migration laws and procedures that have developed as the concepts of "migration" and "threat" have become synonymous. As a subset of this "securitization" of migration, I will also discuss "criminalization", in which violations of migration laws have been assigned increasingly harsh penalties by state governments and the contribution this has made to a merging of the identities of "criminal" and "migrant". Chapter Three continues examining the topics of legal aid and securitization, expanding the focus to a theoretical perspective. I begin by reviewing the various theories behind the function and purpose of legal aid, and how it embodies concepts fundamental to liberal democratic states. This symbolic content of legal aid is vital to 7 the sub jec t of leg i t imacy, a key i d e a that I will i l lustrate is the link b e t w e e n f ree lega l a s s i s t a n c e a n d secur i t i za t ion . In th is, I e x a m i n e the c o n c e p t of leg i t imacy, a n d how law a n d legal m e c h a n i s m s , s u c h a s lega l a id , work a s a d y n a m i c s o u r c e of leg i t imacy that is both s h a p e d by a n d cons t ruc ts the soc ia l wor ld . T h e ana ly t ica l mater ia l c o v e r e d here a l s o c o n s i d e r s the l imits of what lega l a id c a n a c h i e v e , a s wel l a s the u n e x p e c t e d c o n s e q u e n c e s of its u s e . I e n d this chap te r by out l in ing s u g g e s t e d theoret ica l v i e w s on the r ise a n d p u r p o s e s of secur i t i za t ion , a n d h o w this a p p l i e s spec i f i ca l l y to a s y l u m . In C h a p t e r Fou r , I br ing toge ther the e l e m e n t s of legal a id , leg i t imacy a n d secur i t i za t ion , d raw ing o n the theoret ica l c o n c e p t s in C h a p t e r T h r e e to m a k e m y ma in a rgumen t : that a s a tool of leg i t imacy, lega l a id func t ions to suppor t secu r i t i zed a s y l u m pol icy. In this, I work f rom current pe r spec t i ves in secur i t y theory to i l lustrate how lega l a id o p e r a t e s to sus ta in secur i t i zed a s y l u m po l i c ies by work ing a s a c o u n t e r b a l a n c e to f o r ces that o p p o s e this secur i t i za t ion : h u m a n rights a n d human i t a r i an i sm . S ta r ing with recent d e v e l o p m e n t s in a s y l u m lega l a id in C a n a d a a n d the E u r o p e a n U n i o n , I out l ine how lega l a id w o r k s to coun te rac t the u s e of state c o e r c i o n by p rov id ing leg i t imacy to restr ict ive a s y l u m po l i c i es , a n d thus indirect ly wo rks a s a cont ro l on a s y l u m . In the latter part of th is chap te r , I con t inue this a n a l y s i s f rom an internat ional pe rspec t i ve , by asse r t i ng that lega l a id h a s b e c o m e a s t a n d a r d i z e d g loba l pol icy r e s p o n s e to a s y l u m s e e k e r s . M y a rgumen t here is that in suppor t ing secu r i t i zed a s y l u m po l i c ies , lega l a id de f lec ts at tent ion a w a y f rom under ly ing eth ica l q u e s t i o n s su r round ing a s y l u m s e e k e r s , a n d a s s i s t s in the perpetua t ion of g loba l inequal i ty b e t w e e n s ta tes . I e n d by s u g g e s t i n g that a s legal 8 aid develops into an international policy response, the possibility exists for a reduction in the quality of overall legal aid currently available to asylum seekers through a process of "harmonizing down" to the lowest common denominator of state-sponsored assistance. Identity and law are the primary concepts underlying Chapter Five, in which I expand my consideration of legal aid's contribution to the securitization of asylum. This chapter illustrates the use of refugee legal aid in the media, and how legal aid indirectly plays a role in the criminalization of the identity of asylum seekers. I begin this analysis with a survey of theoretical material on the interaction between law and personal identity, as well as how legally created identities, such as 'refugee' and 'lawyer' can have profound consequences for those identified as such. The main body of this chapter consists of an examination of Canadian newspaper reports, analyzing associations that are developed between refugees, legal aid, and lawyers. The first analysis demonstrates how media articles connect legal aid for refugee claimants with the exploitation of Canadian generosity by fraudulent, criminal refugees and swindling, self-serving lawyers. The public's preconceived notion of what the identity of "refugee" and "lawyer" entails is both played upon and enhanced in the development of this association by the media reports; ultimately, as I demonstrate through survey poll results, the solidification of this association can lead to the creation of a ' legi t imate ' reason to call for limits not only on legal aid expenditures, but also on the number of refugees accepted into Canadian society. The second analysis looks at ways the connection between fraudulent, criminal refugees and legal aid is further developed and maintained by every day media 9 reports on re fugee i s s u e s , a n d h o w this, in turn, f ans the f l a m e s of publ ic fear t owards re fugee c l a iman ts a n d ac t s to inst igate g rea te r suppor t for h a r s h a n d restr ic ted a s y l u m po l i ces . M o v i n g f rom a n ana ly t ica l f o c u s , in C h a p t e r S ix , I p resen t s tat is t ica l d a t a on the ef fects of l ega l a id o n C a n a d i a n a s y l u m t r ibunal de te rm ina t ions . M y f o c u s in th is chap te r is p resen t ing an a rgumen t that the s y s t e m of re fugee lega l a id in C a n a d a is a f ine b a l a n c e b e t w e e n leg i t imacy a n d cont ro l . M y a rgumen t is b a s e d on two e l e m e n t s that the s tat is t ics in this c h a p t e r r evea l : first, that lega l a i d , in p rov id ing legal represen ta t ion , is of s igni f icant impor tance in i nc reas ing the l ike l ihood of re fugee c l a i m s p r o c e e d i n g before a t r ibunal a n d ach iev i ng pos i t ive de te rmina t ions ; a n d s e c o n d , that desp i t e the impor tance of rep resen ta t ion , ful ly 1 0 pe r cen t of c l a iman ts p r o c e e d before the t r ibunal u n a s s i s t e d by lega l c o u n s e l . I s u g g e s t that un rep resen ted c la iman ts a re largely a result of gove rnmen ta l fund ing i n a d e q u a c i e s , a n d that the t ightly c o n f i n e d mone ta r y l imits o n lega l a i d expend i t u res a re ano the r w a y in wh ich legal a id is u s e d to contro l pos i t ive re fugee c l a i m s . I c o m p l e t e this a rgumen t by demons t ra t i ng that legal a id is not a threat to the m e c h a n i s m s of re fugee cont ro l , but rather a n integral part of the larger regulatory s y s t e m . C h a p t e r S e v e n p rov ides a brief s u m m a r y a n d interpretat ion of the c o n c l u s i o n s of the p r e c e d i n g chap te rs , a n d d i s c u s s e s the r e l e v a n c e of the work to the f ie lds of legal a id a n d a s y l u m s tud ies . It a l s o p rov ides s o m e p r o p o s a l s for future r e s e a r c h in this a r e a . 1 0 C H A P T E R T W O Refugee Legal A i d in C a n a d a in the Context of Securit ized A s y l u m Pol icy Before beginning my larger analysis, some account of two components integral to the discussion is necessary. First, an outline of how the system of refugee determination and legal aid provision for asylum applicants operates in C a n a d a is important as background. Second, an appraisal of current asylum policies for those seeking admittance to Western states is needed to set the scene for viewing the multiple, and contradictory, functions of legal aid. This last aspect will provide the context of legal aid for refugees in the increasingly restrictive securitized and criminalized treatment of irregular migration and asylum seekers, both in regard to Canada, as well as within a the larger global structure. I will take this up again in Chapter Four, when I illustrate how legal aid works to support securitized asylum policies in Canada , and also how it can function, as an international response to asylum seekers, in the maintenance of the inequitable relationship between the global South and North. 2.1 Refugee Determination The impetus and structure of Canada 's system of refugee protection derives from the primary instrument of international law regarding asylum, the United Nations 1951 Geneva Convention Relating to the Status of Refugees.^ As a signatory to this treaty, Canada has a responsibility to provide protection to individuals facing the risk of persecution in their home countries. Who these 1 Convention Relating to the Status of Refugees, 1951,189 U.N.T.S. 150 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 1967, 606 U.N.T.S. 267 (entered into force 4 October 1967) [Refugee Convention]. 1 individuals are is defined by the Refugee Convention, which identifies a refugee as a person in the following circumstances: Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it-2 This definition has been incorporated into Canadian law by way of the Immigration and Refugee Protection Act (IRPA), and forms the core of this country's refugee programs and determination p r o c e s s e s . 3 Canada has two separate refugee programs, the Refugee and Humanitarian Resettlement Program, for those outside Canada seeking protection, and an inland domestic asylum program for refugee claims made within Canada . In the first of these programs, eligibility for refugee resettlement in Canada is determined by visa officers abroad, with the assistance of the United Nations High Commissioner for Refugees; refugees selected in this manner are not represented by legal counsel in their interviews and therefore will not be considered in this analysis. 4 In the second program, a claim for refugee protection is made at a port of entry, or at a Canada Immigration Centre office in Canada . In this case, the refugee determination odyssey begins with a "screening" interview, with the objective of determining basic eligibility to make a refugee 2 Ibid, at art. 1A(2). 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27 at section 96 [IRPA]. 4 Citizenship and Immigration Canada, "Resettling Refugees in Canada" and "Asylum in Canada", online: CIC <http://www.cic.gc.ca/english/refugees/index.html>; Martin Jones & Sasha Baglay, Refugee Law (Toronto: Irwin Law, 2007) at 208. A duty of fairness may require that the applicant's counsel be allowed to attend as an observer; however, the role of counsel is extremely circumscribed in comparison to inland refugee hearings. 12 protection c la im. 5 In Canada there is no right to have a representative, or legal counsel, present at this interview. 6 If the refugee claimant is found to be eligible, the next stage in the determination process begins. The first important step for refugee claimants at this stage is the completion of a written protection claim, the Personal Information Form (PIF): the PIF requires claimants to provide information regarding their identities, and the basis of their refugee c la im. 7 There is also a right under the Canadian Constitution tor applicants in detention at the time of the protection claim to seek legal assistance. 8 • Once completed, the protection application is submitted to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The IRB is an independent tribunal responsible for making decisions on immigration and refugee matters: the R P D specifically makes decisions on refugee protection claims. In 2005/2006, 21,000 claimants were referred to the R P D for determination. 9 The completed PIF is used at the refugee protection hearing to assist in the determination of claimant's refugee status under the legal provisions outlined in the Immigration and Refugee Protection Act. The protection hearing is a quasi-judicial 5 Citizenship and Immigration Canada, Processing Claims forRefguee Protection in Canada Manual (Ottawa: Minister of Public Works and Government Services Canada, 2005) at para. 8.8. [Processing Claims]. Prior to the eligibility screening, there is also a "pre"-eligibility front-end processing for identity and security purposes. 6 Dehghani v. Canada, [1993] 1 S.C.R. 1053 at para. 50. The CIC states it is departmental policy, nevertheless, to allow counsel to attend eligibility hearings; in practice, reports indicate this is rarely allowed at port-of-entry interviews. 7 Legal Services Society of British Columbia, How to Fill Out a Personal Information Form. Refugee Fact Sheet #3. (Vancouver: LSS, 2004). 8 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, s. 10 [Charter]. 9 Immigration and Refugee Board of Canada, "Refugee Protection Program Activity" 2006-2007 Report on Plans and Priorities Immigration and Refugee Board of Canada (Ottawa: Public Works and Government Services Canada, 2006), online: TBS <http://www.tbs-sct.gc.ca/rpp/0607/IRB-CISR/IRB-CISR_e.asp>. 13 process, normally heard by one decision-maker and is described as "relatively informal" in regard to legal rules of evidence and "usually non-adversar ial" . 1 0 However, as the Minister of Citizenship and Immigration has a right to be represented by counsel before the Tribunal, the hearing becomes adversarial when the CIC participates in the case to argue against the claim. A Refugee Protection Officer, an IRB employee, assists the Tribunal Member in the determination process by gathering research, asking the refugee claimant questions, and ensuring relevant evidence is presented. 1 1 Section 167(1) of the IRPA provides that refugees appearing before the Tribunal have a right to be represented by counsel , which can be a lawyer, immigration consultant, or trusted advisor, at their "own expense" . 1 2 If the initial refugee claim is refused by the R P D , the claimant can apply for leave to have his or her case judicially reviewed by the Federal Court, and beyond to the Federal Court of Appeal and Supreme Court leve ls . 1 3 Claimants who receive a negative decision from the R P D may also apply for Pre-Removal Risk Assessment from the CIC: this is a review of the risk someone faces if returned to another country. 1 4 The P R R A is a usually a paper-based process and is limited to reviewing new evidence that was not considered by the R P D during the original refugee 1 0 Immigration and Refugee Board of Canada, The Immigration and Refugee Board: What it is and How it Works (Ottawa: Public Works and Government Services Canada, 2006); IRPA, supra note 3 at s. 167 (1). 1 1 Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada: An Overview (Ottawa: Communications Directorate, IRB, 2006), online: IRB Website <http://www.irb-cisr.gc.ca/en/about/publications/overview/index_e.htm#table>. 12 IRPA, supra note 3 at s. 167(1). 13 Ibid, at ss. 72 (1), 74(d). Appeal may be made to the Federal Court of Appeal with leave of the Federal Court only on matters that are certified as raising a "serious matter of general importance". Leave to appeal must also be granted to appear before the Supreme Court. 14 Ibid, at s. 112(1). 14 hearing. A right to counsel in making written submissions for P R R A is also established in the / f l P A 1 5 As a final effort, a humanitarian and compassionate (H&C) application for permanent residence in Canada may also be filed by failed refugee claimants; this application relies on the residual power of the Minister of Immigration to allow relief to those who do not otherwise meet the requirements of the IRPA:& These applications are normally based upon attachment to and establishment in Canada , and harm that would ensue from removal. The decision involves consideration of broader elements than the P R R A , including risk and non-risk factors. 1 7 Overall, the refugee claim process is quite complex, involving numerous steps and knowledge of law, including the IRPA, as well as the Refugee Convention and other applicable international legal instruments. 2.2 Legal Aid System As the above introduction shows, there are several stages in the determination process that engage legal matters and rights to counsel, and legal aid is generally available to refugee claimants in C a n a d a at each of these points. It is important to note at this point that in Canada there is neither a general, or free-standing right to state-funded legal assistance, nor a duty for governments to provide legal aid programs. What the courts have determined is that there may be, on a case-by-case basis, an obligation on the government to fund or provide a lawyer for indigent individuals to fulfill the Constitutional right to a fair hearing as 15 Immigration and Refugee Protection Regulations, S.O.R./2002-227, at s. 161(1). 16 IRPA, supra.noXe 3 at s. 25(1). 1 7 Jones & Baglay, supra note 4 at 330-339. 15 required by principles of fundamental just ice. 1 8 Although the "Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel", the obligation to provide counsel arises in cases engaging section 7 (the right to life, liberty, or security of the person) or section 11 (d) (the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal) of the Charter.™ While the theory underlying the provision of legal assistance generally involves the relationship between state and citizen, legal aid for refugees flows from these Constitutional guarantees, and, more specifically, the case of Singh. Closely following the patriation of the Constitution Act, 1982, the Supreme Court of Canada in Singh v. Canada (Minister of Employment and Immigration) determined the scope of the Charter of Rights and Freedoms protections for non-citizens, finding that Constitutional protections applied to entry applicants, including asy lum-seekers. 2 0 In her determination, Wilson J . considered whether the claims of asylum applicants were of the type that implicated Charter protection, holding that the interests inherent in asylum claims engaged section 7 protections of "security of the person" . 2 1 Refugees were thus entitled to an oral hearing on the merits in the determination of their claims, in accordance with the principles of fundamental just ice. 2 2 An adjudicative body was subsequently established to meet this hearing requirement, at that time called the Convention 1 8 Ron Perozzo, A Review of Legal Aid Manitoba Prepared for the Minister of Justice and Attorney General of Manitoba (March 2004) at 13. 19 R. v. Rowbotham (1988), 41 C C C . (3d) 11 (Ont.C.A.) at 65-66. 2 0 [1985] 1 S.C.R. 177 [Singh]. 21 Ibid, at para. 47. 22 Ibid at para. 79. 16 Refugee Determination Division, now the R P D . While legal assistance for refugees had been available on a limited basis prior to the Singh ruling, by entrenching the requirements of fairness and an opportunity to be heard, and the engagement of section 7 rights in asylum determination, the case provided the impetus for the establishment of large-scale refugee legal aid programs. 2 3 Given the serious consequences facing refugee claimants, and the complexity of the proceedings for refugees unfamiliar with the Canadian law and often the language, the threshold for procedural justice was high and the necessity of legal counsel was recognized. The Constitutional holding in Singh thus affords asylum applicants a basis to claim state-funded legal aid. Apart from constitutional safeguards as a foundation for refugee legal aid, a variety of international law instruments serve as a basis for the provision of legal assistance. The most pertinent of these are found in the United Nations 1951 Geneva Convention Relating to the Status of Refugees.24 As a signatory to the Refugee Convention, Canada agrees to extend to refugees the same treatment available to nationals in terms of access to courts, including legal ass is tance. 2 5 Further, the IRPA is mandated to be construed and applied in a manner complying with "international human rights instruments to which Canada is signatory." 2 6 Such instruments, which either discuss the requirement of equality before the law for all 2 3 Audrey Macklin, "Report on Immigration and Refugee Law", Background Paper in Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services, vol. 3 (Ontario: Ontario Legal Aid Review, 1997) 969 at 970-971. 24 Refugee Convention, supra note 1. 25 Ibid, at art. 16(2). 26 IRPA, supra note 3 at s. 3(3)(d), (f). 17 persons, or the explicit provision of legal aid, include the International Covenant on Civil and Political Rights, the American Declaration of Rights and Duties of Man and the Charter of the Organization of American States.27 While Canada has not incorporated these treaties into domestic law, they are important interpretive tools used by the court in assess ing Canadian legislation and policies and have significant persuasive political power in terms of Canada 's observance of internationally established standards. Moving from the legal bases to the organizational structure of refugee legal aid, in Canada immigration is an area of shared jurisdiction under section 95 of the Constitution. By current practice, the federal government has primary responsibility for establishing policy and procedure in regard to refugee admittance, while the provincial government has constitutional authority over related legal a i d . 2 8 These separate powers are a result of a more general federalist division of labour, in which the federal government has primary responsibility over matters of importance to the nation, such as international affairs, treaties, and the admittance of foreign nationals into the state, while provincial governments have authority over domestic matters internal to the province. On one side of this divide, the federal government exercises jurisdiction over "Naturalization and Aliens" under section 91(25), with responsibility for national refugee admittance policies, including the immigration law, and the tribunal that adjudicates refugee matters. On the other side, provincial 27 International Covenant on Civil and Political Rights (99 U.N.T.S. 17), article 14(1); American Declaration of Rights and Duties of Man, article XVIII O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948); Charter of the Organization of American States (1952), 119 U.N.T.S. 48; (44 (i). 2 8 Canada, Department of Justice, "Legal Aid Program", online: DOJ <http://www.justice.gc.ca/en/ps/pb/arr/legal_aid.html>; Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, ss. ss. 91 (25), 92 (14) [Constitution Act, 1867]. 18 governments have the responsibility to ensure refugees access to legal institutions under section 92(14), the administration of justice in the province, traditionally regarded to include legal a i d . 2 9 Legal aid for refugees is accordingly administered at the provincial level, with each provincial government responsible for establishing its own policies and procedures. A s a consequence, provisions for refugee legal aid vary considerably across Canada , with some provinces offering no legal assistance services for refugee claimants at all. Currently, four provinces do not have legal aid services for refugee claimants: Saskatchewan, Nova Scot ia, New Brunswick and Prince Edward Island. The remaining provinces all have specifically designated refugee claim legal aid programs. This includes Alberta and Manitoba, as well as the three main refugee-receiving provinces, British Columbia, Ontario and Q u e b e c . 3 0 Where refugee legal aid exists, it is primarily incorporated into the general provincial legal aid administrative systems, which also provide legal services to indigent citizens in regard to family, criminal and other legal matters. Under this system, a means and merits test is first applied to refugee applicants to determine their eligibility: generally, the criteria are very limited financial resources and a claim that has a likelihood of success . The services available to refugee claimants through legal aid include general advice and assistance, legal advice, legal representation, and duty counsel representation for individuals in detention, with most provinces providing coverage for the most critical aspects of the refugee determination process, such as eligibility determination, refugee determination, 29 Constitution Act, 1867, ibid. 3 0 Social Planning and Research Council of B.C., An Analysis of Immigration and Refugee Law Services in Canada (Ottawa: Department of Justice Canada, 2005) at 2. 19 judicial review, detention reviews and humanitarian and compassionate applications. 3 1 Refugee claimants are generally eligible to receive legal aid funding to engage a lawyer at every step of the post-eligibility determination process: to assist in the completion of their PIF, to represent them before the R P D tribunal, to make written submissions for Pre-removal Risk Assessment and humanitarian applications, and in some cases , for representation before the Federal Court for review, or the Federal Court of Appeal and the Supreme Court on appeal. On the whole, the system, process and benefits for refugee legal aid in Canada are to all extents fundamentally the same as those for state nationals, such as citizens, or permanent residents. Despite the seeming generosity of these provisions, legal aid for refugees can hardly be called a growth sector in Canadian governmental funding; overall, the government funds provided for legal assistance for immigration and refugee matters have been in a virtually steady decline, or stagnation, in recent years. A s ninety per cent of funding provided under this category of legal services has traditionally gone to representation for refugee cla imants, 3 2 legal aid for refugees is the principal matter of concern in reduced expenditures. Funding issues, resulting in low payment amounts for legal aid lawyers, and narrow allowable time limits for case preparation are a concern to provincial legal aid providers across Canada , notably, Ontario, which receives the lion's share of asylum appl icants. 3 3 This is just a brief 31 Ibid, at 16-64, 2. 3 2 John Frecker. Immigration and Refugee Legal Aid Cost Drivers. Department of Justice Study Report. (Ottawa: Minister of Public Works and Government Services, 2002) at 1. 3 3 Social Planning and Research Council of B.C, supra note 30 at 4. 2 0 sketch of funding problems in the Canadian refugee legal aid system: this issue will be considered in greater depth in Chapter Six. 2.3 Securitization of Asylum The significance of sustained governmental support for refugee legal aid, as well as the value of frequent appeals for greater funding, is a complex matter to accurately gauge. Legal aid for refugee claimants is both more important and less important in the current context of irregular migration, in Canada , and globally. Legal aid is more important because as punitive measures applying to extra-legal migration become increasingly harsh, asylum seekers need more legal resources to protect their civil and human rights. It is less important because those same laws and policies that restrict and control irregular migration are appreciably reducing the number of refugee claimants who are able to make their way to the shores of safe-haven countries. This reduces the overall numbers of asylum claimants, and thus, the need for additional legal aid services. This is of significant concern in itself. As James Hathaway and Alexander Neve point out, policies that prevent individuals from making asylum claims can undermine the refugee protection system and trigger a series of events that place the security of the person of would-be asylees at risk, and potentially expose them to torture, or cruel, or degrading treatment. 3 4 The trend toward measures that reduce the number of asylum applicants, as part of a conceptual pairing of the ideas of "migration" and "threat", has become 3 4 James C. Hathaway & R. Alexander Neve, "Fundamental Justice and the Deflection of Refugees From Canada" (1996) 34 Osgoode Hall L. J . 213 at 216, 220. 21 known as the "securitization" of migration. 3 5 Closely aligned with securitization is the "criminalization" of irregular migration, in which migration transgressions attract highly punitive, and often coercive, penalties, and within which the identities of 'migrant' and 'criminal' begin to coalesce in public perception. These terms are by no means entirely discrete, but do designate slightly different processes; they both have at their heart, however, the effect of curtailing asylum rights. 3 6 While control of migration is certainly not an exclusively recent practice, analysts have noted a dramatic shift in attitude since the 1980s. As Ayse Ceyhan and Anastassia Tsoukala observe, migrants and asylum seekers have undergone a "reversal of image": those welcomed after World War II as useful labour, or as confirming the superiority of democratic capitalism in their flight from communist countries, are now increasingly associated with dangers to the well-being of the state. 3 7 More recently, after the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, restriction and enforcement measures have taken on a heightened fervency. In particular, post-September 11 has seen a greater conflation of immigration and criminal offences, to the extent that migration regimes have begun to act as a "surrogate" for the criminal law. 3 8 3 5 Michelle Lowry & Peter Nyers, "Introduction: Global Movements for Refugee and Migrant flights" (2003) 21:3 Refuge 2 at 2. 3 6 The right to seek and enjoy asylum from persecution is recognized in Article 14 of the 1948 Universal Declaration of Human Rights; Article 31 of the Refugee Convention mandates that contracting states "shall not impose penalties, on account of their illegal entry of presence, on refugees who, coming directly from a territory where their life or freedom was threatened . . . enter or are present in their territory without authorization". 3 7 Ayse Ceyhan & Anastassia Tsoukala, "The Securitization of Migration in Western Societies: Ambivalent Discourses and Policies" (2002) 27 Alternatives, Special Issue, 21 at 22; Michelle Lowry, "Creating Human Insecurity: The National Security Focus in Canada's Immigration System" (2003) 21:1 Refuge 28 at 31. 3 8 Laura S. Adams, "Divergence and the Dynamic Relationship Between Domestic Immigration Law and International Human Rights" (2002) 51 Emory L. J . 983 at 985. 22 A s l ippery a s p e c t to note about the secur i t i za t ion a n d c r imina l iza t ion of migrat ion po l i c ies is that it d o e s not, on a w i d e - s p r e a d , off icial leve l , spec i f i ca l l y target s e e k e r s of a s y l u m a n d re fugees . C o u n t r i e s that h a v e inst i tuted the mos t restr ict ive of secur i ty m e a s u r e s a n d c r im ina l p rosecu t i ons con t inue to v o w their suppor t for t hose in n e e d of a s y l u m protect ion. Ra the r , mos t d i s c o u r s e on migrat ion secur i ty f o c u s e s on i l legal , or ' i r regular migra t ion ' , that is, t hose ind iv idua ls that enter the s tate without p e r m i s s i o n , appropr ia te identity d o c u m e n t a t i o n , a n d th rough n o n -off icial c h a n n e l s . O f ten , the d ia logue revo lves a r o u n d " sa fegua rd ing " the integrity of the re fugee pro tec t ion s y s t e m f rom a b u s e by e c o n o m i c m ig ran ts , or c r im ina ls , m a k i n g fa l se re fugee c l a i m s in o rder to ga in illicit entry into wes te rn n a t i o n s . 3 9 H o w e v e r , o n a prac t ica l leve l , the con t ras t b e t w e e n the two g r o u p s h a s rapid ly e r o d e d , a n d po l i c ies that s e e k to prevent a n d cont ro l i r regular migrat ion a n d fa l se c l a i m s h a v e a devas ta t i ng ef fect o n legi t imate re fugees . A t the m o s t b a s i c , p rac t i ces that os tens ib l y set their s igh ts on i r regular migran ts or f raudulent a s y l e e s are in actua l i ty qui te h a p h a z a r d in te rms of w h o c o m e s within the range of f i re. M e c h a n i s t i c ru les d e s i g n e d to contro l the en t rance of s u c h ind iv idua ls , a s H a t h a w a y a n d N e v e note, a re of ten app l i ed ind iscr iminate ly , wh i ch " s t ym ies the arr ival both of f raudulent c l a iman ts a n d of genu ine r e f u g e e s . " 4 0 Fu r the rmore , C e y h a n a n d T s o u k a l a state that o n e of the "str ik ing c o n s e q u e n c e s of the c r im ina l iza t ion of migrat ion is the p rog ress i ve w e a k e n i n g of any d is t inct ion b e t w e e n immigran ts a n d a s y l u m s e e k e r s " , w h i c h h a s "dramat ica l l y r e d u c e d " the n u m b e r of a s y l u m app l i can ts Lowry, "Creating Human Insecurity", supra note 37 at 31. Hathaway & Neve, supra note 34 at 216. 23 granted refugee status. 4 1 As entering the state without authorizing documentation becomes a criminalized "deviant" behavior to be controlled, all migrants are tainted with a whiff of suspicion; as such, the act of seeking asylum protection is also "routinely presented as cr iminal." 4 2 Additionally, with the initiation of tighter border controls in which individuals must claim asylum at the first "safe" country entered, it is predictable that more refugees will seek the aid of smugglers to enter a state clandestinely. This further blurs the line between illegal migrants and lawful refugee applicants and degrades the image of asylum seekers . 4 3 The dichotomy between 'false' and 'genuine' refugees has subsequently col lapsed, with states and citizens viewing most asylum applicants as disingenuous menaces; as Matthew Gibney asserts: There is now an unprecedented consensus among states on the following issues: that refugees generally constitute more of a threat than an asset; that the dangers posed by asylum seekers are arguably more diverse than ever before; and that there is a need for international cooperation to deal with these new security r isks. 4 4 Justifications for heightened security measures and stiffer penalties for irregular migrants revolve around common themes of the threat these individuals supposedly pose; Ceyhan and Tsoukala identify these themes as socioeconomic, securitarian, and identitarian 4 5 The socioeconomic motif associates migration with 4 1 Ceyhan & Tsoukala, supra note 37 at 28. 4 2 Sharon Pickering, Refugees and State Crime (Sydney: Federation Press, 2005) at v. 4 3 Francois Crepeau & Estibalitz Jimenez, "Foreigners and the Right to Justice in the Aftermath of 9/11" (2004) 27 International Journal of Law and Psychiatry 609 at 615. This is assuming that such a distinction is important in the opinion of the public, although the appropriateness of such a dichotomy, in many cases, is arguable. 4 4 Matthew J . Gibney "Security and the Ethics of Asylum after 11 September" (2002) 13 Forced Migration Review 40 at 41. 4 5 Ceyhan & Tsoukala, supra note 37 at 24. 24 economic threat: unemployment, the crippling of the welfare state, and urban deterioration. Loss of control animates the securitarian theme, which focuses on the protection of sovereignty, borders and the state from non-citizens. Migrants are seen as the cause of increasing 'internal' crime, such as urban violence, drug trafficking, organized crime, and also the 'external' dangers of international terrorism. In the identitarian theme, migrants are considered a danger to the host societies' national identity, culture and demographic balance. Analysts who assert these threats as a verifiable reality face off in equal strength against those who argue them a racist mythology. 4 6 Whether true or false, securitized policies and characterizations continue to dominate the contemporary sphere of migration. The securitization and criminalization of migration is a world-wide phenomenon, and as testament to our global diversity, no two countries are exactly alike in how they mix and match the processes of deterrence and punishment. The techniques and severity of policies that prevent the arrival and admittance of refugees vary across different state's migration programs, eliciting appraisals ranging from absolutely "draconian" in regard to the United States, to the less drastic, but still extremely troubling "arguably inconsistent with the spirit of our international commitments towards refugees" and a "degradation of the rights of foreigners" in the case of Canada 4 7 The most popular of deterrence measures are 4 6 For arguments outlining security threats posed by migrants, see Nazare Albuquerque Abell, "The Impact of International Migration on Security and Stability," (1996) 4:1 Canadian Foreign Policy 83; For those refuting this position see Ayse Ceyhan & Anastassia Tsoukala; Canadian Council for Refugees "Facing Facts - Myths and misconceptions about Refugees and Immigrants in Canada" online: <http://www.ccrweb.ca/eng/engfront/frontpage.htm>. 