Thanks very much.
Thank you for the opportunity to speak with you today about this important study.
I'm here for the Canadian Association of Refugee Lawyers, which is a voluntary association of about 300 refugee lawyers, academics, and law students across Canada.
I'd like to start by acknowledging and thanking my colleagues from the private bar, who have already appeared before you and brought this issue to national attention. It takes an awful lot of work to bring forward a complaint before the board, especially under the old system, and it was their work that has really raised the profile and inspired all of you to sit together to look at how we can solve some of the problems with the board.
There are three issues that I'd like to touch on briefly in my opening remarks.
First, while there are certainly valid concerns about aspects of the way the IRB functions, as we've just heard from my colleague, and while the board can certainly be improved, we do need to be very, very careful not to throw the baby out with the bathwater.
Second, the IRB has a brand new complaints process. Again, while it can certainly be improved, it has not yet been tested. In that respect, the timing of this study is less than great, and I would recommend that you reconvene in a year to look at what has happened. I'll talk about that in a moment.
Third, the appointments process is connected to the question of training and to complaints. The appointments process could certainly be improved, and we have a number of suggestions.
On the first issue, the IRB enjoys a global reputation as a model of refugee determination. The central quality that's led to that reputation is its expertise and its independence from government. As an expert quasi-judicial tribunal, the IRB manages in large measure, though not completely, to avoid the numerous political traps and pitfalls inherent in refugee determination. After all, a core element of refugee determination is determining whether other states are persecuting their own citizenry, and it also involves frequently condemning the actions of other states in their human rights violations. By leaving this determination to an independent tribunal on a case-by-case basis, for the most part we avoid turning refugees into political footballs to be kicked around or protected, depending on the proclivities of the government of the day. Also, we avoid a situation in which other countries raise diplomatic concerns that the Canadian government is interfering in their domestic affairs by denouncing their human rights violations. Therefore, the independence of the tribunal protects both refugees and the Canadian government.
On the complaints process, there have been serious and very long-standing problems with the way the board has dealt or not dealt with board members whose conduct falls below the standard that we'd expect of people holding the fate of vulnerable people in their hands. It's because of this problem that CARL and others, such as the Canadian Council for Refugees, have been calling for a new complaints procedure. The IRB heard our call and did develop a new process. We are not saying it is perfect, as it's certainly not, but it is new and it is much better than what we had before.
We do believe that there are some critical tweaks that could be implemented to make it more transparent and independent. For example, we could make it mandatory to report annually on the nature of the complaints, the steps taken, and the outcome of the complaint, obviously without disclosing identifying information.
Also, we could improve independence by amending section 5.5 of the policy to give the director of integrity more power, including the power to refuse, refer, or accept a complaint, while retaining the chair's power to accept and to refer to an external investigator where the chair thinks there is a valid complaint that the integrity director didn't think was valid.
There also needs to be a range of clear consequences for bad behaviour, from training through to removal from any hearing or decision-making role to outright termination.
However, the new complaints procedure does represent a very significant step forward for the board, and it's one that needs to be tried before being rejected outright, in our view. It's also a process that was within the board's jurisdiction to create and that avoids undue interference with the independence of decision-makers.
Other models that have been discussed here are well worth investigating, and I'm hopeful we'll have at least a couple of minutes to talk about some of them. However, for the most part, we would note that some of the other models that have been discussed here would require legislative change or amendment, as well as having significant budget implications. Neither of those was within the jurisdiction of the IRB itself to implement.
However, as we all know from the cases in the media, this is not an issue that either the board or anybody else can afford to put off for legislative amendment. Action is needed—was needed and is needed—and it's needed right now.
In our view, it's important at this point to give the new process a chance to prove itself, and we would commend this committee to come back in early 2019 to assess the outcome.
Finally, on the issue of appointments and training, we think there is certainly more that can be done and must be done to protect the vulnerable people who end up before the board. For appellate bodies of the RAD—the IAD as well as the immigration division—given that the majority of people who appear there do not have a right of appeal to the IAD, it's important that members of those divisions have legal expertise and subject matter expertise.
In addition, candidates should be screened for their understanding of discriminatory conduct, including their understanding of appropriate behaviour in the hearing room, and conduct related to sex, race, culture, sexual orientation, gender identity, and gender expression.
Training and complaints are critical, but they only go so far. Who gets appointed and how we deal with bad conduct are critical components to make this board function the way it needs to.
An idea that we think should also be explored is partnering with academics for ongoing training, roughly similar to that which is provided to judges through the National Judicial Institute, and again, CARL. We have many academic members who are experts in refugee law who would be very happy to work with this committee to develop protocol.
That's it. I'm hoping for an opportunity to discuss some of these options with you during the Q and A.