Canadian Refugee Procedure/The right to an independent decision-maker

Parties are entitled to an independent decision maker. When we speak of independence, we are referring to the ability of the decision-maker to render decisions in an atmosphere that is free from inappropriate influences so that they approach and determine the matters in issue freely and in a sufficiently dispassionate and disinterested way. Key legal issues that have emerged related to this independence follow.

The right to an independent decision-maker

The Code of Conduct for Members of the Immigration and Refugee Board of Canada stipulates that "Members shall not be influenced by extraneous or improper considerations in their decision-making. Members shall make their decisions free from the improper influence of other persons, institutions, interest groups or the political process." There is a presumption that a Member will perform their duties independently and in accordance with their oath and legal obligations.

The requirement that decisions in refugee matters be made (or be reviewable) by an independent decision-maker not only emerges from Canada's domestic law, but also arises from Canada’s international obligations. The independence of tribunals is provided for in article 14 of the International Covenant on Civil and Political Rights. The UN Human Rights Committee has also found, in Alzery v Sweden, that effective, independent review of the decision to expel prior to expulsion is necessitated by the nature of the non-refoulement obligation under article 7 of the International Covenant on Civil and Political Rights, as read with the right to effective remedies under article 2 of that instrument.

The following are some of the more specific ways that this right to an independent decision-maker applies to the IRB process.

Decision-makers must be free of any reasonable apprehension of bias

Decision makers must enjoy independence from the parties to the cases before them. Indeed, the court holds that the Immigration and Refugee Board is structured to operate as an administrative tribunal with as much independence from its sponsoring Department as is ever found in the contemporary administrative justice system. The fact that the government or a Minister may have made comments about a case in public or the House of Commons cannot itself be taken to create a reasonable apprehension of bias that the Member will decide the case unfairly.

For a discussion of the doctrine of bias, or a reasonable apprehension thereof, as it relates to any relationship, past or present, between the decision-maker and the parties or those who may benefit from the decision, see: Canadian Refugee Procedure/The right to an unbiased decision-maker#Any relationship, past or present, between the decision-maker and the party/parties or those who may benefit from the decision.

See also: Canadian Refugee Procedure/The right to an impartial decision-maker#Exposure to political and bilateral relations considerations.

The IRB may use "soft law" instruments such as policy statements, guidelines, manuals, and handbooks

The Federal Court of Appeal holds that administrative agencies do not require an express grant of statutory authority in order to use “soft law” such as policy statements, guidelines, manuals and handbooks to structure the exercise of their discretion. In any event, the IRPA provides an express grant of authority to the Chairperson to issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides. Members are expected to follow such guidelines unless compelling or exceptional reasons exist to depart from them. See the discussion of this authority at the commentary on section 159 of the IRPA: Canadian Refugee Procedure/159 - Duties of Chairperson.

The Board may not fetter the discretion of Members and Members may not fetter their own discretion

Members should engage in an independent assessment of the case before them

Every application should be considered individually. A decision maker's reasons must make clear that they put their mind to the actual issues and made an independent decision based on the evidence. For example, when a matter is remitted for redetermination, the new panel should not copy and paste from the prior decision in a way that calls into question whether they genuinely reconsidered the matter.

Similarly, a RAD Member may not dispose of an appeal in a few sentences by simply stating that they had reviewed the record, done an independent assessment, and agreed with the RPD. That said, while the RAD is required to undertake an independent review of the evidence, it need not engage in a repetitive analysis where the RAD is in agreement with both the outcome reached and the reasoning relied upon by the RPD.

See:

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Use of templates and precedents

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Decision-making assigned to a Member must be done by the Member and shall not be delegated

The Board may not fetter the discretion of Members through policy statements or guidelines that take on a mandatory character