4 7 Adams, supra note 38 at 984; Audrey Macklin, "The Value(s) of the Canada-US Safe Third Country Agreement" {Ottawa: Caledon Institute of Social Policy, 2003) at 19; Crepeau & Jimenez, supra note 43 at 610. 25 those that prevent potential asylum seekers from reaching state territorial boundaries, thus avoiding the problem of asylum all together; these generally go under the all-purpose term of interdiction. 4 8 Interdiction measures come in several variants, including carrier sanctions, tightened visa requirements, overseas document inspection procedures, and the deflection of ships believed to be carrying irregular migrants. As Audrey Macklin observes, "Canada is something of a pioneer in instruments of interdiction", and our own specialty is the placement of "migration integrity" officers abroad, a practice first started in 1989. 4 9 These officers inspect travelers to Canada for required documentation, in order to identify and stop "high-risk" migrants. They also train local authorities to identify false and altered travel documents. It is reported that from 1998 to 2004, 40,000 people without proper documents have been stopped from traveling to C a n a d a . 5 0 Various identity documents, including visas, are required for individuals traveling to Canada ; these documents are often difficult, if not impossible for potential refugee claimants to acquire, given conditions in their home state and the fact that they may well be fleeing a persecutory government, the very institution from which identity documents must be obtained. Undocumented travelers are not evaluated on their eligibility to make a refugee claim, or their need for protection. 5 1 The Canadian government 4 8 Under the Refugee Convention, there is not an explicit requirement to admit refugees that are outside the state party's territory. Rather, the obligation under arts. 32 and 33 is to not expel refugees from state territory. 4 9 Macklin, "Value(s)", supra note 47 at 5. 5 0 Canada, Privy Council Office, Securing an Open Society: Canada's National Security Policy (April 2004), online: PCO <www.pco-bcp.gc.ca>. 5 1 Canadian Council for Refugees, "Interdicting Refugees" (May 1998) at 29, online: CCR <http://www.web.net/~ccr/lnterd.pdf>. 2 6 reports quite proudly that this Canadian "approach" has also been successfully adopted by other countries, including the United States, and across Europe . 5 2 In conjunction with migration integrity officers, Canada has also been an international leader in imposing "carrier sanctions", that is, fines on airlines and other transportation companies that are found to be carrying improperly documented passengers. While overseas documentation control has formed the backbone of Canadian interdiction strategies, other states have been more direct and forceful in their deterrent methodology. For example, Australia has excelled in intercepting unauthorized boat arrivals. The year 2001 marked the beginning of the Australian "Pacif ic Solution", in which legislation was initiated to process asylum claims off-shore for people intercepted at sea attempting to enter Australia, or who arrived in external territories of Australia without valid documentation. New laws enhanced Australian authorities' powers to intercept and board ships believed to be carrying undocumented migrants: these individuals are either sent to Papua New Guinea and Nauru for refugee processing, or, in the past, have reportedly been returned to their departure country without guarantee of non-refoulement. 5 4 In addition to off-shore Canada, Privy Council Office, supra note 50. 5 3 CCR, "Interdicting", supra note 51 at 28; Tanya Chute, "Globalization, Security and Exclusion" CRS Working Paper Series No. 3 (2005) Centre for Refugee Studies.York University at 6, online: CRS <http://www.yorku.ca/crs/Publications/ CRS%20Working%20Paper%203.pdf>. 5 4 Austl., Department of Immigration and Citizenship. Fact Sheet 76 "Offshore Processing Arrangements" (Canberra: Commonwealth of Australia, 2007), online: DIAC <http://www.immi.gov.au/media/fact-sheets/index.htm>; Ophelia Field, "Interception and expulsion in Australia" in "By Invitation Only": Australian Asylum Policy Report (New York: Human Rights Watch, 2006), online: HRW <http://hrw.Org/reports/2002/australia/australia1202-02.htm#P254_45217>. Human Rights Watch reports that under "Operation Relex," two boats arriving in October, 2001 were intercepted and returned to Indonesian waters with no agreement from the Indonesian government that the intercepted refugees would not be refouled. 27 processing and sea interdiction, Australia also engages in mandatory detention of undocumented migrants, including refugee claimants, an activity in which it is joined by the United States, another world leader in irregular migrant confinement practices, routinely keeping even children in prison-like detention faci l i t ies. 5 5 Despite a reduction in the overall number of asylum seekers to the United States after 2002, the number of asylum applicants detained actually rose: it is estimated that 95 per cent of improperly documented asylees were deta ined. 5 6 Under Canadian immigration law, detention of foreign nationals is also allowed. However, detention is not the officially applicable norm and is practiced on a more limited basis. Individuals may only be detained if they pose a danger to the public, their identity is in question, if they are a flight risk, or if a security certificate has been issued against them. 5 7 Nevertheless, detentions of refugee claimants in Canada have also been on the rise, growing by 41 per cent between 1997 and 2002 . 5 8 Canada 's more limited use of detention is also a somewhat hollow performance, considering that it is significantly undermined by the Canada - U S "Safe Third Country Agreement". Under this agreement, which came into force in 2004 as part of the "Smart Border Action Plan", refugee claimants are required to 5 5 Human Rights First, "United States of America" in Country by Country Review of Detention Procedures and Practices Report (18 September 2002), online: HRF <http://www.humanrightsfirst.org/refugees/reports/ cntry_rev_02/United_States_of_America.pdf>. 5 6 Alison Siskin, "Immigration-Related Detention: Current Legislative Issues" Congressional Research Service Report for United States Congress RL32369 (28 April 2004), at 12, online: FAS <http://www.fas.org/irp/crs/RL32369.pdf>; Bill Frelick, "US Detention of Asylum Seekers and Human Rights" (Washington, DC: Migration Policy Institute, 2006), online: MPI <http://www.migrationinformation.org/Feature/display.cfm?id=296>. 57 IRPA, supra note 3 at s. 58; Immigration and Refugee Protection Regulations, supra note 15 at ss. 244-248; Canada. Border Services Agency. "Arrests and Detentions" (Ottawa: Minister of Public Works and Government Services Canada, 2007), online: CBSA <http://www.cbsa-asfc.gc.ca/security-securite/alpha-eng.html>. 5 8 Jones & Baglay, supra note 4 at 301. There were 11,509 people detained on immigration grounds in 2002, an increase from 5,401 in 1997. 28 request asylum in the first country at which they arrive, either the United States, or Canada . This means that refugee claimants accessing a Canadian land border from the U S are not eligible for refugee determination in Canada , apart from certain limited exceptions, and must return to the United States. The official goal of the agreement is to "ensure that the United States and Canada share the responsibility of providing protection to genuine refugees" and to "enhance the ability of both governments to manage, in an orderly fashion, refugee claims made by people crossing our shared border." 5 9 However, what the agreement has primarily resulted in is a precipitous drop in the number of refugee claims in Canada : claims made at land borders fell by 51 per cent in the first year of the agreement. 6 0 The end result is that these "missing" refugee claimants are now subject to the measurably harsher detention policies of the United States, as well as other troubling deterrent measures, such as the widely criticized procedure of Expedited Removal . This process allows improperly documented migrants to be summarily removed from the United States. While Expedited Removal has built-in safeguards to prevent the removal of asylum seekers to countries where they would face persecution, a recent study has show serious flaws in the system allowing possible erroneous return; nevertheless, Expedited Removal procedures have been recently expanded twice, 5 9 Citizenship and Immigration Canada. "Canada-U.S. Safe Third Country Agreement" (Ottawa: Minister of Public Works and Government Services Canada, 2006), online: CIC <http://www. cic.gc.ca/english/about/laws-policy/menu-safethird.asp>. 6 0 Canadian Council for Refugees, "Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement" (2005 December) at ii, online: CCR <http://www.ccrweb.ca/closingdoordec05.pdf>. 2 9 without addressing these concerns. 6 1 Of course, Canada and the United States are not the only "country of first arrival" and "safe third country" regimes. In this area, the European Union reigns supreme, raising these concepts to unequalled levels of complexity and expansiveness. The Dublin Convention marked an early effort in this area by E U Member States, co-ordinating procedures to establish a single state as responsible for determining an asylum appl icat ion. 6 2 This generally means that asylum seekers have little choice in which of the European Union member countries will determine their asylum, and where they must subsequently remain. Problematic discrepancies in refugee determination procedures between member states were addressed in the "Procedures Directive" of 2005, which harmonized minimum standards in this a rea . 6 3 However, the European Union has also developed policy allowing the designation of many non-member states as "safe" third countries. Asylum seekers originating from, or transiting through such countries deemed safe will be subject to "accelerated" determination procedures, or in the case of so-called "super safe" third countries, asylum determination can be simply denied. One troubling aspect of these 6 1 United States Commission on International Religious Freedom, "Asylum Seekers in Expedited Removal: A Study authorized by Section 605 of the International Religious Freedom Act of 1998" at 5, online: <http://www.uscirf.gov/countries/global/asylum_refugees/2005/february/execsum.pdf>. 6 2 European Communities, Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities [1997] O.J .C. 254/1 [Dublin Convention] (not in force), replaced by: EC. Council Regulation No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national[2003] O.J.L. 50/109. 6 3 EU, Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, [2005] O.J. L. 326/13. 30 p r o c e d u r e s is a lack of a d e q u a t e p rov is ions to moni to r the o n g o i n g h u m a n rights s i tuat ion in coun t r ies d e s i g n a t e d a s " s a f e " . 6 4 T h e E u r o p e a n U n i o n is a rguab ly the overa l l g loba l c h a m p i o n in al l a s p e c t s of secur i t i za t ion a n d c r imina l iza t ion of migrat ion a n d a s y l u m , ea rn ing it the mon i ke r of "Fo r t ress E u r o p e . " It is a title that h a s requ i red s igni f icant effort. O x f a m repor ts that the E U h a s inves ted a "vast amoun t of m o n e y in efforts to prevent i r regular m ig ra t i on . " 6 5 M e a s u r e s h a v e inc luded va r ious border -cont ro l a n d in tercept ion p rac t i ces , i n c r e a s e d n u m b e r s of border gua rds ; he l i cop te rs with heat de tec to rs ; h i g h - s p e e d patrol boa ts ; infra-red detec t ion d e v i c e s a n d night v i s ion equ ipmen t ; m o v e m e n t de tec to rs ; x - ray s c a n n e r s ; sate l l i tes to moni to r c r o s s - b o r d e r m o v e m e n t a n d b iomet r i cs a n d f ingerpr int ing e q u i p m e n t . " 6 6 Interdict ion m e a s u r e s o c c u r at l and , s e a a n d air. T h e s e m e a s u r e s e l iminate sa fe a n d legal w a y s for re fugees to c l a im a s y l u m in E U m e m b e r s ta tes ; more than 5 0 0 0 d o c u m e n t e d d e a t h s of r e f ugees h a v e b e e n attr ibuted to 'Fo r t ress E u r o p e ' contro l p o l i c i e s . 6 7 A thorough ca ta logu ing of all deterrent a n d puni t ive po l i c ies opera t ing in regard to i r regular migrants a n d a s y l u m s e e k e r s in the E U , a n d s h a r e d by m o s t p r o s p e r o u s count r ies in the Nor th a n d W e s t , wou ld fill a mu l t i -vo lume set . O t h e r m e a s u r e s inc lude h igher m a x i m u m pena l t ies for o rgan i z i ng i l legal s m u g g l i n g a n d s e v e r e pena l t ies for h u m a n traf f icking; n e w anti-terrorist m e a s u r e s a n d secur i ty 6 4 Amnesty International, IOR 61/024/2006. "Council of Europe: Briefing to the Working Group on Human Rights Protection in the Context of Accelerated Asylum Procedures" (6 December 2006), online: Al <http://web.amnesty.org/library/ lndex/ENGIOR610242006?open&of=ENG-369>. 6 5 David McKeever, Jessica Schultz & Sophia Swithern. Foreign Territory: The Internationalisation of EU Asylum Policy (Oxford: Oxfam, 2005) at iii. 66 Ibid, at 36. 67 Ibid, at 34, 35. 31 policies, particularly to reinforce border crossings, as well as joint border initiatives between states involving information sharing and co-ordination; mandatory communication of airline passenger information to state governments; and "managed migration" agreements between countries, which entail readmission of asylum seekers and migrants to their countries of origin. Specifically applicable to refugees, security-based inadmissibility grounds have been expanded, rendering asylum claims ineligible for refugee determination; refugee determination systems are under pressure to institute time-saving procedures and the number of decision makers hearing determinations has been reduced; access to labour markets and social assistance has been curtailed; rights of appeal for ineligible or rejected refugee claimants have been considerably limited; and in some countries, including Canada , Australia, and the United Kingdom, legal aid funding for asylum applicants has been reduced. 6 8 And yet, legal aid for refugee claimants persists, odd man out in the company of measures that overwhelmingly, either intentionally or by calculated accident, stymie the successful application of asylum claims. In fact, new measures to maintain and expand aspects of legal aid for asylum seekers have recently emerged in several states. In the next chapter, I will begin to form my argument as to why legal aid plays an important role in the continuation of restrictive asylum policies by looking at theoretical perspectives on legal aid, legitimacy, and securitization. 6 8 See Crepeau for an analysis of these measures in Canada; Oxfam for the EU situtation; Adams for U.S. policies; Austl., Commonwealth, Senate Legal and Constitutional Committee, A Sanctuary Under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes (Inquiry) (Canberra: Commonwealth of Australia, 2000) and Savitri Taylor, "Should Unauthorised Arrivals in Australia Have Free Access to Advice and Assistance" (2000) 3 Australian Journal of Human Rights for the situation in Australia. CHAPTER THREE Theoretical Context: Legitimacy from Legal Aid to Securitization H a v i n g out l ined the re fugee c la iman t de te rmina t ion a n d legal a id p r o c e s s in C a n a d a , a s wel l a s the c h a l l e n g e s a s y l u m s e e k e r s f a c e in te rms of secu r i t i zed a n d c r im ina l i zed migrat ion po l i c ies , in this chap te r I will start to c o n n e c t the two e l e m e n t s together . T h e c o n n e c t i o n b e t w e e n legal a id a n d the restr ict ion a n d pena l i za t ion of re fugee m o v e m e n t s is not immed ia te ly apparen t . Indeed, the protect ion of p rocedu ra l r ights a n d a c c e s s to cour ts p rov ided to re fugee c l a iman ts th rough lega l a id m a y at first a p p e a r cont rad ic tory with the c l a im that lega l a id fac i l i ta tes the po l i c ies a n d p r o c e s s e s that imp inge upon the right to a s y l u m a n d t rans form a s y l u m s e e k e r s into c r im ina ls , l iterally a n d symbo l i ca l l y . H o w e v e r , the pivotal l ink in the c h a i n b e t w e e n legal a id a n d the secur i t i za t ion a n d c r im ina l i za t ion of a s y l u m is leg i t imacy: spec i f i ca l l y , how law a n d legal s e r v i c e s , s u c h a s lega l a id , c a n lend val idi ty to p rob lemat i c state p rac t i ces a n d t ransmi t v a l u e s that s h a p e the s o c i a l wor ld . In this chap te r , I will exp lo re the theore t ica l l i terature on legal a i d , leg i t imacy a n d secur i t i za t ion to i l lustrate how t h e s e e l e m e n t s m a y be brought toge ther to revea l their intr icate re la t ionship . Leg i t imacy is key to my thes i s that f ree legal a s s i s t a n c e for re fugee c l a iman ts ac t s a s a suppor t for secu r i t i zed a s y l u m po l i c i es , a s it f o rms the b a s i s of the symb io t i c re la t ionship b e t w e e n legal a id a n d secur i t i za t ion : lega l a id h e l p s to prov ide the leg i t imacy that secur i t i za t ion a g e n d a s n e e d to surv ive in the context of restr ict ive a s y l u m po l i c ies . L e g a l a id c rea tes leg i t imacy b e c a u s e it is sa tu ra ted with m e a n i n g s a n d v a l u e s cent ra l to l iberal soc ie ty - a c c e s s to a n d equal i ty be fo re the law, the 33 recogni t ion of ind iv idual r ights a n d wor th a n d the fair d istr ibut ion of r e s o u r c e s . L e g a l a id thus ac t s a s a power fu l t ransmi t ter of t hose v a l u e s to the s t ruc tures to w h i c h it p rov ides a c c e s s - law a n d lega l inst i tut ions - br ing ing val idi ty to both the legal s y s t e m a n d the s ta te , a s the contro l l ing author i ty of the law a n d lega l a i d . F o r the s ta te , the leg i t imacy of law, a s the m a i n o rgan iza t iona l s t ructure of wes te rn soc ie t i es a n d tool of gove rnmen ta l cont ro l , is essen t i a l to e n s u r e c i t i zens that g o v e r n m e n t a l p o w e r rema ins within a c c e p t a b l e b o u n d a r i e s a n d respec ts soc ie t y ' s v a l u e s . T h i s is vi tal , a s w h e n state p rac t i ces st ray b e y o n d t hose a c c e p t a b l e l imits, s u c h a s in secu r i t i zed a s y l u m po l i c ies , it is in d e s p e r a t e n e e d of leg i t imacy. L e g a l a id is thus o n e c o m p o n e n t of the w ider leg i t imacy funct ion of the law, wh i ch h a s the p o w e r to both lend leg i t imacy to its o w n s t ruc tures , a s wel l a s legi t imat ing s o c i a l ident i t ies, re la t ionsh ips a n d state po l i c ies that pr iv i lege s o m e ind iv idua ls ove r o thers . P r i v i l eged t reatment is a d is t ingu ish ing charac ter is t i c of secur i t i za t ion a g e n d a s , wh i ch a i m to protect ent i t ies a n d ind iv idua ls f rom potent ia l ly d isrupt ive f o r ces , a n d consequen t l y , leg i t imacy p lays a n important role in secur i ty i s s u e s . A s secur i ty i s s u e s relate to a s y l u m , the leg i t imacy p rov ided by lega l a id b e c o m e s a n important tool to coun te rac t the v a l u e s a n d c o n c e r n s that wou ld h inder secu r i t i zed p rac t i ces , a n d thus cont r ibu tes to the perpetua t ion of restr ict ive a n d c r im ina l i zed re fugee pol icy. B e g i n n i n g with the theore t ica l underp inn ings of lega l a i d , a n d the cr i t ical v a l u e s it e m b o d i e s , the fo l lowing sec t i on will i l lustrate the th read of leg i t imacy runn ing f rom legal a id th rough state p rac t i ce , to law a n d the legal s y s t e m , s o c i a l s t ructure a n d identity, e n d i n g with secur i t i za t ion a n d c o n c e r n s su r round ing sovere ign ty , co l lec t i ve identity, a n d a s y l u m s e e k e r s . A s p e c t s of th is theore t ica l 34 literature will then form the foundation for my analysis of the function of legal aid in securitized asylum policies in the chapters that follow. 3.1 Theories of Legal Aid Legal aid shoulders a heavy burden. The contemplated functions of legal assistance start with ethical issues of moral responsibility, run the gamut of liberal theory and continue beyond with analyses of capitalist social hegemony. The scope of subjects to which legal aid has possible meaning is wide, spanning, as Richard Abel suggests, "the improvement of procedural justice, the legitimacy of the legal system, the promotion of social justice, the amelioration of c lass oppression, racism and sexism, and the advancement of political democracy." 1 Concept ions of just what legal aid should, can and actually "does do in society have developed over time, but are still very much in debate. The earliest conception of legal aid, emerging in the medieval period, was as a type of charity. Legal aid arose predominantly as edicts from lords and kings, motivated by their own charitable impulses and a "paternal duty to support the oppressed." 2 In a time dominated by the tenets of Christianity, the provision of legal aid to the poor was seen as a pious act of compassion, inspired by religious sentiment. This charitable concept dominated the provision of legal aid in North America and Europe until the early twentieth century, although responsibility for this 1 Richard Abel, "Law Without Politics: Legal Aid Under Advanced Capitalism" (1984-1985) 32 UCLA L. Rev. 474 at 475. 2 Mauro Cappelletti, "The Emergence of a Modern Theme" in Mauro Cappelletti, James Gordley & Earl Johnson, Jr. Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (Milano: A. Giuffre; New York: Oceana, 1975) 5 at 14. 3 5 char i ty g radua l l y sh i f ted to the lega l p r o f e s s i o n . 3 In this s e n s e , lega l a id is not s e e n a s pr inc ipal ly c o n c e r n e d with the rights of the poor , or i s s u e s of equal i ty a n d jus t ice , but pr imari ly with the mora l wor th a n d eth ica l ob l iga t ions of t hose prov id ing the a s s i s t a n c e . A l t hough theor ies of the p u r p o s e of legal a id h a v e d e v e l o p e d substant ia l ly , the c o n c e p t of lega l a id a s d e m a n d e d by "human i ta r ian a n d char i tab le r e a s o n s " pers is ts a s part of the t radi t ional " threefo ld ra t ionale" in E u r o p e a n d Nor th A m e r i c a . 4 M o v i n g f rom the M i d d l e s A g e s , the pe rspec t i ve on legal a id ad jus ted with the r ise of the s e c u l a r na t ion -s ta te . 5 T h e m o d e r n theor ies of legal a id that ul t imately e m e r g e d through this p r o c e s s c h a r a c t e r i z e d lega l a id a s a posi t ive g o v e r n m e n t responsib i l i ty . A n ove r -a rch ing rat ionale for this m o d e r n respons ib i l i ty is the a c h i e v e m e n t of equal i ty in relat ion to the law, a s a prerequ is i te to j us t i ce . 6 H o w e v e r , a s M a r y J a n e M o s s m a n no tes , i d e a s "about the m e a n i n g of equal i ty h a v e di f fered within the lega l a i d con tex t . " 7 O n o n e s i d e of the s p e c t r u m , equa l i ty re fers to that g a i n e d by a c c e s s to legal inst i tut ions, often t e r m e d ' a c c e s s theory ' . 8 A c c e s s theory h a s its roots in the heart of c l a s s i c l iberal pol i t ical theory, in wh i ch the s o c i a l cont rac t 3 Marshall J . Breger, "Legal Aid for the Poor: A Conceptual Analysis" (1981-82) 60 N.C.L. Rev. 281 at 283. 4 Filip Reyntjens, "Africa—South of the Sahara" in Frederick H. Zemans, ed., Perspectives on Legal Aid: An International Survey (London: Francis Pinter, 1979) at 13; B. Metzger, "Legal Services to the Poor and the National Development Objectives" in Committee on Legal Services in the Developing Countries, ed., Legal Aid and World Poverty: A Survey of Asia, Africa, and Latin America (New York: Praeger, 1974) 1 at 4. 5 Cappelletti, supra note 2 at 16. 6 Mary Jane. Mossman, "Toward a Comprehensive Legal Aid Program in Canada: Exploring the Issues" (1993) 4 Windsor Rev. Legal & Soc. Issues 2 at 24; Tamara Goriely & Alan Paterson, "Introduction: Resourcing Civil Justice" in Alan Paterson & Tamara Goriely, eds., A Reader on Resourcing Civil Justice (Oxford: Oxford University Press, 1996) 1 at 3; Joel B. Grossman & Austin Sarat, "Access to Justice and the Limits of Law" (1981) 3:2 Law & Pol'y Q. 125 at 126. 7 Mossman, ibid, at 24. 8 Goriely & Paterson, supra note 6 at 3, 7. 36 b e t w e e n c i t i zens a n d gove rnmen t requ i res e q u a l protect ion of r ights, a n d thus the right of e q u a l a c c e s s to the l a w . 9 T h e role for lega l a id in th is pe rspec t i ve is to m a k e that a c c e s s "ef fect ive", by b a l a n c i n g the p o w e r of par t ies before the cour ts by prov id ing lega l a s s i s t a n c e . 1 0 In a n adve rsa r i a l legal s y s t e m , d e p e n d i n g a s it d o e s on a con tes t b e t w e e n roughly e q u a l par t ies, legal representa t ion is s e e n a s n e c e s s a r y to e n s u r e that equal i ty a n d gua ran tee the fa i rness of the p r o c e s s . 1 1 T h u s , d i spu tes are r eso l ved by merit, a n d not by inequal i t ies of wea l th a n d p o w e r . 1 2 W i th its f o c u s on e q u a l access ib i l i t y a n d s tand ing before legal inst i tut ions, a c c e s s theory is mos t often a s s o c i a t e d with the a c h i e v e m e n t a n d protect ion of p rocedu ra l jus t ice, that is, t hose pr inc ip les of f undamen ta l just ice that e n s u r e f a i r ness in the admin is t ra t ive m a n a g e m e n t of d i spu tes before cour ts a n d t r ibunals , mos t important ly, the right to a fair h e a r i n g . 1 3 P e r h a p s the mos t uncon t rovers ia l man i fes ta t ion of a c c e s s theory is in the contex t of c r im ina l law, w h e r e legal a id is s e e n a s a n e c e s s a r y cond i t ion for p rocedu ra l jus t ice, a s the ind iv idual 's "nega t i ve" right of l iberty is pit ted aga ins t the m a s s i v e c o e r c i v e p o w e r of the s t a t e . 1 4 T h i s func t ion of l ega l a id h a s genera l l y b e e n e x t e n d e d to non-c r im ina l s i tuat ions w h e r e liberty, or "secur i ty of the p e r s o n " r ights Breger, supra note 3 at 290; Cappelletti, supra note 2 at 17. 1 0 Mossman, supra note 6 at 24. 1 1 Melina Buckley, "The Legal Aid Crisis: Time for Action", Background Paper (Ottawa: Canadian Bar Association, 2000) at 7. 1 2 Legal Action Group, "The Scope of Legal Services" in Paterson & Goriely, supra note 6, 74 at 75. 1 3 Breger, supra note 3 at 286; Buckley, supra note 11 at 14. 1 4 David Dyzenhaus, "Normative Justifications for the Provision of Legal Aid" in Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services, vol. 2 (Ontario: Ontario Legal Aid Review, 1997) 475 at 483. 3 7 are also implicated in actions of the state. However, even without liberty concerns, access theory has also been presented as justification for legal aid in other civil law situations. In particular, the protection of modern "social rights", vital to the struggle against poverty, such as adequate diet, housing and medical care has been emphasized as a specific purpose of legal aid under access theory.15 In access theory, then, the objectives of legal aid arise from a rights paradigm, where not only does it safeguard political and social rights, but is a fundamental right in itself.16 While "equality of rights" is the focus of the purpose of legal aid under access theory, an instrumentalist view looks at substantive equality in the fulfillment of justice through legal aid. Working from utilitarian concepts, instrumentalist theory posits that the function of legal aid is to improve the position of the poor in society, through material, psychological or political benefits and thereby maximize the general welfare.17 Legal aid is thus an instrumental good, significant for the results it brings. A prominent focus of instrumentalist theory is the ability of legal aid, as access to law, to promote social change by altering substantive rules of law and power relationships in society to favour the poor. Ab Currie characterizes this as a "social action model" of legal aid, which rather than emphasizing rights, views legal aid as a tool for achieving broad social objectives and ameliorating poverty.18 For Mossman, this approach "recognizes inequality in society is structural rather than individual", and views equality as the advancement of the goal of justice for 1 5 James Gordley, "Variations on a Modern Theme" in Cappelletti, Gordley & Johnson, supra note 2 at 109. 1 6 Ab Currie, "Down the Wrong Road — Federal Funding for Civil Legal Aid in Canada" (2006) 13:1 International Journal of the Legal Profession 99 at 102. 1 7 Breger, supra note 3 at 287; Goriely & Paterson, supra note 6 at 7. 1 8 Currie, supra note 16 at 102,109. 38 individuals within the welfare state. 1 9 However, John Griffiths argues that a "just" legal system is in itself a "public good", in fact, a "purely" public good, not reducible to individual considerat ions. 2 0 Working from this perspective, Tamara Goriely and Alan Paterson assert that while the aim of legal aid is to "maximize procedural justice in society", this goal should be considered instrumentally, as an overall social benefit, rather than in terms of individual rights to a c c e s s . 2 1 Under this concept, the procedural justice that legal aid is meant to enhance can be seen to fulfill two purposes. First, legal aid is a benefit to government by facilitating the protection or assertion of rights, and thereby acting as an aid to the "efficient and effective operation of the legal systems, social and economic policy and as an instrument of the social welfare state". 2 2 Second, the community function of legal aid is to enable members of society to resolve or prevent conflict in inter-personal or inter-governmental relations. This distinction raises the important point that while legal aid is primarily seen as an advantage to the poor as a method for protecting or gaining rights, it can also be used instrumentally by the state to pursue its own goals. The aims of both access theory and instrumentalist theory of legal aid are generally contained within the "access-to-justice movement", an umbrella concept that seeks to achieve legal and procedural objectives, as well as realize social and political goals. Legal aid is just one aspect of the access to justice idea, helping to 1 9 Mossman, supra note 6 at 26. 2 0 John Griffiths, "From 'The Distribution of Legal Services in the Netherlands'" in Paterson & Goriely, supra note 6, 82 at 86. 21 Supra note 6 at 25. 22 Ibid. 39 meet the p rocedura l n e e d of access ib i l i t y to l awyers , a s wel l a s the subs tan t i ve ob jec t ive of "en fo rc ing r ights a f f i rmat ive ly " . 2 3 H o w e v e r , the b road ly a s s e r t e d func t ions of legal a id a n d the theoret ica l s o u n d n e s s of the a c c e s s to just ice m o v e m e n t h a v e b e e n q u e s t i o n e d . T h e e f fec t i veness of i n c r e a s e d a c c e s s to the just ice s y s t e m , a s wel l a s the suitabi l i ty of legal inst i tut ions a s f o rums for s o c i a l reform h a s b e e n c h a l l e n g e d , a s part of a larger cons ide ra t i on of the "l imits of the l a w . " 2 4 In part icular , the capac i t y to u s e the law to effect mean ing fu l soc i a l c h a n g e h a s b e e n cr i t ical ly e x a m i n e d . J o e l G r o s s m a n a n d A u s t i n S a r a t s u g g e s t that m o v e m e n t s to d e v e l o p a l te rnat ives to the fo rma l l ega l s y s t e m ind icate that " legal jus t ice is not on ly often unava i l ab le , but f requent ly inappropr ia te a n d i n a d e q u a t e . " 2 5 M a r c G a l a n t e r fur ther c h a l l e n g e s a " lega l centra l is t " m o d e l a n d a s s e r t s that lega l inst i tut ions are not, a n d s h o u l d not be the pr imary loca t ions to look for jus t ice : "Ul t imate ly , a c c e s s to jus t ice is not just a mat ter of br ing ing c a s e s to a font of off icial jus t ice, but of e n h a n c i n g the just ice qual i ty of the re lat ions a n d t ransac t i ons in wh i ch peop le are e n g a g e d . " 2 6 T h e e s s e n c e of t h e s e a r g u m e n t s is that the p r o c e d u r e s of law a re of ten unab le to dea l a d e q u a t e l y with soc ia l p r o b l e m s brought to t h e m , a n d m a y suffer in e f fec t i veness a n d leg i t imacy in the at tempt. Par t of this p rob lem l ies in the d iscont inu i ty b e t w e e n the context in wh i ch soc ia l p r o b l e m s a r i se , the " soc ia l wor ld " of ru les, v a l u e s a n d p rac t i ces a s s o c i a t e d with subs tan t i ve law, a n d the legal contex t in wh ich they mus t be s o l v e d : 2 3 Cappellettti, supra note 2 at x. 2 4 Abel, supra note 1; Grossman & Sarat, supra note 6. 2 5 Grossman & Sarat, ibid, at 128. 2 6 Marc Galanter, "Justice in Many Rooms" in Mauro Cappelletti, ed., Access to Justice and the Welfare State (Alphen can den Rijn: Sijthoff, 1981) 147 at 160-161. 4 0 in this wor ld , "p rocedura l cons ide ra t i ons b e c o m e dominan t a n d d i s p o s i t i v e . ' * ' T h e p r o b l e m s inherent in ob ta in ing just ice f rom legal inst i tut ions lead to the c o n c l u s i o n that " [a j ccess is a n e c e s s a r y but not a suff ic ient cond i t ion for ob ta in ing jus t ice th rough the lega l s y s t e m . " 2 8 L e g a l inst i tut ions are unab le to ef fect ive ly a c c o m p l i s h all the t a s k s c h a r g e d to t h e m , inc lud ing so l v ing soc ia l p r o b l e m s , protect ing ind iv idual rights a n d contro l l ing s o c i a l behav io r . In o ther wo rds , a c c e s s to jus t ice "suf fers f rom a b a d c a s e of s e m a n t i c o v e r l o a d . " 2 9 G r o s s m a n a n d S a r a t a rgue that pu rsu ing soc ia l reform g o a l s m e a n t to pos i t ive ly affect who le c l a s s e s or g roups of p e o p l e be fore the cour ts is largely u n s u c c e s s f u l : th is is for n u m e r o u s c o m p l e x r e a s o n s , inc lud ing the diff iculty in t rans la t ing court o rde rs into real life ac t ions . In th is, the impac t of cour t d e c i s i o n s are restr ic ted by "pos t - judgment power re la t ions" unaf fec ted by lega l d e c i s i o n s , wh i ch pit a v ic to r ious , but w e a k e r - pol i t ical ly, f inanc ia l ly , or o rgan iza t iona l l y - l it igant aga ins t a s t ronger de fendan t " inc l ined to r es i s t . " 3 0 C o n t i n u e d ca l l s for g rea ter lega l a c c e s s , desp i te this l imited s u c c e s s , c a n be at tr ibuted to the ideo logy , or "myth" of l iberal l ega l i sm , wh i ch e m p h a s i z e s the access ib i l i t y , r e s p o n s i v e n e s s a n d e f fec t i veness of the law a s a too l for soc ia l c h a n g e . 3 1 In actual i ty , the legal fo rm h a s " seve re a n d i n e s c a p a b l e l imitat ions" for the g o a l s of soc ia l t r a n s f o r m a t i o n . 3 2 A b e l 2 7 William H. Simon, "The Ideology of Advocacy: Procedural Justice and Professional Ethics" 1978 Wis. L. Rev. 29 at 114; Abel, supra note 1 at 599-600. 2 8 Grossman & Sarat, supra note 6 at 129. 29 Ibid. 30 Ibid, at 135. 3 1 /b/d. 3 2 Abel, supra note 1 at 600. 41 s t r e s s e s that the so le benef i t the law h a s to offer is the gua ran tee of cer ta in p r o c e d u r e s in de te rm in ing ind iv idua l r ights: e v e n this benef i t , t hough , is a d o u b l e -e d g e d s w o r d . A s a c rea tu re of the lega l fo rm, lega l a id c a n only al ter the b a l a n c e of p o w e r within lega l inst i tut ions, a n d a s s u c h , suppor t s the p resumpt ion that soc ie t y ' s mos t mean ing fu l conf l ic ts h a v e b e e n rende red into legal p r o b l e m s , a n d " ignores t hose that are not or canno t b e . " 3 3 A s s u c h , A b e l a s s e r t s , lega l a id c a n actua l ly unde rm ine s o c i a l reformist m o v e m e n t s . S i n c e the lega l r ights that lega l a id o p e r a t e s to en fo rce a re inherent ly " ind iv idua l " in charac te r , legal a id suppor t s the reduct ion of g r i e v a n c e s into ind iv idual s t rugg les ; th is " ind iv idua l iza t ion" into lega l fo rm c a n then work to m in im ize efforts to o rgan i ze co l lec t i ve ac t i ons , wh i ch h a v e histor ical ly e f fec ted the greates t a l tera t ions in s o c i a l - c l a s s re la t ions. E v e n within the legal env i ronmen t of the cou r t room, "equal i ty r e m a i n s a n unat ta inab le c h i m e r a " , a s lega l a id c l ients are d i s a d v a n t a g e d by the super io r lega l a d v a n t a g e s of the s ta te , a n d by their lack of contro l ove r the subs tan t i ve ru les of the l a w . 