The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing.
The refugee claim was based on gender-based violence, namely physical and sexual abuse at the hands of a former partner.
The complaint alleged that three questions posed by the member were inappropriate, displayed a fundamental misunderstanding of the nature of domestic violence, and displayed a lack of sensitivity towards claimants who have experienced gender-based violence contrary to Chairperson’s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution. Specifically, the complainant submitted that it was inappropriate for the member to ask the claimant “So, are you sure you were raped?”, “Do you know who the father is?”, and for the member to ask why the claimant had been in counselling for so long and had been seeing so many counsellors.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the allegations were within the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).
The Chairperson decided that the allegations were within scope and referred the complaint to the Director of the Office of Integrity (the Director) for investigation.
The member was invited to provide the Director with a response to the complaint and she subsequently provided written comments. The Director listened to the audio recording of the proceeding and reviewed the parties’ submissions. The Director prepared a draft investigation report containing preliminary findings of fact and analysis, and provided both parties an opportunity to comment on the report. The complainant confirmed that they did not have any comments on the draft report; the member provided written submissions. The Director then prepared a final investigation report.
In the investigation report, the Director concluded that there was a breach of the Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- Guideline 4 explains the need for particular sensitivity to the circumstances and experiences of female claimants who fear gender-related persecution. Members are expected to treat claimants who are the victims of gender-related persecution with an appropriate level of sensitivity based on the Code of Conduct, as informed by Guideline 4. This sensitivity must be observed throughout the proceeding.
- While the member’s goal was to assess credibility by probing inconsistencies between the claimant’s narrative, the documentary evidence, and the claimant’s testimony, the member posed the questions at issue without outlining the inconsistencies she wished to resolve and without providing the claimant with any context. Even if one accepts that the questions needed to be asked, the questions as posed were blunt and insensitive. Further, the third question could have been interpreted as undermining or making light of the claimant’s trauma.
- The member could have approached all three lines of questioning with greater regard for sensitivity and the claimant’s dignity. The questions could have been framed and asked in a more respectful and sensitive manner.
- Taken as a whole, the three impugned questions, together with the member’s submissions during the investigation, would tend to indicate a certain level of misunderstanding on the member’s part as to how members should demonstrate sensitivity under the Code of Conduct towards a claimant who has been the subject of gender-based violence.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was a breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
The Chairperson requested, in his letter to the member, that the member reflect on the report’s findings and how they could inform adjustments to the member’s approach to questioning claimants making gender-based claims. The Chairperson stated that while he appreciated and was mindful of the difficult nature of the member’s job, the questions should have been framed in a more sensitive manner in the circumstances.
The Deputy Chairperson of the RPD and the appropriate Assistant Deputy Chairpersons were informed of the results of the investigation for follow-up action as applicable. Shortly thereafter, the member’s employment with the IRB came to an end. As the member was no longer an IRB employee, remedial or disciplinary actions were not warranted under the circumstances.
The complaint was founded, and the file was closed.