Fundamental to the right of a fair hearing is that a Board member exercise independent judgment in deciding a case on its merits free from undue influence. Where policy statements, guidelines, or other institutional actions fetter a decision-maker's independence, this can constitute undue influence upon the member and violate the principles of procedural fairness. The fettering of discretion doctrine has been used primarily to assess the validity of policy instruments such as guidelines. The fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts. When assessing whether a policy statement or guideline amounts to an unlawful fetter on a decision-maker's discretion, courts have recourse to the factors from Ainsley: (1) the language of the policy; (2) the practical effect of failing to comply with the policy; and (3) the evidence with respect to the expectations of the Commission and staff regarding the implementation of the policy. If a policy statement is actually a set of binding rules, then this will require legislative or regulatory authority. For discussion of this, see: Canadian Refugee Procedure/Documents#What is the Board's jurisdiction to limit voluminous country conditions disclosure?. An example of where a policy in the immigration context was held by the Federal Court of Appeal to have invalidly fettered discretion was a blanket directive issued by Citizenship and Immigration Canada prohibiting lawyers and representatives from attending interviews in the overseas refugee resettlement context. This policy was held by the court in Ha v. Canada to be invalid because it fettered visa officers’ discretion to consider each case on their facts and determine whether to allow lawyers to attend the interview.

Members may not fetter their own discretion

In addition, Members may not fetter their own discretion through excessive deference to policy statements and other extraneous materials. Just as a decision-maker cannot “arrogate powers to themselves that they were never intended to have”, it is unreasonable for a decision maker to eschew powers they were intended to have.

As the court held in Yanasik v. Canada, a decision-maker cannot limit the exercise of the discretion imposed upon them by adopting a policy, and then refusing to consider other factors that are legally relevant. The application of a policy guideline may amount to an unlawful fettering of a panel's discretion if it is applied without due consideration to the evidence and submissions in a particular case. Such a situation may arise where a member decides to apply the guideline without exception and ignores the evidence or submissions of counsel that there is reason to vary the procedure.

A separate, but related, issue can arise where one RPD panel relies upon fact-finding conducted by another panel. Generally speaking, one panel of the RPD can rely on fact-finding conducted by another. This usually occurs uncontroversially in the context of documentary evidence about conditions in a country. That said, the Federal Court cautions that a panel cannot “blindly” or “blithely” adopt another panel’s findings and that “reliance on the findings of another panel must be limited, careful and justified”. In Calandrini v Canada, Justice Mosley explained that “[t]he exercise of discretion by a decision-maker is said to have been fettered if the decision is made in accordance with the views of another without the exercise of independent judgment”. For further discussion of this, see Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually and also see the discussion of the use that a new panel can make of previous reasons where a matter is being heard de novo: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Use of templates and precedents.

Another example of where Members may be held to have fettered their own discretion is where they refuse to admit evidence on the basis that it is unsworn. There is no requirement that a document be sworn in order to be admitted, as the Refugee Division is not bound by legal or technical rules of evidence. In the words of Siad v. Canada, it is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which Parliament has freed them. Similarly, a panel should not refuse to admit evidence because it is hearsay; however, this may be a valid basis for admitting the evidence and then assigning less weight to it: Canadian Refugee Procedure/170 - Proceedings#While the Division is not bound by rules of evidence, the Division may still have regard to them.

Members are not bound by previous interlocutory decisions on a file

The IRPA distinguishes between interlocutory and non-interlocutory decisions: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions#Section 169 of the IRPA specify circumstances in which written reasons must be provided, circumstances which do not include interlocutory decisions. A member is not technically bound by a past interlocutory decision made on a file, for example the decision of a coordinating member on a preliminary matter. This is so as a result of the tribunal's power to control its own procedure, including its ability to reconsider past interlocutory decisions when new evidence or argument is provided. As a general matter, where a decision-maker has a reconsideration power—a power to “review and rescind or vary any decision made by it”—the decision-maker “should not be fettered by statements it may have made in a different context at a different time by a different author”. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board is bound by its own undertakings where it indicates that something is not at issue, that particular evidence is unnecessary, or that a particular procedure will be followed.

That said, section 23 of the IRB Code of Conduct states: “Members, in their decision-making, have a responsibility to support the institutional interest of the IRB in ensuring the consistency of its decisions, while recognizing that no improper influence may be brought to bear upon their adjudicative independence.” For reasons of consistency and judicial comity, previous decisions should generally be respected unless there are reasons to deviate from them (e.g., new evidence is filed, new arguments are raised); see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually, while overall decision-making should be predictable and consistent.

Furthermore, some RAD and RPD Rules have specific provisions concerning subsequent or multiple applications for the same relief, which need to be applied if a Member is to deviate from a past decision: see, e.g. Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#RPD Rule 54(9) - Subsequent applications.

