8.3.1 Right to counsel before the hearing
The right to counsel at various stages of the immigration process has been raised in various cases, including Dehghani.Note 6 In that case, it was argued that denial of the right to a lawyer during the examinations conducted by immigration officers at the port of entry infringed the rights guaranteed by section 7 and paragraph 10(b) of the Charter.Note 7 The Supreme Court of Canada decided that questioning by an immigration officer at the port of entry is a routine part of the general screening process for persons seeking entry to Canada. The same is true of secondary examinations by immigration officers.Note 8
With respect to section 7 of the Charter, the Court decided that the principles of fundamental justice do not include a right to counsel for routine information-gathering purposes. However, the Court indicated that denial of the right to counsel during a hearing could constitute an infringement of the right guaranteed by section 7 of the Charter.
With regard to paragraph 10(b) of the Charter, the Court decided that, even if the person experienced restrictions on his or her freedom while waiting for his or her application to be processed, this is not a detention within the meaning of paragraph 10(b) of the Charter. When a person tries to enter Canada at a port of entry, the exact moment when the person is considered to be detained within the meaning of section 10 of the Charter is not clearly defined and depends on the circumstances of the case. In that regard, the Supreme Court of Canada cited the comments of Finlayson J. in Kwok:Note 9
Finlayson J.A. stated at p. 207 that "[s]urely there must be some action on the part of the immigration authorities to indicate that the restriction on an immigrant's freedom has gone beyond that required for the processing of his application for entry and has become a restraint of liberty such as that contemplated by Le Dain J.? in Therens [R v. Therens,  1 S.C.R. 613], supra. The court held that "the [accused] was detained when [the senior immigration officer], having filled out the detained convocation letter, invited the [accused] and [his co-accused] into his office with the intention of advising them of his decision to detain them". Finlayson J.A. apparently relied on the combination of a decision by the senior immigration officer to detain, and his action in calling the accused into his office to determine the point at which a detention had occurred for constitutional purposes.Note 10
In Dragosin,Note 11 the Federal Court set aside the exclusion order issued by an immigration officer because, among other things, the applicant's right to counsel had not been respected. Mr. Dragosin was questioned for the first time, by an officer on his arrival on November 3, 2001. He was then taken to the regional detention centre and, on November 5, 2001, he was questioned for the second time after which the officer issued the exclusion order. The Minister, relying on Dehghani, argued that the applicant's right to counsel arose only when the exclusion order was issued on November 5.
MacKay J. emphasized that the facts differed significantly in two respects from those in Dehghani. Mr. Dehghani was first examined and was then sent to another part of the airport, where he waited for four hours before undergoing a second examination. Before yet another examination, Mr. Dragosin waited for two days, during which time he was detained at the regional detention centre, which constituted a detention for constitutional purposes. His right to counsel arose at the moment that he was ordered to be detained at the regional correctional centre.
Section 7 of the Charter was apparently not raised as it had been in Dehghani. The issue of whether the principles of fundamental justice include the right to counsel when a person is not detained but is subject to an examination that could lead to the issuance of a removal order by an officer has therefore not been settled.
8.3.2 Right to counsel at a hearing before the Immigration Division
The right to counsel at a hearing before the Immigration Division is provided for in subsection 167(1) of the Act. In addition, as regards detention reviews , the right is guaranteed under section 10 of the Charter and paragraph 2(c)(ii) of the Canadian Bill of Rights.Note 12
In the case of examinations concerning persons who are not detained, the right to counsel is guaranteed by section 7 of the Charter. In Dehghani,Note 13 the Supreme Court of Canada wrote the following at page 1077 of the decision:
While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing , it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. [Emphasis added.]
