Citizenship and Immigration Committee on April 24th, 2018

[Nick Whalen, Liberal, St. John's East, NL]

It's almost as if the members are both their own clerks and the decision-makers. They're given two jobs.

[Crystal Warner]

Yes, they would say that.

[Nick Whalen, Liberal, St. John's East, NL]

Ms. Jacobs, you've been a strong advocate for an independent complaints process for the members. You've been very helpful in that. I'm not sure if I'm entirely convinced yet, but you've made some really good arguments. How do you feel about the role that Ms. Warner describes as the lower-level adjudicators being represented by organized labour? How does that conflict with a requirement for an independent adjudicator? How does Quebec deal with this? Do you have any organized adjudicators, and how does Quebec handle that problem?

[Prof. Laverne Jacobs]

I can't comment on how Quebec deals with that problem, so I won't deal with that. I think Professor Houle would have been a better witness for that.

In terms of having adjudicators who are part of the public service, I've been talking about having more GIC appointees, or respecting the independence of GIC appointees. I'm not sure if your question is whether or not there is a conflict there. I think that Professor Houle last day went through quite succinctly talking about Matsqui and the other cases, showing that there is an argument for a higher level of independence. Yet, of course, the fullest level of independence would come from GIC appointees. There seem to be many different factors that could have an impact on the work of the decision-makers who are public servants, and that seems to be a bit concerning—

[Nick Whalen, Liberal, St. John's East, NL]

Thank you very much, Ms. Jacobs.

I have one final quick question for Ms. Warner. Let's see if I can get this right.

One of the ways in which the GIC appointments manage poor performance by their members is to just not reappoint them. Would it be possible within the labour relations regime that exists now to have an up-and-out option for the initial appointments for unionized members, so they would originally come in for a three-year contract, and then if they didn't work out, they'd be gone? Would that work with your union?

[Crystal Warner]

Are you asking me if there could be an alternative way to fire my members more easily?

[Nick Whalen, Liberal, St. John's East, NL]

I mean going forward, for new members who join. Could they join part-time or in a way...? That's what I am asking.

[Crystal Warner]

Okay. We have a collective agreement that provides disciplinary measures, and the employer has the right to exercise those disciplinary measures, up to and including termination. They have the right to manage performance, and they're doing that. We don't see an issue with the way things are currently being handled. If the employer does their job and the members are—

[The Chair, Liberal, Rob Oliphant]

Thank you, Ms. Warner. You got the point out.

Mr. Maguire, we go back to you.

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

Thank you, Mr. Chair.

To pick up on that as well, I just want to check with you and hear your opinion on the essential characteristics of those good board members. You referred to that before, but the backgrounds of appointees have been discussed by several witnesses, as I pointed out. Some of them are looking at having better substantive knowledge of refugee law, which I talked about earlier, while others are highlighting the importance of members having personal characteristics but just about fair decision-making procedures.

You referred to this earlier, and I'm just wondering about the ability to identify and understand people as opposed to having specific training in law. I am assuming—and I'll ask Ms. Warner first—that this is with regard to the compassion that's involved in the process.

Is that something that should come into it, or is a definitive type of understanding required? If not in law, is it in other areas of expertise such as psychology or some of those areas?

[Crystal Warner]

I think we would really welcome more diverse backgrounds at the board. I can speak only from my experience. I've seen lawyers succeed at being decision-makers, and I've seen them not succeed. I've also seen persons with a variety of different backgrounds and experience in human rights do an exceptional job at the board., so I don't think there is any one size fits all.

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

We've had witnesses tell us too that there are complaints mechanisms. Some of them aren't well suited to resolving the problems of decision-maker subjectivity. Do you feel that there could be interference with the deference normally shown to first-instance decision-makers in some of these cases?

[Crystal Warner]

I think this goes back to our concerns too around moving towards paper processes. Having the in-person hearings first is going to allow the decision-makers to assess the credibility of the claimants who are coming before them. I think that's really all I can say with regard to that.

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

Ms. Jacobs, do you have any comment on either of the questions I've just asked?

[Prof. Laverne Jacobs]

With respect to the first question, I think some of the qualities that are important are an ability to be fair, an ability to be empathetic, an ability to check biases including implicit and attitudinal biases, and certainly familiarity and ability to work with statutory interpretation. Part of fairness would include credibility assessment, I would say.

Sorry, could you repeat the second question?

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

It was about the interference with the deference normally shown on a first-instance decision-maker basis. That comes from the fact that complaints mechanisms have been identified as not always being well suited to resolving the problem of decision-maker subjectivity.

[Prof. Laverne Jacobs]

I'd want to think about that a little bit more. I don't have a comment on that.

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

Thank you.

Most of the complaint system is created internally with the IRB, whereas justices of the peace are largely regulated under the justices of the peace acts. Do you think that the federal government should make amendments to the Immigration and Refugee Protection Act at that point to institute a proper complaints process, or does it make sense that it should be handled internally?

That's for you, Ms. Jacobs.

[Prof. Laverne Jacobs]

The process that they have implemented can be modified, so that it has the additional features that I've mentioned, such as an independent decision-maker that's final. I suppose we could go the alternate route of creating an entirely new statute, but we'd need to look at why there was a statutory basis for the justices of the peace acts. Traditionally within administrative law, guidelines of this nature can be made by the board, and I think the board has worked within its own jurisdiction, so there's no legal issue to what it has done.

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

Thank you.

As my colleague across the way pointed out, this process we're hearing here began because of complaints we received with regard to some of the members on the committees.

[The Chair, Liberal, Rob Oliphant]

Could you wrap up very quickly?

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

Do you think the process for removing an IRB member, who's under the Public Service Employment Act, is too difficult or lenient?

[Prof. Laverne Jacobs]

Actually, I haven't looked at the Public Service Employment Act. I've looked at how under IRPA an individual can be removed, so perhaps I'll save you time.

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

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Go ahead, Mr. Tabbara.