3 4 S e e n f rom this pe rspec t i ve , the p o w e r of legal a id is restr ic ted not on ly b e c a u s e it mus t cons tan t l y r e s p o n d to c r i s e s in the l ives of poo r ind iv idua ls , but b e c a u s e this is all it c a n do . F a r f rom be ing the a d v a n t a g e o u s equa l i ze r before the law a s a c c e s s theory a s s e r t s , or a tool of soc ia l jus t ice, a s inst rumenta l is t theory pos i ts , lega l a id is mere ly "ano ther i ns tance of the s e g r e g a t i o n of the p o o r . " 3 5 W h i l e the theore t ica l p e r s p e c t i v e s , a n d cont rad ic tory op in ions , out l ined in he re f o c u s on the funct ion of lega l a id within the • Ibid. Ibid, at 593, 596, 600. Ibid, at 597. 4 2 state in te rms of c i t i zens , they are equa l l y app l i cab le to a s y l u m app l i can ts , a s I will further demons t ra te in C h a p t e r T h r e e of this thes is . 3.2 Legitimation W h i l e op in ions m a y differ on the appropr ia te g o a l s a n d e f fec t i veness of legal a i d , a point of c o n s e n s u s is its contr ibut ion to leg i t imacy. L e g a l a id a n d a c c e s s to jus t ice, genera l l y , a re s a i d to be a factor in the leg i t imacy of the lega l s y s t e m itself, the rule of law, a n d , thus , to the pol i t ical s y s t e m a n d the s t a t e . 3 6 H o w e v e r , " leg i t imacy" a n d the abil i ty of p rac t i ces or inst i tut ions to " legi t imate" are t h e m s e l v e s c o n t e s t e d c o n c e p t s . T h e i s s u e of leg i t imacy b e c o m e s sa l ient in the e x e r c i s e of power , part icular ly by the w ie lde rs of soc ie ty ' s ma in ins t ruments a n d inst i tut ions of power , the legal a n d pol i t ical s y s t e m s , of wh i ch lega l a id is a part. Leg i t imacy is important, Dav i d B e e t h a m s u g g e s t s , b e c a u s e the e x e r c i s e of p o w e r is h ighly p rob lemat i ca l . T h o s e sub jec ted to the weight of power e x p e r i e n c e it, at the least , a s a restr ict ion, f requent ly a s deg rada t i on , a n d at the most , a g rave threat to p e r s o n a l l iberty. T h o s e with p o w e r s t rugg le with pers is tent c h a l l e n g e s to the s c o p e of their p o w e r a n d their abil i ty to m a n a g e the sub jec ts unde r their cont ro l . A s s u c h , soc ie t i es e n d e a v o r to limit p o w e r th rough " just i f iable ru les" ; the power fu l , in turn, will look to s e c u r e c o n s e n t to their p o w e r . 3 7 P o w e r ob ta ined a n d e x e r c i s e d a c c o r d i n g to t h e s e just i f iable ru les , a n d with c o n s e n t , is c o n s i d e r e d rightful or leg i t imate, whi le that wh ich is not runs the risk of des tab i l i za t ion a n d p o s s i b l e c o l l a p s e . 3 6 Grossman & Sarat, supra note 6 at 126 ; Buckley, supra note 11 at 22 ; Goriely & Paterson, supra note 6 at 3, 12. 3 7 David Beetham, The Legitimation of Power (London: MacMillan, 1991) at 3. 43 Consequently, the production and maintenance of legitimacy has understandably been a central preoccupation since the inception of the liberal democratic state. Fundamental criteria of legitimacy can be found in the justification for the state, those basic functions that make the sovereign state a valid form of political organization. From Thomas Hobbes comes the view that the state exists to ensure the security of its inhabitants and their property. 3 8 The justification for the state, then, lies in its ability to provide physical security and the conditions required for material welfare. The effective performance of these ends, without which confidence in the system of government will be undermined as failing in its essential purpose, is thus a fundamental component of the legitimacy of the state. 3 9 Of course, the means by which the state fulfills these purposes is of concern, which is the basis for a distinction often made between the "effectiveness" of the state and its legitimate behavior. 4 0 As mentioned, the consent of those governed has been an important aspect in the hypothesized legitimacy of state behavior, for John Locke, forming the basis of a morally acceptable relationship between state and subjects. The actions of government are only legitimate in so far as they continue to exercise power within the terms of the consent g iven. 4 1 This idea of legitimacy flowing from the sanction of state subjects is continued in modern social science perspectives. The highly influential work of Max Weber 3 8 Thomas Hobbes, Leviathan (Oxford: Blackwell, 1960). 3 9 Beetham, supra note 37 at 138. 4 0 S.M. Lipset, "Some Social Requisites of Democracy: Economic Development and Political Legitimacy" (1958) 53:1 American Political Science Review 69 at 69; A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001) at 122. 4 1 John Locke, Second Treatise of Government, (Arlington Heights, III.: H. Davidson, 1982) at sec. 95; Simmons, ibid, at 129. 4 4 defined legitimacy as simply the belief in legitimacy by the relevant social actors, in other words, that approval or acceptance is sign and substance of a legitimate system or power relat ion. 4 2 More specifically, Weberian theory suggests the extent of a government's legitimacy is the degree to which its directives are regarded as obligatory and authoritative or the regime itself is considered "lawful, exemplary, morally acceptable, or appropriate for the society." 4 3 David Beetham, however, critiques Weber 's theory for inadequately explaining what motivates people to accept the legitimacy of power in some situations and not in others. Thus, according to Beetham, Weber 's definition of legitimacy inaccurately portrays the relationship between legitimacy and people's beliefs: rather, a "power relationship is not legitimate because people believe in its legitimacy, but because it can be justified in terms of their bel iefs." 4 4 Contributing factors to legitimacy are thus the legal validity of the power, the justifiability of the rules governing the relationship according to the values held by society and the consent of those in the power relationship. The factors that Beetham identifies as contributing to legitimacy raise an important aspect, which is the role of law and the legal system in legitimating the actions of the state. The general theory, held by many commentators of widely divergent ilk, is that law and legal institutions perform a key role in the process of legitimation: the "procedures, rituals, ideology, and substantive decisions of legal institutions" form the "popular beliefs in the legitimacy of government and the . . . 4 2 Max Weber, The Theory of Social and Economic Organization (London: William Hodge, 1947) at 114. 4 3 Alan Hyde, "The Concept of Legitimation in the Sociology of Law" (1983) Wis. L. Rev. 379 at 382; Simmons, supra note 40 at 133. 4 4 Beetham, supra note 37 at 11. 4 5 sense of obligation and loyalty to the nation." 4 5 For some, the legitimacy of law comes from a resonance between ideas and principles inherent in legal rules and values already held by the public, what Alan Hyde calls "substantive" legitimation. 4 6 Thus, Beetham asserts that "legality cannot provide a fully adequate or self-sufficient criterion of legitimacy": rather, to be legitimate, power must conform to established law, but the law itself must be justifiable according to people's the beliefs, standards, and values as established in a given society 4 7 Law is accepted as legitimate by the public when it projects values that converge with their own, which in turn legitimates the entire legal, social and political order. 4 8 While accepting the importance and power of values projected by the law, Marxist theory, as well as constitutive theory, posits that law works to legitimate unjust social arrangements. In this, the focus is on "legitimation" rather than "legitimacy". This distinction is interpreted by Beetham as the "legitimations" used by the powerful to "reconcile their consciences to the treatment (and maltreatment) of their subordinates", as opposed to a "legitimate relationship", which derives justification from mutual beliefs, accepted regulation and c o n s e n t 4 9 The ability of law to legitimate its power is essential to its constitutive power and "law's social utility depends on its ability to legitimate existing social Hyde, supra note 43 at 383. Ibid, at 412. Beetham, supra note 37 at 4, 68 11, 13. Hyde, supra note 43 at 413. Beetham, supra note 37 at 31. 46 re la t i ons . " 5 0 A s s u c h , it is i deo logy a n d lega l c o n s c i o u s n e s s that b e c o m e the pr imary f o c u s in a v i ew that s e e s law a s a "pr inc ip le agen t in the cons t ruc t ion of the wor ld b e c a u s e - in its c o n c r e t e lega l n o r m s , in its gene ra l p r inc ip les a n d v a l u e s , a n d in its fo rm a n d p r o c e s s e s - it is a m e a n s of a p p r e h e n d i n g the w o r l d . " 5 1 T h e ideo log ica l capac i t y of law is s e e n a s a f undamen ta l a s p e c t of its role a s a m e d i u m of soc ia l cont ro l . T h e a rgumen t that law is i deo log ica l , for A l a n Hunt , the very r e a s o n why law is " in terest ing a n d important" , a s s e r t s that the law is s h a p e d by soc ia l re lat ions a n d c o m e s to e m b o d y a n d t ransmit t hose dominan t be l ie fs , v a l u e s , op in ions , c o n c e p t u a l p r inc ip les a n d re la t ionsh ips of the c o m m u n i t y in wh i ch it o p e r a t e s . 5 2 H o w e v e r , a s law o p e r a t e s not on ly a s an e lemen t const i tu ted by s o c i a l f o r ces , but a l s o a s a fo rce that s h a p e s the soc ia l wor ld , the ideo log ica l unde rp inn ings of law a re in turn imp l i ca ted in the cons t ruc t ion of s o c i a l ent i t ies a n d p r a c t i c e s . 5 3 L a w is thus a n important in f luence on h u m a n subject iv i ty; a s o n e of the different d i s c o u r s e s that fo rm the h u m a n "subject" , l aw is a s y s t e m th rough wh i ch " m e a n i n g is cons t ruc ted a n d cul tural p rac t i ces o r g a n i z e d a n d by wh i ch accord ing ly , peop le represen t a n d unde rs tand their wor ld , inc lud ing w h o they a re a n d h o w they relate to o t h e r s . " 5 4 L e g a l d i s c o u r s e t rans fo rms h u m a n sub jec ts into " lega l sub jec ts " , a n d a s s u c h , law in f l uences the w a y in wh i ch ind iv idua ls " e x p e r i e n c e a n d pe rce i ve 6 0 Bryan G. Garth & Austin Sarat, "Justice and Power in Law and Society Research: On the Contested Careers of Core Concepts" in Bryan G. Garth & Austin Sarat, eds., Justice and Power in Sociolegal Studies (Evanston III.: Northwestern University Press, 1998) at II. 5 1 Susan Silbey, "Ideology, Power, and Justice" in Garth & Sarat, supra note 50, 272 at 291. 6 2 Alan Hunt, "The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law" (1985) 19:1 Law & Soc'y Rev. 11 at 14, 25. [Ideology]. 5 3 Peter Fitzpatrick, "Distant Relations: The New Constructionism in Critical and Socio-Legal Studies" in Philip A. Thomas, ed., Socio-Legal Studies (Aldershot: Dartmouth, 1997) 145 at 148. 5 4Joan Scott, Gender and the Politics of History (Hew York: Columbia University Press, 1988) at 254. 47 their re lat ions with o t h e r s . " 5 5 L a w is therefore mo re than a regulatory v e n e e r o n the su r face of soc ie ty , but o n e of the f undamen ta l e l e m e n t s of soc ia l in teract ion: a n in terna l ized ideo logy that a f fects our pe rsona l pe rcep t i ons , behav io r s a n d e x p e r i e n c e s . Hunt a r g u e s that the law 's in f luence on h u m a n subject iv i ty is m o s t pe rvas i ve in re inforc ing a n d leg i t imiz ing ex is t ing s o c i a l o rders . F o r Hunt , th is is largely a mat ter of the ideo log ica l domina t ion of c l a s s in capi ta l is t soc ie ty , in wh i ch lega l ru les aff irm the inequi t ies of ex is t ing soc ia l a n d e c o n o m i c r e l a t i o n s . 5 6 T h e legal s y s t e m d o e s not pul l a rabbit out of its hat in c rea t ing t h e s e s o c i a l re la t ions, but, a s Hun t further exp la ins , "by s ta t ing t h e m a s pr inc ip les a n d by en fo rc ing t h e m law o p e r a t e s not on ly re in force t hese re lat ions but a l so to legi t imate t h e m in their ex is t ing f o r m . " 5 7 A n addi t iona l c o m p o n e n t of th is re in forcement a n d legi t imat ion of s o c i a l ro les a n d o rgan iza t ion is the ca tego r i ca l me thodo logy of law a n d its effect on p e r s o n a l identity. A s a n essen t i a l part of its m o d u s ope rand i in the product ion of legal sub jec ts , law s e p a r a t e s a n d sor ts a n d c l ass i f i es peop le a s p o s s e s s i n g par t icu lar at t r ibutes, r ights, du t ies a n d ro les , with e a c h s u b d i v i s i o n i m b u e d with the i deo log i ca l v a l u e s underp inn ing the legal s y s t e m . A s C a t h e r i n e D a u v e r g n e s ta tes , lega l r e a s o n i n g is "acute ly ca tego r i ca l " a n d " through its ca tego r i za t i ons it c r e a t e s , de f i nes , a n d cons t ra ins iden t i t i es . " 5 8 T h u s , a s Marga re t M o n t o y a further a s s e r t s , law ac t s a s 5 6 Hunt, "Ideology", supra note 52 at 15. 5 6 Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) [Explorations] at 17, 25. 57 Ibid, at 26. 5 8 Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada (Vancouver: UBC Press, 2005) at 30-31. 48 "one of the principal social forces constructing individual and collective identities", in which legal categorization has the effect of "describing and inscribing" formal identities. 5 9 Law can therefore be seen as a significant instrument of societal control, through the dissemination of particular values, the construction of regulating legal categories of identity and the legitimation and, thus, maintenance of prevailing social relations and organization. Apart from the capacity to affect identity, another highly influential stream of thought suggests that the legitimacy of law is, in fact, value neutral. For Weber, the "most common form of legitimacy" in the modern society is the "belief in legality", that is the recognition of rules that are formally correct and made by an accepted procedure. 6 0 In Weber 's theory, it is what can be called "formal legitimation", or the "form" of legal pronouncements that is the legitimating element, rather than the substantive content of the legal norm itself. In this vein, Roger Cotterrell asserts that states gain legitimacy through an appeal to the 'rule of law', the idea of government exercising its authority through known legal rules, created according to authorized, formal procedures, to which the state itself is bound. In this way, law is central to states as both a legitimation of power and a tool of power. 6 1 However, the more law is relied upon as justification by the powerful, the more it must be respected by them to maintain their legitimacy; the rule of law thus works to limit power as well as to 5 9 Margaret E. Montoya, "Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities" in Austin Sarat, et al. eds., Crossing Boundaries: Traditions and Transformations in Law and Society Research (Evanston III.: Northwestern University Press, 1998) 129 at 137. 6 0 Max Weber, Max Weber on Law in Economy and Society Max Rheinstein, ed. (Cambridge, MA: Harvard University Press, 1954) at 9. 6 1 Roger Cotterrell, The Sociology, of Law: An Introduction. 2nd ed. (London: Butterworths, 1992)at139; Beetham, supra note 37 at 67. 49 ensure its continuation. 6 2 As the idea of the rule of law is so crucial to the legitimacy of the state, the legitimacy of the law itself becomes of vital importance. Researchers of procedural justice also suggest that the answer to what creates and maintains the legitimacy of law can be found within the processes of the legal system. For example, Tom Tyler's process-based model of regulation argues that a key aspect of the public's deference to legal authorities and compliance with the law is the fairness of the legal processes u s e d . 6 3 People are motivated to accept legal decisions and directives when they perceive the system to be legitimate, which is rooted in the judgment that legal authorities are acting fairly in their treatment of the public. The feeling of obligation to obey which legitimacy evokes thus substantially reduces the likelihood of hostility, resistance and defiance to the law. Tyler asserts that procedural justice evaluations "consistently emerge as the central judgment shaping people's reactions to their experiences with legal authorit ies." 6 4 In other words, evaluations of the fairness of procedural justice are closely aligned with the perceived legitimacy of the law itself. James Gibson, however, in his study of public attitudes towards the United States Supreme Court concluded that while the perception of legitimacy has an impact on compliance, this compliance was not associated with views on the procedural fairness of the system. Instead, a "diffuse b d Beetham, ibid, at 68. 6 3 Allan Lind & Tom Tyler. The Social Psychology of Procedural Justice (New York: Plenum, 1988); Tom R. Tyler "Procedural Justice, Legitimacy, and the Effective Rule of Law" in Michael Tonry, ed., Crime and Justice: A Review of Research vol. 30 (Chicago: University of Chicago Press, 2003) 283. 64 Ibid, at 286. 50 support" factor, defined as a generalized support of the Court as an institution, was identified as a correlative factor to the perceived legitimacy of the Cour t . 6 5 In stark opposition to both substantive and formal legitimation theories, law and legal institutions have also been argued to play no role in the legitimation of either themselves, or the state. In this line of thought, the theory of legitimacy is presented as somewhat of a fraud, completely unsupported by empirical evidence and nonexistent as a motivation for action. Rather, the tendency for people to obey the law or submit to state edicts is a product of rational and self-interested factors. For example, Hyde argues that obedience to social order arises from a mixture of "habit, fear of sanctions, and individual conviction that the requested compliance is in the actor's interest." 6 6 Consequently, state attempts to foster compliance can be reconceptualized from appeals to legitimacy to efforts to create rational reasons for obedience and deference. Even assuming that the public is gripped by the Weberian conviction that they are bound by an inherent obligation of obedience to governmental authority because of its legitimacy, law, as law, plays no part in the formation of this belief. The legitimacy of law, whether explained as a result of formal criteria or resonant substantive values, has less to do with the public's acceptance than rationally calculated evaluations of the content of legal rules and their advantageous or detrimental effect. This view is supported by studies that have found widespread dissatisfaction with courts and low commitment to the values supposedly spread by the law: equality, freedom, personal dignity and procedural 6 5 James L. Gibson, "Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance" (1989) 23:3 Law & Soc'y Rev. 469 at 487-489. 6 6 Hyde, supra note 43 at 388, 391. 51 just ice. 6 7 In contrast to theories of procedural justice as the determinate factor in creating the legitimacy in the law, this theory suggests that people are "interested less in procedural justice than in what they can win or avoid through law." 6 8 The issue of procedural justice returns the discussion full circle to again examine the role of legal aid in legitimacy. As with procedural justice, legal aid is said to bring legitimacy to the legal system itself, by providing equality before the law, necessary to ensure the fair and just resolution of legal issues based on merit. The provision of legal aid, it is argued, thus aids fair procedures before legal institutions, which in turns brings legitimacy to the legal system and, ultimately, to the state as both the controlling authority of legal power, and the main provider of legal assistance. The equality of access facilitated by legal aid is also seen as a crucial aspect to the fundamental legitimacy requirement of the state, the rule of law. 6 9 With the complexity of modern legal rules, a lawyer is considered a necessity in navigating the legal system, and as such, the rule of law is undermined if such assistance is not provided to those who cannot otherwise afford legal representation. 7 0 The choice of law as the basis in liberal political systems to organize society, regulate conflict and implement state policy, as well as the state 6 7 Austin Sarat, "Studying American Legal Culture: An Assessment of Survey Evidence (1977) 11 Law & Soc'y Rev. 427; Simon, supra note 27 at 95. 6 8 Marc Galanter, "Delivering Legality: Some Proposals for the Direction of Research" (1976)11 Law & Soc'y Rev. 225 at 243-244. 6 9 Buckley, supra note 11 at 22; Goriely & Paterson, supra note 6 at 3. 7 0 Buckley, ibid, at 22. 52 monopoly on dispute resolution institutions, creates an obligation on governments to provide effective legal access through legal aid. 7 1 However, as a mechanism of the legal system, the legitimizing function of legal aid is subject to the same probing questions of constitutive and Marxist theory as the law in general. In particular, Abel castigates legal aid theory as "flawed by its insistence on divorcing law from politics," as legal aid is "inherently political" in nature.7 2 The absence of adequate political analysis obscures the discernment of the true character, goals and possible achievements of legal aid and access to justice. Faithful to this assertion, Abel first argues that even the concept of legitimation itself has a political aspect in preserving the functionalist paradigm of capitalist society. There are other problems with viewing legal aid as legitimation, such as the question of the ultimate audience and object of such legitimation. For Abel, it is doubtful that legal aid works to legitimate the legal system in the eyes of its clients, who are either unaware of legal aid, or otherwise reluctant to engage with the legal system. As political powerlessness, economic necessity and social disorganization ensure the poor accept an unfair social order, so too are they compelled to abide by the dictates of the law; as such, their acquiescence need not be secured by a belief in the legitimacy of the legal system. Abel suggests a different purpose behind legitimation: Perhaps the theory of legitimation expresses the universal desire of oppressors to believe that they are loved by the oppressed. Legitimation then becomes an effort by those who enjoy the privileges of wealth, power, and Ibid.; Dyzenhaus, supra note 14 at 477; Breger, supra note 3 at 287. Supra, note 1 at 476. 5 3 status to convince themselves that those privileges are justified or, better yet, that they have no privi leges. 7 3 Legal aid, as with welfare programs and legal reforms, thus becomes a tool of this justification, through the "amelioration of some particularly egregious inequality that serves to distract attention from the overwhelming inequality that remains." 7 4 In essence, legal aid serves to assuage the concerns of the fortunate in society as to the legitimacy of their own privileges, in persuading them that those privileges are being exercised without "arbitrary action, exploitation, violence, or irresponsibility, and that any abuses are redressed promptly." 7 5 3.3 Securitization The subject of legitimacy also figures prominently in the theory of "securitization". In securitization, however, the emphasis is not on the legal system as the ultimate legitimation of the state, but rather on the appeal to a more pressing "emergency" situation, which legitimizes exceptional practices, even beyond the usual confines of the law. As formulated by Ole Waever, securitization involves a process in which an issue is identified as a "security" problem. One obvious explanation as to why a matter becomes characterized as such is because it exists as an actual security risk. In this formulation of security, the basic premise that risks Ibid, at 601-605. Ibid, at 605. Ibid, at 606. 54 exist and are subsequently identified as security problems is accepted as true: that is, security is a "reality prior to language, is out there" . 7 6 However, this interpretation of security problems, and the concept of security in general, has been the subject of a number of critical reflections. Notably, in the work of Barry Buzan, Ole Waever and Jaap de Wilde a new approach to the analysis of security has developed, which moves away from traditional ideas about security as limited to military and state issues and the use of force. In this new approach, security issues become applicable as non-military threats to other "sectors": environmental, economic and societal. Taking a social constructivist position, Buzan, Waever and de Wilde also provide an explanation as to "how issues become securitized"; for these analysts the idea of security "means something much more specific than just any threat or problem", but must meet strict criteria to distinguish from "merely political" p rocesses . 7 7 In particular, security issues need to be "staged as existential threats" to "referent objects", such as the state, economic markets, collective identities and environmental habitats, by securitizing actors, which "generates endorsement of emergency measures beyond rules that would otherwise b ind" . 7 8 In keeping with this new analytical framework, the traditional concept of security, in which an existing "security problem triggers the security policy" has been challenged as a limited interpretation of how and why issues arise as security 7 6 Ole Waever, "Securitization and Desecuritization" in Ronnie D. Lipschutz, ed., On Security (New York: Columbia University Press, 1995) 46 at 57, 46. 7 7 Barry Buzan, Ole Waever & Jaap de Wilde, Security: A New Framework for Analysis (Boulder, Co. and London: Lynne Rienner, 1998) at 2, 5. 76 Ibid, at 21-23, 5. 5 5 concerns in particular. 7 9 For Waever, securitization involves a process, which is, foremost, the identification of an issue as a "security" problem. It is therefore the labeling of an issue that is the first manifestation of a security problem and not the problem itself: "the word 'security' is the act; the utterance is the primary reality." 8 0 This coincides with Murray Edelman's characterization of a social problem as a "construction" rather than a "verifiable entity." 8 1 Historically, "security" is the field in which states battle each other for supremacy and control. In this, security studies traditionally revolved around the "threat or use of force" between states. 8 2 In turn, security problems were viewed as developments that threaten the sovereignty of a state in an urgent or dramatic fashion. As such a threat undermines the political order, security problems must therefore be met with the "mobilization of maximum effort." 8 3 However, Waever postulates that security has evolved into a separate field of meaning, in which actual military threats have diminished. This field of meaning has expanded, moving from the strict focus on the security of the state, towards elements that affect the security of people: economic welfare, environmental concerns, cultural identity, and political rights. Nevertheless, the notions of 'challenges to sovereignty' and 'defense' have 7 9 Jef Huysmans, "The European Union and the Securitization of Migration" (2000) 38:5 Journal of Common Market Studies 751 at 757. 8 0 Waaver, supra note 76 at 57, 55. 8 1 Murray Edelman, Constructing the Political Spectacle (Chicago & London: University of Chicago Press, 1988) at 18. 8 2 Buzan, Waever, & de Wilde, supra note 77 at 2. 8 3 Waever, supra note 76 at 54. 56 r e m a i n e d p redominan t , imbu ing newly ident i f ied secur i ty p r o b l e m s with the s a m e charac te r i s t i cs of cr i t ical peri l requi r ing ex t raord inary r e s p o n s e . 8 4 Waever c o n c e p t u a l i z e s the secur i ty f ield in t e rms of a dual i ty c o m p r i s e d of two o rgan iz ing cen t res : s tate secur i ty a n d soc ie ta l secur i ty . T h e first of t h e s e invo lves the pol i t ical secur i t y of s ta tes , the o rgan iza t i ona l stabi l i ty of s y s t e m s of g o v e r n m e n t s a n d the " i deo log ies that g ive g o v e r n m e n t s a n d s ta tes their l eg i t imacy . " 8 5 T h e secur i ty of soc ie t i es is c l ose l y c o n n e c t e d to state secur i ty , but h a s to do with m e m b e r s h i p in soc ia l g r o u p s a n d the i d e a s by wh ich ind iv idua ls identify with t h o s e g roups . S ta te secur i t y thus h a s sove re ign ty a s its ul t imate m e a s u r e , w h e r e a s "identity" f o rms the b a s i s of soc i e ta l secur i ty . B o t h secur i t y c o m p o n e n t s h a v e 'surv iva l ' at their heart ; h o w e v e r , soc ie ta l secur i ty is i nvoked in s i tuat ions w h e r e the popu la t ion fee ls their par t icu lar identity a s a commun i t y is t h rea tened . Waeve r ident i f ies the secur i t i za t ion of soc ie ty a s a p o s s i b l e fac tor u s e d to " leg i t imize reac t ionary a r g u m e n t s f o r . . . def in ing immigran ts a n d re fugees a s secur i t y p r o b l e m s . " 8 6 A c c o r d i n g to m a n y c o m m e n t a t o r s , th is is p rec i se l y wha t h a s h a p p e n e d . H u y s m a n s tidily s u m m a r i z e s this p r o c e s s f rom a E u r o p e a n U n i o n pe rspec t i ve : "migrat ion h a s b e e n inc reas ing ly p resen ted a s a d a n g e r to pub l ic order , cul tura l identity, a n d d o m e s t i c a n d labour marke t stabil i ty: it h a s b e e n s e c u r i t i z e d . " 8 7 Of c o u r s e , to back t rack sl ight ly, the tradi t ional exp lana t ion a s to why migra t ion , a n d i r regular re fugee m o v e m e n t s in par t icu lar , h a v e b e c o m e ident i f ied a s secur i t y 84 Ibid, at 47, 50. 85 Ibid, at 66, 67. 86 Ibid, at 66. 8 7 Huysmans, supra note 79 at 752. 5 7 problems is because they are, in fact, an actual security risk. For example, Astri Suhrke proposes that in some cases refugee movements can have such a serious impact on host states that they can "reasonably be said to threaten both societal and other elements of security." 8 8 This would be the situation where, by sheer numbers, a sudden influx of refugees could have a severe negative impact on the economy and environment of a host state, or the case where ethnic or political attributes of refugees disturb fragile social balances. Similarly, as Newman asserts, refugee flows are "demonstrably a source of international ... conflict". 8 9 More recently, concerns surrounding the abuse of the asylum system by terrorists have figured prominently. Martin Collacott, former co-ordinator of counter-terrorism policy for the Canadian Department of Foreign Affairs in the late 1980s, gives a convincing account of Canada as a "haven" for major international terrorist operations. The Canadian refugee determination system is implicated as a major conduit for the admission of terrorists onto Canadian soil, being the "preferred route" of entry for such individuals. 9 0 From this perspective, security discourses and policies that surround migration are simply the unavoidable and appropriate responses to protect the state and society against the dangers presented by immigrants and asylum-seekers: the "problem comes first and the policy is an instrumental reaction to it."91 As Matthew Gibney notes, the events of September 11 gave strength to this 8 8 Astri Suhrke, "Human Security and the Protection of Refugees" in Edward Newman & Joanne van Selm, eds., Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (Tokyo: United Nations University Press, 2003) 93 at 97. 8 9 Edward Newman, "Refugees, International Security, and Human Vulnerability: Introduction and Survey" in Newman & van Selm, ibid. 3 at 5. 9 0 Martin Collacott, Terrorism, Refugees and Homeland Security (Kingston, ON: Kashtan Press, 2002) at 1, 3. 9 1 Huysman, supra note 79 at 757. 58 presen ta t ion by demons t ra t i ng that "secur i ty talk ac tua l ly c o r r e s p o n d e d to a n empi r ica l l y ver i f iab le th rea t . " 9 2 H o w e v e r , a s s e v e r a l au thors note in reply, the concep tua l i za t i on of m ig ra t i on in secur i ty t e rms is l ess of an inevi table r e s p o n s e a s it is o n e p o s s i b l e r e s p o n s e ; the dominan t f raming of migrat ion cou ld a l s o be a s a human i ta r ian or h u m a n rights i s s u e . 9 3 A n a l y s t s h a v e thus s e a r c h e d for o ther r e a s o n s beh ind the secur i t i za t ion of a s y l u m , that is, the d y n a m i c s of w h y a s y l u m c a m e to be l abe led a "secur i ty" threat a n d con t i nues to be s o , with the l imited risk that h a s b e e n ident i f ied. A vital ques t i on in t h e s e theor ies is w h o ul t imately s t a n d s to ga in f rom the cha rac te r i za t i on of migrat ion i s s u e s a s secur i ty p r o b l e m s . A s E d e | m a n a s s e r t s , a soc ia l p rob lem is a cons t ruc t ion that whi le a "p rob lem to s o m e is a benef i t to o t h e r s . " 9 4 S o c i a l p r o b l e m s benef i t s o m e g roups by a u g m e n t i n g their in f luence a n d fur ther ing par t icu lar ideo log ica l in terests: "The def ini t ion of the p rob lem g e n e r a t e s authori ty, s ta tus , profi ts, a n d f inanc ia l suppor t whi le deny ing t h e s e benef i ts to c o m p e t i n g c l a i m a n t s . " 9 5 T h u s , D id ier B i g o a r g u e s that the popular i ty of the "p r ism of secur i ty a n a l y s i s " th rough wh ich migrat ion is i nc reas ing ly in terpreted is not a man i fes ta t ion of t radi t ional r e s p o n s e s to the ac tua l r ise of soc ia l m e n a c e s , but a ref lect ion of the impor tance of th is secur i ty cha rac te r i za t i on to a var ie ty of ac to rs i nvo lved . In light of the benef i ts to be g a i n e d , secur i t i za t ion is c o n s e q u e n t l y v i e w e d a s the pu rpose fu l 9 2 Matthew J . Gibney, "Security and the Ethics of Asylum after 11 September" (2002) 13 Forced Migration Review 40 at 41. 9 3 Huysmans, supra note 79 at 757; Didier Bigo, "Security and Immigration: Toward a Critique of the Governmentality of Unease" (2002) 27 Alternatives, Special Issue 63 at 79; Waever, supra note 76 at 70. 9 4 Edelman, supra note 81 at 14,18. 95 Ibid, at 20. 59 "c reat ion of a con t i nuum of threats a n d gene ra l u n e a s e in wh ich m a n y different ac to rs e x c h a n g e their f ea rs a n d bel ie fs in the p r o c e s s of m a k i n g a r isky a n d d a n g e r o u s s o c i e t y . " 9 6 Secu r i t y p ro fess iona l s , e n c o m p a s s i n g a " t ransnat iona l f ie ld of p ro fess i ona l s in the m a n a g e m e n t of u n e a s e " inc lud ing po l i ce o rgan iza t i ons , inst i tut ions that contro l a c c e s s to the we l fa re state, in te l l igence s e r v i c e s , a n d mil i tary peop le , a re imp l ica ted in the secur i t i za t ion of migra t ion , a s this is "direct ly re la ted to their o w n immed ia te in terests (compet i t ion for budge ts a n d m iss ions ) a n d to the t rans format ion of t echno log ies they u s e ( compu te r i zed d a t a b a n k s , prof i l ing a n d morph ing , e lec t ron ic p h o n e t app ing ) . " 9 7 S imi la r ly , the m e d i a is a l s o n a m e d a s a s igni f icant s o u r c e of the secur i t i z ing d i s c o u r s e su r round ing m i g r a t i o n . 9 8 T h e incent ive p rov ided by the d ramat ic " s p e c t a c l e " cons t i tu ted by secur i ty repor t ing i nc ludes the at tract ion of a u d i e n c e s a n d , poss ib l y , the p romot ion of cer ta in in te rp re ta t ions . 