Members are not bound where the Minister concedes a point

A situation can arise where the Minister is a party to a proceeding and concedes a point or makes a recommendation in the claimant's favour; this does not bind the Division and does not relieve a claimant from their obligation to make their case: Fong v Canada. That said, while a joint submission is not binding on the Division, the caselaw establishes that it should be given serious consideration: Nguyen v Canada. See: Canadian Refugee Procedure/The Board's inquisitorial mandate#A hearing becomes adversarial where the Minister is involved.

Members will be seized of a matter in certain circumstances

When a panel which is hearing a case becomes seized of the case, only that panel may complete the case; members become seized once substantive evidence has been adduced. As RAD Member Edward Bosveld noted in X (Re), 2013 CanLII 76391 (CA IRB), the tribunal may remain seized of a matter. The fact that the tribunal is seized of a matter means that it remains in consideration of the matter. Once a superior court of record has heard evidence, it is seized of the case and no other judge may decide it. However, this principle does not apply to a tribunal like the IRB, which maintains more flexibility than a court to proceed in an informal and expeditious manner: Manalang v. Canada. For examine, in a case involving another tribunal, the Quebec Court of Appeal concluded that it was not improper for the Senior Chair of the Office of Disciplinary Chairs to remove seized cases from a member due to long delays in rendering decisions.

Informal discussions with colleagues are permissible so long as independence is maintained

A question can arise about the permissible limits of voluntary and informal discussions amongst Members of a tribunal about the issues raised in their files. As Mullan notes in his text, "the case law on the subject is surprisingly far from comprehensive". The Ontario Court of Appeal held that there is no bar on a tribunal member consulting and being influenced by those internal consultations in Khan v. College of Physicians & Surgeons of Ontario:

The volume and complexity of modern decision-making all but necessitates resort to "outside" sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any "outside" influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic, but also destructive of effective reason-writing.

This is reinforced in the IRB context by section 13 of the Code of Conduct for Members which provides that "Members have a responsibility to perform their duties in a manner that fosters collegiality among members and with staff and to treat them with courtesy and respect. Members are expected to assist their colleagues through the respectful exchange of views, information and opinions." There is no doubt that the participation of "outsiders" in the decision-making process of an administrative tribunal may sometimes cause problems. The decisions of the tribunal must, indeed, be rendered by those on whom Parliament has conferred power to decide and their decisions must, unless the relevant legislation impliedly or expressly provides otherwise, meet the requirements of natural justice. However, the court has held that "when the practice followed by members of an administrative tribunal does not violate natural justice and does not infringe on their ability to decide according to their opinion, even though it may influence that opinion, it cannot be criticized." As such, there is no issue with the Board, for example, hiring mentors for new members who may work with those new members in order to assist with preparing for hearings and then assist post-hearing with reaching factual findings about the evidence heard. There is indeed a body of literature on such mentoring for adjudicators and its permissibility so long as it is carried out in a way that maintains the mentee's independence. As well, it is permissible for other tribunal members, even a member's superiors such as the Chairperson and Deputy Chairperson of the tribunal, to comment on a member's draft reasons as noted by the Federal Court of Appeal: "While the Acting Deputy Chairperson reviewed drafts of the member’s decision, under the IRPA, the Chairperson and Deputy Chairperson are also members of the RAD and paragraph 159(1)(h) does not prohibit them from suggesting changes to a draft at a deliberative stage." Furthermore, the use of administrative and proofreading assistance is not prohibited so long as, in every case, the ultimate decision is that of the decision maker.

Internal discussions between tribunal members on process, law, and policy are encouraged

A key issue that arises with respect to independence is the extent of permitted discussions amongst members of the tribunal about a case that is under consideration. The leading case on this subject is the Supreme Court of Canada decision I.W.A. v. Consolidated Bathurst Packaging Ltd. The rules on this subject allow for a broad latitude for internal discussions, within an atmosphere that has been referred to as “assertive collegiality”, provided that the final decision-maker is unencumbered in freely making their own decision. The principles are well captured by this passage from the paper Consistency in Tribunal Decision Making from the Canadian Institute for the Administration of Justice:

This culture of ongoing discussion can be described as a system of “assertive collegiality”—where there can be vigorous debate internally within the complement of adjudicators, but once the discussion is complete, the person hearing the case is free to make their own decision. Discussions also occur regularly between tribunal Chairs and individual adjudicators at any stage in the hearing process. For example, particular types of cases which raise significant or novel issues may be flagged at the intake stage. Once identified, they are brought to the attention of the Chair who will then choose a particular adjudicator to deal with the case. The Chair may have a discussion with the adjudicator before the assignment is made in order to canvass the procedural, law and policy issues that might be presented in the case. During the course of the hearing, the adjudicator and the Chair may continue the discussion, so that the adjudicator understands the issues in the context of the tribunal’s institutional views. Once the hearing is completed, the Chair and the adjudicator may then continue their discussion throughout the decision writing process.