The member must ensure that the person who is the subject of the proceeding fully understands his or her rights and must give the person the opportunity to retain and instruct counsel. What constitutes an "opportunity" depends on the circumstances of each case. The case law on this subject varies greatly, each case being decided on its own merits.Note 14 However, some principles may be drawn from the case law;
- The right to counsel of one's choice is not absolute.Note 15
- The panel may try to help counsel, but it is not required to adjust to counsel's availability.Note 16
- The panel must take into consideration the efforts made by the person who is the subject of the proceeding to be represented by counsel. Counsel's occasionally poor conduct cannot be imputed to a person in good faith.Note 17
- In order to determine whether to grant an adjournment to enable the person who is the subject of the proceeding to be represented by counsel, the panel must consider all of the circumstances of the case and all relevant factors.Note 18
In Siloch,Note 19the Federal Court of Appeal listed the factors that the member should take into account in determining whether to grant an adjournment to permit the person to avail himself or herself of the right to be represented by counsel. These factors are not exhaustive:
- whether the applicant (the person who is the subject of the proceeding) has done everything in his or her power to be represented by counsel;
- the number of previous adjournments;
- the length of time for which the adjournment is being sought;
- the effect on the immigration system;
- whether the adjournment would needlessly delay, impede or paralyse the conduct of the proceeding;
- the fault or blame to be placed on the applicant (the person who is the subject of the proceeding) for not being ready;
- whether any previous adjournments were granted on a peremptory basis;
- any other relevant factors.
This case was decided under the former Immigration Act, but the principles continue to apply. At that time, the Rules were less clear on this issue. The member should also consider the factors set out in Rule 43 concerning applications to change the date or time of the hearing, some of which are similar to the factors listed by Décary J. in Siloch [see also Chapter 10 - Changing the Date or Time of a Hearing].
220.127.116.11 Lawyer versus other counsel
While subsection 167(1) of the Act allows recourse to counsel other than a lawyer, the Charter guarantees the right to counsel. It is therefore necessary to ensure that the person who is the subject of the proceeding fully understands his or her right to a lawyer or other counsel. When counsel at the hearing is a lawyer, the member may simply acknowledge him or her as playing this role for the person who is the subject of the proceeding and proceed with the hearing. However, if counsel at the hearing is not a lawyer, the person who is the subject of the proceeding must be reminded of his or her right to be represented by a lawyer and should be asked to confirm that he or she has instructed the person accompanying him or her to act as his or her counsel. A person who freely decides to be represented by counsel other than a lawyer cannot argue later that his or her Charter rights have been infringed.
18.104.22.168 In the absence of counsel
When the person who is the subject of the proceeding is not accompanied by counsel, the member must inform the person of his or her right to be represented, at his or her own expense, by a barrister or solicitor or other counsel. Although the person who is the subject of the proceeding is, in principle, informed before the hearing of his or her right to be represented by counsel, it is not uncommon for the person to appear alone at the hearing. The person may not have been informed of his or her right to counsel or may not have understood. When the member informs the person who is the subject of the proceeding of his or her right to counsel at the hearing, the person may request an adjournment in order to take advantage of this right.
The person may also ask for an adjournment of the hearing because he or she has not obtained counsel who will represent him or her or because he or she has retained someone who is not available on the day of the hearing. A request for an adjournment to enable counsel to be present will be treated differently depending on whether an admissibility hearing or a detention review is involved [see sections 22.214.171.124.1 - Admissibility hearing and 126.96.36.199.2 - Detention review].
The member should proceed with the hearing if the person says that he or she does not want to be represented by counsel. In Pierre,Note 20 the Federal Court of Appeal wrote as follows at page 876:
In any proceeding, the person concerned, being aware or having been properly informed of his right to counsel, chooses to act on his or her own behalf, he or she cannot later attack the regularity of the proceedings because he was not represented by counsel. If his choice is to proceed personally, and he has rejected the opportunity to secure counsel, he has not been denied counsel.
Sometimes, the person would like to be represented by counsel, but cannot afford the cost.Note 21 Unless the person can call on an acquaintance in Canada who would be prepared to represent him or her at no cost, the person cannot avail himself or herself of this right. The person's lack of desire or his or her financial inability to exercise his or her right to counsel does not warrant an adjournment of the hearing.
