The Immigration and Refugee Board of Canada (IRB) has amended its Policy on the Use of Jurisprudential Guides (Policy). The amendments provide greater detail on the Board’s processes related to jurisprudential guides (JGs) and clarify how they are used by IRB members.
JGs are an important tool that assist the Board in discharging its statutory obligation to deal with all proceedings before it as informally and quickly as considerations of fairness and natural justice permit. The identification of JGs promotes efficiency, consistency, and fairness in decision-making.
The recent Federal Court decision pertaining to JGs resulted in the need for a review of the policy. The court decision, while supporting the Chairperson’s authority to issue JGs on questions of fact, requires that the IRB modify its policy guidance with regard to certain types of factual findings. Pending further direction from the Federal Court of Appeal, the Board has adopted changes to its Policy on the Use of Jurisprudential Guide that go beyond the requirements set out in the Federal Court decision. These changes will apply not only to certain types of factual findings as identified by the Federal Court, but will apply to all questions of law, fact and mixed law and fact. This approach creates a more straightforward framework for members’ use.
In short, the Policy on the Use of Jurisprudential Guides has been revised to state that members are encouraged - rather than expected - to follow the reasoning set out in JGs, or explain their reasons for not doing so. To ensure consistency in the Board’s policy instruments, the policy notes that accompany JGs have similarly been updated to encourage – rather than expect - members to apply JGs in cases of similar facts.
Changes to the policy were also made to clarify the processes related to the use of JGs. Namely, the policy now:
- expressly states that the Chairperson can identify JGs on questions of fact, in addition to doing so on questions of law and mixed law and fact
- describes the processes for monitoring JGs both at the country condition level and in proceedings at higher courts and
- describes more comprehensively the process for revoking JGs.
These changes reflect and maintain the application of JGs as non-binding and continues to support members independence in reaching their own conclusions on the facts before them while still promoting the interest of developing institutional consistency, fairness and efficiency in decision-making.