9 9 H o w e v e r , pol i t ical ac to rs a n d the state are p e r h a p s the mos t ident i f ied bene f i c ia r ies of migrat ion secur i t i za t ion . T h i s is s o , W a e v e r s u g g e s t s , b e c a u s e a d d r e s s i n g an i s sue in secur i ty t e rms " e v o k e s a n image of th rea t -de fense" , a n d the s tate is au tomat ica l l y a l l oca ted a n important role in its m a n a g e m e n t , a s wel l a s the " spec ia l right to u s e wha teve r m e a n s are n e c e s s a r y to b lock i t . " 1 0 0 T h e p o w e r of secur i t i za t ion for the s tate thus c o m e s f rom two s o u r c e s : first, it leg i t imates the u s e 9 6 Bigo, supra note 93 at 63. 97 Ibid, at 64. 9 8 Ayse Ceyhan & Anastassia Tsoukala, "The Securitization of Migration in Western Societies: Ambivalent Discourses and Policies" (2002) 27 Alternatives, Special Issue, 21 at 24; Bigo, supra note 93 at 63. 9 9 Edelman, supra note 81 at 90. 1 0 0 Waever, supra note 76 at 54, 55. 6 0 of extraordinary measures of control over an issue, and second, it designates to the state a particular function in mobilizing those measures in addressing the issue. The importance of this state power in relation to migration resides in the fundamentally important relationship between physical borders and state-centered social and political communities, the well-known triumvirate of meaning identified as "identities, borders and orders" . 1 0 1 As the very idea of a 'state", recognizable and legitimate at international law, is based on the Westphalian concept of a government in control of its territory and inhabitants, elements that cross borders outside of state power can pose a considerable d i l emma. 1 0 2 As such, the phenomenon of globalization, the increasing tendency for economics, communication, transnational organizations and international courts and laws to operate without regard to lines on maps, is frequently proposed as an acute challenge to long-standing state-centered social orders. Globalization is also seen as a factor in the securitization of migration; in this context, illegal migration can be seen as both a problem and a solution. For example, the correspondence between restrictive migration policies and the evolution of processes such as free-trade agreements has been viewed as an attempt by wealthy states to preserve the desirable economic benefits of globalization from the unwanted side-effects. In this line, Tanya Chute asserts that securitization of migration is the answer to the apparent paradox of globalization, 1 0 1 See Mathias Albert, David Jacobson, & Yosef Lapid, eds., Identities, Borders, Orders: Rethinking International Relations Theory (Minneapolis: University of Minnesota Press, 2001). 1 0 2 The 1648 treaties of Westphalia, which ended the Thirty Years' War, are credited with the establishment of the modern system of sovereign states. The Montevideo Convention is the most acknowledged formulation of the characteristics of statehood. See Hugh M. Kindred etal., International Law: Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Edmond Montgomery, 2000) at 1,12. 61 which is "that borders must be kept open to capital and goods, but closed to peop le . " 1 0 3 For Chute, the predictable outcome of economic globalization, in which the unequal economies of North and South are rapidly integrated, is increased disparity and migratory pressures from South to North and West. Securitization of migration acts to stanch this flow of migrants, ostensibly for reasons of state safety, while protecting the increasing concentration of wealth in the North and the West, favoured by the processes of globalization. As such, "security justifications for migration controls . . . serve as a convenient smokescreen . . . to perpetuate the increasing divide between rich and poor, both across and within international borders. " 1 0 4 Similarly, in a study of Canadian anti-trafficking campaigns, Nandita Sharma concludes that the securitizing project of "getting tough on migrants" works to support the "legitimacy of the national state as it continues to aid the operation of global capi ta l ism." 1 0 5 Globalization is again identified as a leading cause of an "unprecedented level of displacement", consequently leading to the "exponential increase in levels of cross-border movements of peop le . " 1 0 6 Sharma argues that restrictive migration policies are so ineffective in preventing these movements, that total restriction of migration cannot be the ultimate purpose of securitization. Rather, as people turn to illegal methods of accessing the economic privilege of North and 1 0 3 Tanya Chute, "Globalization, Security and Exclusion" Working Paper Series No. 3 (2005) Centre for Refugee Studies, York University, at 5, online: CRS <http://www.yorku.ca/crs/Publications/ CRS%20Working%20Paper%203.pdf>. 104 Ibid, at 3. 1 0 5 Nandita Sharma, "Travel Agency: A Critique'of Anti-Trafficking Campaigns" (2003) 21:3 Refuge 53 at 61. 106 Ibid, at 55. 6 2 West, the point of restricted migration policies is the increase of temporary migrant and illegal workers. In this, the 'crack-down' on illegal migrant smugglers helps the national state to secure a "highly vulnerable", and thus, inexpensive workforce of 'illegals' for employers, while allowing the state to present itself as acting for the ci t izenry. 1 0 7 In the process, Sharma asserts, the state is "re-invented as the natural, even democratic, body that empowers the nation to act. The security of the national state is assu red . " 1 0 8 Often, it is this last facet of migration securitization that is emphasized, that is, the role of restricted migration policies in buttressing the traditional roles and ideas of state and sovereignty. Many commentators have noted the potential of globalization, by undermining once absolute and independent territorial command, to destabilize the conventional concept of the bounded nation-state as the dominant form of global organization, creating a loss of significance in traditional sovereign territorial borders, political systems and community identi t ies. 1 0 9 In this context, concerns about the protection of the sovereignty of the state and illegal migration come together, as Dauvergne explains, because the "challenges which globalization poses to sovereignty and the nation state provoke a response which is inscribed in the texts of our migration laws, policies and d iscourses . " 1 1 0 Macklin considers the customary imperatives of the sovereign state in examining the intense criticism of 107 Ibid, at 56. 108 Ibid, at 61 -62. 1 0 9 Examples of these discussions are too numerous to mention comprehensively, but see: Linda Weiss, ed., States in the Global Economy (Cambridge: Cambridge University Press, 2003) for an economic analysis; David Held & Anthony McGrew, eds. The Global Transformations Reader (Maiden, Mass: Polity Press, 2000); Walter Wriston, The Twilight of Sovereignty (New York: Scribner, 1992). 1 1 0 Catherine Dauvergne, "Illegal Migration and Sovereignty" in Catherine Dauvergne, ed., Jurisprudence for an Interconnected Globe (Hampshire: Ashgate, 2003) 187 at 187. 63 the supposed laxity of Canada 's refugee policies in the aftermath of the terrorist attacks of September 11. The conclusion that Macklin arrives at is that a fear of 'losing control' over sovereignty ultimately animates anti-refugee discourse and legislation. Although critical of failures of Canadian and U S security intelligence and enforcement, she finds little evidence to implicate the asylum system in terrorist activity. Rather, Macklin argues that a "visceral anxiety about sovereignty" is the best explanation for the "demonization" of refugees as the emblematic cause of the at tacks. 1 1 1 In this, Macklin suggests that the principles of international refugee law are viewed as imperiling sovereignty, in allowing unselected asylum applicants access to the state: as it is the ultimate prerogative of sovereignty to exclude non-citizens, cases where choice is eliminated are a threat to sovereignty. Although, in Macklin's view, entirely without substance, the linkage between the events of September 11 and the refugee regime provide the ultimate demonstration of the terrible consequences of a loss of sovereign control over borders and the justification to restrict such uninvited menaces into the state. The root causes underlying such visceral fears about sovereignty and the ensuing policies that restrict irregular migration have been the focus of other theorists of migration practices and globalization. Dauvergne suggests that the international policy constriction of illegal migration activity can be seen as a direct response to globalization as an assertion of sovereignty against a danger that strikes at the essence of sovereign power, the command of territory and inhabitants. Such 1 1 1 Audrey Macklin, "Borderline Security in Ronald J. Daniels, Patrick Macklem & Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) at 389-390, online: Social Science Research Network Electronic Paper Collection: <http://papers.ssrn.com/abstract=294321 >. 6 4 a reasser t i on of contro l coun te rac t s the imp ress i on of the dwind l ing p o w e r a n d s ign i f i cance of the s ta te , a s e v i d e n c e that the nat ion state " r ema ins re levant , power fu l a n d s o v e r e i g n . " 1 1 2 A s forcefu l a s s e r t i o n s of p o w e r aga ins t threats to the state are vital in ma in ta in ing this i m a g e , the ons laugh t of restr ict ive po l i c ies a n d p rac t i ces aga ins t i l legal m igran ts p rov ides a n important " rhetor ical demons t ra t i on that the nat ion reta ins its p o w e r . " 1 1 3 T h u s , a s B i g o a r g u e s , the secur i t i za t ion of migrat ion is int imately c o n n e c t e d with the c l a s h b e t w e e n the t r ans -bounda ry p r o c e s s e s of g loba l iza t ion a n d the i d e a of the b o u n d a r i e s of the nat ion state a s the phys i ca l b a s i s of s o c i a l a n d pol i t ical o rgan iza t i on . T h e r ise of migra t ion a s a secur i t y p r o b l e m is a n c h o r e d in the " fears of pol i t ic ians about los ing their s y m b o l i c contro l ove r the territorial b o u n d a r i e s " a n d the u n e a s e felt by c i t i zens at the shif t ing nature of g loba l s o c i e t y . 1 1 4 T h e fee l ing of anx ie ty is a st ructural c o m p o n e n t of the m o d e r n "r isk soc ie ty " , in wh i ch the secur i t i za t ion of migrat ion is a t echn ique e m p l o y e d by g o v e r n m e n t s to "p lay with the u n e a s e , or to e n c o u r a g e it if it d o e s not yet exist , s o a s to aff irm their role a s prov iders of protect ion a n d secur i ty a n d to m a s k s o m e of their f a i l u r e s . " 1 1 5 T h e secur i t i za t ion of migrat ion is thus s h o w n to invo lve far mo re than a tang ib le secur i ty risk, but rather invo lves a far r each ing a n d c o m p l e x c o n c e p t u a l anx ie ty der iv ing f rom the p e r c e i v e d instabi l i ty of g loba l s t ruc tures . 1 1 2 Dauvergne, supra note 110 at 201. 1 1 3 Ibid. 1 1 4 Bigo, supra note 93 at 65. 1 1 5 Ibid. 6 5 Having reached the end of the theoretical journey, it is possible to see how the emphasis on legitimacy in the analytical literature - from the legitimacy legal aid provides to the legal system and governments, to the legitimating function of law in the creation and maintenance of identities and societal organization, and to the legitimacy gained by states and societies in the securitization of an issue - forms a bridge between the ostensibly unlikely duo of refugee legal aid and the securitization of migration. However, despite the continuity of legitimacy between the two elements, there has yet to be a critical examination that expands on the link connecting legal aid for refugees and securitized asylum policies: this will be my subject in the remainder of the thesis. In expanding this link, I will be looking at the various manifestations of legitimacy that are at play in the use of legal aid for refugee claimants, and how that legitimacy can buttress the securitization of asylum. Many of the critical viewpoints reviewed here will be essential in arguing this connection. In Chapter Four, the literature on the theoretical foundations of legal aid, including charitable, access and instrumentalist theories, will form the basis of my argument that legal aid becomes a tangible exercise of these values in the human rights and humanitarian obligations citizens and states feel towards refugees. I will also argue that the values inherent in legal aid correspond neatly to theories of legitimacy and law, both substantive and procedural, providing the security agendas outlined by Waever with a much-needed boost of legitimacy. In this, I will draw on the critical reflections of Abel regarding legal aid and the analyses of the securitization of migration in examining how and why legal aid becomes a tool of legitimation in justifying inequitable social arrangements, both in Canada , and 66 globally. In Chapter Five, I will expand the theoretical literature on identity, legitimacy and the law to illustrate how legal aid, as a component of the legal system, is complicit in the creation of a negative refugee identity in media depictions. In Chapter Six, I will again return to Abel 's political analysis of the functions of legal aid to examine legal aid's role as a benefit to the state in containing asylum. 6 7 C H A P T E R F O U R Legal A id and the Legitimation of Restrictive Refugee Protection Sys tems As the last chapter has shown, legitimacy is a powerful force that traverses the fields of law, security and politics. In this chapter, incorporating the theoretical perspectives reviewed previously, I will brings these fields to together at their point of intersection to suggest how legal aid plays a role in restrictive and criminalized asylum policies. Taking as a starting point the two security issues outlined by Waever, state security and societal security, my contention is that legal aid assists to support the securitization of migration as it relates to these security agendas. In the first part of this chapter, I will illustrate how legal aid works in this manner by deflecting two counteracting forces to securitization, the need for legitimacy in the use of state coercion, and the ethical values recognizing human rights and humanitarianism. As a conspicuous demonstration of commitment to justice and fair treatment, legal assistance for refugees plays a crucial role as a legitimizing "counterbalance" to harsh and restrictive asylum policies. As such a mitigating force, it works as a broad legitimation to policies and mechanisms that seek to control claims of asylum. In the last part of this chapter, I will look at this legitimation effect by characterizing legal aid as an international policy response to refugee migration, which functions to maintain an existing global structure of inequality. Although the focus of my work is primarily on Canadian asylum policies and legal aid, related events in the European Union are included as recognition that state migration policies cannot be meaningfully viewed as entirely discrete events; migration, and particularly refugee migration is part of a global system of gravitational pull-and-push 6 8 factors, a complex and continuous ebb and flow. As such, policies and procedures of one country that affect the movement of people inevitably have ripple effects and, at times, tidal waves of influence on those of other states around the world. While recognizing that mechanisms of procedural justice, such as legal aid, are vital in assisting asylum-seekers, I argue that access to legal services is an inadequate remedy for ensuring just responses and fair treatment in refugee protection, and actually serves to arrest more substantive discussions of justice and equality. 4.1 Recent Developments in Refugee Legal Aid Two quietly remarkable political-legal events serve as catalyst for my examination of the role of legal aid in the securitization and criminalization of refugee migration. The first of these is the responsibility recently taken by the Canadian federal government for refugee legal aid, and the second is the inclusion of a right to free legal assistance as part of the common standards of refugee determination procedures in the European Union. I argue that the concurrence between these events and heightened securitization and criminalization illustrates the extremely important role legal aid plays in these security policies and discourses. To begin the discussion of the role of legal aid in the process of securitization, recent developments in the funding of refugee legal aid in Canada are a useful starting point. As I have outlined in Chapter Two, the Canadian federal and provincial governments share power over immigration and refugee matters. Over the years, an ostensible source of the lack of legal aid services for asylum claimants has been this fragmented Constitutional jurisdiction, and numerous battles have been waged over the responsibility for funding legal aid in this area. The provincial 69 perspective is that responsibility lies with the federal government in their s. 91(25) jurisdiction over "Naturalization and Aliens"; in turn, the federal government has placed primary responsibility with the provincial governments under s. 91(14), that is, the "administration of justice" in the province. 1 This jurisdictional disagreement has led to several legal aid "showdowns" in which provincial governments threatened to cease legal aid funding for refugees without greater federal government contributions: this was the case in British Columbia in 2003 and in Ontario in 2001. However, after years of aggressive power struggles and protracted dispute over the matter, in 2004 the federal government seemingly capitulated in offering the provinces a shared-cost agreement on immigration and refugee legal aid funding. 2 This shared-cost funding was included in the "Agreement Respecting Legal Aid in Criminal Law, Youth Criminal Justice Act, and Immigration and Refugee Matters", in the provinces, a part of the "Legal Aid Renewal Strategy" policy initiative of the previous liberal government. The agreements initially had a three-year term ending in 2006; however, after recently undergoing governmental evaluation the shared-cost provisions were extended through 2006/2007. 3 1 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3. [Constitution]. 2 In 2004, the federal justice department indicated an intention to provide such direct funding to the provinces of British Columbia, Alberta, Manitoba, Ontario, Quebec and Newfoundland and Labrador. Canada. Department of Justice, Performance Report for the Period Ending March 31, 2004. (Ottawa: Public Works and Government Services Canada, 2005) at III.A.1. "Legal Aid". 3 Canada. Department of Justice, Evaluation Division, Policy Integration and Coordination Section, The Federal Legal Aid Renewal Strategy Formative Evaluation: Summary, Recommendations and Management Response (December 2006). At this point, there has been no further statement of federal government intention to either continue or cancel these shared cost agreements. As the program was extended until March 2007, this provided funding for the fiscal year 2007/2008. However, as the British Columbia Legal Services Society Annual Service Plan Report for 2006/2007 notes, the future of this funding is still unknown (see page 37 of the Report). 70 This sudden about-face by the federal government in taking responsibility for the funding of refugee legal aid across Canada is startling in terms of the history of the debate, but also within the larger context of the reorientation of Canadian economic policies. Beginning in the late 1990s, there was an overall shift away from direct federal government involvement in social and economic programs, reflecting the continuing deregulation of the Canadian state to better integrate with global free-market trends. As part of this shift, the Canadian federal government has been committed to a firm policy of curbing its spending on, and involvement in, social programs, allowing far greater provincial autonomy in administering social-program spending and limiting conditional shared-cost initiatives. 4 As such, the federal government dedication to refugee legal aid by means of a shared-cost agreement represents somewhat of a surprising anomaly in governmental operations. Unprecedented levels of governmental guarantees also feature in a recent European Union asylum legal aid development. In December of 2005, Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status was accepted by the European Union, entering into force in 2006. 5 One unprecedented aspect of this "Procedures Directive" was, under Article 15, the establishment of a right to free legal assistance in the case of an initial negative refugee determination. All Member States of the 4 Canada, Parliamentary Research Branch, Library of Parliament, PRB 00-31E, "The Canadian Social Union: Questions About The Division of Powers and Fiscal Federalism" by Robert B. Asselin (18 January, 2001), online: Library of Parliament <http://www.parl.gc.ca/information/library/PRBpubs/prb0031-e.htm>; Stephen Laurent & Francois Vaillancourt, IRPP Working Paper Series no.2004-07, "Federal-Provincial Transfers for Social Programs in Canada: Their Status in May 2004" (July 2004), online: Institute for Research on Public Policy <http://www.irpp.org>. 5 EC, Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, [2005] O.J. L. 326/13 (Procedures Directive). 71 European Union thus agreed to provide at least minimum levels of legal aid to asylum applicants. This may not seem a momentous event, but considering the history of legal aid of this nature in the E U Member States, it is somewhat of a remarkable development. Previously, there were vast divergences among European states in regard to legal recognition of the right to legal assistance during determination procedures and with regard to the amount and quality of legal aid provided. 6 Some countries, such as Belgium, Denmark, Portugal, Spain and the UK, had the right to free legal assistance throughout determination explicitly mentioned in their asylum legislation. Other countries limited free legal assistance guarantees to appeals, after a first negative decision, or for other judicial proceedings, for example, Germany, Italy, France and Switzerland and Bulgaria. However, even in states where legal aid was recognized legislatively, adequate funding resources and organization had often not been applied to ensure that adequate assistance was provided to asylum applicants in practice. Often, extremely strict criteria and merits tests were applied to refugee applicants, which limited legal aid to cases in which complex points of law were raised, where there was legal entry into the country, or where there were high recognition rates for refugee status from the country of origin. 7 In other countries, including Estonia, Greece , Hungary, Latvia, and Lithuania, there simply was no access to state-funded legal aid, although limited legal assistance was available through non-governmental organizations or other charity groups. Overall , the demand for legal assistance across Europe was not 6 European Council on Refugees and Exiles, Research Paper, "ECRE Study on Free Legal Assistance "(October 2001), at 18, online: ECRE <http://www.ecre.org/research/legalassistance/index.shtml>. 7 Ibid, at 19. 72 sufficiently met. Given these limited, and sometimes nonexistent, legal aid provisions for asylum applicants in many parts of the E U prior to the Procedures Directive, the guarantee of even minimum levels of free legal assistance represents a considerable commitment of funds and organizational effort on behalf of the Member States. 4.2 Confl ict ing Values: Security, Human Rights and Humanitarianism The interest of these commitments to legal aid on behalf of the Canadian and E U governments lies in the ambiguity of the message they communicate, coming at a time of enhanced security and penal measures directed towards asylum seekers. I suggest that the ambiguous message is a sign of the several levels on which the provision of legal aid services for refugees functions. On one level, legal aid provides refugees with quality assistance for their claims, increases the likelihood of positive refugee determinations, and illustrates a concern for fair and just procedures in determination proceedings and for international conventions. In Canada , it reflects the vision of post-Charter Canada as embodied in the decision of Singh, of the right of all individuals present in Canada to recognition and equal treatment under Constitutionally-enshrined protections. 8 Perhaps, as Pearl Eliadis argues, it is also a mechanism of Canada 's position as a country that views all refugees as potential citizens; as such, legal aid provisions function to treat prospective nationals "consonant with the way Canadians expect to be treated themselves." 9 In the E U , 8 Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177. In her determination in Singh, Wilson J. found that the Charter was applicable to "Everyone ... who is physically present in Canada and by virtue of such presence amenable to Canadian law." at para. 35. 9 Pearl F. Eliadis, "The Swing from Singh: The Narrowing Application of The Charter in Immigration Law" (1995) 16 Imm. L.R. (2d) 130 at para. 9. 73 an add i t iona l goa l is the ha rmon iza t i on of po l i c ies a c r o s s s ta tes to prevent u n b a l a n c e d distr ibut ion of a s y l u m respons ib i l i t ies d u e to mo re c l a ims be ing l odged in coun t r ies with h igher s t a n d a r d s of a s s i s t a n c e , a n d a l s o ref lects a commi tmen t to e n s u r e the equ i tab le t reatment of re fugee app l i can ts . W h i l e the just t reatment of re fugees is o n e leve l of the opera t ion of legal a i d , the other level func t ions to quite a different p u r p o s e . T h i s p u r p o s e is man i fes t in the f undamen ta l d i s s o n a n c e be tween s u c h so l i c i tous mot iva t ions beh ind lega l a id a n d deterrent po l i c ies that ca l l ous l y d i s rega rd the potent ia l a s y l u m c l a i m s of m igran ts a n d inc reas ing ly pena l i ze their entry into the s ta te . T h e c o n c o m i t a n c e of i n c r e a s e d g o v e r n m e n t commi tmen t to p r o g r a m s mean t to protect re fugee rights a n d i n c r e a s e the l ike l ihood of s u c c e s s f u l a s y l u m c l a i m s are s e e m i n g l y at o d d s with the augmen ta t i on of po l i c ies that faci l i tate the cur ta i l ing of r ights a n d limit a s y l u m app l i ca t ions ; o n e cou ld ques t i on the c o h e r e n c e of overa l l s ta te s t ra tegy in this regard . But , if the prov is ion of re fugee legal a id is a l ternate ly v i e w e d a s a n essen t i a l a d d e n d u m in the m a i n t e n a n c e , a n d intensi f icat ion of secur i t i z ing a n d c r im ina l i z ing a s y l u m , the logic of the d i s h a r m o n y b e c o m e s apparen t . A return to the secur i ty dual i ty p r o p o s e d by Waeve r is v a l u a b l e at th is point to a n a l y z e this ' l og ica l ' opera t ion of legal a id within the secur i t i za t ion a n d cr imina l iza t ion of re fugee migrat ion. Waeve r ' s two o rgan i z i ng cen t res for the c o n c e p t of secur i ty , s ta te secur i ty a n d soc ie ta l secur i ty , p rov ide a c o n c e p t u a l f r amework by wh i ch to i l luminate the conf l ic t ing p r e s s u r e s a n d i m p u l s e s that p rope l the funct ion of legal a id a s a but t ress for secu r i t i zed a n d c r im ina l i zed a s y l u m pol icy. T h e secur i ty a g e n d a s of state a n d soc ie ty , to protect sovere ign ty a n d identity, a re important a s a 74 driving force behind the restrictive treatment of refugees, and thus of the use of legal aid as a means to resolve the conflicting pressures that the problem of asylum creates. As Claudia Tazreiter notes, "[individuals express opinions, and states carry out actions premised on a complex interplay of social, economic and political anxieties. Caught in the web of these anxieties are refugees and asylum seekers . " 1 0 I propose that states and citizens are themselves caught in this web by incompatible compulsions and concerns regarding asylum seekers; legal aid assists to liberate these groups from their own conflicted aspirations. The provision of legal aid to asylum applicants accomplishes this liberation through the legitimation of harsh and restrictive policies by balancing them with a show of increased procedural justice rights for refugees. Legitimation is essential in the context of Waever's first security centre, the state, to justify its use of coercive measures against asylum seekers. As Waever argues, sovereignty is the primary concern to be protected in this security "centre". Sovereignty has also been shown as vital to the state in terms of its continued relevance in a globalized world of transnational capital and powerful international organizations. As we have also seen, the protection of citizens, both in terms of physical safety and economic well being, is a fundamental purpose and justification for the sovereign state. The state therefore has a two-fold pressure: to protect its own sovereignty, as well as the welfare and economy of the public. Control of borders and entry into the state thus become a primary focal point as a means to ease these pressures by demonstrating the state's enduring consequence and 1 0 Claudia Tazreiter, Asylum Seekers and the State: The Politics of Protection in a Security-Conscious World (Aldershot, Hants, England: Ashgate, 2004) at 1. 75 safeguarding citizens. However, liberal principles - individual rights, liberty, democratic consent and commitment to the rule of law - at the core of Western states constrain harsh government policies in securing the border, which in turn require justification. As Anna Pratt asserts, the "use of coercive state powers against individuals, as in the case of the removal of those deemed undesirable and undeserving, must be legitimated, legally, socially, and politically." 1 1 The securitization of migration provides this essential legitimacy, Waever suggests, through the importation of a sense of critical peril requiring the mobilization of maximum defence; extraordinary coercive measures taken by the state, in its special role as savior in regard to security 'problems', are thereby deemed justified and even essential. The state's own necessity is thus emphasized, as well as its efficacy in safeguarding the populace against the perceived threat of 'outsiders.' The imperative of state sovereignty has always overruled the rights of outsiders, and immigration laws of Western states are imbued with this preferential doctrine; as Audrey Macklin notes, the "truth is that laws that arouse deep concern about civil liberties when applied to citizens are standard fare in the immigration context." 1 2 When liberal institutions themselves are deemed threatened by outside forces, a no-holds-barred approach to border security that diminishes usual rules of conduct to slivers of civilized and humane behavior seems a tolerable norm. Widespread "public indifference to such discretionary treatment", Matthew Gibney states, attests 1 1 Anna Pratt, Securing Borders: Detention and Deportation in Canada (Vancouver: UBC Press, 2005) at 87. 1 2 Audrey Macklin, "Borderline Security" in Ronald J. Daniels, Patrick Macklem & Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) at 393, online: Social Science Research Network Electronic Paper Collection: <http://papers.ssrn.com/abstract=294321>. 76 to the a c c e p t a n c e of s u c h secur i ty p r o c e d u r e s w h e n l inked to the bel ief of the " fore igner a s th rea t . " 1 3 T h u s , the goa l s of both s tate a n d soc ie ta l secur i ty a g e n d a s s e e m the uncon tes ted impe tus beh ind migrat ion restr ic t ions, with the ident i f icat ion of migrat ion a s a secur i ty p rob lem prov id ing a d e q u a t e legi t imat ion for s ta te ac t ion a n d s o c i a l a c c e p t a n c e . H o w e v e r , to sl ight ly d i ve rge f rom the secur i t i za t ion theory p r o p o u n d e d by Waaver , I be l ieve that in the c a s e of re fugees , the legi t imat ion p rov ided by the 'secur i ty threat ' of m igran ts is i nadequa te to justify the c o e r c i v e m e a s u r e s of bo rder cont ro l , a n d this is w h e r e lega l a id b e c o m e s vital a s a n add i t iona l ins t rument of leg i t imat ion. T h i s is b e c a u s e , a s G i b n e y a l s o a s s e r t s , the " re fugee is n o o rd inary f o re igne r . " 1 4 T h e f igure of the re fugee is sa tu ra ted in m e a n i n g in a w a y that o ther migran ts a re not: pe rcep t i ons of re fugees are inherent ly c o m p l e x a n d d e e p l y amb iva len t . O n o n e s ide of the co in of r e f u g e e h o o d , r e fugees are s e e n a s t ragic v ic t ims of secur i ty b r e a c h e s , the b r e a k d o w n of s tate pro tec t ions a n d ind iv idual r ights; on the flip s i d e , t hey c o m e to rep resen t the ve ry h u m a n r ights v io la t ions a n d vio lent conf l ic ts they h a v e e s c a p e d . A s the h u m a n e m b o d i m e n t s of secur i t y fa i lure, " re fugees are often cons t rued a s car r ie rs of the instabi l i ty a n d insecur i ty that led to their initial d e p a r t u r e . " 1 5 T h u s , a s G i b n e y e x p r e s s e s , reac t ion to re fugees is ak in to t hose f lee ing p lague , typ ical ly invo lv ing " a mixture of s y m p a t h y for their plight a n d 1 3 Matthew J . Gibney, "Security and the Ethics of Asylum after 11 September" (2002) 13 Forced Migration Review 40 at 41. 1 4 tod. 15 Ibid. 7 7 c o n c e r n that they might be the car r ie rs of the d i s e a s e that w r a c k e d their o w n s o c i e t i e s . " 1 6 It is th is sympa thy , a n d the k n o w l e d g e of r ights a b u s e s su f fe red by re fugees that p o s e the b iggest barr ier to the secur i t i za t ion a n d c r im ina l i za t ion of a s y l u m , in the form of in ternat ional h u m a n rights law a n d human i t a r i an i sm. F o r the s ta te , the mos t immed ia te leg i t imacy hurd le to o v e r c o m e is h u m a n rights p ro toco ls . T h e pr inc ip le of sovere ign ty , e n c o m p a s s i n g s ta te r ights to e x c l u s i v e cont ro l o v e r territory a n d inhabi tants , f o rms the h is tor ica l co rne rs tone of publ ic in ternat ional law; howeve r , the protect ion of h u m a n rights h a s b e c o m e a m o d e r n c i r cumscr ip t ion on this c o n c e p t of abso lu te s o v e r e i g n power . W h i l e the role of h u m a n rights w a s ex t reme ly l imited prior to W o r l d W a r II, in the last fifty y e a r s " h u m a n rights h a v e e m e r g e d a s o n e of the mos t s igni f icant agen t s of c h a n g e in the c rea t ion of in ternat ional lega l n o r m s . " 1 7 Taz re i t e r wr i tes that the "conso l ida t ion of h u m a n rights h a s ga the red m o m e n t u m in the later half of the twent ieth cen tu ry th rough the prol i ferat ion of h u m a n rights inst i tut ions a n d the e f f icacy of the i d e a that protect ing s u c h r ights is of intr insic v a l u e a c r o s s a n d be tween cu l tu res a n d n a t i o n s . " 1 8 S o we l l - en t renched are h u m a n rights in the internat ional legal s y s t e m , that "no gove rnmen t c h a l l e n g e s the e x i s t e n c e of s u c h r ights or thei r appl icabi l i ty to s ta te behav io r tak ing p l a c e who l l y wi th in na t iona l terr i tory." 1 9 A s b ind ing un iversa l n o r m s of behav io r , a d h e r e n c e to h u m a n rights p r inc ip les , s u c h a s the prohibi t ion aga ins t torture, s lave ry a n d g e n o c i d e , a re in 16 Ibid. 1 7 Hugh M. Kindred, etal., International Law: Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Edmond Montgomery, 2000) at 769. 1 8 Tazreiter, supra note 10 at 3. 1 9 Kindred, supra note 17 at 773. 78 themselves modern requirements for state legitimacy. Abdication of these rights subjects states to scrutiny, censure and pressure from the international community, and in extreme cases, even economic sanctions or armed intervention. 