188.8.131.52.1 Admissibility hearing
When the person who is the subject of the proceeding is not accompanied by counsel, it is usually appropriate to grant an initial adjournment to allow the person to obtain a lawyer or other counsel or, if the person has already retained counsel, to permit counsel to be at the hearing. A two-week delay is generally considered reasonable. Depending on the circumstances of the case, the delay could be a little longer. It could also be shorter if the person who is the subject of the proceeding is detained for investigation [see section 184.108.40.206.3 - Admissibility hearing for a detained person]. However, the right to counsel of one's choice is not unlimited. A person must choose a counsel who is able to appear within a reasonable time.Note 22
For this reason, the member should treat every subsequent request for an adjournment very firmly. The member should consider the factors listed in Rule 43 and assess the credibility and reasonableness of the person's explanations regarding the efforts he or she has made to obtain counsel who is available on the date fixed for the continuation of the hearing. If the member thinks that another adjournment should be granted, he or she should consider whether to fix a peremptory date for the continuation of the hearing.
220.127.116.11.2 Detention review
When the person who is the subject of the proceeding appears at the detention review alone, the member should inform the person of his or her right to be represented by a lawyer or other counsel. Even if the person clearly indicates a desire to be represented by counsel, it is often inappropriate to grant an adjournment to permit counsel to be present, unless counsel can be available quickly (in most cases, counsel should be available on the same day). When an adjournment would delay the review to the point that it could not be held within the time limit imposed by section 57 of the Act, the member must go ahead with the review in the absence of counsel. In such a case, the member should inform the detained person that the Act requires the member to observe certain time limits for a detention review. If the detention is continued, the person can be represented by counsel at the next 7-day, 30-day or early review (Rule 9).
18.104.22.168.3 Admissibility hearing for a detained person
Usually, an admissibility hearing for a detained person is fixed for the same date as the detention review. The hearing should be started, and the preliminary issues that can be addressed in the absence of counsel should be resolved as much as possible. These would include the need for an interpreter or a designated representative. The hearing may then be adjourned to permit counsel to be present, and the detention review is held in the absence of counsel. The date for the continuation of the admissibility hearing can be fixed after the end of the review to have it coincide with the next detention review, if appropriate.
22.214.171.124 Counsel not ready to proceed
Sometimes, the person who is the subject of the proceeding is accompanied by counsel who seeks an adjournment because he or she is not ready to begin or continue a hearing. A number of possible reasons may be given and the circumstances may vary. Just as in the case where counsel is absent, the member must evaluate all of the circumstances in the case and the factors listed in Rule 43 in order to determine whether to grant the adjournment requested [see also section 126.96.36.199 - In the absence of counsel]. The case law recognizes that this matter is fully within the discretion of the panel, as long as the panel gives the person who is the subject of the proceeding a reasonable opportunity to be represented by counsel of his or her choice. Since each case must be decided on its own merits, the case law varies considerably on this subject.Note 23 However, certain trends may be observed.
Generally, the fact that counsel is too busy or has professional or personal commitments is not in itself sufficient to justify an adjournment.Note 24 Counsel should provide detailed explanations to justify a request for an adjournment. In the absence of such explanations, the member should not hesitate to request them so that he or she can evaluate all of the circumstances of the case and all of the factors listed in Rule 43 in order to exercise his or her discretion in an informed manner.Note 25
In this respect, the comments of Reed J. at paragraphs 8 and 9 of ChinNote 26 are of interest:
[…] I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.
[…] counsel knew her client lived in Campbell River and that she would be attending the Bar Convention towards the end of August. The scheduling was under her personal control. Thus, it was hard for me to justify, in such circumstances, the granting of an extension of time.
In Farooq,Note 27 the request for an adjournment was based on the fact that counsel had to make an emergency trip abroad; the adjournment was refused because no explanation was given concerning the reasons for the trip.
In Pierre,Note 28 after counsel had withdrawn, another counsel argued that he could not proceed on the peremptory date fixed for the continuation of the hearing because he had other commitments and did not have time to familiarize himself with the procedures for admissibility hearings. When the member refused to grant the adjournment sought, that counsel withdrew and the member continued and concluded the hearing in the absence of counsel. The Federal Court of Appeal upheld the decision of the Special Inquiry Officer (the member). At page 855 of the decision, it wrote the following:
With reference to the question of counsel being ready to proceed, it must be recognized that every tribunal considering a request for an adjournment, whether faced with objections from parties opposing the adjournment or subject to a statutory duty to proceed with due expedition, must recognize the fact that submissions of counsel based on their not being ready to proceed or not being available to proceed must be weighed with care. It is, for example, not unknown for a party who does not desire to proceed to change counsel to obtain delay. Having regard to the course of events in this inquiry, particularly the fixing of a peremptory date after innumerable adjournments and attempts to agree on a date when counsel would agree to proceed, I am not prepared to say that the exercise of discretion under consideration was a wrong exercise of discretion.
