Working within the Community: Chantal Tie, Human Rights and Refugee Lawyer
" At its heart, refugee law is international human rights law "
After graduating from Osgoode Hall Law School, Chantal was drawn to the challenge of being in court and litigating. Chantal decided to focus her practice on immigration and refugee law after realizing that she identified strongly with her clients and given the opportunities it gave her to litigate on their behalf.
Throughout her illustrious career, Chantal has chaired the Court Challenges Program of Canada, the Women's Legal Education and Action Fund’s litigation committee, and the Canadian Council for Refugees’s Inland Protection Working Group. For 30 years, she has also taught Immigration and Refugee Law at the University of Ottawa.
Now retired from legal practice, Chantal reflects on her experiences. “At its heart, refugee law is international human rights law. It led me to understand and litigate more using the Charter wherever possible and work with some great associations and equality-seeking groups in Canada.”
Until the 1960s, immigrants were admitted to Canada based on their racial categorisation, not necessarily on an assessment of individual applicants’ merits. Exclusions against specific racialized groups were achieved in various ways (e.g. subjection to a Head Tax or specific ID requirements). In turn, the Charter was and continues to be used to challenge discrimination against immigrants and refugees. Litigation has been centered predominantly on ss 6 (1)(2) mobility rights, s 7, s 15 equality rights, and s 27 interpretation of the Charter in a manner consistent with preserving and enhancing the multicultural heritage of Canadians.
For many refugee and immigration advocacy groups, including the Canadian Council for Refugees, s 15 provides a starting point for litigating discrimination cases based on direct discrimination or adverse impact. Direct discrimination occurs if a certain law, government policy or action, deprives a person of equal protection or benefit of the law because the law singles that person as a member of a group that faces historical disadvantage. Adverse impact discrimination occurs if a law or government action has an adverse impact on a person because that person is a member of a disadvantaged group.
Litigation in refugee law: A one to many clients scenario
Litigating equality cases under s 15 of the Charter as part of a refugee law practice is very different from traditional litigation. In traditional litigation, you have one client and do everything you can, within the bounds of the law and ethics, to act in their interests. In equality litigation, however, lawyers essentially have three groups of interests to represent: (1) individual claimants who bring a particular fact situation to the court, (2) the group that the claimants belong to, and (3) the equality-seeking community at large.
For Chantal, this means lawyers need to be mindful that what they are asking the courts to do does not undermine the affected group’s rights or the rights of other potential section 15 litigants.
Immigration and refugee lawyers do not want to advance arguments that may result in a huge setback for the larger community. Therefore, it is extremely important for immigration lawyers to work meaningfully and collegially within a larger community. Collaboration is essential for s 15 litigation; input from various perspectives delineates better outputs and ensures that the critical voices of the client and their community are incorporated.
While litigation can be a strategic tool to strengthen and protect communities, test litigation can be a particular challenge due to the possible adverse impacts and costs of each case. If a test litigation goes against the claimant, the result may preclude some future constitutional challenges, thereby setting back the claimant group and future groups. Regarding costs, Chantal explains, “You don’t undertake this kind of litigation lightly because it’s expensive both in terms of your time — remember, most of it is pro bono — and the community’s.”
It is the job of refugee lawyers and committees representing refugee claimants to determine the strategic importance of particular cases and what to litigate, while working closely with advocacy organizations that know the community well. In turn, litigation can be a strategic tool to strengthen and protect communities.
Challenging the ID requirement for landed refugees
The Somali ID case was one of Chantal’s most important and strategic projects. In 1993, the federal government passed an amendment to what was then the Immigration Act which required all applicants, including refugees, to have “satisfactory” identity documents in order to be granted “landing” status (now permanent residence). These changes disproportionately affected refugees from conflict regions, in particular Somali refugees. Canada accepted more refugees from Somalia than from any other country prior to the amendment because of the violence and political turmoil caused by the Somali Civil War.
Following the collapse of the Somali government, many Somali refugees who fled or were displaced or expelled from the region had no paper documents and were unable to obtain any replacement documents except on the black market, meaning many applicants were denied landing status. Refugees who came to Canada without ID were subject to a five-year waiting period, during which social assistance and benefits that would normally be available to refugees was cut off (including family reunification programs, eligibility for some employment, university admissions, and bursaries). Claimants without ID were also not able to re-enter Canada once they had left.
For years, Chantal worked with a team of lawyers and community leaders, representing 12 applicants in a Charter challenge to the ID requirement in Federal Court. The case resulted in a settlement where the government agreed that refugee claimants without ID could avail themselves of alternatives, such as having an affiant or a credible cultural association in the community attest to the claimant’s identity. These changes were incorporated into the new Immigration and Refugee Protection Act in 2002, meaning refugees from all over the world were able to benefit from the settlement.
Chantal’s advice for future immigration and refugee lawyers
Future immigration and refugee lawyers need practical degrees with technical skills. Chantal is critical of traditional law school pedagogy and remains skeptical that reading cases alone, without any experiential learning, will prepare students for legal practice. She laments that the traditional method does not provide the skills law students and graduates need to construct a case, persuade a court to go in a particular direction, or work with people in a compassionate way.
“For a long time, there was a feeling that if you provided those technical skills that you were degrading the law degree,” Chantal explains. “In some way, a law degree was touted to be a ‘professional degree’ — not one obtained at a ‘technical college.’ In truth, we need technical skills in order to be effective lawyers.”
In addressing this disconnect, Chantal hopes law schools will take a more practical approach by offering more experiential learning opportunities and clinical work. Law schools have also increasingly been offering public interest clinical and volunteer positions to fill this gap. For instance, around 180 students at the Faculty of Law participate in the operation of Downtown Legal Services, which offers legal assistance to low-income clients in refugee and immigration law among many other areas of law.
Future immigration and refugee lawyers will also need to quickly come to grips with what Chantal describes as “the wrongs” of our refugee system.
Refugee claimants continue to experience significant socioeconomic challenges and access to justice issues, because the vast majority of government money in the system is put into deciding (and sometimes rejecting) their claims on the back end. “We spend a ton of money on domestic adjudication of refugee claims,” Chantal explains. “Last time I looked, [around] 80% is spent on individualized adjudication, and refugees get [around] 5% of the budget in aid and resources, which is not sustainable. We need to address any claimants that come because we have both a moral and legal obligation to do so, but we also need to look for more regional solutions and not just litigation so people aren't stuck in refugee camps for 50 years.”
While Chantal was on the Board of Directors for the Court Challenges Program of Canada, her whole purpose was to make sure that funds were available for historically disadvantaged groups to actually advance their complaints. In her words, “the best legal arguments are not particularly useful if you can't get to court, and getting to court is very expensive.”
Overall, Chantal describes the current role of refugee law litigators in four parts: (1) representing vulnerable equality seeking groups, (2) doing it on the fly, (3) doing it for cheap, and (4) working as part of an extremely collaborative process.
Chantal turned to immigration and refugee law because she was able to identify with her clients and surround herself with committed and passionate community groups, networks, and leaders, those who made her feel connected to her work. She hopes that tomorrow’s lawyers have compassion and people skills to pursue this tough but important and meaningful work. “Refugee law is really international human rights law, and the clients are really champions of human rights,” Chantal concludes.
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