2 0 States parties to the two primary international human rights treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as well as many other human rights conventions, are obligated to actively ensure the rights specified in those instruments. The rights found in these international conventions are of fundamental importance to questions of asylum. As Frangois Crepeau and Delphine Nakache assert, "[hjuman rights concerns crosscut all forced migration issues. " 2 1 The forced migrations that produce refugee flows are often the corollary of human rights violations, while the experience of being forcibly displaced again renders migrants vulnerable to human rights abuses. The forced migration of refugees, therefore, "results from and constitutes a violation of basic human rights". 2 2 A s acknowledgment of this c lose relationship between asylum and human rights, the Refugee Convention, and thus the protection of asylum seekers, is considered a 20 Ibid, at 835-847. Methods to encourage compliance with human rights at international law include treaty mechanisms, such as the ability to petition United Nations bodies, and reports of non-treaty body organizations, such as non-governmental organizations and UN Special Rapporteurs. These mechanisms generally work through a "marshalling of shame", in which poor human rights practices are held up to public appraisal. States may also invoke countermeasures at international law in adopting economic and other sanctions against other states that disregard human rights, either individually, or pursuant to decisions of the United Nations Security Council under Chapter VII (Article 41) of the UN Charter. The legitimate use of force to intervene in human rights abuses is a hotly debated subject, but is currently quite constrained at international law: genocide is one extreme human rights abuse deemed to unequivocally justify armed intervention. 2 1 Frangois Crepeau & Delphine Nakache, "Introduction" in Francois Crepeau & Delphine Nakache, eds., Forced Migration and Global Processes: A View From Forced Migration Studies (Lanham, MD: Lexington, 2006) 1 at 3. 22 Ibid, at 4. 79 "central pillar" of international human rights. As such, the way in which asylum seekers are received and treated in countries signatory to these human rights conventions are enormously significant: indeed, Tazreiter asserts that "the test of a state's commitment to human rights principles and the spirit of the Refugee Convention, is in the treatment of asylum seekers" . 2 4 International human rights have therefore been a significant influence on state policies involving refugees and migrants. Within the Canadian context, Pratt explains how discourses relating to "international human rights, natural justice, and due process" gained prevalence in the 1960s, and were "were officially embedded in the legislation and apparatus of onshore refugee determination". 2 5 It is these democratic elements identified by Pratt, the principles of individual rights, liberty and democratic institutions that form the basis of human rights as well as the foundation of liberal democratic societies; however, as Tazreiter notes, it is paradoxically those countries that most stridently uphold democratic and human rights principles that have felt compelled to increasingly restrict and punish asylum seeke rs . 2 6 This has led commentators to observe that an uncomfortable divergence between domestic migration law and international human rights law has developed. Laura Adams recounts this growing divide from the perspective of U S immigration laws, but her examples are also applicable to most western states. Adams argues there are two points of divergence between migration laws and international human rights, both a 2 3 Tazreiter, supra note 10 at 3. 2 4 to/d. at 1. 2 5 Pratt, supra note 11 at 160. 2 6 Tazreiter, supra note 10 at 10. 80 " theoret ica l a n d ac tua l con f l i c t " . 2 7 In p rac t ice , the puni t ive nature of immigrat ion law ra i ses potent ia l a n d ac tua l conf l ic ts with h u m a n rights ob l iga t ions , m o s t s igni f icant ly , the restr ict ion on a s y l u m avai labi l i ty , the u s e of de tent ion , a n d the possib i l i ty of r e f ou lemen t . 2 8 Apar t f rom tang ib le conf l ict , there is a l s o a "cogni t ive d i s s o n a n c e " occur r ing b e t w e e n t hese two lega l r eg imes , in that it is inherent ly cont rad ic to ry for a soc ie ty to c h a m p i o n a s y s t e m of in ternat ional law g iv ing rights to ind iv idua ls aga ins t s ta tes , whi le s imu l t aneous l y reduc ing the rights of nonc i t i zens aga ins t the s t a t e . 2 9 A s with the two-fo ld p ressu re on s ta tes to protect their sove re ign ty a n d the sa fe ty of c i t i zens , the d i v e r g e n c e b e t w e e n s ta te p rac t i ce a n d h u m a n rights l aws c r e a t e s a doub le leg i t imacy p rob lem: first, the ac tua l d i v e r g e n c e is a i s s u e for the leg i t imacy of the state within the internat ional commun i t y , a n d s e c o n d , the cogn i t i ve d i s s o n a n c e p o s e s a leg i t imacy i s sue in the e y e s of the s ta te 's o w n c i t i zens . Prat t a r g u e s that the h u m a n rights a n d human i ta r ian c o n c e p t i o n of re fugee c l a iman t s h a s b e e n supp lan ted by a "r isk" v iew, in wh i ch a s y l u m s e e k e r s a re s e e n p redominan t l y a s " r isks to the nat ion a n d the p u b l i c " . 3 0 W h i l e a g r e e i n g with the impor tance of the risk pe rspec t i ve , I a l so be l ieve that rights a n d human i ta r ian d i s c o u r s e is still of v i go rous c o n s e q u e n c e in publ ic pe rcep t ion , a n d , a s a result , th is latter leg i t imacy 2 7 Laura S. Adams, "Divergence and the Dynamic Relationship Between Domestic Immigration Law and International Human Rights" (2002) 51 Emory L. J. 983 at 987. 2 8 Adams suggests that the American Illegal Immigration Reform and Immigrant Responsibility Act of 1996 imposes greater restrictions on asylum availability for claimants with criminal records than permitted under the Refugee Convention. In particular, expanded categories of criminality leading to ineligibility for asylum and no bar on deportation are stated to go beyond those allowable under art. 33(2) of the Convention and thus violate the non-refoulement obligations of that treaty. Indefinite immigration detention of noncitizens is also suggested as arguably contrary to customary international law, although state practice and the ICCPR are not clear on this issue. See Adams, at 988-989 for more references to conflicts. Canada has also added additional ineligibility provisions to IRPA, s. 101(f), and has recently upheld the Constitutionality of indefinite detention (with limitations). See Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. 2 9 Adams, ibid, at 987. 3 0 Pratt, supra note 11 at 217. 81 issue is a formidable difficulty in the restrictive treatment of asylum seekers. The importance of human rights norms to Canadian citizens, and thus to political powers, is clearly reflected in governmental policy statements, for example, the operational rationale provided by Foreign Affairs and International Trade Canada : "Human rights is a central theme of Canadian foreign policy for a number of reasons: Canadians expect their government to be a leader in the human rights field by reflecting and promoting Canadian values, including respect for diversity, on the international s tage." 3 1 This pressure on domestic governments to foster international rights norms may arise, as Gary Troeller suggests, from the renewed force that the human rights movement has gathered over the past decade, along with the "incontestable increase in public awareness regarding the moral imperative 'to do something' to assist people beyond borders." 3 2 Just as globalized developments in communication and transportation have made foreign shores more virtually and actually accessible to migrants and refugees, the reverse is certainly also true in making citizens of wealthy nations more aware of the abhorrent conditions and suffering taking place in the world. This last aspect, the feeling of moral imperative 'to do something,' brings up an additional and vital aspect of the legitimacy di lemma: humanitarianism. While human rights involve recognitions of legal obligations, a perhaps more potent impetus arises from the ethical and compassionate principles of humanitarianism. 3 1 Foreign Affairs and International Trade Canada, "Canada's International Human Rights Policy" (23 March 2007), online: FAITC < http://www.dfait-maeci.gc.ca/foreign_policy/human-rights/hr1-rights-en.asp>. 3 2 Gary G. Troeller, "Refugees and Human Displacement in Contemporary International Relations: Reconciling State and Individual Sovereignty" in Edward Newman & Joanne van Selm, eds., Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (Tokyo: United Nations University Press, 2003) 50 at 56. 82 Humanitarianism, B.S. Chimni observes, is an amorphous term in international parlance, often used, but without a definitive meaning; at its core, however, is the concern to promote human welfare. 3 3 At the end of the twentieth century, Astri Suhrke writes, humanitarian ideals had become a "principal normative reference for states and organizations to clarify their own obligations and the responsibility of others", with a discernable "embedded humanitarianism" present in the Western world. 3 4 In the context of migration, the principle of humanitarianism obligates states to assist as many refugees as possible "without undermining the civil, political, and importantly, the social rights associated with the liberal democratic state." 3 5 Despite its pervasiveness in international law and politics, the real relevance of humanitarianism to securitization and the security duality is that it is an individual obligation. As an ethical duty of individual compassion, the humanitarian principle is ancient: in the biblical story of the Good Samaritan, as Gibney writes, the emphasis in the principle of humanitarianism is on the "duty incumbent upon each and every individual to assist those in great distress or suffering when the costs of doing so are low." 3 6 Humanitarianism exists as a universal moral law that "holds between strangers", that is, people in their personal ethical capacity, sharing a common bond 3 3 B.S. Chimni, RSC Working Paper No. 3 "Globalization, Humanitarianism and the Erosion of Refugee Protection" (February 2000), at 2, online: Refugee Studies Centre University of Oxford <http://www.rsc.ox.ac.uk/>. 3 4 Astri Suhrke, "Human Security and the Protection of Refugees" in Newman & van Selm, eds., supra note 32 93 at 99. 3 5 Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (New York: Cambridge, 2004) at 230. 36 Ibid, at 232. 83 of humanity. 3 7 The impulse to humanitarianism is thus compelling to citizens in a way that human rights are not; while the protection of rights, as legal concepts, is primarily within the realm and power of states and governments, humanitarianism is within personal territory: a fundamental pulse of human kindness that we are all meant to embody. Catherine Dauvergne asserts the significance of humanitarianism to the state in the context of migration policies to "confirm and reify the identity of the nation as good, prosperous, and generous." 3 8 However, it is not just the 'nation' that is characterized as virtuous by humanitarian admissions, but its individual members as well: humanitarianism "paints the insiders as good, generous and magnanimous." 3 9 The compulsion of humanitarianism is thus a major source of conflict with the societal security agenda. This conflict is clearly reflected in public opinion polls that show a sharp divide between concerns for social protection and refugee protection. Results from a survey conducted in June 2007, asking respondents to choose the more worrisome scenario, reported that Canadians were almost perfectly divided between being more concerned about "letting someone stay in Canada when they are not a legitimate refugee" (48 per cent), and "forcing someone to return to their country when in fact they really deserve to be considered a refugee" (43 per cent) . 4 0 As this divide suggests, the ethical obligation, and perhaps, more deeply, the natural human urge to compassion in assisting refugees 3 8 Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada (Vancouver: UBC Press, 2005) at 1-2. 3 9 /_ /d . at129. 4 0 Janice Tibbetts, "Attitudes About Refugees Sharply Split: Poll" Vancouver Sun (18 June 2007) A3. Nine per cent of those surveyed said they did not know which aspect they found more troubling. 84 to the ful lest extent poss ib le si ts uncomfor tab ly with the dr ive to protect o n e ' s o w n phys i ca l we l fa re , soc ia l identity a n d a f f luence at the e x p e n s e of t hose s a m e re fugees . 4.3 Refugee Legal Aid and Legitimation It is the conf l ict b e t w e e n h u m a n r ights, human i ta r ian pr inc ip les a n d secur i t i za t ion a g e n d a s that I be l ieve is the r e a s o n for the con t i nued suppor t , a n d e v e n r e s u r g e n c e , of legal a id p rov is ions for re fugee c l a iman ts , a n d exp la i ns the role legal a id p lays in suppor t ing po l i c ies that restrict a s y l u m . If the conf l ic ts a r is ing f rom h u m a n rights a n d human i ta r i an i sm are foi ls to the secur i t i za t ion a n d c r imina l iza t ion of a s y l u m , the p rov is ion of legal a id to re fugee c l a iman t s ope ra tes to def lect t hese coun te rac t i ve f o r ces . T h i s role de r i ves f rom the b road theore t ica l underp inn ings of legal a id a n d its p o w e r a s a s o u r c e of leg i t imacy. A s out l ined ear l ier , the a s s e r t e d func t ions of legal a id e n c o m p a s s a w ide s c o p e of v a l u a b l e p u r p o s e s : char i tab le generos i t y , the sa fegua rd i ng of indiv idual r ights, a n d the uti l i tarian distr ibut ion of soc ia l we l fa re benef i ts . A legal a id s y s t e m p rov ides a mater ia l leg i t imacy to the c o n c e p t s that under l ie l iberal democ ra t i c pol i t ical s y s t e m s b a s e d on ind iv idual wor th a n d the rule of law. T h e s e ex tens i ve p u r p o s e s a n d potent weight of credibi l i ty m a k e lega l a id a one -s top s h o p to legi t imize the p rob lemat i c a s p e c t s of both state a n d soc ie ta l secur i ty . Par t icu lar ly pert inent to this legi t imiz ing role is R i c h a r d A b e l ' s a rgumen t that an unde rs tand ing of the func t ions of legal a id requ i res a pol i t ical a n a l y s i s of the in terests of the ac to rs invo lved ; a s legal a id is a "c reat ion of the s ta te , ra ison d'etat is 8 5 an obvious starting point." 4 1 For the state, legal aid is significant in offsetting the coercive practices used against asylum seekers, and thus provides legitimacy to the overall state asylum policy. In this sense, coercive migration policies and legal aid operate as opposing forces in a type of legitimacy 'law of motion', where the action of the former requires an equal and opposite action of the latter. In examining the reasons behind the emergence of legal aid programs, Abel makes this balancing function clear. If, in the event of real or perceived social disorder, the state responds by: criminalizing behavior, increasing the number of persons prosecuted, and imposing more severe penalties, it may have to legitimate this highly visible expansion of coercion by an equally conspicuous affirmation of due process. One manifestation is the provision of legal representation to all accused 4 2 This concept is echoed by in the context of migration by Pratt, who writes: [w]hile government initiatives to get tough on noncitizens deemed to pose a criminal threat to public safety or a security threat to the nation proliferate, liberal legality and its constituent notions of the rule of law, due process, and procedural fairness continue both to complicate these objectives and to legitimize associated coercive practices 4 3 Legal aid, with its influential power to legitimize these abstract concepts of liberal theory, brings a tangible strength to the state's commitment to these principles. As such, the state's use of coercion, in the form of severe migration policies, that threatens to move beyond Beetham's "justifiable rules" of the exercise of power, is realigned through legal aid with the values necessary to liberal democratic governance. The provision of legal aid to refugee claimants is thus of enormous 4 1 Richard Abel, "Law Without Politics: Legal Aid Under Advanced Capitalism" (1984-1985) 32 UCLA Law Review 474 at 586. 42 Ibid, at 587. 4 3 Pratt, supra note 11 at 160. 86 rhetor ical power to coun te rac t s tate migrat ion po l i c ies that d iverge f rom h u m a n rights a n d human i ta r ian idea ls , s u c h a s s e v e r e interdict ion p r o c e d u r e s a n d de ten t ion . T h e r e are few more potent d i sp lays of a s ta te 's c o m m i t m e n t to jus t i ce , in all the m e a n i n g s of that te rm, than the prov is ion of f ree lega l s e r v i c e s . A re fugee legal a id s y s t e m por t rays a state d e d i c a t e d to the l iberal i dea ls of d u e p r o c e s s a n d equal i ty before the law for a s y l u m s e e k e r s , to the recogn i t ion a n d protect ion of their ind iv idua l r ights a n d to distr ibut ive jus t ice in the a l loca t ion of lega l s e r v i c e s . F r e e a c c e s s to the legal s y s t e m for n e e d y re fugees is a compe l l i ng d i sp lay of a s ta te that is f undamenta l l y c o n c e r n e d with fair t reatment a n d the just a n d cor rect de te rmina t ion of i s s u e s of law: a state that t reats all peop le , whe the r ' i ns iders ' or ' ou ts iders ' with the s a m e leve l of respec t a n d equi ty. A s secu r i t i zed a n d c r im ina l i zed a s y l u m po l i c ies dep ic t the state a s the a d v e r s a r y of r e fugees , lega l a id sp i ns a reve rse ta le of a d v o c a c y , a n d thus p lays a c ruc ia l role in prov id ing the s tate with the leg i t imacy it requ i res by mit igat ing h a r s h a n d restr ict ive a s y l u m po l i c ies . A gua ran tee of lega l a id for re fugee c l a iman ts l e s s e n s the effect of ha rsh a s y l u m p r o c e d u r e s by s imu l t aneous l y por t ray ing a state i m b u e d with l iberal democ ra t i c v a l u e s , c h a m p i o n i n g ind iv idual rights a n d di l igent in ensu r i ng p rocedu ra l just ice a n d fair t reatment : a state that is do ing its utmost to protect the in terests of a s y l u m s e e k e r s . P rov id ing legal a id is therefore a power fu l tool to justify c o e r c i v e a s y l u m pol icy. A s a v i go rous asse r t i on of the s ta te 's 'true' c o m m i t m e n t to the de terminat ion a n d protect ion of ' rea l ' r e fugees , p r o c e d u r e s that c r im ina l i ze a n d secur i t i ze migrat ion a re b a t h e d in a sof ter light: not a s a n a b a n d o n m e n t of human i ta r i an a n d h u m a n rights p r inc ip les a s they app ly to re fugees , but mere l y a regret table, but unavo idab le , 87 corollary to the real goal of refugee assistance. Legal aid thus functions as a counterpoise to diminish the disturbing connotations of policies that circumscribe asylum rights and disregard protective safeguards by providing an ostensibly equal show of righteousness, generosity, and care. An analysis of the legitimation effect of legal aid on securitized asylum policies would not be complete without a discussion of those individuals who are truly committed to refugee rights and well-being, and yet represent the main delivery instrument of the legal aid system: refugee lawyers. Again, it is the duality oi the function of legal aid that poses a problem to refugee lawyers. A s I will illustrate further in Chapter Five, lawyers make a tremendous difference to their refugee claimant clients, considerably increasing the likelihood of acceptance and promoting just policies. However, legal aid also functions as part of a structure that has goals other than refugee admittance, and refugee lawyers cannot help but be part of this contradictory system. In Chapter Five, I will d iscuss how frustration and dissatisfaction with the refugee legal aid system has actually led to refugee lawyers withdrawing their services, rather than be part of a legal assistance scheme they believed to be fundamentally unjust. This reveals the considerable di lemma faced by those that chose to represent refugee claimants: their assistance is necessary and highly beneficial to their clients, but being part of the system is to also support the system, in all of its functions, good and bad, and however unwillingly. In fact, as I will also show in Chapter Five, because of the power of legal identities the commitment refugee lawyers show to their clients can have unintended consequences in promoting public backlashes against legal aid funding and 8 8 g e n e r o u s re fugee admi t t ance po l i ces . N e v e r t h e l e s s , the funct ion of legal a id a s a suppor t for secur i t i za t ion a g e n d a s is on ly o n e s i d e of the dual i ty, a n d d o e s not detract f rom the vital ly important work that re fugee l awyers contr ibute. T h e i dea of s tate po l i c ies os tens ib l y m e a n t to benef i t m igran ts that in actual i ty suppor t a secur i ty a g e n d a is not un ique to lega l a id . Bo th F r a n c o i s C r e p e a u a n d N a n d i t a S h a r m a exp lo re this p h e n o m e n o n in the a r e a s of migrant s m u g g l i n g a n d ant i- t raf f icking c a m p a i g n s , respect ive ly . A s C r e p e a u a r g u e s , the adop t ion by s ta tes in 2 0 0 0 of the Un i ted Na t i ons Convention against Transnational Organized Crime, (the " P a l e r m o Pro toco l " ) , c a n be v i e w e d a s a "hypocr i t i ca l " r e s p o n s e to the "p lague" of unwan ted m i g r a t i o n . 4 4 F o r C r e p e a u , the P a l e r m o P ro toco l is i l lustrat ive of the "pa radox i ca l s i tuat ion" in wh i ch C a n a d i a n s f ind t h e m s e l v e s : on o n e h a n d C a n a d i a n s "pr ide t h e m s e l v e s on their human i ta r ian t radi t ion" a n d the recept ion of r e fugees into C a n a d i a n soc ie ty , but on the other h a n d , " C a n a d a c l o s e s e a c h a n d eve ry c r a c k th rough wh i ch re fugees m a y arr ive in the count ry o n their o w n to f ind p ro tec t i on . " 4 5 T h e hypoc r i sy of the P ro toco l a r i ses f rom this pa radox , a s the "drafters portray the s m u g g l e d migran ts a s potent ia l 'v ic t ims, ' in o rder to obta in the c o n s e n t of publ ic op in ion to a ma jo r c r a c k d o w n on the s m u g g l e r s . " 4 6 T h e "protect ion a n d a s s i s t a n c e " of t hose s m u g g l e d , C r e p e a u asse r t s , w a s thus not the ma in ob ject ive of the P ro toco l , wh i ch in reality w a s to s t rengthen the "s t ra tegy of migrat ion c o n t a i n m e n t " . 4 7 4 4 Francois Crepeau, "The Fight against Migrant Smuggling: Migration Containment over Refugee Protection" in Joanne van Selm ef al. eds., The Refugee Convention at Fifty: A View from Forced Migration Studies (Lanham, Md.: Lexington, 2003) 173 at 173. 45 Ibid, at 174. 4 6 tod. at 175. 4 7 tod. 8 9 As Sharma interprets this argument, the portrayal of the state as concerned for the welfare of migrants was a tactic to "garner legitimacy for the state's criminalization of migrants who use smugglers" . 4 8 Such "legitimation strategies", in which the Canadian legal system is "presented as actually working in the best interests" of migrants allows the initiation of restrictive measures with "little outcry from the general population." 4 9 Following these arguments, it can be seen how providing legal aid to refugee claimants also works to solve the conflicting pressures on the state. Providing legal aid to refugee claimants re-legitimizes state in the perception of the international community and its own citizens, while allowing the overall state security agenda relating to refugee migration to continue unabated. As with state security, the societal security agenda also gains valuable legitimacy from asylum legal aid. In the realm of societal security, legal aid works both as substantive legitimation, that is, as a projection of social values, and formal legitimation, the recognition of formal rules and accepted procedure. With its links to charitable giving, individual rights and procedural justice, free legal assistance to asylum seekers works as substantive legitimation by restoring the resonance between the values held by the public and restrictive migration polices that work to safeguard the preoccupations of societal security: protecting the social status quo from outside threats. The procedural justice that legal aid facilitates further acts as formal legitimation to restrictive asylum policies because, as Tom Tyler's process-based model of regulation demonstrates, a key aspect of the public's perception of the legitimacy of law is the evaluation of procedural justice. A s this theory proposes, 4 8 Nandita Sharma, "Travel Agency: A Critique of Anti-Trafficking Campaigns" (2003) 21:3 Refuge 53 at 58. 4 9 Ibid. 9 0 lega l p r o c e s s e s a n d po l i c ies a re d e e m e d legi t imate b a s e d on the j udgmen t that t reatment g iven by lega l author i t ies is fair. B y af ford ing a s y l u m s e e k e r s with e q u a l a c c e s s to legal p ro tec t ions , lega l a id ac ts a s built-in leg i t imacy to migrat ion laws a n d p r o c e d u r e s ; the ac tua l s u b s t a n c e of the po l i c ies t h e m s e l v e s m a y b e h a r s h , but legal a id ac ts a s r e a s s u r a n c e that the s y s t e m of a s y l u m de termina t ion is fair a n d equ i tab le . A s s u c h , a s A b e l s u g g e s t s , legal a id br ings leg i t imacy to the a g e n d a of soc ie ta l secur i ty by e n s u r i n g the publ ic that the protect ion of their pr iv i leged s o c i a l identity, e c o n o m i c a n d phys i ca l we l fa re th rough the cont ro l of a s y l u m is not b e i n g e x e c u t e d arbitrari ly, with i l legit imate fo rce or d i s rega rd of h u m a n rights. Ra the r , legal a id ac ts a s a comfor t ing sa l ve to the conf l ict b e t w e e n human i ta r i an i sm a n d soc ie ta l secur i t y b y demons t ra t i ng that the protect ion of pr iv i lege is just i f ied, a s ent ry into that pr iv i lege is muni f icent ly g o v e r n e d by e q u a l a c c e s s to fair p r o c e d u r e s . T h e publ ic c a n therefore still s e e itself a s " g o o d , g e n e r o u s a n d m a g n a n i m o u s " , whi le s imu l t aneous l y e m b r a c i n g migrat ion po l i c ies that restrict a s y l u m a n d thus sh ie ld soc ie ty . In te rms of the s o c i a l a n d state secur i ty a g e n d a s , lega l a id c a n therefore be s e e n to p o s s e s s a counter- intu i t ive funct ion a s a contro l on the fair t reatment a f forded to re fugees by prov id ing leg i t imacy - at least in the e y e s of t hose w h o c rea te a n d suppor t migrat ion laws - to the u s e of restr ict ive a n d c r im ina l i z ing a s y l u m po l i c ies . 4.4 Legal A id and the Inequity of Wor ld Order A n essen t i a l part of m y a rgumen t in the last sec t i on is the d ist inct ion p rev ious ly m a d e b e t w e e n ' leg i t imacy ' a n d ' legi t imat ion. ' In my v iew, lega l a i d , a s it current ly ex is ts in the context of a s y l u m s e e k e r s , is pr imar i ly a ' leg i t imat ion, ' u s e d to 91 ease the consciences of members of Western states and as a tool to lend credibility, and thus sustenance, to manifestly unfair social conditions. This is because, for reasons I will elaborate on in Chapter Six, the access to justice that legal aid provides to individual refugees is limited, and also because, on a broader scale, legal assistance for refugee claimants helps to legitimate the international securitization of prosperous refugee-receiving states, and thus perpetuate the fundamental inequality between global West and South. In this, the ideological capacity of the law and legal institutions is key: the ability of the law to instill faith in its own power as a solution, and the problems that poses to substantive social transformation. In this, I will move away from my concentration on the Canadian state, to view legal aid as the pivot on which the legitimization of securitized asylum policies turns on an international level. My argument here is that the focus that legal aid places on the mechanisms of procedural justice in the context of refugee migration de-emphasizes substantive issues of justice and reformulates refugees as legal issues, which in turn works to maintain the status quo of global inequality. Therefore, although legal aid for asylum applicants is both laudable and essential, it is an inadequate international response to refugees and, in fact, potentially detrimental in reducing the access to justice refugees currently posses. I begin this discussion by suggesting that recent developments in refugee legal aid evince its use as an international policy response towards the legitimation of securitized and criminalized asylum. Returning to my earlier description of legal aid changes in Canada and the E U , I propose that these reforms represent more 92 than isolated incidents in separate political states. Rather, the nature of the reforms is indicative of a solidification of the global West 's response to asylum migration. Specifically, these developments reflect a growing interest of states in making refugee legal aid an integral part of otherwise restrictive asylum migration policies: this is illustrated by the financial support of refugee legal aid by the Canadian federal government, the same level of government that establishes securitized migration legislation and procedures, as well as the actual inclusion of such legal aid within upper-level E U policy directives. The E U and Canada are not unaccompanied, however, in this move to place control over refugee legal aid with those same parties that set asylum policy agendas. Australia was an early participant in this shift, with the national, Commonwealth branch of government taking full control over asylum legal aid in 1997. As part of this new scheme, state legal aid offices still provide services to refugee claimants, but the funding and administrative boundaries of the scheme are strictly determined by the national government migration authority, the Department of Immigration and Ci t izenship. 5 0 Of the main western refugee receiving nations, only the United States remains a hold out in not having some manner of refugee legal aid guaranteed by the executive, and migration policy producing, branch of government. 5 1 5 0 Australia. Department of Immigration and Citizenship, Fact Sheet 63 "Immigration Advice and Application Assistance Scheme" (Canberra: Commonwealth of Australia 2007), online: DIC <http://www.immi.gov.au/media/fact-sheets/63advice.htm>.; Australia. Senate Legal and Constitutional References and Legislation Committee, Inquiry into Legal Aid and Access tp Justice. Final Report (Canberra: Commonwealth of Australia, 2004) at Chapter 2: para 2.2. 5 1 In the United States, it is explicit federal policy to not provide asylum claimants with legal assistance funding to access counsel. See generally, Alan W. Houseman, "Civjl Legal Aid in the United States: An Overview of the Program in 2003" at 3, Center for Law and Social Policy, Inc. Washington, DC. online: <http://www.clasp.org/publications.php?id=13&year=2003#0>. 93 W h i l e this shift is no doubt the product of m a n y fac to rs , it a l s o ind ica tes a g loba l c o u r s e of ac t ion in the W e s t e r n s tate r e s p o n s e to a s y l u m s e e k e r s , a ha rden ing a n d ha rmon iza t i on of wha t jus t ice is to be a f forded to re fugees . Secu r i t i zed a n d c r im ina l i zed a s y l u m pol icy is the preva i l ing W e s t e r n r e s p o n s e to re fugee migra t ion, a n d lega l a id is now the s t a n d a r d i z e d reply to c r i t i c isms of the inequi ty of t hose po l i c ies , the built-in leg i t imacy c o m p o n e n t . T h e incorpora t ion of legal a id for re fugees into the admin is t ra t ion of secur i t i zed a s y l u m po l i c ies c a n therefore be s e e n a s the terminat ion of e x p a n s i v e cons ide ra t i ons of jus t ice for re fugees , in favour of a l imited legal a n d p rocedu ra l r e s p o n s e . T h e r e are l imitat ions, a s A b e l , S a r a t a n d o thers h a v e a m p l y po in ted out, with t reat ing legal a i d , a n d the p rocedu ra l jus t ice it fac i l i ta tes, a s the cu re for al l that a i ls . A l t hough t hose theor is ts e x a m i n e d the opera t ion of lega l a id within the c o n f i n e s of a s ing le soc ie ty , their a r g u m e n t s a n d eva lua t i ons a re equa l l y app l i cab le on the in ternat ional p lane . In part icular , lega l a id p o s e s a p rob lem a s a n in ternat ional r e s p o n s e to a s y l u m s e e k e r s b e c a u s e of its t e n d e n c y to t rans fo rm soc ia l conf l ic ts into a lega l f o rm , ignor ing t hose "that a re not or canno t b e " 5 2 , a s wel l a s the i n a d e q u a c y of the law a n d p rocedura l jus t ice to affect subs tan t i ve soc ia l re forms. B y e m p h a s i z i n g the " s e v e r e a n d i n e s c a p a b l e l im i ta t ions" 5 3 of p rocedu ra l jus t ice in ob ta in ing subs tan t i ve e n d s , I d o not m e a n to cont rad ic t the a rgumen t , m a d e cogen t l y by D a u v e r g n e , that p rocedura l r ights are a n essen t i a l c o m p o n e n t of subs tan t i ve jus t ice, a n d that mean ing fu l g a i n s are ob ta ined th rough p r o c e s s r ights, 5 2 Abel, supra note 41 at 600. 9 4 particularly for individual refugee cla imants. 5 4 Nevertheless, procedural rights for refugees cannot address the systemic causes of asylum flows, contributed to by Western foreign policy decisions, or speak to the "dissymmetry of power relations within a system of Global Apartheid" 5 5 , find durable solutions for the forcibly displaced, or question the fundamental morality of securitizing and criminalizing asylum. Given the right window of opportunity, access to the courts can lead to momentous change, such as the Canadian Singh decision, but at their core, legal aid and procedural justice are "problem-solving" approaches to refugees, that treat asylum seekers as purely legal issues, rather than "ethical problems". 5 6 Legal aid and procedural justice cannot solve the moral di lemmas surrounding refugees, and, in the context of asylum, I do not think they are meant to. The provision of legal aid promises no expansion of limited refugee rights, and no reconsideration of the ethical merit of those limitations; rather, it is a strong assertion that migration restrictions are justified, as 'real' refugees will always be fairly provided with means to access legal justice. A s such, the renewed interest in legal aid can be seen as a circling of the wagons of western states in their approach to asylum issues, to ensure homogeneity in their response. As a common response, legal aid helps to keep the discourse surrounding refugees to the narrowest sphere of justice possible, one that does not threaten the privileges of the state or its inhabitants. It is important 5 4 Dauvergne, supra note 38 at 166-214, especially at 199. 5 5 Sharma, supra note 48 at 60. 5 6 Mervyn Frost, "Thinking Ethically about Refugees: A Case for the Transformation of Global Governance" in Newman & van Selm, eds., supra note 32 109 at 109. 95 that the justice offered by states is legitimate and therefore somewhat beyond reproach, and yet maintains the global status quo: legal aid fits this description. This two-fold function of legal aid as a legitimation of the global inequity in the treatment and creation of refugees reflects the prodigious ideological power of the law: the mythological belief that enables law to legitimate harsh rules and unequal social relationships, while ignoring, and even distracting from, their ethical components. In his article "The Ideology of Advocacy", Will iam Simon explores this aspect of procedural justice, writing that the "translation of issues of substantive law and justice into procedural issues" serves the important aim of "social stability by sublimating conflict." 