Citizenship and Immigration Committee on March 20th, 2018

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Good morning, everyone. I call to order the 101st meeting of the Standing Committee on Citizenship and Immigration. This is our second meeting studying the issue of the Immigration and Refugee Board's appointment, training, and complaint processes.

We thank our witnesses for returning. I want to thank you for your responses to some of the questions, which have now arrived in writing. I would just let you know that the committee has not yet seen them because they arrived just before the meeting. They will be distributed this afternoon. The committee should be aware that questions were asked the last time, but not assume that we have them.

You made your statement in the last meeting. If you want to take a couple of minutes to say anything now, you're welcome to do it, and then we would go right to questioning.

[Paul Aterman, Acting Chairperson, Immigration and Refugee Board]

Thank you.

As I indicated at my previous appearance on February 27, I've been the acting chair since the start of January.

Having worked at a number of administrative tribunals over the course of my career, I believe that the quality of the board members at the IRB is excellent. They are dedicated, they're hardworking, and they are proud to serve Canada.

As the committee continues to examine the appointments, training and the complaints processes, there are two critical points I would like to make about the context in which members at the IRB work.

My first point is that the kinds of issues we ask members to deal with are very serious. When a refugee claimant says they fear persecution, or even death, based on their sexual orientation, the member hearing that case often has to ask very difficult personal questions. They can't shy away from that task if they are to do their job properly. We want that member to get at the truth because we want Canada to give protection to those who need it, and we don't want Canada to give protection to those who don't.

Similarly, when a member dealing with an immigration appeal has to ask deeply personal questions in order to decide whether a marriage is real or was simply entered into to get into Canada, we want that member to get at the truth. We don't want to keep spouses apart; we want to reunite families, but we only want to do so when the marriage is genuine.

If we care about getting at the truth, then those members do have to ask tough questions. I would simply ask that the committee bear that fundamental fact in mind when considering the issue of complaints. It's all about how members do that job, how they ask those tough questions.

The members adhere to a strict code of conduct grounded in the principles of good faith, fairness, accountability, dignity, respect, transparency, openness, discretion, cultural sensitivity, and loyalty. The vast majority of members uphold that code, day in and day out, as they deal with the pressure of an unceasing and ever-growing flow of cases.

Thus, my second point is that I'd like to situate the issue of complaints in the broader context of the work of the board. Since 2009 there have been approximately 490 members who have worked or are working at the board as decision-makers, and since 2009 they have made a total of 425,144 decisions. In that time period there have been 170 complaints—so 170 complaints over 425,000 decisions. Twenty-one of those complaints were founded, and those founded complaints pertained to 14 members among 490 members who have passed through the doors of the board.

Let me be clear, we take every one of those complaints seriously.

In the past, in certain cases, we have not examined these issues as effectively or as rigorously as we should have. Following consultations with our stakeholders, we have noted that a more comprehensive complaint mechanism was needed.

The new procedure transforms a process that was muddled and complicated so as to make it clearer, more effective and more sensitive to the complainants.

The key element of this new procedure is the director of the Office of Integrity, who will report directly to the chair and is responsible for examining all of the complaints filed against members of the board.

This new complaint mechanism and the continued hard work of our members will make the board stronger and better able to serve those who appear before it.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

We're going to our first round of questioning. Mr. Sarai will begin with a seven-minute round.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Thank you for coming. I apologize for not being here at the last meeting when you guys appeared before us. So you may have answered some questions that I may ask you, but if so please let us know. I know you can't get into the details of particular cases and that IRB is obviously a judicial or quasi-judicial body whose purpose is to identify those who are genuine refugees versus those who are not. I want to know if there's any sensitivity training or other training given to somebody prior to their being appointed as an IRB judge, or if once it's decided and they are appointed, there's any formal training.

[Paul Aterman]

The nature of that training is such that we have four lines of business in four divisions, and the training curriculum is tailored to the basic lines of business of each of those four divisions. What's common to all of them is a recognition that the people who are appearing in front of the IRB are immigrants and refugees who come from different backgrounds. A great deal of emphasis is placed on the question of recognition of cultural difference, appreciation of diversity, and understanding that the decision-maker's own experience may not be that of the person who appears in front of them.

A lot of the training in that regard is woven into the curriculum specifically in areas dealing with things like credibility assessment. We attune members to how they assess the credibility of someone who comes from a different background from them. We attune them to the fact that many of the people who appear before them have been persecuted and tortured, and suffer psychological trauma as a result.

