Evidence of meeting #102 for Citizenship and Immigration in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board.
A recording is available from Parliament.
11:50 a.m.
Conservative
Larry Maguire Conservative Brandon—Souris, MB
Can you elaborate on that? Is it in agreement with what Ms. Roushan has just indicated?
I'm not asking to put you on the spot. If it isn't, that's fine too.
Are there other suggestions as to how that panel should be set up? What did you mean by “initial vetting”?
11:50 a.m.
Barrister and Solicitor, As an Individual
I hadn't given much thought to whether it should go to one individual or a number of individuals, but I think it's the concern of Mr. Tilson that if there are frivolous complaints, there is no need to bog down an already bogged-down system with frivolous complaints.
I think it's also a quick way to determine if an individual has really committed a grievous action in that hearing. For instance, there was a judge at the Federal Court who was found to lack gender sensitivity, to put it lightly, and a complaint was filed by a number of crown lawyers in Calgary. It was deemed to be well founded by the Federal Court and the supervisors there. He was very quickly removed from hearing any gender-based claims.
It's the idea that justice has both to be done and seen to be done. I think that's the only effective way to do that.
March 22nd, 2018 / 11:50 a.m.
Liberal
Nick Whalen Liberal St. John's East, NL
Thank you very much, Mr. Oliphant.
I'm very intrigued by a number of your recommendations. I want to make sure that we dive a little bit deeper into some of the nuances of the IRB.
The IRB has four panels. The lower two levels are civil servants. The upper two levels are GIC appointments. It's always open to the government not to renew people for whatever reason. I understand Mr. Sterlin wasn't renewed, so he will no longer be hearing IRB appeals. Ms. Cassano, who is at the civil service level of appointments, was terminated.
I want to get a sense from you whether or not you feel there should be the same type of complaints process for all four boards or if there should be different complaints processes, and whether or not you consider the members of either boards to be more or less judicial and whether more or less deference should be shown to their decision-making.
11:50 a.m.
Barrister and Solicitor, As an Individual
In my view, the same complaints process should apply to all of the various arms of the IRB. This committee heard testimony about the concerns, for instance, about long-term detention. I realize it's anecdotal, but very often I or other immigration practitioners who do a lot of detention review work would go to a hearing. You have an individual who is in detention, which is the most fundamental deprivation of your rights. These are not individuals who are facing charges; they are on immigration hold.
If you get a certain member, strategically you don't present your alternative to detention, because you know your chances of release for that individual are literally zero per cent. This individual languishes in detention for another 30 days, and you hope that you get another member.
In my view, given the importance of the work this board is doing, the complaints process should be the same for all the arms.
11:55 a.m.
Liberal
Nick Whalen Liberal St. John's East, NL
Ms. Roushan, you were nodding, so I'm assuming you don't have anything further to add.
There's another layer of this, and you have addressed it slightly. Mr. Aterman mentioned there were only 170 complaints and that many of them were not related to the conduct of the members themselves. Ultimately, in founded complaints, there were 21 against 14 members.
It doesn't sound like a huge volume over nine years. I'm wondering whether or not something like the Canadian Judicial Council, which Mr. Tilson mentioned in our last meeting, might be a suitable venue for the complaints process. It's already a federal judicial oversight body. It uses five members instead of three. It has lay representatives and professionals on it.
Rather than creating a new entity, I'm wondering if there might be an existing entity within the federal structure that could handle this process.
11:55 a.m.
Lawyer, As an Individual
It's something I would need to put more thought into, because it might be worthwhile to have individuals hearing complaints who are familiar with the refugee and immigration process in particular. Again, I've never really thought of the Judicial Council looking into it, so I don't think I'm really in a position to give a definitive comment.
11:55 a.m.
Barrister and Solicitor, As an Individual
I also hadn't thought about it, but I think it certainly sounds like a good idea.
11:55 a.m.
