The ID must realign itself with its statutory mandate from the top down
The Action Plan items identified below, such as access to decisions and new hearings protocols, will assist in ensuring that the ID is aligned with its statutory mandate from top down.
|New performance objectives have been established for Assistant Deputy Chairs (ADCs) and members in line with the management response and action plan.||Completed||-|
|-||Clear messaging from ID management is already underway with respect to the statutory mandate and expectations regarding the hearing and decision-making process. A more rigorous quality assurance program with respect to hearings and decisions is being developed by the DC and LS, to be operationalized by the ADCs with the support of LS. ||The ID has implemented a quality assurance framework for the Division and established clear and concrete definitions of the characteristics of a quality hearing and decision. These measures, along with other related initiatives, constitute the basis of the Division’s quality assurance program.||Completed||-|
|-||In addition, a revision of the Guideline on Detention is underway in order to align it with these new expectations. ||A new guideline was issued in April 2019 that is aligned with its statutory mandate. This Guideline was further updated in April 2021, incorporating several stakeholder suggestions for improvement and reflecting the dicta of the Federal Court of Appeal’s decision in
It is recommended that the ID develop a protocol to identify, on a go-forward basis, current and new cases that require greater ongoing oversight by management.
Agreed. The ADCs will review the current and new cases in their regions to identify those which require enhanced case management reporting and/or oversight to be able to identify additional resources which may be required, such as designated representatives or physical accommodation for special vulnerabilities.
|The Division has established processes in all regions to ensure that files requiring special attention and follow up, including in connection with vulnerable individuals, the need for the appointment of a designated representative, segregation issues and cases involving minors are identified at the earliest opportunity and tracked throughout the detention period.||Completed||-|
|-||-||A review of files involving detention of more than 365 days was completed in Summer 2018. Files involving detention of more than 180 days are subject to close management oversight, with members required to provide a hearing summary after each detention review.||Completed||-|
All cases should be triaged after the 7-day review, and on a continuing basis, to allow management to identify and monitor cases according to their distinct characteristics.
Agreed that a case triage system is required. A pilot project will examine all cases after the 30-day review hearing. These cases will be triaged in accordance with certain characteristics that add complexity or detainee vulnerability, in order to allow for enhanced scheduling and planning of resources.
|The Division has established a triage process in all regions and cases are pre-assigned as appropriate to members to allow for case preparation. Members are also now expected to identify cases at 48 hours or 7 days that require additional preparation time for future hearings ||Completed||-|
Members should receive hearing files earlier than the day of the hearing. Transcripts of all decisions should be in the ID file, and provided to the detained person and CBSA. In addition to transcripts of all decisions, every file should contain fulsome information and disclosure.
Agreed. The scheduling of members to hearings is being changed to ensure national consistency and earlier access to decisions and transcripts.
Agreed. Transcripts of all decisions should be provided to the presiding member, the detained person and CBSA for all hearings.
Agreed. Files should consistently contain fulsome information and disclosure to allow for a robust and procedurally fair hearing. A review will be undertaken to determine which documents should be contained in every file. A process will be established to ensure that files are complete.
The Division is ensuring that transcripts of decisions are being ordered in all cases and in most instances provided to the presiding member, person concerned counsel and the Canada Border Services Agency (CBSA) prior to the hearing. In some circumstances, the 48-hour detention review transcript is not available by the 7-day detention review. Where that occurs, the transcript will be provided by the next detention review if the person is still detained.
The Division and/or registry undertakes quality assurance for each file to ensure that required documents are on file.
After the first 30 day review, if the person is not released, the ID Member conducting the hearing should complete and place in the file a typed preliminary Release Assessment Form.
Agreed that the information set out in the Report should appear in the file. However, it is more transparent and efficient to include the items identified in the actual decision, as opposed to a separate release assessment form. The ID will amend its procedures and training to include this expectation regarding the inclusion of all relevant considerations in the decisions.
|The Division remains of the view that a release assessment form is not necessary and in fact may be detrimental to fairness and transparency. Instead, the Division has incorporated into the new Guideline on Detention expectations regarding the sufficiency of reasons for detention. In June 2020 the Division also delivered training to all members on the sufficiency of reasons for decision in detention reviews.||Completed||-|
Regular meetings of ID Members should be instituted to provide a forum for the discussion of best practices and to obtain input on difficult cases, consistent with the practices in Consolidated-Bathurst.
Agreed. Members in each region will meet regularly to discuss best practices and have the opportunity to voluntarily discuss files. In addition, there will be national meetings in which all members participate to allow the opportunity to develop an institutional culture that reflects tribunal values, including the emphasis on consistency in adjudication and the sharing of draft decisions for comment by members in new or complex areas.
|The Division has established a national Adjudicative Committee with member representation from all regions. This committee meets monthly and its mandate encompasses topic-setting and coordination of national training seminars for all members. An in-person national training seminar was held in January 2019. As well, members meet on a monthly basis in each region to discuss best practices, share perspectives on difficult cases and address other issues.||Completed||-|
It is recommended that the ID undertake an immediate review of all individual cases where detention has exceeded a set threshold, beginning with the longest detentions.
