Date:
20070525
Docket: A-38-06
Citation: 2007
FCA 198
CORAM: DÉCARY
J.A.
SHARLOW
J.A.
EVANS
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
DANIEL THAMOTHAREM
Respondent
and
THE CANADIAN COUNCIL FOR REFUGEES and
THE IMMIGRATION REFUGEE BOARD
Interveners
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
The
Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory
powers to issue both guidelines and rules. Rules have to be approved by the
Governor in Council and laid before Parliament, but guidelines do not.
[2]
This
appeal concerns the validity of Guideline 7 (Preparation and Conduct of a
Hearing in the Refugee Protection Division), issued in 2003 by the
Chairperson of the Board pursuant to the statutory power to “issue guidelines …
to assist members in carrying out their duties”: Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The
key paragraphs of Guideline 7 provide as follows: “In a claim for refugee
protection, the standard practice will be for the R[efugee] P[rotection]
O[fficer] to start questioning the claimant” (para. 19), although the member of
the Refugee Protection Division (“RPD”) hearing the claim “may vary the order
of questioning in exceptional circumstances” (para. 23).
[3]
The
validity of Guideline 7 is challenged on two principal grounds. First, it deprives
refugee claimants of the right to a fair hearing by denying them the
opportunity to be questioned first by their own counsel. Second, even if
Guideline 7 does not prescribe a hearing that is in breach of the duty of
fairness, the Chairperson should have introduced the new standard order of
questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as
a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as
a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members
of the RPD to determine the appropriate order of questioning when hearing
refugee protection claims.
[4]
This
is an appeal by the Minister of Citizenship and Immigration from a
decision by Justice Blanchard of the Federal Court granting an application for
judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing
his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship
and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.
[5]
Justice
Blanchard held that Guideline 7 is an unlawful fetter on the exercise of
discretion by individual RPD members to determine the order of questioning at a
hearing, in the absence of a provision in either IRPA or the Refugee
Protection Division Rules, SOR/2002-228, dealing with this aspect of
refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be
determined by a different member of the RPD on the basis that Guideline 7 is an
invalid fetter on the exercise of decision-makers’ discretion.
[6]
However,
Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is
invalid because it deprives refugee claimants of the right to a fair hearing,
and distorts the “judicial” role of the member hearing the claim. Mr
Thamotharem has cross-appealed this finding.
[7]
The
Judge certified the following questions for appeal pursuant to paragraph 74(d)
of IRPA.
1.
Does the implementation of paragraphs 19 and 23
of the Chairperson’s Guideline 7 violate principles of natural justice by
unduly interfering with claimants’ right to be heard?
2.
Has the implementation of Guideline 7 led to
fettering of Board Members’ discretion?
3.
Does a finding that Guideline 7 fetters a
Refugee Protection Division Member’s discretion necessarily mean that the
application for judicial review must be granted, without regard to whether or
not the applicant was otherwise afforded procedural fairness in the particular
case or whether there was an alternate basis for rejecting the claim?
[8]
Immediately
after hearing the Minister’s appeal in Thamotharem, we heard appeals by
unsuccessful refugee claimants challenging the validity of Guideline 7 and, in
some of the cases, impugning on other grounds the dismissal of their claim. In
the Federal Court, 19 applications for judicial review concerning Guideline 7
were consolidated. Justice Mosley’s decision on the Guideline 7 issue is
reported as Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals
from these decisions were also consolidated, Benitez being designated
the lead case.
[9]
In
Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard
on all issues, except one: he held that Guideline 7 was not an unlawful fetter
on the discretion of Board members because its text permitted them to allow the
claimant’s counsel to question first, as, in fact, some had.
[10]
For
substantially the reasons that they gave, I agree with both Justices that
Guideline 7 is not, on its face, invalid on the ground of procedural
unfairness, although, as the Minister and the Board conceded, fairness may require
that, in certain circumstances, particular claimants should be questioned first
by their own counsel. I also agree that Guideline 7 is not incompatible with
the impartiality required of a member when conducting a hearing which is
inquisitorial in form.
[11]
However,
in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’
discretion on the conduct of refugee protection hearings. The Guideline
expressly directs members to consider the facts of the particular case before
them to determine whether there are exceptional circumstances warranting a
deviation from the standard order of questioning. The evidence does not establish
that members disregard this aspect of Guideline 7 and slavishly adhere to the
standard order of questioning, regardless of the facts of the case before them.
Accordingly, I agree with Justice Mosley on this issue, and must respectfully
disagree with Justice Blanchard.