Conversely, unforeseen personal obligations such as the illness or death of a family member or unanticipated events such as an accident may justify granting an adjournment.Note 29
For detention reviews, lawyers and other counsel working in the immigration field are generally familiar with the time limits imposed by section 57 of the Act and avoid seeking adjournments. Usually, they will ask instead for the time of the hearing to be changed. It is appropriate to assist them when possible, particularly in the case of a 48-hour or 7-day review.
In the end, administrative tribunals are the masters of their own procedures and granting an adjournment is a discretionary action. The member must be mindful of the duty imposed on him or her by subsection 162(2) of the Act—the duty to proceed as quickly as the circumstances and the considerations of fairness and natural justice permit—in this case, to ensure that the person who is the subject of the proceeding has a reasonable opportunity to be represented by counsel of his or her choice.
188.8.131.52 Incompetent counsel
In some circumstances, being represented by an incompetent counsel is a violation of the principles of natural justice and so may justify reopening the hearing.Note 30 It is an extremely delicate matter to determine that counsel is incompetent, particularly if counsel is a lawyer who is governed by professional rules of conduct and can be sanctioned by the law society to which he or she belongs. Furthermore, the case law indicates that superior courts refrain from intervening when counsel is a lawyer, except in the most unusual of circumstances, in the belief that the person has freely chosen his or her counsel, that the two are one and the same party and that the person can use the remedy provided by the law society concerned.Note 31 Fortunately, cases of incompetence are rare. In addition, as the case law indicates, only extraordinary facts can justify a finding that counsel is incompetent.
An example may be found in Sheikh,Note 32 where the Federal Court of Appeal found that counsel was incompetent; he had fallen asleep on three occasions during the hearing. In Shirwa,Note 33 the Federal Court also found that counsel was incompetent for the following reasons: (1) the refugee claimant had been led to believe that counsel was a lawyer; (2) counsel entered into evidence the Personal Information Form only; (3) counsel failed to make submissions; (4) the claimant's complaint to the law society was of limited use since the society could not take action against the counsel as he was not a lawyer.
In Huynh,Note 34 the lawyer who handled the judicial review argued that the representation by the other lawyer who had been present at the hearing before the Refugee Protection Division was inadequate for a number of reasons, including his poor preparation of the case, his failure to introduce all of the evidence and to make the appropriate submissions, and his lack of familiarity with refugee procedures. He relied on Sheikh. The Federal Court dismissed the application for judicial review. At paragraph 16 of the decision, the Court wrote the following:
In my view, the facts in Ali Sheikh, (supra), are quite extraordinary. While if it can be demonstrated that counsel slept during a proceeding, a party may not have been given reasonably effective assistance from counsel, I do not think the same conclusion may be drawn from the facts of this case. That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel.
In Ye,Note 35 the Immigration Appeal Division dismissed an application to reopen an appeal of a removal order. The applicant alleged that her counsel was incompetent because he failed to ask specific questions during the hearing and did not present adequate arguments. The Appeal Division stressed that counsel's incompetence must be egregious before a question of natural justice could be raised.
In practice, the member may occasionally observe that the person who is the subject of the proceeding is not being adequately represented, but it is not recommended that the member determine that counsel is incompetent, unless the level of incompetence is so great that it completely deprives the person of his or her right to be heard. In Shirwa,Note 36 at paragraph 11 of the decision, the Federal Court wrote the following:
In a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred (Mathon).Note 37
The level of incompetence must therefore be significant and obvious before it can be determined that counsel's incompetence constitutes a denial of natural justice. The member may make up for an inadequate representation by playing a more active role, in particular, by questioning the person who is the subject of the proceeding on certain issues that the member thinks are important for the decision that he or she has to make. However, the member must do this tactfully and respectfully. The member must avoid substituting himself or herself for counsel, which could cast doubt on the member's impartiality.Note 38