1. Does Guideline 7 Clarify the Scope of the Power to Inquire Conferred to the RPD, or Does It Bring a Fundamental Procedural Change to the Canadian Refugee Determination Process? DIAPO #1 France HOULE Associate Professor Faculty of Law, University of Montreal May 2007, Prato, Italy

2. Guideline 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division DIAPO #2  IRPA Immigration and Refugee Protection Act  IRB Immigration and Refugee Board  RPD Refugee Protection Division. The RPD is a division of the IRB.  RPO Refugee Protection Officer. The RPO is an officer of the IRB and of the Government

3. Guideline 7 is probably (with jurisprudential guides) the most contested guideline in the history of the IRB.  What is the content of Guideline 7 and why was it issued by the IRB?  G-7 is a case management policy instrument. As stated by the IRB, Guideline 7 was issued to meet one primary objective: expediency of decision-making  In particular, its main purpose is to make the best use of hearing time by the RPD members.

4. GUIDELINE 7 PARAGRAPH 19 DIAPO #3 Section 3 contains the guideline which was at the heart of litigation. Paragraph 19 changes the order of questioning. T he RPO starts questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. In this new setting, the claimant does not have a chance to tell his whole story. He only answers the questions of the RPD on issues that it had identified as problematic. After the RPD has finished questioning him, he can speak to clarify some points if he wants to. But already, you can that the when the claimant is alone with a RPD member, the risks of unfairness and impartiality during the hearing are much higher in this new procedural setting. This new procedure has come to be known as the ‘reverse order of questioning’. It is now standard practice in front of the RPD.

5. The validity of Guideline 7 was contested in Courts. Two cases were chosen as lead cases: Thamotharem and Benitez. DIAPO #4  There are heaps of very interesting opinions in these judgments, but:  Today, I will speak only on ONE issue: whether G-7 brings a fundamental procedural change to the Refugee Determination Process.  To my point of view, it is the central issue, but it was discussed very little by judges and, as a result, this question is far from being resolved.

6. The Federal Court of Appeal said that G-7 was compatible with the inquisitorial nature of the refugee determination process. DIAPO #5  He also said that the function of G-7 represented more “a filling in of detail in the procedural model established by IRPA … than ‘fundamental procedural change’ or ‘sweeping procedural reform’.  I was not satisfied by these general statements. My goal today is to examine this issue with you.

7. What does ‘inquisitorial’ mean? Diapo #6  In criminal law, an inquisitorial system is distinguished from an accusatorial system. In an inquisitorial system, the judge has a prosecuting role.  An accusatorial system involves accusations by a prosecutor with an impartial judge or jury reaching a verdict. In the common law tradition, the accusatorial system was preferred over the inquisitorial system.  One of the important reason is because the inquisitorial system creates a huge power imbalance between the decision-maker and the accused, in addition to raise serious issues with respect to the impartiality of the decision- maker.

8. Civil & administrative matters Diapo #7  In private common law, the word “adversarial”, rather than accusatorial, describes the process. As you know, an adversarial procedure implies the presence of two opposite parties.  In administrative law, most boards operate in an adversarial mode; few in a non- adversarial mode, which does not help to have a good understanding of the functioning of this type of process.  The RPD is one board operating in a non- adversarial fashion.

9. Originally, the non-adversarial setting of the RPD was chosen to ensure that the vulnerability of refugee claimants would be given serious attention.  However, everybody recognized that RPD members have to be satisfied that a claim is well-founded.  So, the RPD must be able to inquire into a claim. But what is the scope of this power to inquire?  Canadian Case-law does not provide a satisfactory answer to this question.

10. The scope of the power to inquire: After a research of IRB documents and canadian statutes, I found two meanings: DIAPO #8  Meaning #1: Power to inquire Enables RPD members to provide fair and impartial assistance to claimants.  In the IRB documents: Decision-makers can take an active role in the hearing, by questioning claimants so they can clarify their testimony.  Less inquisitorial

11. The scope of the power to inquire DIAPO #9  Meaning #2 Decision-makers can elicit evidence that might either substantiate or challenge a claim to refugee status  Ex: Decision-maker determines alone the questions at issue  More inquisitorial  Combines more clearly the roles of the ‘judge’ and the ‘prosecutor’ THE QUESTION IS: DOES THE POWER TO INQUIRE IN THE IRPA MEANS #1 ONLY OR #1 AND #2?