Agreed. Management needs to address the concerns identified in this Report and by stakeholders regarding the fairness of the proceedings and compliance with the law and jurisprudence. See below action items.
|A review of files involving detention of more than 365 days was completed in Summer 2018. Files involving detention of more than 180 days continues to be subject to close management oversight, with members required to provide a hearing summary at each detention review sitting. ||Completed||-|
First priority should be the approximately 80 cases where individuals have been held in detention longer than one year. These cases should be reviewed immediately by a specialized team that is established outside of the regional structure.
Agreed. The DC is leading a specialized team, reporting directly to the DC, in a review of all detention cases in excess of 365 days, with the mandate identified in the Report.
|As noted above, this review has been completed for all cases where detention was in excess of 365 days. ||Completed||-|
For those cases where detention has been more than 6 months but less than 1 year, the same assessment as above should begin immediately, but within each Region.
Agreed. The ADCs will set up a triage team to review files where detention has been more than 6 months but less than 1 year in their region.
|As noted above, this review has been completed for all cases where detention was in excess of 180 days. ||Completed||-|
Revise the standard opening remarks to address the detainee and CBSA in plain language that will be accessible to unrepresented persons.
Agreed. The ID will provide plain and accessible language as identified in the Report, in addition to current best practices, to members to be used in opening statements at all hearings nationally.
|In July 2020 the Division made available to members a new reference document that they are encouraged to use in a detention review context. The document includes a proposed opening statement in plain language.||Completed||-|
The ID should consider developing a Practice Direction to set out protocols and expectations concerning the introduction of evidence at hearings.
Agreed. The ID will formalize the protocols and expectations concerning the introduction of evidence at hearings. In addition, a number of the issues pertaining to evidence will be addressed in the Guideline on Detention.
|This recommendation was addressed through the implementation of the new Guideline that was issued in April 2019 which addresses expectations regarding the introduction of evidence at hearings.||Completed||-|
A Practice Direction should clarify expectations for disclosure of documents.
The ID will formalize expectations for disclosure of documents, in conjunction with taking evidence, as set out above. In addition, a number of the issues pertaining to disclosure will be addressed in the Guideline on Detention.
|A new Guideline was issued in April 2019 that addresses expectations regarding disclosure. This Guideline was further updated in April 2021, incorporating the disclosure requirements set out in the Federal Court of Appeal’s 2020 decision in
The ID should promote an active adjudication model.
Agreed. Advanced training will be provided to members. Hearing procedures will also be amended to set clear expectations. In addition, the ID will explore possible ID Rules amendments and Practice Directions.
The Division provided advanced training in active adjudication in a national training seminar delivered in January 2019.
A new guideline was issued in April 2019 that addresses expectations regarding active adjudication.
The ID should encourage a tribunal culture that values compassionate adjudication.
Agreed. Advanced training will be provided to members to sensitize them to compassionate adjudication, in conjunction with active adjudication above. Hearing procedures will also be amended to set clear expectations. In addition, the ID will leverage existing stakeholder meetings to ensure that different perspectives are raised and subsequently addressed.
The Division provided training in compassionate adjudication in May 2019, with the new Guideline addressing expectations regarding active adjudication.
The Division holds regular meetings with stakeholders, where a range of ideas are raised and addressed.
In order to strengthen its capacity to conduct a robust and meaningful review at each hearing, it is recommended that the ID adjust expectations so that Members consistently deliver their full reasons in an oral decision at the close of every hearing.
Agreed. Management will communicate to members that they may take the appropriate amount of time to render their decisions, such as by taking a recess or adjournment and by working with the ADC to accommodate any additional time requirements through scheduling.
|A new guideline was issued in April 2019 that addresses expectations regarding the delivery of full reasons at the conclusion of every detention review. ||Completed||This expectation is being communicated regularly and clearly by ADCs in communication and discussion with their members|
It is recommended that the ID initiate discussions with provincial legal aid plans to canvass the possibility of increased legal services for persons in detention.
While the ID does not have any authority with respect to the provision of legal aid services, it will initiate discussions with legal aid organizations across the country to ensure that access is provided to hearings where legal aid has been retained and that detainees are made aware of legal aid services, where available.
As a result of discussions between the Division and Legal Aid Ontario (LAO), LAO has established a pilot where detainees are provided with legal counsel at the 48-hour detention review at the Immigration Holding Centre (IHC) in Central Region. In addition, LAO is piloting the provision of legal aid to detainees experiencing mental illness.