[12]
Nor
does it follow from the fact that Guideline 7 could have been issued as a statutory
rule of procedure that it is invalid because it was not approved by the
Governor in Council. In my opinion, the Chairperson’s rule-making power does
not invalidate Guideline 7 by impliedly excluding from the broad statutory power
to issue guidelines “to assist members in carrying out their duties” changes to
the procedure of any of the Board’s Divisions.
[13]
Accordingly,
I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal
and his application for judicial review. Although separate reasons are given in
Benitez (2007 FCA 199) dealing with issues not raised in Mr
Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted
in Court File No. A-164-06 (Benitez) and the files of the appeals
consolidated with it.
B. FACTUAL BACKGROUND
(i) Mr
Thamotharem’s refugee claim
[14]
Mr
Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September
2002 on a student visa. In January 2004, he made a claim for refugee protection
in Canada, since he feared that, if forced to return to Sri Lanka, he would be
persecuted by the Liberation Tigers of Tamil Eelam.
[15]
In
written submissions to the RPD before his hearing, Mr Thamotharem objected to
the application of Guideline 7, on the ground that it deprives refugee
claimants of their right to a fair hearing. He did not argue that, on the facts
of his case, he would be denied a fair hearing if he were questioned first by
the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing.
There was no evidence that Mr Thamotharem suffered from post-trauma stress
disorder, or was otherwise particularly vulnerable.
[16]
At
the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem
first. The RPD held that the duty of fairness does not require that refugee
claimants always have the right to be questioned first by their counsel and
that the application of Guideline 7 does not breach Mr Thamotharem’s right to
procedural fairness.
[17]
In
a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim
and found him not to be a person in need of protection. It based its decision
on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the
absence of reliable evidence that Mr Thamotharem would be persecuted as a
perceived member of a political group or would, for the first time, become the
target of extortion.
[18]
In
his application for judicial review, Mr Thamotharem challenged this decision on
the ground that Guideline 7 was invalid, and that the RPD had made a reviewable
error in its determination of the merits of his claim. As already noted, Mr
Thamotharem’s application for judicial review was granted, the RPD’s decision
set aside and the matter remitted to another member for re-determination on the
basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the
conduct of the hearing. In responding in this Court to
the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7
is valid, Justice Blanchard was correct to remit the matter to the RPD because
it committed a reviewable error in determining the merits of the claim.
(ii)
Guideline 7
[19]
Before
the Chairperson issued Guideline 7, the order of questioning was within the
discretion of individual members; neither IRPA, nor the Refugee Protection
Division Rules, addressed it. Refugee protection claims are normally
determined by a single member of the RPD. The evidence indicated that, before
the issue of Guideline 7, practice on the order of questioning was not uniform
across Canada. Members
sitting in Toronto and,
possibly, in Vancouver and Calgary, permitted claimants to
be “examined in chief” by their counsel before being questioned by the RPO
and/or the member. In Montreal and Ottawa, on the
other hand, the practice seems to have been that the member or the RPO
questioned the claimant first, although a request by counsel for a claimant to
question first seems generally to have been granted.
[20]
It
is not surprising that the Board did not regard it as satisfactory that the
order of questioning was left to be decided by individual members on an ad
hoc basis, with variations among regions, and among members within a
region. Claimants are entitled to expect essentially the same procedure to be
followed at an RPD hearing, regardless of where or by whom the hearing is
conducted.
[21]
There
was also a view that refugee protection hearings would be more expeditious if
claimants were generally questioned first by the RPO or the member, thus
dispensing with the often lengthy and unfocussed examination-in-chief of claimants
by their counsel. The backlog of refugee determinations has been a major problem
for the Board. For example, from 1997-98 to 2001-02 the number of claims
referred for determination each year increased steadily from more than 23,000
to over 45,000, while, in the same period, the backlog of claims referred but
not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration
and Refugee Board, Performance Report, for the period ending March 31, 2004.
[22]
Studies
were undertaken to find ways of tackling this problem. For example, in a
relatively early report, Rebuilding Trust: Report of the Review of
Fundamental Justice in Information Gathering and Dissemination at the Immigration
and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee
law scholar, Professor James C. Hathaway, made many recommendations designed to
make the Board’s determination of refugee claims more effective, expeditious,
and efficient. The following passage from the Report (at 74) is particularly
relevant to the present appeal.
