Evidence of meeting #104 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 business.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

barbara findlay  Lawyer, As an Individual
Cheryl Robinson  Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

11:05 a.m.

Liberal

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

I call to order the 104th meeting of the Standing Committee on Citizenship and Immigration, as we are continuing our study on the Immigration and Refugee Board's appointment, training, and complaint processes.

We're very glad to have two witnesses here: barbara findlay, who is joining us from Vancouver by video conference; and Cheryl Robinson, who is present. We had a third witness who is unfortunately ill today, and we will discuss this later, but I think we do have time for her to come on Thursday providing that she's feeling better.

I'm going to suggest that we begin with barbara findlay for her presentation, only because she's on video conference.

You have seven minutes.

11:05 a.m.

barbara findlay Lawyer, As an Individual

Thank you very much.

Hello everyone. I am very pleased to speak to you today about these important issues.

I acknowledge that I am on unceded Tsleil-Waututh, Musqueam, and Squamish territories.

I will introduce myself to you in this way. I am an old, white, cisgender lesbian. I was raised working class and Presbyterian in Regina.

I want to talk a bit about what the world was like for me when I was coming out in 1968. I fell in love with a woman, and she and I both believed that we were the only two women to fall in love with each other ever in history. As you can imagine, that put us way outside what we thought anybody would be interested in, could talk about, would know about. We existed in the Carleton public library in two books. One was Abnormal Psychology, and the other a “lesbian commits suicide at the end” novel called The Well of Loneliness.

We would certainly have told absolutely nobody of our sexuality. Bit by bit, after I moved to Vancouver from Ontario, one would encounter people and you'd wonder whether they might be gay or lesbian. It was way too risky to ask. You might have conversational gambits like, “Have you ever read Jane Rule?”, who was at the time a contemporary lesbian novelist. That way you could have a conversation without ever outing anybody. It was a sacred commitment that no one ever outed anybody else that they knew to be gay.

I'm using those words because back in those days, “gay” and “lesbian” were the primary terms for our communities. The term “homosexual” went many decades ago as a respectful term for description of sexual orientation. Oppression as a queer is different than other kinds of oppression, for example, political oppression, because what we stand to lose first and foremost are our families of origin. Our families do not share our experience of persecution, but rather we risk losing them and our community.

It was the fact of coming to consciousness in a context where you were absolutely invisible in the culture. You could find tiny references. You were either mad or bad because you were either crazy—they locked me up in a mental hospital when I was a teenager because I was a lesbian—or you were a criminal. It was still under the Criminal Code at the time. If I lived with a partner, I had two choices. I either switched her gender in the stories I told about my weekend activities, or we were just roommates. I certainly didn't tell my doctor. When I tried to tell the psychiatrist, he skipped that appointment and never raised the issue again.

I read about bar raids, street harassments by police, people who had been fired, and lesbians who lost their children when they came out. I and everybody else led an entirely bifurcated life. I was out to almost nobody. Very few people would guess, because then, unlike now, there was no notion floating in the culture about “maybe she's a lesbian”. As a lesbian, I have faced harassment and discrimination and so on.

As a cisgender woman—that is, someone whose sense of gender identity is congruent with the gender that was assigned to me at birth after they looked at my genitals—I am not harassed for my gender identity. I can walk down the street, and nobody will give me a second glance.

My partner, on the other hand, who is a very butch-looking woman, is routinely harassed in airports, washrooms, and public spaces. She has had the police call on her when somebody's boyfriend thought she was a man, and had gone into the wrong room. That has happened more than once. She and all transpeople are always one washroom from home, because you can never be sure that it's going to be safe to pee.

As a very out lesbian lawyer, I've been in a bar maybe three times in my life. Of transpeople in Canada—you may already know this, but think about it—more than a third of them considered suicide in the last year, and more than 11% of them attempted suicide. Some 57% have avoided public places; 98% reported a transphobic incident within the past year, including 24% who were harassed by the police; 39% have been turned down for a job, and 26% are physically assaulted. Typically transpeople don't seek medical care.

11:15 a.m.

Liberal

The Chair Liberal Rob Oliphant

I could go all day with you. I read Jane Rule, but I need you to keep going. With the committee's permission, I'll give you an extra minute.

11:15 a.m.