The Division is also engaged in discussions with Legal Aid Alberta as well as members of the Bar. In October 2019 Legal Aid Alberta launched a pilot project where detainees no longer require a merit assessment in order to seek legal aid counsel. A list of dedicated roster counsel has been established and training provided by Legal Aid Alberta to this group. This has reduced some of the barriers for access to counsel in Alberta.
The LAO’s ability to maintain or expand this program depends on future funding decisions by the government.
It is recommended that a Practice Direction be developed to set out the duties and responsibilities of Designated Representatives. This would serve to clarify their role, both internally and for the public and persons in detention. Additionally, it is recommended that a process should be introduced to monitor the quality of the advocacy and support provided by DRs.
Agreed. The ID will review the Designated Representative program, in conjunction with the other Divisions of the IRB and stakeholder groups and formalize the program in a publicly accessible document. A quality assurance program will be developed with respect to the DRs once expectations are clarified and published.
A new guideline was issued in April 2019 that includes a section on designated representatives and outlines the designated representative’s key roles and responsibilities.
Further, in October 2021 the IRB published a Code of Conduct for Designated Representatives setting out the standards of conduct and other obligations that govern the professional and ethical responsibilities of designated representatives at the IRB. At the same time, the Board also published a Guide and Competency Profile for designated representatives, to ensure that they understand their responsibilities as well as the competencies needed to be successful in their role.
|Paritally completed||The IRB is in the process of developing a quality assurance framework that will include enhanced monitoring of the performance of designated representatives and the implementation of a mechanism to enable the subject of the proceedings, counsel or others to make a complaint regarding designated representatives’ conduct and services.|
It is recommended that the ID and CBSA undertake a re-evaluation of the policies surrounding release on a bond and the use of broader alternatives to detention such as house arrest or curfew.
Agreed. Training will be provided to ID members. In addition, the Guideline on Detention will be revised to enhance the provisions dealing with Bondspersons.
A new guideline was issued in April 2019 that addresses expectations regarding bondspersons and alternatives to detention. In addition, national training on bondsperson questioning and active adjudication was delivered in November 2018, and alternatives to detention in June 2019.
The Division continues to engage CBSA and stakeholders on the issue of alternatives to detention in regional consultative meetings and other fora.
Professional Development and Recruitment of Members||The Division has established a national Adjudicative Committee with member representation from all regions. This committee meets monthly and its mandate encompasses topic-setting and coordination of national training seminars for all members.||Completed||-|
Advanced training on the principles and practice of making credibility assessments and factual findings on a balance of probabilities basis.
Agreed. Advanced training will be provided to members. Hearing procedures will also be amended to set clear expectations.
|The Division has delivered advanced training to all members on the principles and practice of making credibility assessments and factual findings on a balance of probabilities basis.||Completed||-|
Training on mental health and addiction issues.
Agreed. Advanced training will be provided to members. Hearing procedures will also be amended to set clear expectations. In addition, the Guideline on Detention will deal with issues around mental health and addiction issues.
A new guideline was issued in April 2019 that addresses expectations regarding proceedings involving individuals experiencing mental illness.
National training was delivered in January 2019 focussing on mental illness, symptoms, capacity issues, and accommodation strategies for hearings.
Additional mental health training was delivered in May 2019 in Central Region.
It is recommended that the ID recruit Members from the immigration bar or from social agencies serving immigrant communities to fill vacant positions.
Agreed that, like any adjudicative tribunal, the ID would benefit from having adjudicators with a diversity of experiences and perspectives. The ID will take into account these considerations in its next member recruitment process.
|The Division has taken steps to recruit new members from the immigration bar in all regions. The Division has also recently developed a strategic HR plan that sets out its member staffing objectives, which encompass hiring members from diverse backgrounds.||Completed||-|
It is recommended that the ID initiate immediate discussions with CBSA to address the enormous problem of affording fair and humane treatment to persons in detention who are living with mental illness.
Agreed. While the ID has limited jurisdiction to address treatment of mental health issues for persons in detention, the ID and CBSA have been engaged in discussions around these issues. The ID is focused on both ensuring that the mental health issues are dealt with appropriately during the hearing and that conditions are tailored to address these issues. See Designated Representatives above for a discussion of improvements to the procedural aspects. Advanced training will be provided to members. Hearing procedures will also be amended to set clear expectations. In addition, the Guideline on Detention will deal with issues around mental health and addiction issues.
The IRB is continuing to engage CBSA in relation to this issue, while recognizing that the IRB and CBSA have different mandates; CBSA being accountable for the location and conditions of detention, while the IRB is mandated to review the lawfulness of detention.
As mentioned above, a new guideline was issued in April 2019 that addresses expectations regarding proceedings involving individuals experiencing mental illness and training provided.
|Completed||The IRB will continue to engage with CBSA on matters related to detention as appropriate through existing governance committees and other fora. |