Citizenship and Immigration Committee on April 24th, 2018

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Thank you to both witnesses. We need to end the first panel here.

Thank you for coming back, Ms. Jacobs. That's very helpful.

Thank you, Ms. Warner, for joining us today.

We'll take a brief pause as we turn over to the next panel.

[The Chair, Liberal, Rob Oliphant]

We're going to call this meeting back to order. I know some members will be joining us in just a second. We do have quorum, however.

I want to thank Mr. Aterman, the Acting Chair of the IRB, for coming back to our committee again on this study, and for bringing Mr. Kipling, the Director General for Policy, Planning, and Corporate Affairs.

Thank you.

We're delighted to have a statement from you first, and then we'll move to questioning.

[Paul Aterman, Acting Chairperson, Immigration and Refugee Board]

Thank you, Mr. Chair.

I have followed with interest the testimony of the witnesses who have appeared before the committee. Some of their testimony has raised some important concerns. I will limit remarks to those concerns.

First, I would like to point out that the Immigration and Refugee Board's decision to review the complaints process dates back to 2016. The media reports that seem to have triggered this study date back to late 2017. In other words, the development of a new complaints process is not in response to negative media coverage. The media reports were obviously troubling, and anyone who read them would have been justifiably concerned. Long before those reports were published, however, the board had already recognized the need to review the complaints process and, to that end, to quickly implement initiatives, which included consulting our workers.

Second, in commenting on the revised complaints process, a number of witnesses have suggested that having the chairperson decide on complaints puts him or her in a conflict of interest. In my respectful view, this reflects a misunderstanding of the role of the chair and his or her accountability to Parliament. In fact, it seems to presume that the chair actually has an interest in covering up misconduct. Both Ron Ellis and Professor Flaherty point out that, as the head of the tribunal, the chairperson is most interested in preserving the integrity of the adjudicative system and the reputation of the board. It's exactly for that reason that the complaints process was changed: so that the chair now deals directly with all complaints.

Third, some witnesses have suggested that the complaints process is an appropriate means to challenge the substance of a member's decision, not just their conduct. Much reference was made to variances in acceptance rates. The suggestion seemed to be that members say no too often and that something should be done about that, possibly through the complaints process. In my view, this approach is completely at odds with one of the most basic principles of the rule of law. Adjudicators are supposed to decide cases on the evidence before them and on the law, and on nothing else. Once we start trying to engineer outcomes by pressuring adjudicators, such as through the threat of complaints, the rule of law is undermined. The complaints process is to be used to address allegations that relate to the conduct of decision-makers but not to challenge the substance of what they decide. That's a matter for appeal tribunals and for the courts. I would urge this committee to bear this crucial distinction in mind.

Fourth, a number of witnesses suggested that expertise in immigration and refugee law should be a precondition to appointment as a member of the IRB. In our experience, having a background in immigration and refugee law is not nearly as valid a predictor of success as having the competencies that make a good adjudicator, and those are empathy, cultural sensitivity, reasoning skills, writing skills, and organizational skills. We teach new members the law, and in fact teaching the law is the easy part. Teaching members how to run a hearing fairly and efficiently and with respect and with sensitivity is much, much harder. That's why we try to select people at the outset who have the right competencies, as opposed to looking for people who have a background in the areas of law the board deals with. In fact, if we were to narrow the pool to those solely with a background in immigration and refugee law, this would seriously hamper our ability to recruit qualified people at a time when we're under immense pressure to find a large number of additional decision-makers.

Finally, the approach to selection that we take is one that aligns with this government's approach, which is to have a focus on identifying highly qualified candidates who reflect Canada's linguistic, regional, gender, and employment-equity diversity. I would also like to make it clear that as an accountable tribunal, this board is committed to continuous improvement. I'd like to give you an example we're working on at the moment, and that is that we're in the process of evaluating, one year in, our use of the sexual orientation and gender identity and expression guidelines. We're looking at how the guidelines have been applied to date; we're going to share out analysis with external experts, and we're going to seek their advice as to how we move forward to ensure the effective application of these new guidelines.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

I'm going to turn to Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair.

Mr. Aterman and Mr. Kipling, welcome back.

Before I go into questions, I want to bring something to the committee's attention. I usually don't like to bring in matters during testimony, but I do want to bring this one now. It references Mr. Aterman's letter of April 23, 2018, wherein a request made by this committee for a copy of the interim report of Mr. Neil Yeates was referred back to us, the IRB being unable to provide it.

I don't know if I need to seek consent, Mr. Chair, or just move a motion.

[The Chair, Liberal, Rob Oliphant]

You can move a motion.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Chairman, I move that the requested documents be provided by the department, because I believe they are the ones that had mandated the study, and that the request of April 17, 2018, be directed to the department for a response.

[The Chair, Liberal, Rob Oliphant]

Thank you.

Just to clarify for the committee, the committee did pass a motion that requested a document from the IRB. The IRB has respectfully said they don't feel it's their document to give. We have a number of options when that happens. One is to simply agree with the requested person's declining to give us a document. The second is that we could negotiate with them. The third is that we could compel it.

