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

11:45 a.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you. I do need to cut you off. We're quite a bit over.

Mr. Whalen.

11:45 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Thank you for coming either remotely or in person today.

Many of the counsel that we've had appear before us have sort of had a uniformity of view with respect to many of the issues. One of the lawyers that was invited, Ronald Ellis, was unable to attend, but he did submit a paper. Some of his positions go against yours. I want to flesh out some of his logic. Maybe you can help comment on it.

With respect to the complaints process and the independence of it, he's actually in favour of it. In paragraph 19 of his submission, he says:

I am impressed with the internal complaints process that was established by the IRB in December 2017 and it seems to me to be the most sensible to allow it to function for some period of time, and to consider how it might be adjusted after that performance experience has been evaluated.

It's primarily for three reasons that he says it's good. Maybe he does so in comparison to an independent process. He says:

If every adjudicator could be exposed to a public, external review of their personal performance...that would be destructive of the institutional morale and team environment....

That's his first one. His second comment is that “the proposed external complaints process...has a number of obvious problems of its own. Who, for example, would administer it...?” How would it be administered? What would the cost be, especially when there have been only 170 complaints over the last 10 years and only 21 founded complaints? I think even last year all of them were against not the GIC-appointed folks, but the government civil service-appointed folks.

Then I guess the third point that Mr. Ellis makes is that the IRB chair, who is making the decision—and most of the complaints are, “Well, the chair...”—is actually the person who most wants the IRB to be functioning and to be seen to be functioning. That's the chair's job. The chair is not biased. In fact, the chair's interests are wholly aligned with the preservation of the administration of justice.

Maybe you can comment first, Ms. Robinson, and then you, Ms. findlay, on why you feel that Mr. Ellis' comments are valid or invalid.

11:50 a.m.

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

Cheryl Robinson

To go back to the first point that you said he made, that it would destroy the morale of the board, a judicial council, JPs, they are all subject to this kind of an independent review. I can't speak to their morale, but they seem to continue as an institution without any problem. I don't necessarily see that as being a hurdle in having an independent body.

In terms of the cost and who would constitute that, I think it's certainly a concern, but I don't think it's a bar. I think it's something that maybe needs to be considered more.

Sorry, what was the last point?

11:50 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

The third one is that, in fact, the chair is the person whose interest is most aligned with not only the preservation of the board, but also that it be doing justice and be seen to be doing justice.

11:50 a.m.

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

Cheryl Robinson

My concern with that is that even the most well-intentioned person who is the head of an institution is going to want to preserve the reputation of that institution as well. Even though there hasn't been a huge number of complaints, part of that—just from my own experience and conversations with other practitioners—is linked to that it hasn't been seen as an open, transparent, or effective process. It's not because there weren't issues, but because we didn't really see it as something that led to any useful results.

11:50 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Are you saying that practitioners are looking to use the process as an extra avenue to advance their clients' claim or to delay or to maintain a person in the country while complaints are—

11:50 a.m.

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

Cheryl Robinson

No, that's not what I was saying.

What I was saying is that the complaints process didn't seem to be effective, and that what happened more recently when complaints were brought against board members was that they continued to hear some claims or claims were put aside and sat until something was dealt with. It's not about trying to use it as an advocacy tool. It's about making sure that, if a board member has not behaved in an appropriate manner in a hearing, there is a mechanism to complain about that member's actions.

11:50 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

You also don't want them to be hearing claims while a complaint is against them. That's sort of what the insinuation of your last comment was.

11:50 a.m.

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

Cheryl Robinson

I think it would depend on each individual example in terms of whether there are a lot of complaints—

11:50 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Okay. Thank you. Sorry, I have just such a limited time.

I'd love to hear from you on those three points as well, Ms. findlay.

11:50 a.m.

Lawyer, As an Individual

barbara findlay

I think the chair has a variation on a conflict of interest because on the one hand they want their board to have a good reputation, which means they don't want to highlight or be publicizing issues where board members have not met a standard of care in relation to issues of this kind. They are most able to maintain the integrity and the assessment by the public of integrity if the process is external to the board so that is taken away from the chair. The point the letter-writer wrote about, the small number of complaints, suggests to me that the process is so daunting people don't complain.

I think also the nature of the complaint process, for example, in the manner in which they treated complainants, is generically different from complaints, for example, that somebody ignored evidence or fell asleep during the hearing, or those kinds of things, and they should be dealt with by external bodies.