One point I would like to highlight is that we issued guidelines in May 2017 involving sexual orientation and gender identity and expression. These guidelines were specifically aimed at setting out standards by which board members can deal with refugee claims mostly, but also other types of cases, when an issue before the board member concerns a different sexual orientation or the manner in which a person expresses their gender identity. If you look at those guidelines—and I think we've undertaken to provide them to the committee—they outline some of the ways in which members should ask those very difficult questions while doing so in a respectful manner. Every decision-maker on the board was trained on that issue. We had two separate half-day sessions in the summer of 2017, one dealing with the legal component, and the other dealing with the practical skills of questioning and how you deal with people in certain situations.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Do you think that's adequate? We've seen some troubling reports in newspapers. An IRB member, David McBean I think, has rejected all of his asylum cases since his 2007 appointment—62 in 2010, 72 in 2009, and 35 in 2008—and almost all of them were because the claimant was not considered to be credible. I find it hard to believe that if sensitivity training or training to identify the credibility of someone from different cultures was given, some judges find no credibility whatsoever in every claim they come across.

Similar claims against IRB members Sterlin and Cassano have emerged, and I'm wondering how the IRB determined their reappointment, or if there was any further training. Is there a process to identify those who do not see any credibility in claimants, and does the chair or anyone sit down with them and ask why their decisions are inconsistent with the average decisions seen everywhere else?

[Paul Aterman]

We do look at that issue. All members are subject to an annual performance appraisal. The manner in which we conduct that appraisal has to be very careful, because we can't tell decision-makers how to decide cases. Once you start doing that, it undermines the rule of law. That said, if there are stark anomalies, like some of the ones you have pointed to, they do have to be addressed.

We try to do that through the appointment process by finding the people who we think are best suited for the job. It's not a perfect process. It's like any selection process: you set criteria and you evaluate people against those criteria. Most of the time you're right, but sometimes you're wrong. Sometimes someone is appointed to the position who is not a fit for the job. That happens at the board, and it happens in any organization.

What are we doing about it? I think there's a rigour in the appointment process that has helped greatly in that regard, and I think the training does address those things. We have to balance our obligations as an institution to ensure consistency with the fact that we can't tell individual members that they have to decide a case this way or that way.

[Randeep Sarai, Liberal, Surrey Centre, BC]

I agree that you can't tell them, but I think you can see patterns from judges that might show an inability on some of their part to determine credibility, and that somebody, therefore, needs to review their decisions or that decision-maker's ability, and perhaps they need further training.

In 2012, the IRB made changes so that short-term appointees were made public servants. I think that changed a lot of your ability to do what you just said, which is to determine their terms afterwards. Do you think that was a good decision? Have the changes in the appointment process improved your ability to keep the IRB more in check in that regard?

[Paul Aterman]

There used to be one stream of appointments for decision-makers at the IRB. These were Governor in Council appointments, apart from the immigration division, where there were public servants historically. They'd been public servants as part of the immigration department before they came to the board.

Now we have two divisions made up of public servants, and two divisions of GIC appointees. These are separate employment regimes. As you know, GICs are appointed for a term. A term comes to an end, and a decision is made about whether or not to reappoint them. Public servants have a longer tenure and a different employment regime.

If you're asking me to pronounce on the wisdom of choosing one regime over the other, that's a policy decision that is not ours to make. It's not the board's position, I think, to comment on which choice the government of the day—

[The Chair, Liberal, Rob Oliphant]

I'm afraid I need to cut you off there. Thank you.

Mr. Tilson, you'll have seven and a half minutes, just to equalize.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you, Mr. Chairman.

I'd like to return to the article we referred to last week, which I'm sure the board would rather we not refer to. It's by Brian Hill and Andrew Russell at Global News. In it, some comments were made about a couple of people. The first one was board member Michael Sterlin. With respect to a matter that was before him, a woman who was before him, according to this article, he “asked to see nude photos of the woman to prove her identity”, and “he asked her to reveal where she received the abortion and why she didn’t go to the police.”

The MeToo movement would just go ballistic if that were said today. This was before that movement, but they would absolutely go ballistic about that today.

I'd like you to comment on one of my concerns. I don't mean to cast aspersions on you. As I understand it, there's an investigation, an integrity person who investigates it. These are complaints about the conduct of members. He or she makes a report to you as the chairman. Then you make a decision. The concern I have with this process is that you may or may not like that board member. The question is whether you are independent enough to make such a decision about that person. I say this with all due respect to you or any other chairman.

This board member was required to undergo gender training because of the complaint. That may or may not have been a good decision. The article certainly doesn't think it was. I am willing to bet that those involved with the MeToo movement would think it's a terrible decision. The question I have is whether you have a recommendation to change that procedure.

As you know, the maxim is “justice must be done and justice must appear to be done”. Justice may have been done, but it may well be that justice did not appear to have been done.

My question is whether you would make a recommendation to the committee that a similar process be set up to what goes on with the law society—and you're a lawyer with the Ontario Bar—with its proceedings authorization committee, which has six appointees, or benchers. There's one member of the public, a lay person, who's on it. They make the decisions about the inappropriate conduct of lawyers, or any other complaint about lawyers. That seems to be working. Similarly, with the Judicial Council, when complaints are made about judges, one person doesn't make the decision; a group of people makes the decision.

