Thank you for inviting me to speak with you.
The first thing I'd say, and which I think all stakeholders would say, is about the importance of the board as an institution. The importance of it having expertise, independence, and quality of judiciousness is not only fundamental for people who rely on the board, but I think it's something that everyone should be concerned with, because really no one benefits from a system if decisions are made poorly or injudiciously.
It's important that stakeholders be able to come forward with constructive suggestions. They need to be able to come forward and speak to how to improve the system with an assurance that we have a political and legal maturity to accept that we need to have an independent and expert tribunal to comply both with our obligations under the charter and under international human rights law, and that there not be a sense that if people advocate there will always be someone advocating to make the system worse or to replace it with something worse, which is the rumour that we get when we say we need to improve things.
We get that kind of push-back and we're told that people should be timid about speaking, but we're always speaking constructively. We commend the board as an institution and we want it to be reinforced.
There definitely was an improvement in the professionalism in general of the appointment process and of board members once we switched from GIC to the public service process, which, as Chantal says, is not a process of just hiring people who are already civil servants, as you know.
What the appointment process really requires is a combination of expertise and judiciousness. I think a deficiency in the current process is that it omits substantive expertise. The qualifications can be expertise in any type of law. A problem with this is that once you appoint that person, they will have to be trained. They will have to be trained in refugee law or immigration law, whatever division they go to. That really slows down the efficiency of the board. When can people come up to speed to be hearing a full caseload?
We need a combination of substantive requirements. One is that people know the law, that people are able to pass a test for dealing with the law. Right now the testing process has been made neutral so that it doesn't reference substantive law. Also, there's screening for judiciousness. Chantal spoke—quite eloquently, I thought—to the importance of that. Even if a person is very well qualified on paper, it doesn't mean they're going to work out as a decision-maker. One of the people who was the subject of discussion earlier I think would have been qualified on paper, but if in background screening people had done interviews with people who had worked in their profession with them, they would have been told of tendencies that would be more obstructive and problematic if that person were in charge of hearings.
When screening is being done for people who get appointed to the federal judiciary, cold calls are made to people in their profession to ask them about that person's tendencies. I think if that were added to the process, it would help, but judiciousness is the hardest quality to screen for. It is something that requires the capacity for empathy. It requires the ability to step back from your preconceptions, step back from positions that you're militating for. If you act as an advocate when you're a decision-maker, it's very hard to step back. In the hearings now, board members even will sometimes do their own research, so then it's very hard for them to step back from that and take a fair approach.
The screening before hiring is so important. I completely agree that we should have a panel of experts who are involved in the screening process and who ultimately create a list of who is highly recommended, and the chairperson would then select from that list.
I also agree with the complaints process. It should go to an outside committee that would make a decision. It's a conflict of interest for the board to both deal with the complaint and be administering the tribunal. I think even Mr. Aterman expressed that ambiguity and that difficulty. It's inherently problematic to be receiving the complaint when you're supposed to be respecting the independence of the board members.
The process should be transparent. We should have timelines with it so that we would know when a board member was being given this, the process by which they get to respond, and whether they get to respond to what has been said.
Ultimately, any process is only as good as the goodwill, the sincerity behind a commitment to ensure that the best people are appointed to it and that issues are resolved fairly. I think it's important that we all agree to this basic commitment that the board must not only exist as a tribunal but must be supported in ensuring that it can achieve excellence and be as judicious as it can be.
If you combine improving the appointments process with a complaints process that doesn't put the board's administration in a conflict, I think we can avoid a lot of these situations.