It is entirely permissible, and even desirable for reasons of training and consistency, for members to be encouraged to distribute draft decisions amongst each other for comment: “Most tribunals schedule regular meetings for more formal discussions and it is not unusual where adjudicators are primarily full time and based in one location for there to be weekly or in some cases, daily meetings where drafts are exchanged and where issues of process, law and policy are discussed.” In the words of the Supreme Court of Canada, the “criteria for independence are not absence of influence but rather the freedom to decide according to one’s own conscience and opinions”

As a general rule, the members of the organization who have not heard the evidence cannot be allowed to re-assess it. Discussions of policy in the context of refugee adjudication may, and indeed should, cover consideration of country conditions. As the Federal Court of Appeal notes when distinguishing the type of factual findings at issue in Consolidated Bathurst, supra, factual issues in refugee adjudication can be of a "special nature to the extent that they go beyond the evidence specific to any particular claimant." As the Federal Court noted in Barrantes v. Canada (Minister of Citizenship and Immigration), “it would not do to have one panel member’s terrorist organization be characterized by another member as a benevolent non-government organization”. As such, in the context of refugee adjudication, discussions between tribunal members on general issues of fact related to a country are not just permissible, but desirable.

Discussions cannot be imposed upon a Member

Consolidated-Bathurst involved discussions by members of an administrative tribunal after hearing cases but before reaching final decisions. In that decision Gonthier J. okayed the practice, but imposed important limitations. In short, discussions could not be coercive and could not delve into the facts of particular cases. The rules for such discussions are enumerated in the eponymous case. The Supreme Court of Canada affirmed this conclusion in Tremblay v. Quebec: “In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers. In such circumstances, they may not feel free to refuse to submit a question to the "consensus table" when the president suggests this. Further, the statute clearly provides that it is the decision makers who must decide a matter. Accordingly, it is those decision makers who must retain the right to initiate consultation; imposing it on them amounts to an act of compulsion towards them and a denial of the choice expressly made by the legislature.” As such, where a Member does not wish to consult, either with other members, a supervisor, or legal services, they must be truly free to not do so (aside from during special circumstances such as during an initial probationary training period).

Legal services review of decisions may discuss issues of fact in the reasons but should not attempt to influence factual findings

Gonthier J. of the Supreme Court of Canada made the following comment (in dissent) in Consolidated-Bathurst:

The determination and assessment of facts are delicate tasks which turn on the credibility of the witness and an overall evaluation of the relevancy of all the information presented as evidence. As a general rule, these tasks cannot be properly performed by persons who have not heard all the evidence and the rules of natural justice do not allow such persons to vote on the result. Their participation in discussions dealing with such factual issues is less problematic when there is no participation in the final decision. However, I am of the view that generally such discussions constitute a breach of the rules of natural justice because they allow persons other than the parties to make representations on factual issues when they have not heard the evidence. [emphasis added]

The applicability of this comment to the refugee context was considered by the Federal Court of Appeal in Bovbel v. Canada. Specifically, in that case, the court considered whether having legal advisors have access to the files of refugee claimants when providing legal advice to Members, the above principle could be offended. The court rejected this concern as follows:

A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.

As such, discussions, whether with the Board's legal services team, or otherwise, should not aim to influence the factual findings of Members, but need not eschew all discussion of facts, for example where a Member has made inconsistent factual findings in a decision and that concern should be resolved. Procedural fairness does not demand that Members of the Board never discuss the facts of a file. That said, it is plain that a mandatory policy of legal review in which legal services members attempted to influence or pressure Members to make certain factual findings regarding a hearing that they had never observed would offend principles of independence. Finally, there appears to be a real lack of clarity on exactly how to interpret the statements of Gonthier J. in Consolidated-Bathurst. For example, David Mullan writes in his text Administrative Law that "on the mater of discussion of the evidence, the Court itself is not totally unequivocal even in the context of discussions with colleagues who have not heard the evidence. Where staff have been present at giving of the relevant testimony or where the evidence is written rather than given orally, the constraint on discussion may not have quite the same force."

