Citizenship and Immigration Committee on April 24th, 2018

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

Yes, but one would say, especially with the case that precipitated this, in which there was certainly, according to media reports, a fairly egregious act of what could even be described as misogyny, that there would be some sort of clearly articulated outcome ahead of time. I guess what I'm trying to get at is I don't understand how we can enforce a code of behavioural conduct if the outcomes of complaints aren't clear to those who work under them.

[Paul Aterman]

Right. It's a fair criticism to say there was a lack of transparency around this, not just in how the complaints were processed but also in their outcomes. I think the effective remedy for addressing that is, actually, to centralize it, which is what we've done, so that there's one decision-making body that is dealing with all complaints, and the consistency will flow from that.

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

To my colleague's point, we don't want a giant, cumbersome bureaucracy, nor do we want a kangaroo court, nor do we want vexatious complaints. Don't you think that, even a high-level framework that suggests what the potential outcomes could be for a successful complaints process would actually help clarify and reduce some of these problems? I'm thinking about a case in which, if a complaint goes through and then there's subsequent media or something where somebody feels like justice hadn't been served, having that transparency upfront both promotes appropriate behaviour and prevents this back and forth, having us back at this committee in two years, and that sort of thing.

I was just wondering if you want to comment on that, because this has come up a lot with our witness testimony.

[Paul Aterman]

It's not difficult for us to spell out the range of possible sanctions.

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

Okay.

[Paul Aterman]

What the range of possible sanctions is in relation to any given case is the kind of thing you can't and shouldn't do in advance, because that's essentially prejudging it.

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

Of course.

[Paul Aterman]

I think it is known to members that the sanctions can range from a reprimand to training to removal from the hearing room and, ultimately, to termination.

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

To clarify, right now that range of possible outcomes isn't something that's publicized in a coherent way. Is that correct?

[Paul Aterman]

That's a fair comment. I think the reason—

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

That's more what I'm trying to get at. I'm not asking for prejudgment. That's a fair comment. I think part of the issue is that there is a lack of clarity. What's the point of putting forward a complaint? I don't know what the outcome is going to to be. Is that potentially something you think would be a good idea, just clarifying the range of potential outcomes?

[Paul Aterman]

It's not a problem whatsoever for us to amend the protocol to spell out what the possible range of sanctions is. What would be a problem would be to try to match those to particular behaviours, because then you lose sight of the fact—

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

Understood.

To follow on your comment, do you think that the range of potential outcomes is adequate right now to enforce the behavioural conduct you'd like to see?

[Paul Aterman]

Yes.

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

For stakeholders who have said no, what would your push-back be?

[Paul Aterman]

I've indicated to this committee that the problem has been the failure of this organization in the past to do that in a consistent, transparent, and logical way. That's—

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

I'm sorry to cut you off.

With regard to the case backlog that you're seeing right now and potential complaints, do you think that the large backlog you're seeing will have an impact on asylum seekers' ability to recall details that will determine the outcome of their future hearing?

[Paul Aterman]

It is a concern. It's a concern we have addressed. We have the legacy task force, which was dealing with those cases that we couldn't deal with prior to the amendments to the statutes. We have a number of cases we've been tackling and making quite a lot of progress on that date back a number of years. There are some people who are waiting up to eight years to have their refugee claim heard. When we constituted that task force, we trained members specifically on the issue of credibility assessment in light of the fact that these events are now sort of receding back in time.

It's always the case in any adjudicative system that the fresher the evidence is, the easier it is to make a decision.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Aterman.

Ms. Kwan, you have seven minutes.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair.

Thank you as well to our representatives for coming back to the committee.

I know that in the correspondence you sent to us you highlighted three items. I want to touch on a couple of the items in particular.

One is that, for a complaint that has been lodged, if the board member in question has left the organization, the perspective back then was to say that we were no longer able to pursue the complaint to its finish. In your correspondence, you now write that, upon reflection, there might be a way to do so, and in fact you would pursue that.

When you have that process outlined within your organization, once you've fleshed out exactly how you would do that, can you bring that information back to this committee for our information as well? I'm particularly interested in this because I think it is important to finish a complaint to the end to ensure that the complainant ultimately has a resolution.

[Paul Aterman]

I need to be clear on that point. Once a member has left the organization, we have no power to sanction that member. We do have a power—and this is the point we've changed our approach on, even if we can't sanction that member—to make a determination as to whether there was conduct.... The value in doing that is that institutional lessons can be drawn and there can be closure for the complainant.

We would be happy to come back to you to indicate how the amended protocol addresses that.

[Jenny Kwan, NDP, Vancouver East, BC]

I would appreciate it. I do think it is important for a complaint to come to a finish.

Another point that you reference in your correspondence is the issue around training. Through our committee discussions, witnesses have come forward to respond to the notion that when a complaint is lodged and is found to be founded, training is required for that particular member. I asked you at that time how you determine and assess whether that individual's training or additional requirements to go through a process have been successful. Your response was that it would be evaluated in the year-end evaluation.

Some of the witnesses said that's not good enough and that, in fact, you need to check back to make sure the additional training that was required of the person who's being sanctioned has been incorporated appropriately.

To that end, I wonder if you could comment on that. The purpose here is to ensure that where a complaint has been founded, if a person has been required, for example, to go through additional training, that this training has the necessary effect that we desire. Doing it at a year-end evaluation is one component, but also following through after the training has been administered to ensure it has been effective is equally important. I wonder whether you could comment on that aspect of it.

[Paul Aterman]

We have a formal process for evaluating. It's done on an annual basis. It's cyclical.

As in any other organization, there are managers who, on a daily basis, are keeping an eye on the people who report to them. That's done informally. If there's a problem with a particular member, the member's manager is cognizant of that. The member's manager is involved in things such as designing what specific training is required, and the member's manager, on a daily basis, is watching how they're doing. It's written up at the end of the year in a formal evaluation.

[Jenny Kwan, NDP, Vancouver East, BC]

Sorry, I'm not talking about daily performance.

As an employer, for example, if you have a situation in which you have a person and you have indicated there are issues, and let's say a complaint comes forward and the complaint has been investigated and found to be valid, the person is required to go through additional training. You would want to have a way to assess that the additional training has been effective, not just in an informal way but in a formal way. And that's important.

Likewise, even aside from complaint issues, on the training itself, witnesses have indicated that the training is deficient in terms of time for board members. I think we owe it to board members to ensure they have adequate training and then, of course, follow-up after that training to make sure the training has been effective. If they need additional support, etc, it should be provided to them.

If you don't do that formal evaluation, you will have no way of ensuring that the training has been effective and that there will be optimal outcome from that training. That is the point. This is important from a process point of view but also, I think, optimizing the outcome is in everybody's interest.

Is it the intention of the IRB to not look at this issue of ensuring that there's a process to ensure that the training has been effective for those who are being sanctioned, and on a regular basis for those board members?

[Paul Aterman]

It's certainly not the kind of thing we would ignore. The organization is sensitized to that, and the training will address that.