I don't think this is rocket science. I think institutions including the police, the law societies, the judicial education system, universities, institutions in general are having to figure out how to deal with it.

11:55 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Thank you.

Another area of the testimony that seems to be.... Mr. Ellis comes at it a different way, is with respect to the tough questions that adjudicators are expected to ask. At least at the appeal level, it seems to be putting the panels in both the position of arbiter but also in the position of prosecutor.

I'm wondering whether or not it should be really, at least with respect to the appeals, the panels who are the ones who should be asking the appellants, or whether or not it should be counsel for the government who are going to be asking these hard questions so the person who's both asking the question and the person who is determining whether or not the question is leading, or whether or not the question is being honestly answered, should not be the same person.

What are your thoughts on that argument that there should be counsel for the government?

11:55 a.m.

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

Cheryl Robinson

When you're referring to appeals, do you mean the refugee appeal division?

11:55 a.m.

Liberal

Nick Whalen Liberal St. John's East, NL

Yes.

11:55 a.m.

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

Cheryl Robinson

Most of the refugee appeal division is going to be a paper-based process so you aren't going to have a hearing in many situations. I think it can be challenging to strike that balance between asking the questions that are necessary as a board member and also listening and making a determination on it, but that's the cornerstone of reverse-order questioning that informs the refugee protection division.

The rationale that the courts upheld all this is because it's not an adversarial process. I think this is part of what I was speaking about. There has to be a balance between the ability to ask difficult questions, but in a respectful and inclusive way, because I don't think it's necessary to ask minutiae about someone's sexual assault.

11:55 a.m.

Liberal

The Chair Liberal Rob Oliphant

Thank you.

Mr. Maguire.

11:55 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Thank you, Mr. Chair.

It has been suggested by witnesses in this committee that maybe we have too many people with law enforcement backgrounds. It has also been stated that perhaps personal characteristics...that applicants are more important than substantive knowledge on some of these issues.

What's your view? To what extent should the IRB members be familiar with the immigration and refugee law upon being appointed to the board?

Would you like to lead that, barbara?

11:55 a.m.

Lawyer, As an Individual

barbara findlay

I would say first of all that the board itself should reflect the communities of people who come before it. I am particularly concerned today not that they necessarily know the law, because decision-makers often don't, but that they have a grounding and an understanding in things like how you are going to ask someone about their sexual activity in a manner that is likely to elicit a truthful response.

That's my bigger concern at the moment.

11:55 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

Thank you.

Cheryl.

11:55 a.m.

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

Cheryl Robinson

I agree. I think it is a big concern, the ability to ask the questions respectfully and to obtain the information. In terms of application or at least knowledge around the law, I do think it is important that there is a more base-level knowledge. I don't necessarily think that means you have to hire lots of immigration lawyers to make the determinations, or all CBSA officers, but I do think there needs to be more consistent training related to it because it is a very legalistic area. There is a test that has to apply and principles that have to be followed. The board members need to know it to be able to ask the questions.

11:55 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

I understand that your view is that the appointees should have previous formal training in law, but also, as barbara has indicated, they need to understand the backgrounds of the people as well.

11:55 a.m.

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

Cheryl Robinson

I don't necessarily think that everyone needs to have formal training in law before coming to the board, but they need to be able to learn and have an ability to uptake the information they need.

11:55 a.m.

Conservative

Larry Maguire Conservative Brandon—Souris, MB

A report came out last week suggesting it might be more efficient to have the initial decision on a refugee claim made by an IRCC officer—as opposed to an IRB officer—using the IRB just for the appeal process. The argument is that this is the same process for all other immigration claims. With initial decision-making and the appeal process in the same agency, there's a potential for a serious conflict of interest. Can you expand on your thoughts on that proposal?

Noon

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

Cheryl Robinson

For the refugee population, I don't think that's an effective remedy. An IRCC officer would have to go through the same training, sensitivity training and training on how to ask these questions, as any other IRB member. There is an issue of a lack of independence. I'm thinking in terms of spousal applications. That first decision is made by an IRCC member—an officer at a visa office—and it still gives rise to a significant number of appeals that are heard at the IAD. I don't think that's a remedy; it's just shifting the problem to a different body.

Noon

Conservative

Larry Maguire Conservative Brandon—Souris, MB

barbara, do you have a comment?