Discussions between Members of different Divisions must be limited

The IRB Chairperson’s Instructions Governing Communications Between Related Divisions reaffirm the importance of institutional independence so that members are free from improper influence. The Instructions provide that members of a first-level Division must never communicate with members of a related appeal Division, and vice versa, with respect to:

• particular files, whether before or during deliberations, or after the final decision is rendered; and
• adjudicative strategies pertaining to their Division.

The fact that IRB Members have limited terms of appointment does not in itself unduly constrain their independence

The IRPA establishes that IRB members have appointments of fixed duration. Generally speaking, independent decision makers should have terms that are sufficiently long to limit the pressure stemming from frequent renewals. This is compatible with having a term of fixed duration. For example, judges of the Inter-American Court of Human Rights, the African Court of Justice and Human Rights, and the Court of Justice of the European Union all have terms of six years. Furthermore, while RPD members are granted ‘a high degree of independence’, they lack ‘the judicial independence of courts of law’.

In Sethi v. Canada, the Federal Court concluded that the fact that the government had introduced a bill into Parliament discharging Board members without compensation for the unexpired term of their appointment did not, in itself, create a reasonable apprehension of bias. The Court noted in that case that the introduction of a bill does not create bias as passage of any bill is speculative and public policy dictates the government should be allowed to announce proposed changes without bringing tribunal to a halt.

The tribunal must follow explicit instructions stated in a judgment or direction from a reviewing court

Where a matter is remitted by the Court to an administrative tribunal for redetermination, a tribunal is required to follow explicit instruction stated in the judgment or direction from the reviewing Court. While the decision maker is advised to consider the comments and recommendations in the reviewing Court’s reasons, it is not required to follow them. The fact that a judgment includes the statement that the matter is to be re-determined “in accordance with these reasons” does not mean that everything in the reasons constitutes a direction from the court. In the words of the Federal Court of Appeal: "I am of the opinion that only instructions explicitly stated in the judgment bind the subsequent decision-maker; otherwise, the comments and recommendations made by the Court in its reasons would have to be considered mere obiters, and the decision-maker would be advised to consider them but not required to follow them." As such, in Patricks v. Canada, wherein a matter had been returned to the RAD on consent at the Federal Court on the basis that the compelling reasons doctrine had not been adequately considered in the underlying decision, the court held that as the court order did not make any explicit reference to "compelling reasons", the new RAD panel was "[free] to conduct a complete assessment and to reach a different conclusion from the RPD and namely, on the issue of credibility".

See also:

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The record on a court-ordered redetermination
• Canadian Refugee Procedure/Reopening a Claim or Application#Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?

Deliberative Secrecy

The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. The "how and why" of decision-making are kept secret to protect the decision-maker and the decision-making process. In the context of administrative decision-making, the common law principle of deliberative secrecy has two elements: (i) the general rule that the deliberative process is secret, and (ii) that secrecy will be lifted when this is necessary for effective judicial review of the administrative decision. The jurisprudence establishes that, in the administrative context, the principle of deliberative secrecy applies only to administrative tribunals – that is, to bodies that make adjudicative decisions. It does not apply to “administrative decision makers” writ large. Secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.

This principle is reflected in s. 156 of the IRPA, which provides that members are not competent or compellable to appear as a witness in any civil proceedings in respect of the exercise or purported exercise of their functions under this Act: Canadian Refugee Procedure/156 - Immunity and no summons.

The record on judicial review or appeal will not ordinarily include drafts of a Member’s decision

The record on judicial review or appeal will not ordinarily include drafts of a Member’s decision. When discussing immigration officers’ working notes, the court has stated that they “are properly classified as evidence of an officer’s thought process, but thoughts are only marginally relevant, if relevant at all, to the assessment of reasons, which is the heart of judicial review”. As stated by Justice John Norris: “It has never been suggested that reasonableness review should also consider the reasons that may have been considered by the decision-maker but were ultimately not advanced in the final decision”. See: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 21 - Refugee Protection Division Record.