I would say that this is in the second category, which is to follow what they are saying, so that rather than the IRB releasing the document, it would be the IRCC that would release the document. The motion now is actually asking the IRCC to provide us with the document that was requested through a motion duly approved by this committee.

(Motion agreed to)

All right. Now you can continue.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

How long do I have, Mr. Chair?

[The Chair, Liberal, Rob Oliphant]

You have about four and a half minutes.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Aterman, I want to make one thing absolutely clear. The IRB is in many ways the envy of the world. You've set very high standards in terms of adjudication. From lawyers to other stakeholders that I have been able to speak to over the past number of years, the IRB does stand out as an incredible body that has done a great deal of work. In your last encounter here, you indicated that over 425,144 IRB decisions have been made since 2009. That's remarkable.

Where I think we're kind of stuck is that there is an appearance...it's not an actual conflict, but there is an appearance of conflict. There's an appearance that the chairperson undertaking the investigation may have some interest.... While I acknowledge what you said earlier today, I do think we need to find some opportunity to ensure that the IRB continues to be unimpeachable in terms of its adjudication.

What can you offer us today that will allow you to continue the work you do without putting in a strenuous layer of adjudication for complaints and still be able to reassure Canadians of the independence of the board as well as of the investigative process? I think these are two different things here.

[Paul Aterman]

In response to that, I would just refer you back once again to the remarks that I made initially. The media stories quite rightly attracted a lot of scrutiny and—

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Aterman, I want to go away from the media stories—

[Paul Aterman]

Okay.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

—because I'm looking at it now from a process perspective. Not to get hung up on the media assertions, I'd like to look at it strictly from a process point of view. There's a complaint against one of your adjudicators brought by either a claimant or a lawyer, and presumably it's after the fact of the decision. The problem is that the complaint comes to your office. That may or may not be a problem, but that complaint comes to your office and you basically oversee the process of that complaint through an independent body.

Is there any other way? That's all I'm asking. Can we put an advisory committee in place? Can we put some other measure in place whereby there is another layer that can buffer your office and the process so that there is at least an appearance of an increased level of independence?

[Paul Aterman]

I don't think having matters dealt with by the chair's office proposes an administrative burden. I think the perception problem you point to is a problem we've tried to rectify by changing the process and making the chair directly accountable.

Could the chair benefit from the advice of external disinterested parties, perhaps, who review the complaint with the chairperson? That would certainly be a possibility. What I would urge in that regard is that if that's a direction this committee wants to pursue, then I would suggest to you that if you're looking for a completely impartial view on these things, those external advisers should be people who have no stake in the game. That's to say that they shouldn't be people from the immigration and refugee bar, because those people have an interest in the outcome. That might be an option that you would want to pursue.

Again, I would urge you to also bear in mind the cost, time, and complexity associated with judicializing this process. To my knowledge, Canadian judicial councils have had referrals to external inquiry bodies, I think, 14 times since 1971. I haven't been privy to those, but I follow this in the media. Some of those inquiries were extensive and protracted and involved large numbers of lawyers.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Aterman, that's what I'm trying to avoid. I do think that another elaborate process may not serve us well, but I do think it's important that we address the legitimate concerns that have been brought to us by a number of people. That's really not a reflection on you. It's really the view that people have that the adjudication is still in the same office. I think a way to buffer that—

[The Chair, Liberal, Rob Oliphant]

I need you to end there. Thank you very much. You'll get a chance to add as other questions are asked.

Ms. Rempel.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you, Mr. Chair.

Thank you for coming again. Thank you for the work that your organization is doing.

I just want some clarity on some points that certain witnesses have raised: one was with regard to the complaints process and a list of possible outcomes for a complaint. This was raised a few times. Other quasi-judicial boards, like the justice of the peace, have very clear lists on outcomes of complaints. Is making this outcomes list public something that you're looking at committing to?

[Paul Aterman]

There are a couple of things I'd say in response to that. One is that the board's response to any given complaint is a function of the facts of the case. In a large majority of instances they are, in our experience, one-off instances where a member behaves in a disrespectful or rude way to a complainant; and those are addressed through things like training, reprimands, and apologies.

On serious matters like removal from office, in the case of Governor in Council appointees, the Governor in Council appoints, and it's the Governor in Council that terminates or removes a GIC appointee from office. That's not a power the board has. There are provisions in the act that deal specifically with that. They're complex and they're fairly cumbersome. On the public service side, the chairperson, as the deputy head of the organization, has the powers to remove a public service decision-maker, but again it's in accordance with following due process, collective agreements, and the statutory provisions around that.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Just for time, would you say there is consistency or a framework that's applied in terms of outcomes of complaints? Similar types of crimes, if you will, would have similar types of punishments, if you will. I guess what I'm trying to say is I'm not sure how you enforce a standard of behaviour if it's not clear what the reprimand would be when there are instances that have been deemed to be worthy of the same.

[Paul Aterman]

I think it would be practically very difficult to create a tariff or a grid that says, “This particular misbehaviour attracts this particular sanction.”

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Why?

[Paul Aterman]

Because it's a function of the facts of any given case.