Liberal
Nick Whalen Liberal St. John's East, NL
With respect to looking at the members of the board for civil servants, our committee has not really looked at the labour relations impact and how it might affect collective agreements. While the issues related to competence certainly go to issues of cause, I'm sure the collective agreements held by the civil servants already contain complaints procedures.
Are you aware of those in the complaints you have brought against the members? Have those instances been raised? Are there particular things we should get the views of the unions on in order to determine appropriate recommendations on a policy that jells both their judicial function and their privileges under their collective agreements to make sure that works out together?
11:55 a.m.
Barrister and Solicitor, As an Individual
Certainly the unions are important stakeholders for our particular type of appointment. My complaint was against a political appointment.
11:55 a.m.
Lawyer, As an Individual
It's interesting to me that Mr. Aterman's testimony was so emphatic in protecting board members, given that they have a collective agreement and a union that's already representing their interests. Again, it requires a paradigm shift, right? The board needs to start thinking about its process as including the rights of claimants rather than just those of board members.
11:55 a.m.
Liberal
Nick Whalen Liberal St. John's East, NL
The last question might be beyond the scope of how deeply you've looked at this. When you take something like a board or a series of adjudicators with almost 500 members and look at the statistical breakdown of the numbers of acceptances and rejections, clearly, as Marwan pointed out, rejecting everybody has to be an outlier that's subject to reproach. However, when you're talking about somebody who's 20% off the norm, it seems to me that in a distribution that counts 500 members, you would expect that a certain number of people—just based on case flow, and assuming the honesty of everybody involved—will be 20% below the norm, some will be 20% above, and there are also instances of bias where the casework is—
11:55 a.m.
Liberal
11:55 a.m.
Liberal
Nick Whalen Liberal St. John's East, NL
My question is this: does your statistical analysis, in focusing on the one individual, take that and their skill into account...?
11:55 a.m.
Barrister and Solicitor, As an Individual
It does take that into account.
11:55 a.m.
Liberal
The Chair Liberal Rob Oliphant
Thank you very much.
We're going to end the first panel at this point. We'll take a two-minute—
Yes, Ms. Kwan?
11:55 a.m.
NDP
Jenny Kwan NDP Vancouver East, BC
Sorry, Mr. Chair.
Before we take a break, I wonder whether I could make this request for the committee to the analysts.
We heard from Ms. Roushan that previously there used to be a fairly robust process for appointments that people had to undergo, but that process was done away with for some reason. It may be because people just could not pass the test. It would be very useful and helpful for the committee to receive that information, if the analysts can undertake to research that information and provide it to us.
11:55 a.m.
Liberal
The Chair Liberal Rob Oliphant
I think it was contrary to what we heard from the Privy Council Office, which made it sound like there's a more rigorous test now. I would like to have comment from the Privy Council Office on it, as well as for the analysts to look at a change, if that would be okay.
Noon
NDP
Jenny Kwan NDP Vancouver East, BC
We could see what it was before, and then how it changed. That would be very helpful.
Noon
Liberal
Nick Whalen Liberal St. John's East, NL
There are actually three sets of changes. It's what it was before, how it was modified under the Conservative government, how it was modified again by the new PCO policy, and whether or not the types of tests that the reappointees are having to write are the same as those for the new appointees. I think that was the issue that was raised.
Noon
Liberal
The Chair Liberal Rob Oliphant
I don't want to flog a dead horse, but I had expected that from the testimony from the Privy Council Office, and I don't think we got it. A request to them to outline that would be very important. It's a bit more from the PCO than from the analysts, but we'll have to ask the analysts to do both. Thank you.
Noon
Lawyer, As an Individual
Sorry; just to clarify, that rigorous test was when the immediate change was made to public service appointments. They initially started testing when they got away from the GICs and started with the public service appointments, and then they retracted it because people were failing.
Noon
Liberal
The Chair Liberal Rob Oliphant
Do we need a motion on that? I think there's agreement that we need this information. Do we have that consensus? Very good.
Okay. Let's take one moment, then.