Access to information rights under the Privacy Act and Access to Information Act apply to files and recordings made of hearings

In general, the IRB may be required to release records related to hearing, including copies of files, audio recordings, and videos of hearing under the Access to Information Act to non-party requestors. This includes third-party subpoenas, media requests, and requests from academics or the general public. Such requests can also be made by a party to the case pursuant to the Privacy Act. For example, in Krasilov v. Canada, the applicants obtained a series of internal emails between the RAD member and an assistant working at the RAD regarding the assistant's review of the member’s draft decision. See also: Canadian Refugee Procedure/Privacy Act.

Access to information rights under the Privacy Act do not apply to a Board Member's notes

The issue of how the principle of deliberative secrecy intersects with access to information rights under the federal Privacy Act was considered in Tunian v. Chairman of the Immigration and Refugee Board. The Tunian family were refused refugee status. They applied pursuant to section 41 of the Privacy Act to receive the draft reasons and notes prepared by the member of the Refugee Protection Division of the IRB who made the decision determining that they were not Convention refugees. Section 41 of the Privacy Act gives the Court the jurisdiction to review instances in which an individual has been refused access to personal information. The Privacy Act provides individuals with a right of access to information about them where it is either in a "personal information bank" or under the "control" of a government institution. Access to the Member's notes was refused in this case on the basis that notes made by quasi-judicial decision-makers in the course of carrying out an independent adjudicative function are not in the control of the administrative tribunal but, rather, are in the control of the member themself. In this case, the court affirmed the decision Privacy Commissioner v. Labour Relations Board and held that the principles discussed therein apply to the Immigration and Refugee Board, particularly:

It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice. ... As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.

Board Members are neither competent nor compellable witnesses as a result of the principle of deliberative secrecy

The rule protecting deliberative secrecy is an exclusionary rule. The rule operates to prohibit compelled testimony from judges about their deliberations. It also provides that judges are not competent to testify about their deliberations. That is because the purpose of the rule is not to protect judges’ personal interests, but rather “to ensure public confidence in an impartial and independent judicial system”: Kosko c. Bijimine. Gascon J. stated in Laval v. Syndicat de l’enseignement de la région de Laval that “[j]udges cannot of course choose to lift deliberative secrecy to explain the reasoning behind their conclusions whenever it suits them to do so.” Among the broader rationales that have been offered for this rule is to prevent judges themselves from subsequently augmenting or qualifying their reasons, which offends the need for finality in judicial decision-making and undermines public confidence in the administration of justice.

The applicability of this rule to Members of the Immigration and Refugee Board was considered in Ermina v. Canada. In that case, the applicant’s refugee status had been vacated by a panel of the Board. At the hearing before the Board, the applicant had sought to elicit testimony from the chair of the panel that had originally granted her that status. The Board refused to hear such testimony, relying on the rule protecting deliberative secrecy. The applicant then tried to adduce an affidavit sworn by the former chair and containing the same information. The Board refused to receive that as well. On the ensuing application for judicial review, Tremblay-Lamer J. upheld the Board’s decisions in that regard, finding that the former chair was neither a compellable nor a competent witness. In that decision, justice Tremblay-Lamer explained that “[d]ecisions must be final and subject only to review in the ordinary channels.” In reaching that conclusion, she relied heavily on Agnew v. Ontario Association of Architects, in which the Court elaborated on the rationale for extending the rule to administrative decision-makers:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge.

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination.

In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

It is not necessary to catalogue all the different forms of mischief that might result from the compellability of judges and tribunal members to testify about their decisions. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here.

See also: Canadian Refugee Procedure/156 - Immunity and no summons.

This is consistent with international practices regarding human rights and refugee inquiries. For example, the Special Court for Sierra Leone concluded that the High Commissioner for Human Rights was protected by privilege and should not be compelled to provide information considered confidential.

Board management cannot read a Member's emails without good reason

The IRB has stated that it supports the principle that access to an employee's e-mail without consent is justified only in extreme situations, for example in situations involving a criminal or security infraction, and only after proper authorization from senior management. As a result, a Member's emails will ordinarily be private and not readable by managers or others in the organization, absent exceptional circumstances and good reason to do so. The federal Privacy Commissioner chastised the IRB when it departed from this standard in one case.