5 7 This process, which Wil l iams terms "procedural fetishism", serves stability not only in its "ability to induce losers to accept their losses, but also in its ability to convince winners of the legitimacy of their victories", numbing the "doubts and anxieties which might lead the winners to re-examine and perhaps even challenge the practices from which they benefit." 5 8 Part of this effect is the way in which a focus on procedural justice obscures "conflict-threatening i ssues" . 5 9 Will iams cites doctrinal developments in criminal procedure as diverting consideration away from "fundamental doubts about the substantive bases for punishment, and about the character of existing penal institutions", and attention to procedure in the allocation of government benefits as taking the place of "attempts to 5 7 William H. Simon, "The Ideology of Advocacy: Procedural Justice and Professional Ethics" (1978) Wis. L. Rev. 29 at 113. x Ibid, at 125. 59 Ibid, at 126. 96 confront g row ing doub ts about the just ice of the distr ibut ion of weal th."* 5 0 J u s t s o , a g row ing internat ional f o c u s on lega l a id , a n d the p rocedu ra l just ice it of fers, h a s the potent ia l to d raw attent ion a w a y f rom the u n e a s e of the e th ica l a n d mora l ques t i ons a r o u n d re fugees : secur i t i za t ion a n d c r imina l iza t ion of a s y l u m , a n d the a c c e p t a n c e of m a s s i v e wor ld inequal i ty . L e g a l a i d , t hen , c a n work to sus ta in the current st ructure of g loba l inequal i ty by perpe tua t ing the a v o i d a n c e of the mora l i s s u e s of re fugee migra t ion, a s wel l a s leg i t imiz ing the eth ical ly ques t i onab le r e s p o n s e s to re fugees b y wes te rn s ta tes . 4.5 The Inadequacy and Consequences of 'Harmonized' Refugee Legal Aid In e s s e n c e , t hen , whi le lega l a id is a vital part of re fugee de terminat ion p r o c e d u r e s , it is i n a d e q u a t e a s the p redominan t jus t ice r e s p o n s e to r e fugees . In fact, the p resen t internat ional conf igura t ion of re fugee legal a id h a s the potent ia l to s igni f icant ly r educe e v e n the l imited a c c e s s to p rocedu ra l jus t ice a s y l u m app l i can ts current ly rece ive wor ldw ide , by p rompt ing a w i d e s p r e a d m o v e t owa rds lower leve ls of lega l a s s i s t a n c e than is p resent ly ava i l ab le . If lega l a id rep resen ts a ha rmon iza t i on of the g loba l W e s t ' s r e s p o n s e to a s y l u m s e e k e r s , c o m m o n s t a n d a r d s c o u l d , in effect, b e c o m e wide ly a d h e r e d to minimum s t a n d a r d s , p roduc ing an internat ional " lowest c o m m o n denomina to r " of p rocedu ra l just ice pro tec t ions for r e f u g e e s . 6 1 T h e lowest c o m m o n d e n o m i n a t o r effect of po l icy ha rmon iza t i on h a s b e e n r e c o g n i z e d in the adop t ion of s h a r e d a s y l u m po l i c ies a n d p r o c e d u r e s in the E U . Ove ra l l , a s a report by O x f a m deta i ls , the 6 0 tod. at 127. 6 1 David McKeever, Jessica Schultz & Sophia Swithern, Foreign Territory: The Internationalisation of EU Asylum Policy (Oxford: Oxfam, 2005) at 15. 97 consequences of harmonization have been "disappointing", with final standards often set at levels "below domestic standards in many member states" and sometimes falling "below the minimum standards required by international law." 6 2 Already, such minimal standards for legal aid are visible in the E U Procedures Directive, which limits guaranteed legal aid for asylum claimants until after an initial negative decision, in other words, only on appeal or review. The guarantee of free legal aid is further minimized by limiting the assistance to "those who lack sufficient resources", "only if the appeal or review is likely to succeed", and allowing the imposition of monetary and time limits 6 3 A s we have seen, some of these standards, particularly the limitation of legal assistance to post- first-instance decisions, are below those currently in place is several E U Member States, which could lead them to reduce their comparatively generous legal aid provisions. Although, as the Oxfam report points out, there is no requirement for Member States to reduce their domestic law to minimum standards, they often do so, likely motivated by concerns that if they "they fail to bring their standards down to the level of their neighbours, their share of asylum seekers will increase." 6 4 This "domino effect" has led to fear of extensive "harmonising down" across the E U , resulting in the situation where minimum standards become the norm. However, it is not just within the E U that a widespread harmonizing down is likely to occur in the area of refugee legal aid, but also in other refugee receiving 62 Ibid, at 16. 6 3 European Council. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, [2005] O J . L. 326/13 at (Article 15 3(b), (d); (5)(a)). 6 4 McKeever, Schultz & Swithern, supra note 61 at 21. 98 states, such as Canada . This is a primary threat I see posed by an international movement towards legal aid for refugee claimants. As James Hathaway observed in 1992, with his usual preternatural insight into asylum policy developments, there is the "prospect of Canada joining the systematic efforts of European states to reduce the procedural rights of refugees to the lowest common denominator". 6 5 In that case, Hathaway was referring to the possibility of Canada following Europe's lead in establishing 'safe third country' provisions, which did, indeed, happen. Similarly, Canada 's "asylum dilemma", in which this country receives increased refugee claims as European access to "quality asy lum" 6 6 is constrained, has the potential to motivate a lowest common denominator harmonization between Canadian and E U refugee legal aid benefits. If the ultimate goal is to reduce the number of asylum claims, it seems unlikely a policy that might instill in refugees the "belief that they are more likely to be recognized as refugees in Canada" , would be viewed as desi rable. 6 7 Although this harmonization would currently be hindered by the structure of the determination system in Canada , in particular the lack of a dedicated appeal tribunal, there is nothing definitively stopping a major restructuring to more closely follow E U and Australian models. This could have serious repercussions, as the E C R E study on legal aid in the E U reports that cases where asylum seekers do not have legal representation during important first-instance interviews, on which claim determinations are based, leads to a situation where refugees have "little or no 6 5 James. C. Hathaway, "The Conundrum of Refugee Protection in Canada: From Control to Compliance to Collective Deterrence" in G. Loescher, ed., Refugees and the Asylum Dilemma in the West {University Park, Pa.: Penn State University Press, 1992) 71 at 84. 66 Ibid. 67 Ibid, at 84. 99 understanding of the procedures, their rights and dut ies". 6 8 Even the European Parliament has recognized that to "limit the right to legal assistance just to the case of an adverse decision is to limit any guarantees given to the asylum seeker . " 6 9 Regardless of how such minimum procedures could negatively affect the justice afforded asylum seekers, there is strength in numbers in the common adoption of such policies, in which criticisms can be defended by reference to other states and the international norm of standardized procedures. Consequently, the trend towards an international harmonization of refugee legal aid could lead to a situation where asylum seekers find themselves with less access to legal assistance, and, as such, represents a serious threat to the fairness of determination procedures. The danger represented by recent developments in refugee legal aid is therefore not an inherent aspect of legal aid in and of itself, but rather a product of its potential side effects in the reduction of procedural and substantive justice to asylum seekers. Expanded legal aid guarantees for refugee claimants are, one on level, an indisputably excellent advance; procedural rights provide access to the justice system, without which substantive justice is unattainable. Legal aid works to ensure and enhance those procedural rights and therefore is highly desirable. The problem with legal aid arises when it also functions to legitimate morally dubious polices and systems, such as securitized and criminalized anti-migration tactics, and unequal relationships between nations. It is also problematic when legal aid becomes the 6 8 ECRE, supra note 6 at 21. 6 9 EC, Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, Report on the proposal for a Council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, COM(2000) 578 - C5-0705/2000 - 2000/0238(CNS), A5-0029/2001, 31 August 2001, online: European Parliament <www.europarl.eu.int/home/default_en.htm>. 100 predominan t f o c u s of the e x p a n s i v e c o n c e p t of " just ice", rather than just o n e a s p e c t , nar rowing the m e a n i n g of that t e rm to a pure ly lega l a n d ' p rob lem-so l v i ng ' a p p r o a c h . A s a n internat ional po l icy r e s p o n s e , the concen t ra t ion on legal a id c a n h a v e the pe rve rse effect of o v e r s h a d o w i n g ques t i ons of jus t ice b e y o n d p rocedura l p r o c e s s rights a n d reduc ing the a c c e s s to just ice current ly ava i lab le to a s y l u m s e e k e r s . O n a theoret ica l leve l , it is t h e s e potent ia l c o n s e q u e n c e s , ent irely cont rary to the typ ica l ly c o n t e m p l a t e d ob jec t ives of s ta te s p o n s o r e d lega l a s s i s t a n c e , that n e e d to be e x a m i n e d in overa l l eva lua t i ons of lega l a id a s it re la tes to re fugees . In the next two chap te rs , I will look at the ac tua l funct ion of re fugee lega l a id in C a n a d a to fur ther eva lua te the s y s t e m , a n d s u g g e s t add i t iona l w a y s that f ree lega l s e r v i c e s indirect ly contr ibute to secur i t i za t ion a n d cr imina l iza t ion of a s y l u m . 1 0 1 CHAPTER FIVE Legal Aid, Identity and the Criminalization of Refugees in the Media In the last chapter, I set the framework of how legal aid functions to buttress the securitization and criminalization of asylum by way of its formidable power as an instrument of legitimacy. Continuing this theme in a different direction, in this section I will suggest additional ways in which legal aid contributes to the legitimacy of this security agenda, not only through its power to counterbalance coercive and anti-human rights and humanitarian policies, but also as an influential source in the creation of refugee identity. In this, I will be looking at the connection between legal aid and media depictions of refugee claimants, analyzing how legal aid adds to connotations of illegitimacy in the representation of asylum seekers, and how this works to promote restrictive and criminalized migration policies. This connection is important as such media created identities can have significant repercussions, as it is no exaggeration to say that refugees are big news. For example, a simple search of the word "refugee" on the Canadian Newsstand database for the six-month period of November 1, 2006 to April 30, 2007 received 3,443 hits. This is a prodigious number of articles: as a comparison, a search of the same time period for the term 'George W. Bush ' received 6,795 hits, while 'Vladimir Putin' received 1,095. While less newsworthy than the President of the United States, refugees are still clearly a topic thought to engage the interest of the Canadian public. However, despite the large number of stories about refugees in newspapers across Canada , articles explaining the procedural justice needs of refugees, including the special difficulties asylum claimants face, the process of tribunal 102 re fugee de te rmina t ion a n d how lega l a id f igures in this p r o c e d u r e a re very m u c h o v e r s h a d o w e d by t hose f o c u s i n g o n re fugees , l awyers , f r audu lence a n d cr iminal i ty . T h i s se lec t i ve m e d i a report ing l e a d s to the d e v e l o p m e n t of a nega t i ve i m a g e of re fugee c l a iman ts for pub l ic c o n s u m p t i o n , in wh i ch a s y l u m s e e k e r s b e c o m e a s s o c i a t e d with a c r imina l identity. L e g a l a id p lays a role the d e v e l o p m e n t of this i m a g e , by he lp ing to f use the ident i t ies of c r imina l a n d re fugee together . A s s u c h , this is a n i s sue of identity, a n d the p o w e r of the law a n d lega l s y s t e m to c rea te a n d sus ta in pub l ic i m a g e s , b e c a u s e in m e d i a reports of r e fugees , pe r sona l identity, that is, the ind iv idual c i r c u m s t a n c e s a n d dif f icul t ies of r e fugees , is la rge ly left u n d e v e l o p e d . It is then other legal ca tego r i es of ident i ty—cr imina l d e f e n d a n t s a n d lawyers—tha t fill th is vo id to cons t ruc t an image of w h o re fugee c l a iman t s a re a n d h o w they c a n be unde rs tood : a s a cr imina l ly a c c u s e d . T h e r e are two c l ose l y c o n n e c t e d w a y s that I a rgue lega l a id func t ions to c rea te this ' c r imina l ' re fugee identity, a n d thus legi t imate secur i t i za t ion . First , lega l a id is dep i c ted a s w a y in wh i ch " fa lse" a n d c r im ina l re fugee c la iman ts , abe t ted by reputed ly oppor tun is t ic l awye rs , a b u s e a n d man ipu la te C a n a d a ' s a s y l u m s y s t e m . In this, m e d i a reports link h igh c o s t s of lega l a id to c r im ina l a n d illicit re fugee c l a iman ts , a dys func t iona l re fugee de te rmina t ion appa ra tus , a n d lawyers a s the pr imary bene f i c ia r ies of th is s y s t e m . S e c o n d , with t h e s e a s s o c i a t i o n s a s a b a c k d r o p , in dai ly n e w s report ing on ind iv idual re fugee c a s e s it is the legal ly c r e a t e d identity of " lawyer" , rather than that of re fugee , that f o rms the dominan t point of pub l ic c o g n i z a n c e . The re fo re , the publ ic unde rs tand ing of what the identity of " lawyer" enta i ls , part icular ly a s a de fende r of the cr imina l ly c h a r g e d a n d a s a se l f - se rv ing 103 subverter of the justice system, creates a negative perception of their refugee clients. This adds to the discomfort and fear people feel toward asylum seekers and thus works to garner public approval for securitized migration policies. In this way, the legal aid supplied to refugees as a safeguard of procedural justice can contribute to negative connotations of refugees and make the public more likely to support restrictive policies, and less likely to endorse greater funding for legal protections. This contrary effect also highlights how legal aid lawyers are involuntarily drawn into the legitimation process in acting for refugee claimants and the difficulty of their role as advocates. My argument starts with a review of theoretical material that considers the relationship between law, identity, refugees and the media. It then moves on to examine Canadian newspaper articles and detail the particular elements in the stories that illustrate my thesis. I will first illustrate the predominantly negative portrayal of asylum seekers and legal aid in the press following September 11, 2001, and how reporting on high legal aid costs, fraudulence and lawyers created an uprising of public concern about refugee claimants and the determination system. Then, I will look at the content of recent media articles on asylum claimants and demonstrate the prominent role of lawyers in sustaining a 'criminal' refugee identity. 5.1 Law, Identity and the Media: Theoretical Perspectives As I have briefly outlined in Chapter Two, a substantial body of theory asserts a key relationship between law and identity. As we have seen, it has been suggested that law is constitutive in nature; that is, law is both shaped by society, in its internalization of dominant social ideologies, as well as a force that shapes 104 society, in its transmission, and thus perpetuation, of those same values, beliefs and principles. Law and legal institutions are thus a vital element in the construction of social reality, how people understand and view their world and each other. As Alan Hunt points out, the ideological power of law, in portraying certain social beliefs as fundamental principles and enforcing them, legitimates ideas and practices that support the interests of a dominant group at the expense of subordinate groups. As such, the association between law and people is of immense significance in social perception, profoundly affecting the attributes that are seen to comprise identity and the parameters of social relations. Legal discourse is thus widely viewed as "an important site for struggle about the meaning of identities" and many scholars have focused on the function of law in the construction of social identity.1 Margaret Montoya notes that the role of the legal system has been a central theme of the social constructivist theory of individual and collective identity formation, in its capacity to define and circumscribe the "identities of racial and ethnic minorities", "gendered identities", and "sexual identities". 2 The identities of refugees can certainly be added to this list, which, as we will see, is highly susceptible to the influence of the law. In addition to the influence on the creation and delineation of individual identity, the law's construction of legal identities, that is, the "identities of persons acting within certain legal roles, categories, and/or structures" has also been 1 Dan Danielsen & Karen Engle, "Introduction" in Dan Danielsen & Karen Engle, eds., After Identity: A Reader in Law and Culture (New York: Routledge, 1995) xiii at xvii. 2 Margaret E. Montoya, "Border/ed Identities: Narrative and the Social Construction of Legal and Personal Identities" in Austin Sarat, et al. eds., Crossing Boundaries: Traditions and Transformations in Law and Society Research (Evanston III.: Northwestern University Press, 1998) 129 at 137. 105 analyzed.3 Wendy Espeland suggests that "[l]aw, whether enacted by bureaucrats, judges, lawyers, or litigants, creates categories that become imposed on and practiced in the world."4 As Montoya further illustrates, "[w]hen, in the course of their decision making, courts utilize categories such as race or ethnicity or national origin, their decisions, rationales, and opinions have the effect of describing and inscribing formal identities for those inside and outside such categories."5 The vital point here is that legal identities can have profound consequences for those associated with them; in particular, the creation and application of legal identities legitimizes specific personas, and the treatment they entail, within society. The context of asylum and refugees has been a rich area of study in the legal constitution of identity. This is perhaps a result of the character of the refugee as a border figure. As Ayse Ceyhan and Anastassia Tsoukala note "borders have highly powerful symbolic power: as institutions, they define a legal understanding of the sovereign state: and as processes, they are markers of identity, invested with mythic significance in building nations and political identities."6 By border identity, then, I mean that refugees both physically cross national borders, which is a cause of problems for receiving states, as well as conceptually straddle a line between "insider" and "outsider" in their acceptance into receiving societies. The situation of refugees, outside the protection of their home state, and largely outside of the 3 Ibid, at 138. 4 Wendy Espeland, "Legally Mediated Identity: The National Environmental Policy Act and the Bureaucratic Construction of Interests" (1994) 28 Law & Soc'y Rev. 1149 at 1176. 5 Montoya, supra note 2 at 140. 6 Ayse Ceyhan & Anastassia Tsoukala, "The Securitization of Migration in Western Societies: Ambivalent Discourses and Policies" (2002) 27 Alternatives, Special Issue, 21 at 25. 106 pract ica l k n o w l e d g e of c i t i zens in rece iv ing soc ie t i es , g i ves r ise to the cons t ruc t ion of re fugee ident i t ies that h a v e m u c h to do with the p u r p o s e s of t h o s e coun t r ies that a re potent ia l re fuges . F o r e x a m p l e , on o n e leve l " re fugee" is ent i rely a legal ly cons t ruc ted identity, wh i ch c a n be cont ro l led in w a y s favo rab le to rece iv ing s ta tes . W h o a re fugee is first b road ly de f i ned in in ternat ional law, by w a y of the Refugee Convention, a n d then that def ini t ion is s u b s e q u e n t l y fur ther de l i nea ted by the migrat ion laws of ind iv idual coun t r ies . T h o s e ou ts ide the lega l def in i t ions of " re fugee" s imp ly do not exist in t e rms of the internat ional r e s p o n s e to a n d recogni t ion of t h o s e that do fulfill the lega l ca tegor i za t i on . T h e p o w e r of th is legal identity h a s led Pa t r i c i a Tuitt to a rgue that o n e of the "ma in func t ions of re fugee law h a s b e e n to s h a p e o r cons t ruc t a n off ic ial or fo rma l identity of re fugee" , in wh i ch the pr imary p u r p o s e is the " reduct ion of the ex terna l c o s t s of re fugee-p roduc ing p h e n o m e n a . " 7 A c c o r d i n g to Tuitt, the law of re fugee s ta tus is b a s e d on the cons t ruc t ion of re fugee identity a s "a l ien" , that is, ou ts ide their h o m e state, a n d e m p h a s i z i n g a n ex t reme ly na r row range of pe rsecu t i on . In cap tu r ing on ly a "tiny port ion of the who le c o r p u s of m e a n i n g within the not ion of re fugee" the identity c r e a t e d by re fugee law a l l ows the por t raya l of t h o s e ou ts ide this identity a s " i l lega l , b o g u s , f raudulent or at bes t on a s e c o n d tier of human i ta r ian n e e d , the reby just i fy ing a l imited range of a s s i s t a n c e to re fugees without that identity"; c o n s e q u e n t l y , th is wo rks to r educe c o s t s for ex te rna l na t ions a n d e n s u r e s that the " re fugee identity s e l e c t e d p romo tes the par t icu lar pol i t ical 7 Patricia Tuitt, False Images: Law's Construction of the Refugee (London; East Haven: Pluto Press, 1996) at 14, 7. 107 interests of the primary authors (Western European states) of the international legal regimes." 8 While refugee identity can be manipulated to reduce the obligations of receiving states, it can also be constructed in a way to define the national identity. For Catherine Dauvergne, the refugee is formulated as the "ultimate other to the nation", in order to gain access under state migration laws. 9 As those migrants permitted entry into the state because of their lack of protection, rather than their correspondence to existing national values - family connections or economic prosperity - refugees are conceptually farthest away from the lived experience of the members of the receiving state's society. For those in Western states, as Dauvergne asserts, refugees are thus the "most unlike us as well as the most unknown", which facilitates "our imaginative construction of their identity." 1 0 The process of identity formulation that asylum seekers must pass through to meet the state's required image, first as "other" and then as "refugee", both reduces the identity of asylees to a mere "pinpoint", and then expands it to one deserving of our humanitarian grace. 1 1 The identity of "refugee" created by migration laws thus serves receiving states by allowing them to bask in their own humanitarian glory, and thereby affirm the national identity as generous and good . 1 2 B Ibid, at 14,16. 9 Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migration Laws of Australia and Canada (Vancouver: UBC Press, 2005) at 81. 10 Ibid. 11 Ibid, at 118,164. K Ibid, at 129. 108 In sharp divergence from the obscure and ambiguous "blank space" of refugee identity,13 the legal identity of "lawyer" is remarkably consistent and . possessed of a lucid and unwavering set of characteristics in collective public consciousness. Simply put, they are thought of as bad. Although, in reality, lawyers may share relatively few personal characteristics, in large part because of the dictates of the law within which they practice, lawyers have come to represent a vilified set of identity traits. News story after news story and poll after poll reflect a widespread and virtually immutable aversion toward the legal profession in popular opinion. For example, John Tierney of the New York Times comments that "there is one feeling shared by New Yorkers of every race, class and political persuasion. We all cringe at the lawyers."1 4 Continuing, the same article states that a Gallop/CNN/USA poll had recently reported "only 14 percent of Americans gave lawyers high marks for honesty and ethical standards, which ranked them below every other category except insurance salesmen, advertising practitioners and car salesmen." 1 5 Additionally, a Harris Poll reported in 2000 found that only 21 per cent of Americans said that as a profession lawyers had "very great prestige".1 6 An article from 2007 noted the results of another public opinion poll, this one finding that 74 per cent of respondents said lawyers were the biggest beneficiaries of the lawsuit system. 1 7 But, Americans are not alone holding a low opinion of lawyers. In 2006, a ™ Ibid, at 118. 1 4 John Tierney, "Bar sinister: Lawyers earn public's wrath" The New York Times (13 May 1999), B1. 15 Ibid. 1 6 Dylan Loeb McClain, "Doctors reign, teachers gain, lawyers wane in public esteem" The New York Times (1 November 2000) G1. 1 7 Bara Vaida, "No Love for Lawyers" (2007) 39:3 National Journal 56 at 56. 109 Montreal polling firm's annual survey of the most-trusted occupations reported that lawyers had the trust of only 48 per cent of Canadian respondents. 1 8 That same year, in acknowledgement of this low public opinion of lawyers, the Canadian Bar Association Futures Report recommended that the " C B A must elevate the relationship of the legal profession with the public, levels of public trust in the profession, and the image of the profession". 1 9 My purpose in recounting these opinions, and my simple question in this chapter, is what happens when the 'strong' identity of lawyer meets the 'weak' identity of refugee in media reports, and how legal aid adds to the volatility of this mix in the perpetuation of securitized policies. The connection between the media and the creation of particular refugee identities in public perception is well documented. Claudia Tazreiter observes that the "power of communication and particularly of mass outlets of information in the contemporary world shape, redefine and reflect the social wor ld". 2 0 The media is thus an essential component in the "social and political construction of newcomers as strangers", a process that "identifies and names what eventually become the popular public understanding of the various categories of the 'other'." 2 1 Tazreiter's argument is expanded by Sharon Pickering, who writes that the "criminalization of refugees has been normalized in the ordinary hum of media 18Dene Moore, "Canadians put their trust in judges, but not politicians" Edmonton Journal (20 March 2006) A5. It is notable that this is only one per cent lower than those who trusted journalists. 1 9 Canadian Bar Association, "Recommendation #9" in CBA Futures Report (Ottawa: Canadian Bar Association, 2006), online: CBA <http://www.cba.org/CBA/futures/Main/PrintHtml.aspx?Docld=11939>. It is somewhat comical to note that the CBA recommended the services of a publicist to effect this change, a group that had an even lower level of public trust than lawyers (40%). 2 0 Claudia Tazreiter, Asylum Seekers and the State: The Politics of Protection in a Security-Conscious World (Aldershot, Hants, England: Ashgate, 2004) at 217. 21 Ibid, at 211. 110 reporting of refugees in the Australian print media", through a discourse of "deviance". 2 2 Examining media reports, Pickering reports that a deviant identity is built up through "binary logic deployed in relation to asylum seekers and refugees: bogus/genuine; refugee/'boatpeople'; law abiding/criminal; legal/illegal; good/evi l . " 2 3 This binary logic polarizes the subject of refugees and "provides communal comfort in removing ambivalence through the forced choice of either/or", as well as informing "discourses of deviance and state responses to such dev iance" . 2 4 A s Pickering argues, representations of refugees as "embodying and symbolizing deviance" are heavily implicated in the portrayal of illegal immigrants as threats to the security of the nation, and, as such, these representations "contribute to the validation and invocation of repressive state responses. " 2 5 This connection between media culture, threat, public opinion, and the formation of immigration policy is taken up by Tamara Vukov, who asserts: Furthermore, in contemporary liberal democratic nation states, the strategic mobilization of a sense of threat or other such affective processes cannot effectively take place outside of the mass media, particularly the news media. Mediatized threats that elicit strong affective responses are key to the way in which media spectacles around immigration over the past 10 years have increasingly articulated immigration with criminality and terror ism. 2 6 In the Canadian context, Vukov argues that media discourses have played a "crucial role in articulating immigration, criminality and fear together", particularly the 2 2 Sharon Pickering, Refugees and State Crime (Sydney: Federation Press, 2005) at 20. 23 Ibid, at 24. * ibid, at 25. 26 Ibid. 2 6 Tamara Vukov, "Imagining Communities Through Immigration Policies: Governmental Regulation, Media Spectacles and the Affective Politics of National Borders" (2003) 6 International Journal of Cultural Studies 335 at 338. 111 construction of refugees as "threats to the security of the population" in the political climate post-11 September . 2 7 Peter Mares neatly summarizes this potency of the media in the creation of refugee identity: [M]edia reporting can shape public perceptions of refugees and asylum seekers. Compassionate and sympathetic coverage can help to promote public understanding and encourage generous assistance to refugees and others in need. Negative reporting can generate and intensify feelings of fear . 2 8 As these analyses show, the connection between media representations and legal identities is thus of considerable importance in the creation of public sentiment towards asylum seekers, and particularly pertinent here, the development of negative images of refugees that can lead to the creation and sustenance of harsh asylum policies. 5.2 Exploitations of the "Publ ic Purse": the Legal A id Connect ion Drawing on the above theoretical perspectives, the following sections analyze how Canadian media reporting leads to the development of a negative and fear-inducing image of refugee claimants for public consumption, and how legal aid is implicated in the creation of this identity. In the first part of this analysis, my focus will be on articles making a connection between high legal aid costs, fraudulent and criminal refugee claimants, a wasteful determination system and opportunistic lawyers, and the impact of those stories on public opinion. In the last part, I will examine how those connections are maintained and refugee identity developed in 27 Ibid, at 344. 2 8 Peter Mares, "Distance Makes the Heart Grow Fonder: Media Images of Refugees and Asylum Seekers" in Edward Newman & Joanne van Selm, eds., Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (Tokyo: United Nations University Press, 2003) 330 at 345. 112 recent newspaper articles. The material in this analysis is drawn from online searches of the Canadian Newsstand database, which indexes national and regional newspapers across Canada . A number of searches, across various timeframes, were conducted, to compare the appearance of different variables in the news stories, using the search words "refugee", "legal aid", and "lawyer". The first analysis focuses on those articles that combine "refugee" and "legal aid" as search terms, and the second on "refugee" and "lawyer". To begin with articles involving refugees and legal aid, I examined a timeframe from September 11, 2001 until December 31, 2006, as this is the period in which it is widely asserted that an intense period of refugee criminalization began. During this period, there were 113 articles referencing both "refugee" and "legal aid"; 12 of these were reprints, seven did not have full-text available, and six did not predominantly concern refugees. There were 88 articles remaining as part of my analysis. An immediate difficulty with these articles was separating and characterizing them in a cogent manner. My initial categories were: (1) stories that portrayed refugees, legal aid and/or lawyers negatively; and (2) stories that were positive about these elements. For a "negative" characterization, I looked for mention of criminality, fraudulence, high cost, or inefficiency. I designated 34 of the 88 articles as negative. For a story to be considered positive, the articles needed to contain reference to advantageous results of legal aid, and/or portrayals of refugees and lawyers as a beneficial part of society: 31 articles were characterized as positive. However, as the remaining articles attest, a black and white separation between "negative" and "positive" portrayals was very difficult to achieve; a 113 significant number of these articles, 20 of the 88, I characterized as "ambiguous." Depending on one's perspective these articles could be either negative, or positive; I will return to these "ambiguous" stories later in my discussion to suggest that while neutral in presentation, these articles were likely negatively perceived. The starting place of my analysis will be an article that was issued soon after September 11, 2001, as this story can be seen as the provenance of a media association between refugees, fraudulence, legal aid and lawyers. Under the original title of "27,000 deportees vanish: Immigration 'can't tell' if failed claimants have left country", the article reported on the unknown whereabouts of failed refugee claimants in Canada and the lack of "exit controls" to track departures. 2 9 The article is notable in the connections it establishes between refugees as not only deceptive and counterfeit, but also as terrorists, and Canada 's supposedly too lax refugee policies. The story reports that rejected claimants might still be living in Canada , "appearing as citizens with fraudulent documents"; that "[ longstanding criticism of Canada 's generous refugee protection system has found new life following the Sept. 11 terrorist attacks in New York and Washington"; and, as the piece de resistance of this associative process, that "Ahmed Ressam was a refugee claimant who lived underground in Montreal. ... Mr. Ressam had links to O s a m a bin Laden, the suspected mastermind of the recent terrorist attacks." Legal aid joins this association innocuously, in an unassuming comment from a Citizenship and Immigration department official, who states: "foreigners are given welfare, health care and free legal aid while going through the process of claiming refugee status". 2 9 Tim Naumetz, "27,000 deportees vanish: Immigration 'can't tell' if failed claimants have left country", The Ottawa Citizen (28 September 2001) A1. 114 This story was reprinted in leading daily newspapers of major cities in almost every province in Canada , making the front page five times. Although the connections made in this article to legal aid may seem tenuous, it had an enormous impact, almost immediately inciting a firestorm of critical articles, opinion pieces and editorials in the press. The invective response began on September 30, with Lome Gunter of the Edmonton Journal, who commented: For those who abandon their claims, not even warrants are issued in most cases. So the refugee determination process, which costs hundreds of ' millions a year in administration and legal-aid fees, appears to be a total farce. The country has no "exit controls," so failing in one's claim, or abandoning it, are as sure a way of remaining in Canada as mounting a successful appl icat ion. 3 0 On October 13, 2001, Diane Francis of the National Post entered the fray, citing information that a large number of refugee claimants had entered Canada , only to be immediately released with a "kit that included information on free medical services, housing, welfare, legal aid," with the comment: "Welcome to Canada , that Queen's Scout of a country that has let anyone in anytime from anywhere, a country that turns someone loose on an unsuspecting population, then supports him without strings attached." 