Lawyer, As an Individual

barbara findlay

For my last minute, I'm going to invite you to take on for the rest of this conversation today a different gender identity than you actually have. If you are a cisgendered man, I invite you to consider that you are really a woman dressed today as a man, and imagine all the way through this conversation that somebody might out you. In order to make me and you feel welcome in an IRB hearing, what would you want?

First of all, you would want people to take the trouble to ask you how you identify. You can't tell by looking, you always have to ask. We have a set of name tags, he, she, they, them, and blank. How would you make sure that your claimants feel safe? What do your washrooms say? Do they say transpeople welcome, or do they simply have a sign on the washroom?

Would it be helpful to you as the claimant if the chair said, “I know I'm going to have to ask you some really sensitive and personal questions. I understand they may be uncomfortable for you, but I'm going to be asking them, in any case.”

Mr. Chair, I can stop there for now.

11:15 a.m.

Liberal

The Chair Liberal Rob Oliphant

I'm sure you're going to get lots of rich questions to get more into the IRB. Thank you very much, Ms. findlay.

Ms. Robinson.

11:15 a.m.

Cheryl Robinson Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Good morning, all.

Thank you very much for inviting me to speak before the committee today.

My name is Cheryl Robinson. I'm an immigration and refugee lawyer. Although I practise before all four divisions of the IRB, I am going to be focusing my remarks on the refugee protection division and the training of its members, with a particular focus on what I believe to be inadequate training regarding questioning of traumatized, marginalized, and vulnerable persons, and the intersection in the quest for truthfulness or credibility, which is the heartland of the refugee board's mandate.

By way of background, at the refugee board there's a core principle of credibility, which is that sworn testimony of a refugee claimant is presumed to be true unless there's a reason to doubt that truthfulness. This is a Federal Court-mandated principle that has to be respected in all credibility findings. Even though there is this presumption of truth, what we often see in practice is that this results in a hunt for a reason to doubt truthfulness, for the board member to search for inconsistencies, plausibility concerns, or omissions. This often causes the board members to engage in very detailed, thorough, intrusive, and repeated questions on issues. Leaving aside the appropriateness of that response, I would note that when you engage with vulnerable and historically marginalized groups, such as the LGBTQ community and women facing gender-based violence, this search for truth, or the truthfulness or credibility of a claim, becomes that much more difficult.

In my own practice before the board, I have seen board members take a gamut of approaches on how to find the truth. I've seen board members engage successfully in very sensitive, inclusive, and most of all, respectful questioning of claimants. They ask about feelings, how the person felt about an event. They ask about what they recall as opposed to subjecting them to a series of intrusive questions with a particular response expected.

There are many others who take less positive approaches. For example, some will ignore the sensitive issue altogether. They won't ask any questions. They will instead engage in credibility determinations based on completely peripheral issues. I had a refugee claim that was denied because the address history was wrong, and this was used to determine that the claimant wasn't gay. These are not related.

On the other hand, we also see some board members who engage in very intrusive and specific questioning, and they will keep on asking because they believe it's part of the mandate to determine the credibility of a claim. I've heard board members ask things like “Do you remember how long the rape lasted?” “On average, how many times a week were you beaten?” “Per month?” “Just guesstimate.“ None of these questions actually draw out useful testimony. Instead, what happens is that you're re-traumatizing the claimant when these questions are being asked, and it inhibits their ability to answer. Claimants will shut down. They start providing incoherent or scattered answers. In fact, this type of questioning actually prevents the board from carrying out its mandate. It prevents them from getting to the credibility of a claimant and their experiences.

With all due respect to the very difficult task that RPD members have in determining claims, to me this points to inadequate training. That's because we see these completely inconsistent approaches being applied by different board members. It's quite clear that some of these negative approaches persist at the board despite whatever training is present.

I have a number of concrete suggestions, and I'm sure that some of them are going to repeat those of previous witnesses. I think some of these elements bear repeating.

The first is that training should include those who have gone through the refugee process as well as the agencies that work with these communities. What better way for board members to truly understand the impact of the questioning than to hear from someone who has been through that process? This could be done by way of recording, or by working with the agencies that work with these communities. It doesn't have to be an in-person experience. It should be focused on how they felt about questioning, not elements of their claim.

The training should also be trauma informed. The training should include working with mental health professionals to understand the impact on trauma, not just in terms of being able to provide testimony but also to recall memories and to be able to verbalize those traumatic events.

