Canadian Refugee Procedure/Proceedings Conducted in Public

Rule 57 - Proceedings Conducted in PublicEdit

The text of the relevant rule reads:

Proceedings Conducted in Public

Minister considered party
57 (1) For the purpose of this rule, the Minister is considered to be a party whether or not the Minister takes part in the proceedings.

Application
(2) A person who makes an application to the Division to have a proceeding conducted in public must do so in writing and in accordance with this rule rather than rule 50.

Oral application
(3) The Division must not allow a person to make an application orally at a proceeding unless the person, with reasonable effort, could not have made a written application before the proceeding.

Content of application
(4) In the application, the person must
(a) state the decision they want the Division to make;
(b) give reasons why the Division should make that decision;
(c) state whether they want the Division to consider the application in public or in the absence of the public;
(d) give reasons why the Division should consider the application in public or in the absence of the public;
(e) if they want the Division to hear the application orally, give reasons why the Division should do so; and
(f) include any evidence that they want the Division to consider in deciding the application.

Providing application
(5) The person must provide the original application together with two copies to the Division. The Division must provide a copy of the application to the parties.

Response to application
(6) A party may respond to a written application. The response must
(a) state the decision they want the Division to make;
(b) give reasons why the Division should make that decision;
(c) state whether they want the Division to consider the application in public or in the absence of the public;
(d) give reasons why the Division should consider the application in public or in the absence of the public;
(e) if they want the Division to hear the application orally, give reasons why the Division should do so; and
(f) include any evidence that they want the Division to consider in deciding the application.

Providing response
(7) The party must provide a copy of the response to the other party and provide the original response and a copy to the Division, together with a written statement indicating how and when the party provided the copy to the other party.

Providing response to applicant
(8) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (12)(a).

Reply to response
(9) An applicant or a party may reply in writing to a written response or a summary of a response.

Providing reply
(10) An applicant or a party who replies to a written response or a summary of a response must provide the original reply and two copies to the Division. The Division must provide a copy of the reply to the parties.

Time limit
(11) An application made under this rule must be received by the Division without delay. The Division must specify the time limit within which a response or reply, if any, is to be provided.

Confidentiality
(12) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including
(a) providing a summary of the response to the applicant instead of a copy; and
(b) if the Division holds a hearing in respect of the application,
(i) excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or
(ii) allowing the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes representations, upon receipt of a written undertaking by counsel not to disclose any evidence or information adduced until a decision is made to hold the hearing in public.

Summary of response
(13) If the Division provides a summary of the response under paragraph (12)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (12)(b)(i), the Division must provide a summary of the representations and evidence, if any, that is sufficient to enable the applicant to reply, while ensuring the confidentiality of the proceeding having regard to the factors set out in paragraph 166(b) of the Act.

Notification of decision on application
(14) The Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.

By default, the Act requires proceedings to be conducted in privateEdit

By default, the IRPA requires that hearings before the RPD be conducted in camera: Canadian Refugee Procedure/Proceedings must be held in the absence of the public. That said, the Board may open a refugee hearing to the public in exceptional circumstances. The Irwin Law text Refugee Law states that this almost always happens with the consent of the claimant.[1] It notes, by way of example, that in recent years, several high-profile refugee claims have been heard in public with the consent of the claimants, including the claims of US military deserters Jeremy Hinzman and Brandon Hughey; US marijuana campaigner Steven Kubby and his family; and Chinese businessman Lai Cheong Sing and his family.[1]

The Board may order that proceedings be conducted in private, in whole or in partEdit

The Board's public commentary on the analogous Immigration Division rules states that "The [Division] may take any necessary measures to ensure the confidentiality of the proceeding, such as: a) hearing in private the evidence concerning the factors to be taken into consideration; and b) ordering that the proceeding be conducted in private, in whole or in part."[2] A panel can attach conditions to its order, for example in Key (Re), a panel of the Refugee Protection Division provided for the following conditions on allowing the media to observe a hearing: "only non-disruptive audio equipment be allowed in the hearing room during proceedings and cameras to take still photographs only be allowed in the hearing room when the hearing was not in progress."[3]

The Board may order a publication ban, in whole or in partEdit

The Board's public commentary on the analogous Immigration Division rules states that "Even if it allows the proceeding to be conducted in public, the [Division] may take any necessary measures to ensure the confidentiality of the proceeding, such as: 1. hearing in private the evidence concerning the factors to be taken into consideration; and 2. ordering a ban on publication of the proceedings, in whole or in part."[2]

ReferencesEdit

  1. a b Martin David Jones and Sasha Baglay. Refugee law (Second Edition). Irwin Law, 2017, page 297.
  2. a b Immigration and Refugee Board of Canada, Commentaries to the Immigration Division Rules, Date modified listed on webpage: 2018-06-23, <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/CommentIdSi.aspx> (Accessed January 27, 2020).
  3. Key (Re), 2010 CanLII 62705 (CA IRB), par. 3, <http://canlii.ca/t/2d3c7#par3>, retrieved on 2020-08-16.