3 1 A voice of moderation during this period was Allan Thompson, of the Toronto Star, who challenged the assertion that Canada is a "terrorist haven" on account of too lenient immigration and refugee pol ic ies. 3 2 While this story is 3 0 Lome Gunter, "Canadian immigration blues: After 30 years of tolerance propaganda, Liberals cannot spot evil" Edmonton Journal (30 September 2001) A10. 3 1 Diane Francis, "Canada: Queen's Scout for refugees: We'll let anyone in anytime from anywhere" National Post (13 October 2001) FP3. 3 2 Allan Thompson, "Is Canada really the weak link?; Rush to judgment fuels distortions on immigration" Toronto Star (6 October 2001) A1. 115 generally a positive picture of the refugee determination process, it again highlights the "generous approach" taken by Canada in furnishing refugees with social services and legal aid, without providing any clear explanation as to why legal aid is considered important, or how it is used. What is clear at this time is a growing preoccupation with this "generosity", as illustrated by the November 28, 2001 article by Christie Blatchford: "Refugee industry in Canada costs taxpayers millions of dollars: $21M just for legal a id " . 3 3 This article is important as it begins the link between the asserted "staggering public cost" of refugee protection and lawyers, characterized as the "chief players" in the "multi-million- dollar-a-year" refugee industry". In a January 28, 2002 opinion, James Bisset extends this connection between lawyers and legal aid, highlighting the element of refugee criminality. Bisset states: Immigration lawyers welcome the news that the Immigration Refugee Board (IRB) is considering a streamlined system for dealing with refugee claimants. This was to be expected, since faster processing will translate into faster payment to the lawyers by the government's legal aid services. International human smugglers will also welcome the news, since the faster their smuggled clients receive refugee status, the more clients they will be able to attract. Canadians, though, should not be so happy about this promised new efficiency on the part of the I R B . 3 4 The connection between refugee legal aid, avaricious lawyers, high taxpayer costs and criminality refused to die as a news item, reappearing again and again from 2002 . 3 5 An August, 2002 Montreal Gazette editorial stated that one motive 3 3 Christie Blatchford, "Refugee industry in Canada costs taxpayers millions of dollars: $21M just for legal aid" National Post (28 November 2001) A4. 3 4 James Bisset, "Streamlining refugees is sure to backfire" National Post (28 January 2002) A14. 3 5 For additional articles and commentaries making this connection, see also "Notice to wanna-be Canadians: 'We are not soft, we are open,' Editorial, The [Vancouver] Province (7 April 2002) A20; Joe Easingwood, "It's 116 behind the Canadian Bar Associat ion's law suit to establish a right to legal aid was "essentially lobbying for more money for its members", with much of the proposed funding portrayed as "aid for refugee claimants" actually ending up in "Lexus lease payments." 3 6 Diane Francis was back in October 2003, asserting that failure to reform an "absurdly costly and complex immigration system" was because it would put the '"immigration industry' of lawyers out of business", and that the "system allows hardened criminals . . . to live in jails for years exhausting all appeals on the taxpayer dime", while "lawyers hunt for loopholes". 3 7 While these stories formed a continuous thread of explicitly negative associations between refugee claimants and legal aid, I suggest that they also had an effect on how ostensibly neutral stories, and even those that were positive, were perceived. A return to the 20 articles during this period I characterized as 'ambiguous' will illustrate this point. For example, a June 11, 2006 article entitled "Counsel for the Untouchables", d iscussed the work of Barbara Jackman, who the story asserts is "Toronto's go-to-lawyer" for "alleged terrorists fighting deportation". 3 8 For some readers, Jackman's use of legal aid funds, as the story recounts, to defend clients "no matter how disturbing the allegations against them might be" would be time to overhaul Canada's stupid immigration laws" [Victoria] Times-Colonist (5 May 2002) A9; Nigel Hannaford, "A supremely annoying system" Calgary Herald (17 May 2003) OS7; and Bruce Ward, "Taxpayers a priority for legal aid" The Ottawa Citizen (26 September 2003) A6. Eliminating legal aid for refugee claimants also formed a part of Ernie Eves' Conservative party's election campaign platform in Ontario in 2003. Beginning in May of that year, this election promise was published in eastern Canadian newspapers ten times, keeping the controversy in the public eye. Use of this as a campaign device verifies the importance of the issue of refugee legal aid for the public. The Conservatives, however, did lose that years' election. 3 6 "Legal aid within limits" Editorial, Montreal Gazette (19 August 2002) B2. 3 7 Diane Francis, "Lawyers feather their own nest" National Post (30 October 2003) FP3. 3 8 , Michelle Shephard, "Counsel for the untouchables" Toronto Star{-\ 1 June 2006) A6. 117 very upsetting; for others, her commitment to "human rights principles and fair treatment for all" would make her a hero. 3 9 Another example of this ambiguity occurs on February 9, 2004, in a story that reported that at least "1,500 refugee claimants" would not receive legal aid in B.C. that year because of "cutbacks to legal assistance funding and a refusal by the Refugee Lawyers Group to take new clients after the end of the month." At issue, the article states, was the "reduction in the maximum amount of time a lawyer will paid for working on a refugee c la im." 4 0 The ambiguity in the article lies in how the actions of the Refugee Lawyers Group, in refusing to take clients under the new funding regime, would be perceived by readers, and also illustrates the acutely difficult position in which legal aid refugee lawyers are placed. The article states the refugee lawyers' motivation for refusing clients, which was that the "amount of funding that (is going to be) provided . . . is so small that we would not be able to provide even a minimally adequate level of service and so we take the position that it would be unprofessional and irresponsible to take on a case like that". However, the widely held, preconceived identity of "lawyer", exacerbated by the derogatory articles during this period, likely negatively influenced the public perception of these actions. Murray Edeleman explains this effect as part of the devices that news reporting employs to attract audiences, and to "encourage particular interpretations through its content and form." 4 1 Edeleman suggests one tactic in this enterprise is the 4 0 "Refugees won't get legal aid or lawyers due to funding cutbacks in B.C." Daily Bulletin [Kimberley, BC] Canadian Press (9 February 2004) 11. 4 1 Murray Edelman, Constructing the Political Spectacle (Chicago & London: University of Chicago Press, 1988) at 90. 118 "depiction of events to evoke assumptions and the past, the future, and agents who bring about good or evil outcomes." These narratives, which give "developments in the news a particular meaning", work implicitly by recalling past news stories asserting a certain position, for example, references to "workfare" that evoke a "story about the laziness of welfare recipients in the past" . 4 2 In the same manner, the reference to refugee lawyers' refusal to take clients based on inadequate funding recalls the earlier articles asserting the greed and exploitation of the refugee legal aid system by the legal profession, implying quite a different motivation. Refugee lawyers thus face the di lemma of having to overcome negative public conceptions in advocating for their clients. The more strenuously lawyers argue for the legal aid that helps to ensure procedural fairness for refugee claimants, the more likely they are to be seen as attempting to use legal aid for personal gain, thereby attracting public hostility toward the very system they are trying to champion. This image of the self-serving lawyer profiting from the refugee legal aid system that is evoked by these news articles is deeply unfair and inaccurate: as I will illustrate further in Chapter Six, very low payment rates mean refugee lawyers are among the least likely of the profession to be making "Lexus lease payments". Nevertheless, the news reports examined here show how a connection was gradually developed and asserted between legal aid, refugees, criminality, lawyers and the fraudulent exploitation of public funds and generosity, which fed off the prevalent concept of the identity of "lawyer" in public consciousness. 119 Although it is impossible to ascertain the direct impact this media-created connection had on public opinion, a 2004 poll suggests a considerable influence. The Ipsos Reid survey reported that 71 per cent of those canvassed thought that the refugee system required a "major re-think or adjustment", and 80 per cent were of the opinion that "Ottawa should be looking for ways to reduce the costs of the refugee sys tem" . 4 3 Additionally, 53 per cent of those surveyed felt there were too many in-Canada refugee claimants. These survey numbers are in line with the primary thrust of earlier articles, which emphasized the cause of legal aid costs as lying primarily with an inefficient refugee determination system and those, both criminal claimants and greedy lawyers, who take advantage of this allegedly profligate system. It is significant to note that no articles on this subject advocated the total discontinuance of legal assistance for asylum claimants, which supports my thesis of the ideological importance of legal aid as a tool of humanitarian legitimation. Instead, the vitriol was re-directed to criminal and 'fraudulent' asylees who would "take full advantage of this sys tem" 4 4 in abusing Canada 's generosity, and the "system", spearheaded by greedy and underhanded lawyers. Nevertheless, the poll indicates that over half of Canadians surveyed were not only interested in restricting the refugee determination process, but the number of refugee claimants themselves; while this sentiment indubitably arose for many different reasons, costs were of overwhelming concern to the respondents, expenditures which had been repeatedly tied to the abuse of legal aid in the press. Marina JimeNez, "Canada's welcome mat frayed and unraveling" The Globe and Mail (16 April 2005) A8. Francis, supra note 37. 120 W h a t is r evea led in this p rog ress ion f rom print m e d i a to publ ic op in ion is h o w the identity of re fugees a n d l awyers built by the p r e s s cont r ibu tes to the sel f-regulat ing leg i t imacy of lega l a i d : that is, a l though legal a id wo rks to legi t imate inequi tab le soc ia l s t ruc tures by demons t ra t i ng a l iberal i ty a n d ' fa i rness ' in the s y s t e m , at s o m e point it a l s o p rov ides a legi t imate r e a s o n to a set a c a p on the l imits of that generos i ty . A s R i c h a r d A b e l exp la i ns , lega l a id is one m e a n s for the pr iv i leged to legi t imate their u n e q u a l s ta tus , to " conv ince t h e m s e l v e s that t hose pr iv i leges are just i f ied or, better yet, that they h a v e no p r i v i l eges . " 4 5 S u c h p r o g r a m s a re not on ly a "dec la ra t ion of r ights o r a prescr ip t ion of behav io r " , but a l s o a s imu l t aneous descr ip t ion , a n "implicit asse r t i on that s u c h rights or behav io r ac tua l l y exist ." A s s u c h , ' " a b u s e s ' of the prof fered benef i t " of soc i a l p r o g r a m s by " s c r o u n g e r s " a n d " chea ts " s e r v e the "the i n d i s p e n s a b l e func t ion of s h o w i n g that the p rog ram is work ing too we l l , that its bene f i c ia r ies a re not needy , a n d that fur ther re forms are not on ly u n n e c e s s a r y but u n w i s e . " 4 6 W h i l e legal a id impl ies p rocedu ra l jus t ice h a s b e e n ob ta ined , the representa t ion of " inel ig ib le or unpopu la r c l ien ts (groups, h o m o s e x u a l s , h ipp ies , rac ia l minor i t ies , a l iens) a re the n e c e s s a r y ' a b u s e s ' of lega l a id that demons t ra te that w e ' v e g o n e abou t a s far a s w e c a n g o . " 4 7 M e d i a reports e m p h a s i z i n g a link b e t w e e n lega l a id a n d , to u s e P i cke r i ng ' s te rm, "dev iant " re fugee identity, with the sw ind l ing i m a g e of l awyers a d d e d for g o o d m e a s u r e , therefore prov ide t hose " inel ig ib le" a n d "unpopu la r " c l ients , the " chea t s " a n d 4 5 Richard Abel, "Law Without Politics: Legal Aid Under Advanced Capitalism" (1984-1985) 32 UCLA L. Rev. 474 at 605. 46 Ibid. 47 Ibid, at 605-606. 121 " s c r o u n g e r s " that " a b u s e " the s y s t e m a n d supp l y the publ ic with the just i f icat ion to ca l l for re forms. T h e d e v e l o p m e n t of this dev ian t identity is d i s ce rnab le in the n e w s ar t ic les , in wh i ch re fugee c l a iman ts a re d e s c r i b e d a s " h a r d e n e d c r im ina ls " , " f raudulent", " s m u g g l e d " , a n d tu rned " l o o s e on a n u n s u s p e c t i n g popu la t ion" , wh i le lawyers are por t rayed a s mot iva ted ove rwhe lm ing l y b y ava r i ce , us ing lega l a id to " feather their own nest" , " lobby ing for m o r e money " , a n d m a k i n g " L e x i s l e a s e paymen ts " . T h r o u g h the in f luence of t h e s e m e d i a - g e n e r a t e d ident i t ies, lega l a id thus b e c o m e a l ightning rod of publ ic d i sapp rova l a n d ou t rage , a f lashpo in t of human i ta r ian ove r l oad , at wh i ch point the publ ic f ee l s legi t imately wa r ran ted in a n a c r o s s the boa rd b e n e v o l e n c e ro l lback. T h i s a s s o c i a t i o n b e t w e e n m e d i a e v o k e d ident i t ies, lega l a id a n d the ha rden ing of publ ic op in ion t owards re fugee de terminat ion p r o c e d u r e s a n d c l a iman ts ref lects the power fu l fo rce of " l a n g u a g e a n d s y m b o l i c represen ta t ions of a s y l u m s e e k e r s " in s h a p i n g pub l ic op in ion of r e fugees , a n d h o w the w a y in wh i ch a " re fugee story" is to ld " c a n have s igni f icant r e p e r c u s s i o n s for the r e c e p t i v e n e s s of hos t soc ie t i es to re fugees a s we l l a s to future po l icy o u t c o m e s . " 4 8 5.3 Legal Aid and the "Mundane Criminalization" of Refugees in the Press W h i l e the " re fugee story" to ld by the m e d i a involv ing the high c o s t s of lega l a id is no doubt suff ic ient to inst igate the pub l i c ' s suppor t of restr ict ive po l i c ies towards re fugee c l a iman ts , I w o u l d l ike to g o fur ther a n d exp lo re h o w lega l a i d is addi t ional ly imp l ica ted in the c rea t ion of a c r im ina l re fugee identity in day - to -day m e d i a report ing, a n opera t ion that P i c k e r i n g refers to a s the " m u n d a n e p r o c e s s of 4 8 Tazreiter, supra note 20 at 212, 219. c r im ina l i za t i on . " 4 9 A g a i n , I a rgue that legal a id p lays a p ivotal role in this p r o c e s s , a s it is the lawyers that legal a id p rov ides that a re a pr inc ipa l s o u r c e of the conno ta t i ons that equa te r e fugees to c r im ina ls . In the brief a n d fo rmu la i c m e d i a repor t ing o n re fugee i s s u e s , l awyers a re the fami l iar f igure in the story, a n d thus b e c o m e the ma in a c c e s s point in h o w the pub l ic unde rs tands the lega l p r o c e s s in wh ich re fugee c l a iman ts are e n g a g e d . In th is, the " lawyer" identity, that is, nega t i ve c o n c e p t s su r round ing l awyers a n d what they d o , in t e rms of rep resen t ing c r im ina l l y a c c u s e d in a n adversa r ia l s y s t e m , a n d the v is ion of the se l f - se rv ing lawyer subver t ing the just ice s y s t e m , is a s s o c i a t e d with re fugee c l a iman ts . T h i s fur thers the c rea t ion of a cr imina l re fugee identity. F o r this a n a l y s i s , I r ev i ewed n e w s p a p e r s to r ies invo lv ing the t e rms " re fugee" a n d " lawyer" f rom D e c e m b e r 3 1 , 2 0 0 5 to Apr i l 1, 2 0 0 7 . W h a t I wan t to highl ight in t h e s e s tor ies is how the st ructure of the ar t ic les t h e m s e l v e s c rea te a link be tween lawyers , re fugee c l a iman ts a n d cr iminal i ty, a n d what they d o not s a y , a s m u c h a s what they d o , a l l o w s a n imag ina t i ve p r o c e s s of c r im ina l re fugee identi ty to occu r . T o prov ide a n i dea of the gene ra l tenor of t h e s e s tor ies , there w e r e 8 2 art ic le hits in total , 12 of wh i ch w e r e not spec i f i ca l l y on the top ic of r e fugees , a n d 15 w e r e s tor ies repr inted in add i t iona l n e w s p a p e r s . T h e total or ig inal ar t ic les for this per iod w a s therefore 5 5 . Of t h e s e , 4 1 , o r app rox ima te l y 7 5 pe r cen t , w e r e what I d e e m e d to b e negat ive , in that they expl ic i t ly men t i oned re fugees in c o n n e c t i o n with s o m e m a n n e r of c r imina l activi ty. T h e rema in ing 14 of the s tor ies h a d a pos i t ive , or non-c r im ina l , Pickering, supra note 22 at 22. 1 2 3 focus. Only one article during this period gave any portrayal of the difficulties refugees face in making an asylum claim. Although articles explaining why refugee claimants might typically need a lawyer in the usual process of making an asylum claim were virtually non-existent, the figure of the lawyer played a huge role in these articles. In the 55 total articles, 40 of them contained some type of lawyer statement. This statement most often entailed lawyers commenting on their client's case , in terms of legal defenses, but also frequently included comments on the emotional state of clients, explanations of legal tactics, immigration law, and the implications of judicial rulings. In almost 30 per cent of the articles, the lawyer statement occurred in the initial portion of the article: eight lawyer statements were in the first sentence, four in the second, and four were in the third to fifth. The majority of articles either concerned refugees in the process of making a contested the asylum claim, fighting deportation, or accepted refugees subsequently involved in criminal proceedings. The following are excerpts from typical articles, demonstrating this structure and content. I have condensed the articles to highlight the refugee issue and the lawyer statement: "Fugitives from China preparing refugee bid" The Globe and Mail, March 10, 2007 Two fugitive brothers who have been hiding out in Vancouver since late 2004 to avoid facing charges of embezzlement in Ch ina are making claims to stay in Canada as refugees, a process that will delay for months an attempt by Chinese authorities to force their return. Although they have already been declared ineligible by Citizenship and Immigration to make a refugee claim, Li Dongzhe, 40, and Li Donghu, 38, are applying for a judicial review of that ruling. Their lawyer, Christopher Elgin, said his application in Federal Court next week will detail the reasons why the Li brothers should be eligible as refugee claimants. He did not elaborate. "My clients are fine and they are looking forward to actually having an opportunity to make refugee claims as 124 they are allowed," Mr. Elgin said. "Canada to deport baby once mother gets out of jail" The Globe and Mail, March 24, 2007 Being born in Canada isn't likely to help the unborn child of a self-proclaimed Romanian Gypsy now serving time in an Alberta jail for stealing. . . . Although the Canadian Border Services Agency intends to seek a deportation order, the case could be delayed for some time. The group has sought refugee status on the basis of their Gypsy background, and any deportation order is subject to appeal. . . . Deporting the Canadian-born children of refugees is not out of the ordinary, said Calgary lawyer Stephen Jenuth, who has handled immigration cases before. "The Canadian child does have a right to stay in Canada , but the trick is you would almost have to set it up with a friend who is willing to be guardian," said Mr. Jenuth, who is also president of the Alberta Civil Liberties Associat ion. 5 1 "Mother charged in death will likely argue self-defence" Calgary Herald, March 7, 2007 Aset Magomadova's lawyer will argue self-defence to explain the death of her teenage daughter, he said outside court after the handicapped single mom made a brief appearance on a second-degree murder charge Tuesday. . . . Tyndale said his client is the perfect candidate for bail, despite the serious allegations. She is in Canada as a Chechen refugee, is disabled, has no resources, has her son here and "has nowhere else to go," he exp la ined. 5 2 "Man held without charges granted bail; Free terror suspect, judge orders" Toronto Star, March 7, 2007 Toronto terrorism suspect Mahmoud Jabal lah will be released on strict bail conditions after more than five years in jail without charges, despite government protests he remains a danger to Canada . . . . The 44- year-old Egyptian refugee had previously spent more than four years in a Toronto jail, often in segregation "I think (Jaballah's release) places Canada on the high ground in dealing with issues of national security. Along with the other decisions that have come out over the last couple weeks we are setting an 5 0 Petti Fong, "Fugitives from China preparing refugee bid" The Globe and Mail (10 March 2007) S1. 5 1 "Canada to deport baby once mother gets out of jail" The Globe and Mail (24 March 24 2007) A14. 5 2 Kim Bradley, "Mother charged in death will likely argue self-defence" Calgary Herald (7 March 2007) B7. 125 example that we should all be very proud of," said Jaballah's lawyer John Norris yesterday. 5 3 "Court upholds decision to deport gang enforcer: In a test of immigration law, judge rules that Ottawa can determine risk of harm refugee faces in being sent from Canada" Toronto Star, March 1, 2007 The government's decision to deport a reputed gang enforcer to Sri Lanka has been upheld by the federal court in a case testing Canada 's use of immigration law to banish street gang members. . . . Queen's law professor Sharryn Aiken said yesterday she was disappointed by the ruling and supports the argument by Nagalingam's lawyers that the Immigration and Refugee Board should assess if the political conditions in a country impacted a refugee's status. . . . "It's not to say everybody gets to stay in Canada . But it is to say that using (the immigration section relied on) to fast-track a deportation scheme I think violates both the spirit and the letter of the refugee convent ion." 5 4 What can be seen in these articles is not only that there is a high prevalence of stories in that link criminality and refugees together, but also that there is a lack of depictions of the personal situation of refugees, their experiences as asylum-seekers, the procedures of determination proceedings, or why claimants might need a lawyer in the day-to-day processes of refugee claims. The overwhelming percentage of refugee claimants do not engage legal counsel because they are suspected terrorists, murderers, embezzlers, or thieves, but because they do not speak the language, have no understanding of the legal system, or, in many cases , are traumatized by past events. As Dauvergne notes, the confidential refugee determination process is "hidden" from the public view; while this protects the privacy of the claimants, it also "preserves the unknown otherness of the claimants 5 3 Michelle Shephard, "Man held without charges granted bail; Free terror suspect, judge orders" Toronto Star (7 March 2007) A1. 5 4 Michelle Shephard, "Court upholds decision to deport gang enforcer: In a test of immigration law, judge rules that Ottawa can determine risk of harm refugee faces in being sent from Canada" Toronto Star(1 March 2007) A12. 126 in the collective public imagination - leaves space to imagine, alternately, the horrors they have faced or the lies they are tel l ing." 5 5 Media stories that leave out the circumstances of normal determination processes, and the personal details of refugees' lives, augment the "unknown" of refugee, again leaving the public to its own imaginative devices. The identity of "refugee" to be filled with the public's imaginative creations is then open to be filled with the two identities provided in these articles: the criminal and the lawyer. Unlike the reality of most refugee determination hearings, the preponderance of stories making a connection between criminality, refugees and lawyers creates an implication that for a refugee to have legal counsel means that they are accused or suspected of criminality. The prominence of the lawyer in these articles assists in this association of refugee as criminally accused because the identity of lawyer as criminal defense is one well known to the public. In contrast to the mystery of legal counsel representing refugees in tribunal hearings, the lawyer as the defender in criminal court cases is part of the public's daily life, constantly depicted in the news, in television programming, movies, and literature. It is understandable, then, with these limited news articles as background, that the figure of the lawyer conjures up images of the clients with which the public associates them most. The identity of lawyer is transferred to the refugee because lawyers are positioned as the primary entrance point into the stories, the one human voice that speaks and begins the tale. Rarely in these articles do the refugees speak for themselves, but rather it is the lawyer who is their stand-in, an alter ego that speaks Dauvergne, supra note 9 at 218. 127 for them. Lawyers thus play a pivotal, albeit unintended, role in the creation of a criminal refugee identity because they are the people the public knows, or, at least, thinks they know. Unlike refugees, who are largely unknown to us, a situation little helped by media reports, lawyers are a recognizable character, a stable identity, created and confined by the legitimacy of the law. Also, as the news articles in the previous section of this chapter showed, a significant part of the perceived identity of "lawyer" is an insatiable avarice, and the will ingness to use unscrupulous means to obtain desired goals. So , into the void of refugee identity steps not only the criminal, but also the lawyer, along with all the undesirable connotations that entails. Pickering captures this particular transference well, writing that in "representations of refugees, knowledge and language of the law has often been mediated by the lawyer". 5 6 Pickering further asserts that: The role of the lawyer has been integral to positioning access to the courts and international mechanisms as deviant. It has been represented as another way that the Australian public is victimised by predatory lawyers. In particular, lawyers have been widely considered as colluding in the 'abuse' of the court system and this has consistently been couched in terms of financial cos t . 5 7 The lawyers in the above stories are pictured engaging in all those 'predatory' and 'manipulative' tactics that caused such outrage in the immediate post-September 11 commentary: 'abusing' the system by launching costly, and apparently unmeritorious appeals, while their 'criminal' clients stay in Canada ; finding "tricks" to undermine the system of criminal refugee deportation through "loopholes" in the law; and arguing 5 6 Pickering, supra note 22 at 44. 57 Ibid. 128 defenses that protect the safety of their potentially dangerous clients over that of the Canadian public. On this last point, to follow Pickering again, I suggest a binary is also built in these stories between lawyers and human rights on one side, and the Canadian government and public safety on the other. This is the "high ground" of Constitutional protections versus the immigration law that would keep threats to national security in detention, the "spirit and the letter of the refugee convention" as opposed to laws that would deport gang members. As I have covered, the conflict between rights and societal security is an uncomfortable one, which, by my own argument, legal aid is meant to resolve. However, again, media depictions that closely link refugees, criminals and rapacious lawyers create that legitimacy flashpoint, where the public feels justified in restricting a system 'working too well', and fosters demands for more restrictive controls on refugee claimants and legal assistance. The use made of legal aid and lawyers in news reports can therefore warp the positive effect of legal aid for refugee claimants, subtly contributing to, and legitimating, public support for securitized asylum policies. The explicit connection made in the media between legal aid, the illegitimacy of refugee claimants and the costly exploitation of the refugee determination system, perpetuated by articles that continue to evoke the negatively conceived identities of "criminal" and "lawyer" in association with asylum applicants, creates a situation in which legal aid begets public indignation and unease directed towards asylum seekers. This effect illustrates the complex interaction between law and legal mechanisms and society. 129 L e g a l a id , a s e m b o d y i n g v a l u e s c h e r i s h e d by soc ie t y - human i ta r ian generos i t y , f a i rness , a n d equal i ty - p r o v o k e s a n d re in forces s t rongly felt i m p r e s s i o n s of o u r s e l v e s a n d o thers . It at o n c e c rea tes an identity for t hose w h o g ive lega l a id a s legi t imately g o o d , a n d t h o s e w h o a b u s e it a s pro found ly b a d , just i f iably d e s e r v i n g of soc ie t y ' s c e n s u r e . It a l s o s h o w s the p o w e r a n d p e r v a s i v e n e s s of legal ident i t ies in publ ic c o n s c i o u s n e s s , a n d , o n c e s u c h a n identity is at t r ibuted to ind iv idua ls , h o w difficult t h e s e p r e c o n c e i v e d c o n c e p t i o n s c a n be to d i spe l a n d the se r i ous r e p e r c u s s i o n s they c a n h a v e . R a t h e r than be ing who l ly a benef i t to a s y l u m s e e k e r s , the cr iminal i ty a n d explo i ta t ion built into the identity of the re fugee a s a recip ient of legal a id he lps to c rea te the pub l ic f ea r a n d ou t rage n e e d e d for suppor t of r ep ress i ve a n d puni t ive a s y l u m po l i c ies , a s wel l a s reduc t ions in legal a id s p e n d i n g . T h i s a l l ows a conven ien t con ta inment of lega l a id expend i tu res to l imits just a d e q u a t e to e v o k e leg i t imacy. T h i s image of lega l a id a s a n icon of leg i t imacy wi thout a d e q u a t e s u b s t a n c e will be the sub jec t of m y next chap te r . 130 CHAPTER SIX The Canadian Refugee Legal Aid System: Legitimacy and Control Having looked at the indirect consequences of legal aid in promoting securitized and criminalized asylum policies in previous chapters, in this chapter I will detail the immediate effect of refugee legal aid in Canada . This is in part a continuation of my arguments that, while necessary, legal aid is an inadequate justice response to asylum seekers, and that it also functions as an integral legitimation of procedural mechanisms, conversely assisting in the restriction of asylum claims. Expanding these concepts, I will suggest further inadequacies of reducing the fair treatment of refugees to procedural justice, as the procedure provided by legal aid may not be that just. Although the refugee legal aid system in Canada appears to be adequate, as the majority of claimants have legal assistance, a detailed examination of that coverage reveals superficiality behind the apparent abundance. The insufficiency of the assistance afforded is compounded, when, as my research will suggest, legal assistance has a considerable impact on the likelihood of positive claim determinations. In this, I will look more specifically at how the Canadian system for refugee legal aid balances legitimacy and control. In this chapter, I will first detail the asserted need for legal aid for refugee claimants, and then show how legal assistance is positively related to approved asylum claims. I will then illustrate the number of claimants without legal assistance and how this may be related to funding and coverage inadequacies. Last, I will discuss how these inadequacies contribute to the control of positive refugee claims in Canada . 131 6.1 The Need for Refugee Legal A id It is often asserted that refugees are among the most vulnerable people engaged with Canada 's justice system, and, as such, the provision of free legal assistance to asylum seekers is a vital component of the legitimacy of refugee determination procedures. The vulnerability of refugees stems from their very situation as those seeking asylum. That is to say, for the majority of people making asylum claims in Canada, it was not a long-planned or desired event. There was no time, in their haste to flee persecution, to learn one of Canada 's official languages, or brush up on this country's legal system, seek counsell ing for the trauma they have suffered, or the opportunity to clear their minds so their stories emerge calm, cogent and believable. There was also, most likely, no time to save the thousands of dollars it costs in Canada to hire legal counsel to help them navigate the immigration law and procedures to which they are subject. Not all refugee claimants are in this situation. Some refugees are rich; some have a command of a multitude of languages, English and French included; some do not fear the adjudicators and immigration officers of the determination tribunal: but many more are poor and frightened and bewildered. For all these reasons, it is widely stated that complying with immigration procedures and appearing before the determination tribunal can be a significant struggle for asylum claimants; given the serious potential consequences, it is, therefore, seen as a necessary that refugees have the ability to access legal assistance and representation for the process to be fair and just. A recent study report compiled for the Canadian Department of Justice affirms that all participants in the refugee claim process, including representatives from non-government organizations that serve refugees, immigration officers, tribunal 132 members and Citizenship and Immigration Canada managers, generally agree that legal assistance is essential at various stages in the determination process. 1 This belief in the necessity of legal counsel for refugees has inevitably led to calls for greater funding for legal aid services to meet the demands of asylum seekers in need. 6.2 Correlat ions between Legal Ass is tance and Refugee Tribunal Determinations While the anecdotal evidence of the pressing need for refugee legal aid is compelling, there has not been a major statistical study to support this sentiment showing a significant positive correlation between legal representation and refugee acceptance rates in Canada . Although it may seem self-evident that these two factors would be positively related, a Department of Justice Canada study from 2 0 0 2 found that unrepresented adults appearing in provincial criminal courts were not more likely to be convicted than those who had legal counse l . 2 This is admittedly an extreme simplification of the full findings of this report, and a very different set of circumstances from refugee tribunal proceedings, but it did raise questions as to the efficacy of increased refugee legal aid expenditures. However, statistical data obtained from the Canadian Immigration and Refugee Board through the Access to Information Act does confirm that refugees with legal assistance have a greater chance of having their claims approved by the 1 See generally John Frecker, etal., Representation for Immigrants and Refugee Claimants. Department of Justice Study Report. (Ottawa: Minister of Public Works and Government Services, 2002), especially para. 3.2. 