Could you comment on that, and would you recommend to the committee that perhaps a similar system be set up? Again, I don't mean to insult you, but when you look at the phrase “justice must appear to be done”, you'd see why, if I were a board member and I knew you didn't like me, I'd be worried, but if I were a board member and we saw each other socially, well, I'd figure I was home-free.

[Paul Aterman]

Let me make a couple of points in relation to that.

First, the case you're referring to was dealt with under the board's previous process. The process—

[David Tilson, Conservative, Dufferin—Caledon, ON]

I understand that. Under both the old system and the current system, the system is that you make the decision. You alone make the decision as to whether a board member has conducted himself or herself appropriately. You make the decision. My question is whether justice appears to have been done. I don't think it has.

[Paul Aterman]

I understand that. Under the previous system, it was actually the member's manager who made the initial decision, not the chairperson—

[David Tilson, Conservative, Dufferin—Caledon, ON]

That's even worse.

[Paul Aterman]

—which is why we changed it.

I guess what I would say to this committee is that the chairperson is paid and is expected to protect the reputation of the tribunal, and is paid and is expected to uphold the integrity of the adjudicative process and to know where to draw the line when it comes to interfering with a member's decision, but also to know where to take action when the member falls short in their conduct—

[David Tilson, Conservative, Dufferin—Caledon, ON]

Sir, I would submit that you might be biased, and that if you had three or four other people making the decision, perhaps board members or perhaps lay people, the accusation that you're biased or not would not be made.

[Paul Aterman]

In terms of the issue of the perception of justice being seen to be done, there are a number of steps in the new process that speak directly to that. The publication of clear reasons for a decision as to whether a complaint is founded or not founded is a departure from the previous system. The fact that you have an arm's-length integrity officer who is reporting directly to the chair is a departure from the previous system.

[David Tilson, Conservative, Dufferin—Caledon, ON]

I understand all that, sir. That person is independent, and he or she reports to you, not to anyone else, but to you. You alone make the decision and, quite frankly, I think that's inappropriate. I think you need more than one person. In the case of the woman I referred to, I assume that the facts presented by Mr. Hill and Mr. Russell have never been challenged as inaccurate, because I assume there's a transcript, so Mr. Sterlin must have said it. If he did say it, the decision that he needed sensitivity training was inadequate. I'm not competent enough to say what a decision should have been, but that appearance....

I say to you that I don't think one person should make those decisions. The public requires a fair decision, and because you may or may not like the board member, it could be alleged that you're biased. Again, I don't mean to insult you—

[Paul Aterman]

No, I think you're talking about the office, not the person.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Yes, I am indeed, sir.

[Paul Aterman]

I appreciate that, and I take no offence whatsoever.

I understand the question. My response to that would be—

[The Chair, Liberal, Rob Oliphant]

I'm sorry. I'm going to have to cut you off. That was seven and a half minutes.

We have seven and a half minutes for you as well, Jenny.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair, and thank you again to our witnesses today.

I want to start off acknowledging, of course, that you're right in the sense that I think on the whole the IRB does a great job. The IRB members are important gatekeepers and ensure that the integrity of our system is effective. Notwithstanding that, you're faced with a major budget crunch. Even with budget 2018 and a lift of $74 million for the IRB, it still means that there's going to be a huge impact with respect to legacy cases.

We learned yesterday from the minister's office that this budget only deals with about 18,000 cases a year, that you're accumulating 2,100 cases per month, and that you have an existing backlog of over 40,000 cases, so it doesn't even deal with half the backlog that's there. But that's not what we're here to study today, because that's not what this study is about, even though it would have been good if we'd had a chance to get into those issues.

That said, on the complaint issue, I am still wondering why it is that the IRB, in your remaking of the process, given the problems that surfaced with the complaint process, opted not to go all the way with a completely independent process. The truth of the matter is that you have an office of integrity. That is true, and it is at arm's length, but all of those decisions still have to go back to the chair. On the issues of whether a complaint is investigated, the findings are accepted, and what disciplinary actions are accepted and taken, all of that still has to go back to the chair of the IRB.

This was one key recommendation that stakeholders, through the consultation process, told you needed to be done. Why did that not become an accepted recommendation and a practice?

[Paul Aterman]

The board is responsible for managing its own people, and fundamentally it's the chair's obligation to do that. The chair is paid and is expected to act in the interest of the institution.

What we've set up is a new process. It's not yet been tested. There are significant structural differences in that new process. What I indicated to this committee last time is that at the conclusion of a year of that process working, we would have an external party come in and evaluate it, not the board evaluate it. We would have someone else look at it from the outside and pass judgment on it.