Citizenship and Immigration Committee on Dec. 12th, 2006

[The Chair, Conservative, Norman Doyle]

Okay. Thank you, Madame Folco.

Madame Faille is next.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Firstly, I wish to thank you for providing assistance to the committee as it considers the issue of refugees. As you know, this subject is very important to me and one that I have been working on for several years now. I also understand that you witnessed the assessment of the Auditor General in 1997-1998.

Do you have any vague recollection of what the Auditor General's recommendations were at the time?

[John Frecker]

I can't tell you off the top of my head. I remember it, because we were very actively involved in the discussions at the time, but it hasn't been at the top of my thought pattern for the past few weeks, I will admit.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I will not ask any questions on those details.

One of the important recommendations made at the time was to have a non-partisan commissioner appointments process. One of the recommendations was to make the appointment of an IRB commissioner a non-partisan process.

[John Frecker]

That is true. I believe that is ongoing and is not contradictory.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

But the issue is still not resolved.

[John Frecker]

I do not understand the question.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

When the RAD was evaluated in 2001-02 before implementation at that time, many experts gave the committee a recommendation that in the nomination of commissioners at the IRB, the commissioners be elected. It would be a little bit similar to the Federal Court, in terms of their—

[John Frecker]

It would be a merit appointment process. Yes; I think I misunderstood your question. I'm sorry.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

From what we know at the present time, this has not been addressed or improved at the IRB, and many experts still believe that the existing system right now could potentially, possibly, allow political nominations in the IRB, and that we don't have a merit base.

[John Frecker]

I've been away from it for five years, so I'm probably less informed about this than members of this committee, but my understanding is that they've made considerable strides toward merit-based appointments. The chairperson, Monsieur Fleury, has probably spoken to this committee on this issue. The committee that's established to screen nominees has improved its processes considerably, so there's a better screening, as is happening with a lot of other administrative tribunals.

The problem, as I understand it, is that the committees can make all kinds of recommendations for qualified people; hopefully, they eliminate the patently unqualified, but because there's still a politically based appointment process, there's no guarantee that the most qualified get appointed, and it may be that from the pool of qualified people, marginally qualified are appointed ahead of superbly qualified.

With the appeal division, the proposal that was being developed when I was at the board--and I don't know if it's still the case, but I think it was certainly Monsieur Fleury's preference--was that the membership of the RAD be made up of experienced members, people who'd had experience in the refugee protection division and who had proven themselves to be exceptionally competent. It was a two-tier filtration process, if you will: the initial screening for a merit-based appointment combined with demonstrated skill on the job. One of the reasons was that if the RAD is to do its job properly as a court of second instance dealing with factual cases, it's very important that the members of that division be genuinely expert in country conditions as well as in legal questions. That was the way that issue was going to be addressed.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

The IRB also told us that it wanted to deal with cases like refugee protection claims in less than six months. In your experience, is this possible?

[John Frecker]

I'm probably guilty of advocating a six-month processing time very vigorously but never attaining it. I think, in principle, that a six-month processing time is attainable. I think it's a rational delay, if you will, for dealing with asylum claims.

I note in the report on plans and priorities from the board that they're now looking at about a 10-month processing time. They've managed to get it down from the 18-month delay that had built up during the big influx in the early part of this decade. But if you look at the process rationally and the objective steps that one has to go through to deal with an asylum claim--allowing the claimant sufficient time to gather the information they need, allowing for an in-person hearing, and allowing for a decision to be delivered following receipt of evidence--then provided there are adequate resources at the board level, six months is, objectively, a reasonable timeframe.

The delays that are there are a function of the accumulated inventory and the lack of personnel at the board. Right now, I gather that they have 40 vacancies, for instance. So their ability to deal with the cases they have is compromised because they don't have a full complement of members.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I have one last question for you. In the past, have you assessed the cost of setting up an appeals section for each province?