It should also include how to read and apply the psychological reports, because that, quite frankly, is a stumbling block in refugee determinations, as well as consideration and training on the potential for re-traumatization through the hearing process itself, which I believe is often left aside.

All of these training elements have to be coalesced through situational-based training, running through scenarios and case studies. It's not enough to simply have someone lecture at you, and then put you into a hearing. That training cannot happen on the job.

Related to that is the need for follow-up training. Mr. Aterman spoke about how there was a three-hour afternoon training on the application of the sexual orientation, SOGIE, guidelines. That isn't sufficient. What needs to happen is that, after this training, after the board members have had an opportunity to try out this training, they reconvene and discuss, canvass those issues, and see how well they are applying that training. Where are they struggling? That doesn't seem to be addressed. I see the same issues coming up with the same board members.

I also think it would be a really ideal time for those board members to listen to their own past hearing recordings to objectively hear for themselves how they dealt with a difficult line of questioning or a case, not just what they said, but how they said it. Tone impacts on the person's ability to answer. Feedback on the application of the training would allow those board members to really hone and develop their skills and training.

My final suggestion is a bit different, which is that, if it is too onerous for the training to be conducted for the entire board, that there be developmental teams that specifically engage with certain communities or certain case types. For example, right now the board uses country-based teams. You have a team that hears lots of claims from China or lots of claims from Somalia.

Why don't we use that to have a team that deals with primarily gender-based violence claims where it is a central element of the claim or where a sexual orientation or gender identity is the core? This would allow for the training of very specialized expert teams that would not just understand how to work with such claimants, but be trained on how to question them, how to elicit the appropriate testimony, and how to ignore peripheral issues that really aren't relevant to the issue of whether someone is gay or someone has been raped. I think this would be an extension of the guidelines that are already in place. We recognize that these populations are particularly vulnerable. I believe that this would be an appropriate step to consider.

11:25 a.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you, Ms. Robinson.

For the first round of questioning, we have Mr. Anandasangaree.

11:25 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you very much to both of you for coming here and presenting today.

I know it's very timely in the sense the of the LGBTQ intersectionality that we've seen lately. I know of the senseless murder yesterday of another individual who came on the MV Sun Sea in 2009. The potential link, I think, is quite worrisome and really speaks to the complex issues that you have identified today, Ms. findlay.

I'd like to get a sense of how—for example, you're talking about gender-based violence— we look at the issue of intersectionality. I'd like to get a sense of how we make sure that the IRB is trained to ensure that it looks at specific countries, but maybe there's a country-specific and gender-based violence lens that may be even more specific or more specialized than having just thematic or country specific issues alone.

We'll start with you, Ms. findlay, then Ms. Robinson.

11:25 a.m.

Lawyer, As an Individual

barbara findlay

The issue of intersectionality is very important in this context. For example, going back to the business of the claimant, they have a terrible choice to make. If they are known to be gay in their community—for example, if they're out in the refugee camps or in their cultural community after they come to Canada—then they will be known as out in that community and they will be severed from their community of origin, a Hobson's choice if ever there was one.

In understanding why queers might not tell anybody, it's crucial to understand the particular cultural and religious history. I have had an Indo-Canadian client say to me that I should sponsor his Indian partner and his Indian partner's wife, because in India it is standard practice for gay men to marry and to have relationships on the side with the knowledge of their partners. I have had a lesbian from China tell me I am the only person she has ever told in her life—she is sponsoring her lesbian partner—and the only person she will ever tell. The difficulty with the intersectionality is that if you're the queer person, you end up in a very, very small and lonely place.

In terms of dealing with that intersectionality, the most important thing the board can do—in particular in its training—is to be trained about intersectionality. That's number one. Number two—and to my mind this is absolutely crucial—is that board members should literally make the thought leap that I invited you to make today, and that is to try to think beyond your experience, beyond your point of view, and from the point of view of the claimant for a period of time.

That's a very difficult thing to do, but it is actually the only way to understand some of the actions of the claimants you see and evaluate. If you think of sexual orientation or gender identity as something that is fixed, then the fact that somebody was apparently straight in their home country and is now saying they're gay is problematic. If you understand why people make those choices, the problematic nature of it goes away.

In answer, training about how intersectionality works, and the board taking a real effort to look at things from the point of view of the claimant in that training and in their work are huge steps forward.

11:30 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you.

Ms. Robinson.