2 Robert G. Hann, et al., Court Site Study of Adult Unrepresented Accused in the Provincial Criminal Courts: Pad 1: Overview Report (Ottawa: Department of Justice Canada, 2002) at 28. 133 Refugee Protection Division (RPD) . 3 The following tables provide a national breakdown of claims finalized and approved by the R P D in 2004 and 2005, indicating the percentage of principal claimants with legal assistance who received a positive determination, as compared to those that did not have counsel. Table 6.1: Approved Cla ims by Legal Ass is tance Status: A s Percentage of Total Approved Nationally 4 National Claims Finalized Claims Approved Approved with Legal Representation Approved without Legal Representation 2004 Total Claims by R P D 22900 10546 10398 148 Percentage 4 6 % 9 8 % 2 % 2005 Total Claims by R P D 15685 7806 7685 121 Percentage 5 0 % 98% 2 % 3 The data used in these tables was obtained from the Immigration and Refugee Board by request through the Access to Information Act (R.S., 1985, c. A-1). Data was collected from the Immigration and Refugee Board database for the years 2004 and 2005, received April 6, 2006, and February 28, 2007, indicating the numbers of principal claims accepted and rejected, where the counsel "flag" for the claim record indicated "yes". While the IRB was most accommodating in providing statistical information, there are several limitations in their data collection methods that make certain definitive statements impossible. For example, it is not possible to say whether the "yes" value in the counsel flag field means that counsel was actually present at the hearing, only that the services of a counsel was retained at some point in the process. However, at least in those cases where the claimants were using legal aid services, it seems relatively safe to say that counsel would usually be present at the hearing as most provincial plans provide for this service. Nevertheless, I will use the more generic term "legal assistance" rather than "representation" to provide for this uncertainty. 4 These figures have been adjusted to subtract claims that were subsequently abandoned, withdrawn, or otherwise resolved, and therefore represent only those finalized that received a positive or negative determination. 134 Table 6.2: Cla ims by Legal Ass is tance Status: Percentage Approved by Status National Total Claims with Legal Total Claims without Legal Assistance Assistance 2004 21613 1287 Approved 10398 148 Percentage 4 8 % 12% 2005 14894 791 Approved 7685 121 Percentage 5 2 % 15% As the above figures illustrate, claimants with legal assistance were consistently far more likely to have their claim accepted than those without legal help, who remained at an acceptance rate of under 20 per cent. This relationship between legal assistance and positive claim approval in Canada is supported by U.S. statistics that show a similar, if more pronounced, connection between legal counsel and approved claims before determination tribunals. 5 These results were fairly uniform in the different determination centres across the country, with some yearly and regional variation, as shown in the table below. 5 Donald Kerwin, "Revisiting the Need for Appointed Counsel" (2005) 4 Migration Policy Institute Insight at 6. In non-detention political asylum cases, 39 per cent of those represented received asylum, while only 14 per cent of unrepresented claimants were successful. With detained claimants, 18 per cent of those represented received asylum, as compared to only three per cent of those without counsel. Most staggering is the disparity between asylum claimants subject to expedited removal procedures: 25 per cent with representation received asylum, while only two per cent of unrepresented claimants were granted asylum in their claims. 135 Table 6.3: Approved C la ims by Legal Ass is tance Status: Total Approved Regionally Regional Claims Finalized Claims Approved # of Approved with Legal Assistance # of Approved without Legal Assistance 2004 Claims by R P D Vancouver 1133 395 383 (97%) 12 (3%) Calgary 675 228 227 (99%) 1 (1%) Toronto 14007 6646 6545(98%) 101 (2%) Ottawa/Atlantic 804 458 452 (98%) 6 (2%) Montreal 6279 2817 2791 (99%) 26(1%) 2005 Claims by R P D Vancouver 717 260 249 (96%) 11 (4%) Calgary 509 189 186 (98%) 3 (2%) Toronto 9509 4842 4778 (98%) 64 (2%) Ottawa/Atlantic 473 312 305 (97%) 7 (3%) Montreal 4477 2203 2167 (98%) 36 (2%) There was also a significant correlation between initially lodged refugee claims that did not receive a positive or negative determination, that is, those that were subsequently deemed abandoned, withdrawn, or resolved in some other manner, and claimants that did not receive legal assistance. As the table below illustrates, although claimants without legal assistance made up only 45 per cent overall of claims with this result, 59 percent of the total claimants without legal assistance subsequently abandoned, withdrew, or otherwise resolved their claims, as compared to only eight per cent of those with legal assistance. This indicates that having legal assistance does not only mean a better chance of a positive determination for refugee claimants, but a far greater likelihood of ever proceeding before the tribunal. 136 Table 6.4: C la ims Abandoned/Withdrawn or Otherwise Resolved: By Legal Ass is tance Status 6 National Claimants with Legal Assistance Claimants without Legal Assistance 2005 Claims Abandoned/ Withdrawn or Otherwise Resolved 2603 1450 1153 Percentage of Overall A /W/OR 5 5 % 4 5 % Percentage by Legal Ass is tance Status 8% 5 9 % Of course, there are other conceivable reasons why claimants achieved a lower level of positive determinations, or a greater measure of abandoned/withdrawn claims apart from the variable of legal assistance. One obvious possibility is that the claims simply had less merit. A s covered earlier, legal aid plans in Canada apply a merit test to all refugee applicants; the lack of legal counsel could then suggest that these claims had been vetted by legal aid service providers, deemed unlikely to succeed and thus ineligible for legal assistance. An interesting aspect of this possibility is the fact that between 12 and 15 per cent of the claimants were subsequently approved could indicate that merit screening is hardly foolproof. Overall, the total percentage of claimants that received legal assistance prior to their hearings before the R P D was fairly high. Of the total claims finalized, which received a positive or negative determination, 89 per cent had legal assistance. 6 Data obtained from the Canadian Immigration and Refugee Board, indicating principal claims Abandoned/Withdrawn, where counsel flag field indicated "yes", printed February 26, 2007 137 The following table shows the national rates for claimants with and without legal assistance, as a percentage of the total finalized claims. Table 6.5: Claimants by Legal Ass is tance Status: Percentage of Total C la ims National Claimants with Legal Assistance Claimants without Legal Assistance 2005 Total Claims Finalized 18288 16344 1944 Percentage of Overall C la ims 8 9 % 1 1 % 2004 Total Claims Finalized 27073 23974 3099 Percentage of Overall C la ims 8 9 % 1 1 % While the majority of claimants did receive legal assistance, this still leaves over 10 per cent of claimants before the R P D in 2004 and 2005 without legal advice or representation. Considering, as the statistics above have shown, legal assistance is strongly related to positive determinations, this is a concerning figure, particularly in view of what is at stake for asylum applicants. It is difficult to say with certainty why this number of claimants would have no legal assistance. A certain number may possibly decide they are sufficiently able to represent themselves. Others are no doubt screened out by legal aid merit testing, as mentioned, as well as means testing. Those in the latter group may still find themselves unable to pay for legal assistance. Legal aid may also may not have been available: regionally, the highest percentage of claimants without legal assistance in 2005 were at the Vancouver tribunal, with 15 per cent not indicating legal assistance. This was followed by 138 Ottawa/Atlantic, with eight per cent, and Toronto, with six per cent of claimants without legal assistance. Both British Columbia and Ontario are provinces that have been in a legal aid 'crisis' in recent years, experiencing budgetary cutbacks and stagnating lawyer remuneration. Of the Atlantic provinces, as we have seen, Nova Scot ia, New Brunswick and Prince Edward Island do not have specific legal aid provisions for refugees. Based on this relationship between provinces with no refugee legal aid, or those experiencing legal aid reductions, it seems highly probable that that the reason why claimants proceed before the R P D without legal advice is inadequate legal aid availability. Availability is directly related to legal aid funding, in which budget restrictions can translate to increased stringency in means and merit testing. For example, to use British Columbia as representative of the situation, the projected funding for legal aid services in respect of immigration and refugee matters for 2005 to 2008 was $1.7 million per year, the same as the amount allotted for 2004/2005. 7 This is significantly less than the $4.9 million allotted for these services in 2002/2003. 8 Funding restraints have meant financial eligibility guidelines for refugee legal representation have also seen little growth. In 2000/2001 the monthly income limit to qualify for legal aid was $1,002 for a single person, with a $2,000 personal asset exemption. 9 In 2005/2006 the limit was raised slightly to $1,349, which still 7 Memorandum of Understanding 2005-2008 between Her Majesty the Queen in Right of the Province of British Columbia (Attorney General) and The Legal Services Society (1 April 2005) at 22. 8 Legal Services Society British Columbia, News Release/Backgrounder, "Funding for Immigration Services" (5 February 2004). 9 Social Planning and Research Council of B.C., An Analysis of Immigration and Refugee Law Services in Canada (Ottawa: Department of Justice Canada, 2005) at 22. 139 represents an extremely limited basel ine. 1 0 Merit testing is not something discussed in detail in information available from British Columbia Legal Serv ices Society; however, the overall number of applications referred for legal services has fallen since 2003/2004, which represents a combination of both means and merits reasons. That year, 85 per cent of applications were referred; in 2004/2005, the percentage was 74; in 2005/2006, the number was 80 per cent. 1 1 To give some idea of expenditures, the tariffs paid to lawyers for immigration and refugee services in 1994/1995 were $4,039,172: in 2005/2006: $1,047,402. 1 2 However, this reduction in expenditures also reflects a decrease in legal assistance applications. In British Columbia in 1994/1995 there were 2,958 applications for immigration and refugee related services; in 2005/2006: 1,034. 1 3 However, it is not just means and merits restrictions that screen out refugee claimants that are of concern, but the also the quality and quantity of legal services for those claimants granted legal aid. Although the provision of legal services to refugees seems fairly comprehensive across Canada , the time allowed for these services by legal aid can be quite limited, particularly for preparatory work. The following table compares the time limits in British Columbia, Ontario and Alberta. 1 0 Legal Services Society British Columbia, "Financial Guidelines for Legal Representation"(Vancouver: Legal Services Society British Columbia, 2006), online: LSS <http://www.lss.bc.ca/legal_aid/financiaLguidelines.asp>. 1 1 Legal Services Society British Columbia, Annual Service Plan Report 2005/2006 (Vancouver: LSS, 2006), at 60. 12 Ibid, at 34; Legal Services Society British Columbia, Annual Report 1995/1996 (Vancouver: Legal Services Society British Columbia,1996) at 24. 13 Ibid. 2005/2006 at 60. 140 Table 6.6: Maximum Time Limits Payable for Legal Ass is tance Preparation for RPD Hearing Attendance at RPD Hearing Preparation for Judicial Reviews in the Federal Court (Trial Division) Submissions to Canada Immigration Bri t ish C o l u m b i a 2 0 h o u r s 1 4 A c t u a l T i m e 31 hours 5 H o u r s Onta r io 16 h o u r s 1 5 Ac tua l T i m e 2 7 H o u r s 10 hou rs A lbe r t a 2 5 H o u r s 1 B Ac tua l T i m e 30 H o u r s Not s p e c i f i e d 1 ' Ta r i f f - based t ime l imits h a v e b e e n a c a u s e of great cons te rna t i on , a n d a re w ide ly v i e w e d a s a n imped imen t to prov id ing qual i ty s e r v i c e s to re fugee c l ients . T h e S o c i a l P l a n n i n g a n d R e s e a r c h C o u n c i l of B . C s tudy on re fugee lega l a id in C a n a d a re fe rences a representa t ive of the immigrat ion s u b s e c t i o n of the C a n a d i a n B a r A s s o c i a t i o n in the op in ion that tar i f f -based t ime l imits " p o s e a n o b s t a c l e " for re fugee lawyers , a n d that the " c o v e r a g e ava i lab le within this s t ructure is b a s i c at b e s t . " 1 8 In that responden t ' s v iew, "mos t l awyers wou ld a g r e e that current tariff l eve ls a n d hours are insuff ic ient to p rov ide qual i ty s e r v i c e s to r e f u g e e s " . 1 9 A s be fo re , th is is a n e c d o t a l e v i d e n c e a n d i ndependen t proof of p r o b l e m s with t ime l imits is difficult to LSS, Guide to Legal Aid Tariffs, "Immigration Tariff" at 2-8, online: LSS <http://www.lss.bc.ca/for_lawyers/tariff_guide.asp>. Includes interviewing the client, taking instructions, attending interviews with the client and Canada Immigration, and completing the Personal Information Form (PIF), as well as all other preparatory work such as preparation regarding witnesses, including experts and expert reports, obtaining documents, legal research. 1 5 Legal Aid Ontario, Tariff and Billing Handbook, online: LAO < http://www.legalaid.on.ca/en/>. This time limit is applicable where the application is from a country for which the success rate of applications for refugee status does not exceed 90 per cent; otherwise, the time limit is 10 hours. 1 6 Legal Aid Alberta, The Legal Aid Handbook, at 16, online: LAA < http://www.legalaid.ab.ca/>. Legal Aid Alberta does not specifically list tariff-based time limits for refugee cases. The figures given here and for judicial review are based on Basic Civil Coverage. 1 7 Legal Aid Alberta indicates that it does provide this service, but a time limit was not given. 1 8 Social Planning and Research Council of B.C., supra note 9 at 19, 25. ™ Ibid, at 19. 141 find. However, these views do gain support from a government of Ontario Civil Justice Review that estimated 5.4 hours of preparatory work per hour spent in court for an average civil t r ia l . 2 0 Working from the average length of a refugee tribunal hearing, which is 3.5 hours, 2 1 it is possible to see that only at the maximum amount payable in British Columbia, and possibly Alberta, for preparatory work - 20 hours -would this be an equivalent amount of time to the civil trial estimate. To illustrate, 20 hours of preparatory work per a 3.5 hour hearing would equal 5.7 hours of preparation, slightly above the civil trial estimate. For Ontario, the maximum preparation time of 16 hours would yield 4.8 hours of preparatory work per 3.5 hour hearing, less than the estimate. For hearings above 3.5 hours in length, presumably those with more complex issues or other difficulties, the time allowed for preparation falls well below the Civil Trial estimate: for a four-hour hearing in British Columbia, five hours of preparation per hour spent in court would be the standard, while in Ontario, four hours of preparation per hour would be payable. This juxtaposition is offered with the knowledge that regular civil trials and refugee tribunal hearings are not ideally comparable. In particular, refugee determination hearings have relaxed procedural rules of evidence that would suggest that less preparatory work is required in comparison to a regular civil trial; on the other hand, determination hearings have their own unique challenges, including clients with language barriers and psychological trauma, as well as the difficultly of obtaining overseas 2 0 Ontario. Civil Justice Review 1995, "Cost ot the Civil Justice System" at Table 3, online: <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjr/>. The Table indicated that 161 hours of preparatory work would go into a three day trial, with an average of 10 hours a day of trial time. 2 1 John Frecker, Immigration and Refugee Legal Aid Cost Drivers. Department of Justice Study Report. (Ottawa: Minister of Public Works and Government Services, 2002). 3.5 hours for RPD hearing (national average) March 2001 - February 2002. 142 documen ta t i on a n d w i t ness reports. N e v e r t h e l e s s , the c o m p a r i s o n d o e s lend credibi l i ty to the c o n c e r n s e x p r e s s e d by re fugee lawyers , a n d ind icate that the tariff-b a s e d t ime limits for re fugee c a s e s cou ld p o s e dif f icult ies in te rms of a d e q u a t e p repara t ion . Add i t iona l ly , f e e s pa id for legal a id s e r v i c e s a re a s igni f icant i s s u e . R e m u n e r a t i o n for l awyer ' s s e r v i c e s h a s hard ly b u d g e d in the pas t ten y e a r s : in 1 9 9 5 / 1 9 9 6 , the top tariff a m o u n t in Br i t ish C o l u m b i a w a s 8 0 do l la rs per hour ; in 2 0 0 5 / 2 0 0 6 , it w a s 8 8 d o l l a r s . 2 2 T h i s h a s unde rs tandab l y c r e a t e d i s s u e s with attract ing a n d reta in ing sk i l led c o u n s e l for legal a id f u n d e d re fugee mat ters . T a k e n together , the ef fects of l imited fund ing - unava i l ab le legal a id s e r v i c e s , s t r ingent m e a n s a n d mer i ts tes ts , a n d restr ic ted tar i f f -based t ime l imits a n d remunera t ion -p o s e a subs tan t ia l barr ier to re fugee c la iman ts s e e k i n g lega l a s s i s t a n c e with their c l a i m . 6.3 Legit imacy without Substance in Refugee Legal A id T o aga in c o n s i d e r the impact that lega l a s s i s t a n c e a p p e a r s to have on pos i t ive de te rmina t ions , the barr iers f ac ing re fugee c l a iman t s r educe the overa l l leg i t imacy of legal a id a s a just ice r e s p o n s e to a s y l u m c la iman ts . E v e n d i s rega rd ing the fact that legal a id d o e s not a d d r e s s the larger subs tan t i ve i s s u e s su r round ing a s y l u m , the i n a d e q u a c i e s of the lega l a id s y s t e m in C a n a d a m e a n that it fa i ls to br ing suff ic ient equ i l ib r ium to secur i t i zed a s y l u m po l i c ies . O n e p o s s i b l e c h a l l e n g e to the a rgumen t that legal a id wo rks to legi t imate the secur i t i za t ion of a s y l u m is that 22 Supra note 12. at 24; supra note 11 at 56. However, in 2005/2006 the LSS did cease the procedure of "holdbacks", in which a percentage of the tariff to be paid to counsel was deducted off the top, to be paid back if LSS finances allowed at the end of the year. In 1994/1995 the holdback was 12 per cent. 1 4 3 lega l a s s i s t a n c e actually does b a l a n c e restr ict ive a n d c r im ina l i zed a s y l u m po l i c ies . It cou ld be poss ib l e to s u g g e s t that i n c r e a s e d a c c e s s to jus t ice a n d d u e p r o c e s s pro tec t ions are a s m u c h a he lp to a s y l u m s e e k e r s a s restr ict ive a n d puni t ive po l i c ies are a h ind rance ; the re la t ionsh ip of leg i t imacy b e t w e e n the two cou ld then be s e e n a s va l id . H o w e v e r , m e a g r e fund ing for re fugee legal a i d , lead ing to insuff ic ient c o v e r a g e , be l ies this s u g g e s t i o n . T h e ove r 10 per cent of re fugee c l a iman ts p r o c e e d i n g before the R D T without lega l a s s i s t a n c e , a s wel l a s the min ima l t ime al lot ted for t hose that do rece i ve lega l a i d , demons t ra te that lega l a id is i nadequa te to ful ly supp l y p rocedura l jus t ice s a f e g u a r d s , e v e n for t hose f ew for tunate e n o u g h to arr ive in C a n a d a . T h e recent federa l gove rnmen t cos t - sha r i ng ini t iat ives to fund re fugee legal a id h a v e , in actual i ty, d o n e little to improve the c i r c u m s t a n c e s of re fugee c la iman ts s e e k i n g lega l a s s i s t a n c e , a s is ev iden t in the negl ig ib le d i f fe rence f rom 2 0 0 4 to 2 0 0 5 in u n a s s i s t e d c l a iman ts . A s s u c h , whi le fede ra l g o v e r n m e n t fund ing g u a r a n t e e s in this a r e a e v i n c e a commi tmen t to p rocedu ra l jus t ice for re fugee c l a iman ts , the con t i nued i n a d e q u a c y of legal a id c o v e r a g e ind ica tes that commi tmen t is s o m e w h a t sha l l ow . T h e reality of unsat is fac tory lega l a s s i s t a n c e p rov i s ions s h o w s h o w lega l a id c a n funct ion to main ta in an a u r a of leg i t imacy in the p rocedura l jus t ice a f fo rded re fugees , whi le still work ing to k e e p t h o s e s a f e g u a r d s to a bare m i n i m u m , wh i ch thus suppor t the overa l l secur i t i za t ion a g e n d a . A g a i n , it is the mul t ip le a n d cont rad ic tory func t ions of lega l a id that c a n be s e e n in the l imited fund ing m a d e ava i lab le for re fugee c la iman t lega l a s s i s t a n c e . A l t hough , a s the stat is t ics in this chap te r demons t ra te , lega l a id m a k e s a s ign i f icant d i f fe rence to the o u t c o m e s of re fugee c l a iman ts , a n d thus d o e s funct ion to suppor t 144 the g o a l s of p rocedu ra l jus t ice, equal i ty a n d human i ta r ian generos i t y , the tightly restr ic ted limits of lega l a id expend i t u res m e a n s that it a l s o func t ions a s a contro l o n posi t ive de te rmina t ions . Not al l re fugee c la iman ts will be e l ig ib le to rece ive the l imited legal a id fund ing ava i l ab le , a n d t hose that a re e l ig ib le will h a v e the d e v e l o p m e n t of their c l a ims con f i ned by low tariff t ime l imits. If, a s the stat is t ics s h o w n here sugges t , there is a posi t ive cor re la t ion b e t w e e n lega l representa t ion a n d a c c e p t e d c l a i m s , the l imits p l a c e d on re fugee lega l a id will cer ta in ly result in f ewer c l a iman ts rece iv ing a s y l u m s ta tus . In th is, the b a l a n c e st ruck by the state b e t w e e n leg i t imacy a n d contro l in the prov is ion of re fugee lega l a id is apparen t . T h e large s c a l e , federa l l y - funded legal a id s y s t e m d e m o n s t r a t e s the leg i t imacy of the s ta te 's t reatment of re fugee c l a iman ts , whi le restr ic ted expend i t u res ope ra te a s a n important contro l m e c h a n i s m . T h i s contro l cont r ibu tes to the g o a l s of both s tate a n d soc ie ta l secur i ty , by cu rb ing the influx of a s y l u m s e e k e r s that represent , a s B u z a n , Waeve r a n d d e W i l d e sugges t , "ex is tent ia l th reats" to the state a n d the co l lec t ive identity of s o c i e t y . 2 3 L imi ta t ions on re fugee legal a id d i s b u r s e m e n t s a l s o sat is fy the publ ic des i re , a s w e h a v e s e e n in C h a p t e r F i v e , to cont ro l expend i tu res in this a r e a in r e s p o n s e to a p e r c e i v e d explo i ta t ion of the s y s t e m a n d bet raya l of C a n a d i a n s ' a l t ru ism by fa l se c l a iman ts a n d g r e e d y lawyers . T h e contro l funct ion c rea ted by l imited expend i t u res a n d avai labi l i ty is a w a y that a s y l u m legal a id w o r k s a s ano the r m e c h a n i s m that r e d u c e s the overa l l s u c c e s s f u l re fugee c l a i m s in C a n a d a , a n d thus o p e r a t e s in con junc t ion with secu r i t i zed po l i ces . In this a s p e c t , legal a id d o e s not j eopa rd i ze the secur i ty 2 3 Barry Buzan, Ole Waever & Jaap de Wilde, Security: A New Framework for Analysis (Boulder, Co. and London: Lynne Rienner, 1998) at 21-23. 145 a g e n d a s a s they relate to migra t ion , but is a n essen t i a l part of a s y s t e m that requ i res both leg i t imacy a n d cont ro l . A s I have s u g g e s t e d in p rev ious chap te rs , s ta te a n d soc ie ty h a v e c o m p e t i n g n e e d s a n d g o a l s w h e n it c o m e s to a s y l u m s e e k e r s : the n e e d to b e s e e n a s u p h o l d e r s of h u m a n rights a n d human i t a r i an i sm , a n d the goa l of protect ing their in terests - p h y s i c a l , soc i a l a n d f inanc ia l - by l imit ing a s y l u m c l a i m s . A n o t h e r a s p e c t of th is cont ro l func t ion , a s A b e l a r g u e s , is that legal a id o p e r a t e s to the benef i t of the state a s a n important appa ra tus of cos t -cont ro l in the m e c h a n i s m s of lega l jus t ice. L e g a l a s s i s t a n c e wo rks to m a k e the just ice s y s t e m more eff icient, a n d is therefore part of the m a c h i n e r y of the bureaucra t i c m a n a g e m e n t a n d regulat ion of s tate benef i ts . W h a t the s tate d e m a n d s is "ef f ic iency", the " lowest poss ib l e unit cos t per c a s e " 2 4 , a n d legal a id a s s i s t s in this goa l . J u s t a s the c r im ina l just ice s y s t e m benef i ts f rom legal representa t ion b e c a u s e it is "far e a s i e r to p r o c e s s " a c c u s e d w h o a re rep resen ted by c o u n s e l , s o " lega l a id l awyers w e e d out unqua l i f ied we l fa re c l a iman ts , remons t ra te with t hose w h o c a u s e t rouble, a n d get all the p a p e r s in o r d e r . " 2 5 A s s u c h , legal a id d o e s not " th reaten" the b u r e a u c r a c y , but b e c o m e s a n " i n d i s p e n s a b l e ad junc t " . 2 6 In the context of re fugee c l a iman ts , lega l a id se rv i ce p rov iders a n d l awyers fu rn ish th is s a m e e s s e n t i a l p u r p o s e . T h o s e with c l a i m s d e e m e d without merit, or with m e a n s , a re b l o c k e d f rom a c c e s s i n g lega l a s s i s t a n c e , a n d thus d i s c o u r a g e d f rom p r o c e e d i n g before the re fugee de terminat ion t r ibunal . L e g a l a id l awyers a re f o r ced by low tariff t ime a l lo tments a n d rates to cu rb the Legal Aid Under Advanced Capitalism" (1984-1985) 32 UCLA L. Rev. 474 146 2 4 Richard Abel, "Law Without Politics: at 595. 26 Ibid. 26 Ibid. development of refugee client cases and hearing lengths, while still providing the minimum of information and assistance necessary for tribunals to quickly process asylum claims. Together, these consequences of legal aid contribute to the cost-effective streamlining of the refugee determination process; however, as we have seen, this is not always to the benefit of the refugee claimant. It is a benefit, though, to the Canadian state and society, as it provides legitimacy the to image of government and public as charitable and respecting of liberal values, while also satisfying the demand for limits on that generosity and control over the assertion of refugee rights. However, in spite of how legal aid can function as a limit on accepted refugee claims, and as a tool of state efficiency, it is important not to lose sight of the significant positive effect that legal aid also has on asylum determination processes. As the statistics in this chapter have shown, free legal representation is of considerable importance in enabling potential refugee claimants to access the determination system, and ensuring that they receive procedural justice before the tribunal. The result of legal aid is more positive determinations, which is, of course, of enormous value to refugees, but also to Canadians, as demonstrating a commitment to fairness and humanitarianism. Nevertheless, an examination of the specific content and operation of legal aid provisions for refugees is important to fully appreciate the extent of that commitment, and to recognize that the legitimacy brought to determination procedures by legal aid can obscure inadequacies in the system that reduce its justifiability overall. 147 CHAPTER SEVEN Conclusion The primary conclusion that underlies and unifies the chapters of this thesis is that legal aid should not be underestimated. But, embedded in this somewhat simplistic statement are myriad other complicated and multifaceted findings. First, the positive effect of legal aid to refugee claimants, in facilitating legal representation and positive determinations, should not be undervalued. In this sense, legal aid does provide legitimacy to the Canadian legal system and refugee laws, and upholds vital ethical values. At the same time, the power of legal aid to act as a legitimation of securitized policies that restrict refugee claims and fail to sustain commitments to human rights, humanitarianism, and core liberal democratic principles also should not be underrated. The conclusion drawn from these incongruous findings is that there is an inherent discord in the function of legal aid for refugee claimants, which corresponds to society's own ambivalence towards asylum seekers. Second, is the conclusion that legal aid, although having little legal content of its own, both derives meaning from and gives power to the law to powerfully affect social perceptions. Legal aid can affect the discernment of asylum policies and procedures as legitimate, or illegitimate, depending on the convergence between values, evaluations of procedural fairness, or self-interested benefits. It also influences our conceptions of ourselves and others in relation to the law and its underlying principles: who is good, just and generous, and who is bad, exploitive, and dangerous. At the same time, it is also apparent that social perceptions of legal 148 aid and refugees are acutely influenced by securitization agendas, and the anxiety and urge to self-preservation that motivate these developments. While these conclusions about legal aid provide valuable insight as to how legal aid functions with the system of asylum, I believe the main strength of my research is the statistical data relating to the effect legal counsel has on refugee claim determinations. Detailed statistical information as presented here not has not been compiled before for public use and therefore serves a very important function. The correlation between positive refugee claim outcomes, as well as the increased incidence of claims that proceed before the tribunal, and representation lends objective force to petitions for greater legal aid funding for asylum claimants. This statistical data, in combination with figures relating to legal aid tariffs, confirms that the work done by refugee lawyers is of significant benefit to asylum seekers, and belies the notion that legal counsel for refugees are engaged in the system for extravagant monetary personal gain. However, there are also several significant weaknesses in the statistical data that should be addressed. The inability to accurately report what kindoi counsel refugees had before the determination tribunal adds an undesirable element of uncertainty to the findings. Refugees can be represented by lawyers, migration agents, or laypersons: family, friends, and other advisors. Although, as I have previously asserted, I believe it is fairly safe to assume that most refugee claimants have legal counsel, this is still a shortcoming. The ability to correlate the different types of representation to determination results would be extremely valuable to accurately determine what kinds of counsel are most effective. This uncertainty is a 149 limitation of the data collection methods of the Immigration and Refugee Board and could most likely be easily remedied. A related shortcoming in the statistics is the probable inability to use the figures in the long-term. The statistics here could form the basis of ongoing, yearly comparisons of determination results related to representation before the tribunal, as well as a gauge of how many unrepresented claimants continue to appear before the tribunal without representation, or abandon their claims entirely. This is surely information crucial to measure how well Canadian legal aid provisions for refugees are functioning, as well as to evaluate how changes in tribunal procedures or immigration legislation affect the value of legal representation. However, this type of continuing evaluation is currently unlikely, as the Immigration and Refugee Board does not compile and release these numbers to the public. Assuming that another extremely energetic researcher does not take up the task of obtaining and evaluating these statistics on a yearly basis, the findings I have offered here begin and end with this thesis. In the United States, statistics on unrepresented claimants are publicly released on a yearly basis, making the job of correlating representation and determination outcomes far easier; Canada should also make the dissemination of this information a policy. Other questions relating to the statistics, if answered, would lend greater weight to my arguments. These could be described as weakness, but I am going to characterize them, more positively, as excellent opportunities for future research. The first question that could be tested is why refugee claimants appear before the tribunal without representation. My assertion that the primary reason for 150 unrepresented claimants is governmental underfunding is largely hypothetical, although based on solid reasoning. However, a research project that could definitively answer this question would be valuable as a test of my argument, as well as, again, a measure of the effectiveness of the refugee legal aid system. This is also the case with questions surrounding the adequacy of tariff time limits. I am greatly indebted to the theoretical insights of researchers before me in giving my more intangible analysis of the function of legal aid at least speculative weight, but, at this point, these more concrete elements relating to my analysis of the statistical data would benefit from greater substantiation. Of most significance to the larger field of refugee studies, and the more expansive conclusion I take from the research I have conducted here, is that developments in legal aid provisions for asylum seekers must be vigilantly scrutinized to determine to whom benefits actually accrue. Legal aid for refugee claimants should continue to be subjected, as Abel asserts, to a political analysis of the interests of the actors involved, and within the context of securitized asylum policies. This means that legal aid should not only be judged within the domestic sphere, but also as an international response to refugees. In particular, I suggest that changes to refugee legal aid in the European Union are significant, and future alterations in Canadian tribunal procedures merit circumspect consideration in their potential to effect a "harmonizing down" of asylum legal aid provisions. A related conclusion I draw from my research, is that caution is required in the application of "legal" solutions, such as legal aid, to refugee issues. The problem of refugees, and the global inequalities that often precipitate their movements, is one of 151 in ternat ional soc ie ty ' s mos t s igni f icant conf l ic ts , a conf l ict that is deep l y e th ica l . A l t hough legal a id is of e n o r m o u s impor tance to ind iv idual re fugee c l a iman ts , I be l ieve it is important to e n s u r e , in app ly ing lega l m e c h a n i s m s to re fugees , that they do not b e c o m e a pure ly legalized i s s u e , wh i ch c a n ei ther d istract , or r e l e a s e soc ie t y f rom larger mora l ob l iga t ions . 152 B I B L I O G R A P H Y C A N A D I A N L E G I S L A T I O N Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (.U.K.), 1982, c. 11. Constitution Act, 1867(U.K.), 30 & 31 Vict., c. 3. Immigration and Refugee Protection Act, S . C . 2001, c. 27. Immigration and Refugee Protection Regulations, S.O.R./2002-227. E U R O P E A N UNION L E G I S L A T I O N Counci l of Europe, European Communit ies. Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities [1997] O . J . 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