Citizenship and Immigration Committee on April 17th, 2018

[Cheryl Robinson]

I think it's had two opposite effects. I had a recent claim where there's been a delay of about a year and a half. The person was unable to tell an officer at the airport—the stranger in a bulletproof vest—that he was gay; but at the board he had no problem explaining it. That was because of that year that he'd been here in between. For him it made it easier because he realized it's okay in Canada. That was also a sticking point for the board member. The board member said, “Well, why is it so easy for you now?” It's funny how that passage of time can both help and hinder.

When it comes to gender-based violence claims, that constant state of limbo can be extremely wearing, and it can be re-traumatizing. In many cases, for that person it can actually weaken the claim because a year, two years.... I have one that's now six years because we've gone to the Federal Court and back. How can she actually prove that the person is still looking for her? It's not the state; it's an individual. It's going to be very difficult. Passage of time is not beneficial in that manner.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you.

Ms. findlay, do you have a comment on that as well?

[barbara findlay]

I think the delays are very difficult because, for the claimants, the degree of uncertainty coupled with their ever-growing realization of what's going to happen to them if they go back to their country of origin, having made a claim on the basis of sexual orientation, is progressively debilitating.

I also agree with Ms. Robinson that sometimes people who come here don't even have a self-concept as being queer—any flavour of queer—because there are no social mirrors reflecting that as an option in their countries of origin. They come to a sense of themselves as gay, lesbian, or transgender once they get here.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Go ahead, Ms. Kwan.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much to both of our witnesses.

I'd like to just follow up on the issue around follow-up in terms of training, in the case of a member who's had a complaint lodged against him or her, and the complaint is found to be valid, and later on they're subject to training. As we heard from Mr. Aterman, there is no follow-up to determine how effective that training has been, other than a year-end evaluation of that particular member's evaluations. Does this make sense to you? If not, what should be done?

If I could just get quick comments from both of you, I would appreciate that.

[Cheryl Robinson]

I find that concerning because, basically, you're making refugee claimants who come after the complaint and training into guinea pigs to see if the training took effect. I also think that if we looked to other bodies, for example the law society, we'd see that when people are reinstated they're not just put in without any supervision. There are terms for supervision and follow-up. There is a feedback mechanism for them, as well, which can be part of the terms. I think that would be more appropriate after a complaint.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

What do you think, barbara?

[barbara findlay]

I agree. I think there needs to be some structured follow-up and evaluation. I certainly think there needs to be some sort of exam or evaluation at the end of the training so that the board can be satisfied that its member has actually absorbed the information; and the member subsequently should be evaluated against the training. It's a problem in all areas of judicial education.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

I'd like to ask a question around the issue of independence. Under the current system, even the revised complaint process, there is not complete independence because ultimately it is the chair who makes the decisions around these complaints. Do you think that's appropriate? If not, how would you like to see it changed?

That's a question for both of you as well.

[Cheryl Robinson]

I think that there is a conflict in that process and that it should be an independent decision-maker making that final call on the complaint, not the chairperson.

[barbara findlay]

We agree, particularly in the refugee context, where people come from countries where one hand washes the other. If the complaint process is to have any credibility, it has to be separate.

[Jenny Kwan, NDP, Vancouver East, BC]

Regarding outstanding complaints, we now have situations where if a complaint has been lodged against a particular member and that member has left the IRB for whatever reason, the complaint is simply dropped. For some individuals that is a concern, because they never receive an outcome regarding their complaint.

Do you think the IRB should find a mechanism by which they can ensure the complaint is heard so that there can be closure for the complainants and the issues they brought to the table?

Again, the question is for the both of you, please.

[Cheryl Robinson]

I would say yes, but I think that's where an independent decision-maker and independent complaints body might have that ability, as opposed to the IRB, which seems to be limited to the mandate and when that person is an employee. I think that would point to why an independent complaints mechanism would be much better as a final decision-maker.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

[barbara findlay]

And the results of all of the investigations and the disciplinary consequences, if any, should be made public—not necessarily tied to individual board members, but available to the community of practitioners, other IRB members, and claimants...what the standards of professional behaviour involve.

[Jenny Kwan, NDP, Vancouver East, BC]

With the current process it is nearly impossible to fire a member. The process is so onerous that for all intents and purposes it's not feasible.

Do you think there should be changes so that if you found a situation where an IRB member was so egregious in their practice, there would be another way they could be fired?

[Cheryl Robinson]

Yes, I think it would be appropriate. One of the things we are seeing now, as a result of the public pressure through newspaper articles and Global News, is that some of the most problematic board members have left or have resigned. I don't think it's the best situation that this is the way problematic board members leave or are removed.

[Jenny Kwan, NDP, Vancouver East, BC]

Ms. findlay?

[barbara findlay]

I lost the question there, Ms. Kwan.

[Jenny Kwan, NDP, Vancouver East, BC]

I was asking about the process through which a board member can be dismissed. As it stands right now, it's almost impossible to do.

[barbara findlay]

The message that such a complicated process sends is not that you have a fair process, but that you want the appearance of a fair process. That's the worst of both worlds. You have to make the process simple enough and with enough consequences that people understand it's worth using and is a guarantee of the integrity of the board as a whole.

[Jenny Kwan, NDP, Vancouver East, BC]

We were talking about the delay in claims, and one of the big problems is the lack of resources within the IRB. Currently the IRB is accumulating 1,200 cases per month in backlog. Even with the injection of the dollars in this 2018 budget, it would not clear even half of the existing backlog. It would not clear the over 40,000 cases that exist in the system; it would deal with only half of them. We know that the accumulation of cases will continue to bring pressure on the IRB.

From that perspective, while we're not necessarily talking about budgetary items, the implications for claimants are huge. How to rectify that—

[The Chair, Liberal, Rob Oliphant]

I'm afraid you're over time.

[Jenny Kwan, NDP, Vancouver East, BC]

Would you agree that it requires an increase in budget?

[Cheryl Robinson]

I think it's a combination of that and the fact that there are administrative inefficiencies at the board. They have an expedited process, and “expedited” is a complete misnomer. It's not a faster process. Claims that should be based on objective evidence, that should be easily decided....

I have one that started off in expedited, and then a hearing was scheduled. Then the hearing was cancelled. Then another hearing was scheduled. The day before the hearing went ahead, we were told it was going back into expedited, and we got a decision four months later. There was absolutely no continuity in how that process was applied.