Good morning. Thank you very much for your invitation. I will make my presentation in French.
I am a lawyer and associate dean of Université de Montréal's Faculty of Law, and I also teach administrative law at the same university. I have done a lot of work on the appointment and training process for administrative tribunal members. In 2014, I published a book with some of my colleagues on an empirical investigation we conducted on Quebec's administrative tribunals. I brought a copy of the book and can leave it for you if you like.
In the book, we propose a bill to reform Quebec's administrative justice system and bring it into the 21st century. So I worked on that. I have also worked on a number of issues related to evidence and the assessment of credibility, including before the IRB. So I have written fairly extensively on the issue. Over the past few years, I have been asking myself more theoretical questions about our system of evidence in order to determine whether it is adapted to a number of adjudication systems, such as the one used by the Immigration and Refugee Board of Canada.
I would like to talk to you about four points today. The first concerns the complaint process, and I will dedicate the majority of my speaking time to that issue. Afterwards, I will briefly talk about the process for selecting and training members, and for assessing the credibility of stories. I have written a dozen pages on the matter. Should you want to know more after the meeting, I have left a few copies of the document here.
Concerning the complaint process, I have read the observations of my colleague, Ronald Ellis, and I heard what Ms. Flaherty had to say. From the outset, I can tell you that I disagree with both of them.
I will mostly focus on what Mr. Ellis wrote about keeping the disciplinary investigation process for IRB members in-house. I disagree with his position both in terms of facts and in terms of the law.
When it comes to the facts, Mr. Ellis based his argument on the negative impact that external process may have on IRB members' morale. In my opinion, that statement has absolutely no factual basis. I will use the example of Quebec because of its administrative justice council—the counterpart to the judicial council—which applies to all members of Quebec administrative tribunals that perform a purely adjudicative function, like the IRB.
The council has existed for 20 years, and Mr. Ellis's concerns have not materialized. The process in Quebec is completely external to all administrative tribunals and basically functions as a judicial council.
Concerning the legal side of things, Mr. Ellis said the external process could also negatively impact IRB members' independence. For me, this argument is problematic in law, but before I give you my thoughts on it, I want to specify that I have not found sufficient and complete information to fully enlighten me on the process proposed by the IRB and its integrity office.
I will begin by talking about the complaint process for members of the Refugee Appeal Division, the RAD, and the Immigration Appeal Division, the IAD, who are appointed by the Governor in Council. Here is my issue with Mr. Ellis's and the commission's proposal. If those members were subject to that procedure, I feel that it would go against the procedure set out in section 176 and following of the Immigration and Refugee Protection Act, the IRPA. The legislation explains the complaint procedure that applies to those individuals. I find his reading of the IRPA to be very creative if he does actually hope to apply that procedure to members of the RAD and the IAD.
When it comes to members of the Immigration Division, the ID, and the Refugee Protection Division, the RPD, the Immigration and Refugee Protection Act is silent on the complaint process. The issue arising from a legal standpoint is that those members have the status of public service employees. In theory, those are employees of the public service. So one would think there would be a reporting relationship between the chair and the commissioners. The issue related to this is two-fold.
On the one hand, the legal basis is ambiguous. Even if we accepted the fact that those commissioners are employees within the meaning of the Public Service Employment Act, they cannot be subject to the chair's authority because they are very special public servants. They are administrative decision-makers whose independence is recognized, at least in the fulfilment of their adjudicative functions. I have trouble seeing what section of the legislation could be invoked to directly and explicitly support the existence of that power of the chair. In my opinion, in order to move in that direction, the legislation should be amended to explicitly state that, for example, by specifying that the chair can issue directives to members.
On the other hand, I see another legal difficulty in terms of constitutional basis. The issue is that, if the chair or the integrity office director was allowed to directly exercise his or her authority over members' decisional activity, members' influence would be undermined, since they could potentially be influenced.
That potential influence has been identified as something to avoid by the Supreme Court of Canada, as was noted in the first decision the court rendered on the application of the guarantee of independence for administrative tribunal members. I am talking about the Matsqui case. The court stated that members must be protected from any external or internal influences. Please refer to page 283 of my study.
In addition, the court also establishes another principle according to which the degree of independence must be increased or decreased, while taking into account three factors: the tribunal's nature, the interests at stake and other indications of independence such as oaths.
In the IRB's case, the Immigration and Refugee Protection Act must be interpreted as providing IRB members with increased guarantees and especially those employed by the RDP, since the tribunal's nature is that of a purely adjudicative tribunal. That tribunal is the closest thing to a court of justice, so the guarantees must be increased.
The interests at stake also....