[John Frecker]

The legal aid study I guess was the closest one came to looking at what would be the implications for the provinces. I looked at three different scenarios at that time that projected somewhere between $6 million and $9 million, depending on different assumptions. It was all based on assumptions, because we were dealing with a hypothetical situation. That was at a time when we had an intake of 40,000 claims. Now we have an intake of 20,000 claims. So I think you could safely cut that number in half, because the volume of cases would be halved.

There are the other costs to provinces, which I gather immigration representatives have already spoken about, which are the welfare costs and things like that. If my thesis is correct and the RAD actually results in getting to decisions and effective removals more quickly, that would actually reduce those costs rather than increase them.

[The Chair, Conservative, Norman Doyle]

Thank you.

Thank you, Madame Faille.

We'll go to Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Mr. Frecker, for being here. And thank you for dredging up your thoughts on the report. I know I have difficulty remembering what I did last week, let alone several years ago. So I appreciate your getting ready for that.

I also want to thank Madame Faille for suggesting that you come today. I think it's been very helpful to hear your comments on the RAD and the process, to hear your argument that it actually simplifies the process. I think that's very helpful for us to hear.

On the discussion you were just having with Madame Faille about the cost to the provinces, just so I'm clear, the $1.2 million to $2.6 million was the estimated cost to the federal government in increased legal aid costs. And the provinces, you estimated at the time, would see an increased cost for legal aid of $6 million to $9 million. Is that correct?

[John Frecker]

If you'll bear with me one second, I'll go to the.... We developed three scenarios, and that was based on what was the leave rate at the Federal Court and various other things, and we tried to factor in all the different elements.

In fact, I've probably misled the committee. By my calculations--and this is direct national legal aid costs, so that would be shared between the provinces and the federal government--they were estimated at $6.5 million pre-RAD based on the intake levels that existed in 2002.

Under scenario one, which was the most optimistic scenario, that there would be a 50% reduction in the rate at which leave for judicial review was granted because of a high level of deference and that the RAD would correct the decisions that are now remitted back for a rehearing by the refugee division, the total legal aid costs would have been $7.75 million.

Then for scenario two, which was that.... I'm trying to get my thoughts straight on this. It says for 75% of those cases that are currently overturned on judicial review plus one-third of the cases for which leave is currently granted with increased judicial deference at a rate of 25% instead of 50%--with that change, it was going to be $8.5 million.

In scenario three, the RAD would only resolve 50% of the cases currently overturned on judicial review. So there would be a higher incidence of judicial review after the RAD. It would be $9.1 million. That was at a starting case intake of 40,000 instead of 20,000.

I'd have to go back and try to reconstruct how I did these calculations, but they were based on all the different elements that went into the process at the time.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Could you tell us something about the work that a legal aid lawyer would do with a client in this process and how that might change?

[John Frecker]

In the RAD process?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Yes.

[John Frecker]

The RAD process, as designed, was purely a paper process. There was no oral hearing. The reality is that with refugee claimants, because most are non-francophone, non-anglophone, and totally unfamiliar with the Canadian legal system, they need somebody to help them prepare their documents.

So the lawyer would be assembling the information from the refugee hearing, identifying what would be the error on which an appeal could be based, whether it was the failure to consider evidence properly or whether it was a jurisdictional error or whatever, and would analyze these problems. If there weren't going to be transcripts, they were going to get audiotapes or recordings of the hearing, and they would review that to see if they could identify an appealable error, and prepare a written submission for the RAD. The RAD would then review that written submission and make its decision. So the lawyer's role would be actually preparing that written submission.

It's very similar to what lawyers currently do on leave for judicial review applications, but the difference is that instead of being leave for judicial review and then going to judicial review, they'd be going for the ring, as it were, because the RAD would have the authority to enter the correct decision.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you.

Thank you, Mr. Chair.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Siksay.

Mr. Komarnicki, do you have some questions for Mr. Frecker?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Yes, I do. Thank you, Mr. Chair.

I'm going to focus specifically on the costs of the legal aid provision of it. I understand the legal aid services are jointly provided in terms of costs federally and provincially. Is that what I heard you say?