11:30 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

Right now there is reference to this in the guidelines. For example, both the Courchesne guideline for women facing gender-based violence and the SOGIE guidelines refer to the fact that you can't make assumptions, and that there may also be cultural norms in play that guide a person's actions. We have resources in the guidelines.

It's inconsistently applied, though. From my perspective, part of it is that some of the board members don't really know how to use those guidelines. They know they're not supposed to say certain things, but how does that really play out in practice?

That's where situational, scenario-based training and case studies would really help, because they are a way of leading people to consider both aspects and to play out what they would say to a claimant who is alleging a certain thing. It would hopefully stop or at least limit questions like, well, why wouldn't you tell your wife? Why would you get married if you're gay? I've heard this repeatedly: why would you go back to your abuser, or why wouldn't you just run away from your husband? A lot of these are just tropes that we see across gender-based violence or sexual orientation claims, but at the same time the cultural element will help inform that.

Some of it is that there is no follow-up or reinforcement on this. They're given guidelines, but then they don't necessarily know how to apply them in practice.

11:30 a.m.

Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

With respect to the current cohort of IRB members, from the order in council, would you say that most of them have been trained and have the background with both gender-based violence, as well as an understanding of the SOGIE principles?

11:30 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

I would say that they certainly have received some level of training and some do amazing jobs in respecting that training and how to consider the guidelines, but it is inconsistent. Even with great board members, I've had them ask these kinds of questions that they were told they were not supposed to ask in the guidelines. I think that is simply, again, a lack of follow-up training and discussion of how to apply them.

11:30 a.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you.

Go ahead, Mr. Maguire.

11:30 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Thank you, Mr. Chairman, and thank you to the witnesses today as well.

I just wanted to check with you both and see how you feel about the conflict of interest process that we're doing.

There have been concerns raised about the fact that the complaints that are being dealt by the chairperson of the IRB might be seen as a conflict of interest because, first, they're a colleague and second, they're responsible for the reputation of the board. We've studied other quasi-judicial bodies, in regards to handling complaint systems, whereby it's better to...such as, against the justice of the peace, with a panel comprised of judges of other courts, chief justice, and lawyers that are put in place to do that review. Do you think that something similar for the IRB would remove the conflict of interest situation?

11:30 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

Yes. I think that it's the right response. Even with the best intentions, I think anybody in that conflict of interest, which the chairperson would be in, would struggle to make completely impartial decisions.

11:30 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

If you go that route, for a justice of the peace, as an example, they have a publicly available, clear list of consequences that are available as well, so that they know what the results will be if there's a misappropriation. They include a warning or reprimanding, ordering the justice of the peace to apologize to the complainant, or even be removed from the office. Do you think that this would be an appropriate list of consequences to have for IRB members as well?

11:35 a.m.

Lawyer, As an Individual

barbara findlay

I apologize if I'm interrupting, but I can't tell who you're looking at, so I'll just leap in.

I think that, unless the members know what the consequences are and know that they're publicly accountable for that behaviour, then in particular, the treatment of issues like sexual orientation, gender identity, or intersectionality becomes constructed as something about the way you do your job, as opposed to something which is part of the standards of how you do your job.

11:35 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Thank you.

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

11:35 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

I would concur with that. Also, I do think that, if a complaint is made and there is no sort of consequence when there has been inappropriate behaviour, what good does that complaint do? It doesn't help the complainant and the refugee claimant at all.

11:35 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Do you agree that the list of consequences should be published well ahead, when the selection process is being done?

11:35 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

Yes. Absolutely.

11:35 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

The primary issue that has come up time and time again is that the IRB has used partisan appointments rather than maybe picking the most qualified candidates. Can you give us any recommendations on how to make these appointments less partisan?

11:35 a.m.

Associate Lawyer, Mamann, Sandaluk & Kingwell LLP, As an Individual

Cheryl Robinson

Right now, the refugee appeal division, for example, is made up of GIC appointments. I think part of the rationale behind that might be because they're looking for more experienced members to join the RAD. I guess this would depend on maybe changes to the regulations, but the same public service appointee process for the RPD could also be applied at the RAD if the concern is partisan political appointments.

11:35 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Are you concerned about the case backlog in the IRB? I only raise this because I want your comments on the length of time for some of the hearings, since the wait times for some of the hearings is several years, in some cases. Do you think it will have an impact on the asylum seeker's ability to recall the details that will determine whether or not they have a positive outcome in their future hearings?