Technology does not trump the right to a lawyer

Technology does not trump the right to a lawyer

The experimentation and implementation of new technologies cannot deprive applicants of their right to legal assistance. This is the message from former President of the Canadian Bar Association Bradley Regehr to Immigration Minister Marco Mendicino and Justice Minister David Lametti in a letter expressing concern that Immigration, Refugees and Citizenship Canada is preventing lawyers to effectively represent their clients.

The CBA Immigration Law Section wrote to IRCC earlier this year expressing concerns about the exclusion of lawyers. IRCC responded that because of the pandemic, it is prioritizing the rapid implementation of new digital tools considered “minimum viable products” that are designed to evolve.

As Regehr writes, “a platform which does not integrate representatives and creates obstacles to access to justice should not be seen as a minimum viable product”. The CBA is pleased to see new digital products replacing obsolete systems, which will no doubt improve the efficiency of case processing, but IRCC “should not prevent lawyers from representing their clients at crucial stages of their claims. ‘immigration “.

“For example,” the letter from the CBA read, “the pathways from temporary to permanent residence introduced during the pandemic require that an application for permanent residence be submitted by the applicant – not the representative. – via an online portal. While the CBA supports recognizing the contributions of essential workers and recent international graduates, it notes that the quota of 40,000 applications for English-speaking international graduates was met in just over 24 hours. Which meant that applicants had to submit their applications under intense time pressure.

Legal representatives could only advise on the form and content of claims, but were unable to submit claims on behalf of their clients and ensure that everything was in order. “If a client mistakenly uploaded a document or did not upload a required form to the portal, IRCC could deny their request,” the letter said. These are devastating consequences for a claimant.

Other recent digital platforms that have denied access to lawyers included the new digital permanent resident admission tool. Additionally, individuals can apply for citizenship online, but representatives are forced to use the much slower paper application. “Without access to online portals and without the ability to submit requests, representatives cannot adequately support their clients. Some may choose to represent themselves, which will reduce their chances of success, ”the CBA letter states.

IRCC’s response to the CBA Immigration Law Section that representatives can advise clients even if they are not authorized to create digital portal accounts and submit online applications on behalf of of their customers is inadequate.

The same is true of IRCC’s suggestion that screen sharing technologies can help legal advisers assist clients in real time. “Some clients, such as essential workers who work 24 hours a day, use a lawyer because they do not have the time to carefully upload the application documents to an electronic portal. Others may have difficulty navigating the required technology.

Immigration applicants have the right to legal representation, and IRCC’s digital portals and platforms must reflect this right. “While we understand that IRCC intends to create a role for representatives in its new tools, claimants and their representatives are harmed when the initial version of a new tool excludes lawyers,” said Regehr.

IRCC should immediately allow representatives to access existing platforms and portals, and create new ones with built-in lawyer access from the start. Only then will these portals and platforms be considered minimum viable products.

Brigitte Pellerin is editor-in-chief of publications for the Canadian Bar Association.

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