12. INTERPRETATION OF THE SCOPE OF THE POWER TO INQUIRE IN LIGHT OF THE LEGAL ENVIRONMENT OF THE RPD DIAPO #10  The boundaries of the power to inquire must be interpreted with the modern method of interpretation Internal context External context

13. INTERNAL CONTEXT (cnd law) THE CONSTITUTION DIAPO #11 Canadian Charter of Rights and Freedoms  Section 7 The Right to Security of section 7 of the Canadian Charter of Rights and Freedoms  Singh, Supreme Court of Canada, 1985  More procedural protection for claimants – meaning #1 would be preferred

14. INTERNAL CONTEXT THE CONSTITUTION DIAPO #12  Section 7 and fundamental justice Impartiality at an Institutional Level  Separation of functions between a ‘prosecutor’ and an ‘adjudicator’  Lack of separation can raise a reasonable apprehension of bias.  Régie des permis d'alcool, Supreme Court of Canada, 1996. Method #2 may raise some constitutionnal problem

15. Internal Context THE IRPA STATUTE DIAPO #13 THE REFUGEE DETERMINATION PROCESS ESTABLISHED BY THE IRPA STATUTE IS CLOSE TO A JUDICIAL PROCESS (than to an administrative process which allows for much more flexible procedures) The rights conferred to claimants Right to a notice to appear Right to an oral hearing Right to counsel Right to present evidence Right to question witnesses Right to make representation Right to written reasons for decisions

16. The duties imposed to the RPD and indicative of a judicial process Base their decisions on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances The powers conferred to the RPD and indicative of a judicial process The power to compel witnesses to testify The power to compel filing of documents Powers inherent to judges of the Superior Courts – must be explicitly conferred to members of Administrative Tribunals The jurisdiction of the RPD Exclusive jurisdiction to determine questions of law, including constitutional questions  Judicial process – meaning #1 would be preferred

17. External context International values: Protecting vulnerable people DIAPO #14  Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees More procedural protection for claimants – meaning #1 would be preferred

18. Conclusion on the interpretation DIAPO #15  The power to inquire conferred to the RPD should be interpreted strictly, that is to say:  The RPD is only enabled by statute to provide fair and impartial assistance to refugee claimants.  In addition, it is not clear that to give meaning #2 to the power to inquire would not compatible with s. 7 of the Charter (the duty to be impartial at an institutional level).

19. If you agree with me on this last point, then the last issue to be determined is: DIAPO #16  Does Guideline merely clarify the duty to provide fair and impartial assistance to claimants? or  Does Guidelines 7 broaden the scope of the power to inquire to a point where it allows the combination of the roles of ‘adjudicator’ and ‘prosecutor’.  If Guideline 7 broadens the scope of the power to inquire, it would bring a fundamental procedural change in the Refugee determination process and would, therefore, be invalid.

20. My thesis is that Guideline 7 likely broadens the scope of the power to inquire and brings a fundamental change to the Refugee Determination Process DIAPO #17  It is important to look at G-7 as part of the whole case management system. Files can be classified into 4 categories: Those who are deemed well-founded (determination made on the basis of country of origin) - Fast Track Policy: Expedited Process (no hearing). The 3 other categories require a hearing and the classification is made by the RPD with the help of the File Screening Form mentioned in G-7: simple, regular or complex. “Simple claim” is a claim in which one or two issues, apart from the claimant's credibility, appear to be determinative of the claim. The hearing of a simple claim can usually be concluded within two hours through the Fast Track Policy: Hearing Process. The IRB does not provide examples, but I would venture that this category is comprised of claims which are inconsistent with country information on issues such as the Internal Flight Alternative, Change of circumstances, State Protection. “Regular cases” – this is my qualification – and would comprise cases where claimants’ credibility which is central. “Complex cases” – all the other cases including exclusion cases in which the Minister will be present at the hearing (adversarial)

21. My concern is about the “simple claims” and those about “credibility” and especially claimants that are unrepresented.  Prior to the hearing, the RPD member (who is not assisted by an RPO for simple claims) has already identified a problem with case.  It is very likely that he/she comes in the hearing room with a theory about the case and with questions to check the validity of his theory.  It is very likely, therefore, that he would show a lack of interest to the validity of the story of the claimant.  It seems to me that this exercise of power is closer to the idea of “prosecuting” than “assisting” a claimant.  In other words, the duty to be impartial may be severely jeopardized by this way of functioning.

22. The other problem I have with this process is the power imbalance that it creates between the member and the claimant.  If the claimant does not agree with the theory of the RPD member, it is difficult to challenge the RPD member without alienating him or her.  So, here it is fairness that has the potential of being severely jeopardized by this process.  I will conclude by simple saying that it is not all that clear that Guideline 7 is compatible with the actual RD process and that if merely clarifies the scope of the power to inquire as stated by the Federal Court of Appeal in Thamotharem and Benitez.  Thank you.