The present practice of an
introductory “examination in chief” by counsel should be dispensed with, the
sworn testimony in the Application for Refugee Status being presumed to be true
unless explicitly put in issue. Panel members should initially set out clearly
the substantive matters into which they wish to inquire, and explain any
concerns they may have about the sufficiency of documentary evidence
presented. Members should assume primary responsibility to formulate the
necessary questions, although they should feel free to invite counsel to adduce
testimony in regard to matters of concern to them. Once the panel has
concluded its questioning, it should allow the Minister’s representative, if
present, an opportunity to question or call evidence, ensuring that the tenor
of the Ministerial intervention is not allowed to detract from the non-adversarial
nature of the hearing. Following a brief recess, the panel should outline
clearly on the record which matters it views as still in issue, generally using
the Conference Report as its guide. Any matters not stated by the panel to be
topics of continuing concern should be deemed to be no longer in issue.
Counsel would then be invited to elicit testimony, call witnesses, and make
submissions as adjudged appropriate, keeping in mind that all additional
evidence must be directed to a matter which remains in issue. [footnotes
omitted]
[23]
Starting
in 1999, the Board worked to develop what became Guideline 7, which was finally
issued in October 31, 2003, as part of an action plan to reduce the backlog on
the refugee side by increasing the efficiency of its decision-making process.
In addition to the order of questioning provisions in dispute in this case,
Guideline 7 also deals with the early identification of issues and disclosure
of documents, procedures when a claimant is late or fails to appear, informal
pre-hearing conferences, and the administration of oaths and affirmations.
[24]
In
addition to the consultations with the Deputy Chairperson and the Director
General of the Immigration Division mandated by paragraph 159(1)(h)
before the Chairperson issues a guideline, the Board held consultations on the
proposed Guideline with members of the Bar and other “stakeholders”. Some,
however, including the Canadian Council for Refugees, an intervener in this
appeal, regarded the consultations as less than meaningful, while others
characterized Guideline 7 as an overly “top-down” initiative by senior
management of the Board. On the basis of the material before us, I am unable to
comment on either of these observations.
[25]
From
December 1, 2003, the implementation of Guideline 7 was gradually phased in,
becoming fully operational across the country by June 1, 2004. Like other
guidelines issued by the Chairperson, Guideline 7 was published.
C. LEGISLATIVE
FRAMEWORK
(i) IRPA
[26]
IRPA confers on the Chairperson of the Board
broad powers over the management of each Division of the Board, including a
power to issue guidelines.
|
159. (1) The Chairperson is, by virtue of
holding that office, a member of each Division of the Board and is the chief
executive officer of the Board. In that capacity, the Chairperson
(a) has supervision over and direction of the work
and staff of the Board;
…
(g) takes any action that may be necessary to ensure
that the members of the Board carry out their duties efficiently and without
undue delay;
(h) may issue guidelines in writing to members of
the Board and identify decisions of the Board as jurisprudential guides,
after consulting with the Deputy Chairpersons and the Director General of the
Immigration Division, to assist members in carrying out their duties;
…
|
159. (1) Le président est le premier dirigeant de la
Commission ainsi que membre d’office des quatre sections; à ce titre :
a) il assure la direction et contrôle la gestion des
activités et du personnel de la Commission;
[…]
g) il prend les mesures nécessaires pour que les
commissaires remplissent leurs fonctions avec diligence et efficacité;
h) après consultation des vice-présidents et du
directeur général de la Section de l’immigration et en vue d’aider les
commissaires dans l’exécution de leurs fonctions, il donne des directives
écrites aux commissaires et précise les décisions de la Commission qui
serviront de guide jurisprudentiel;
[…]
|
[27]
IRPA
also empowers the Chairperson of the Board to make rules for each of the three Divisions
of Board. The rules, however, must be approved by the Governor in Council, and laid
before Parliament.
|
161. (1) Subject to the approval of the Governor in
Council, and in consultation with the Deputy Chairpersons and the Director
General of the Immigration Division, the Chairperson may make rules
respecting
(a) the activities, practice and procedure
of each of the Divisions of the Board, including the periods for appeal,
the priority to be given to proceedings, the notice that is required and the
period in which notice must be given;
(b) the conduct of persons in proceedings before the
Board, as well as the consequences of, and sanctions for, the breach of those
rules;
(c) the information that may be required and the
manner in which, and the time within which, it must be provided with respect
to a proceeding before the Board; and
(d) any other matter considered by the Chairperson
to require rules.
(2) The Minister shall cause a copy of any rule
made under subsection (1) to be laid before each House of Parliament on
any of the first 15 days on which that House is sitting after the approval
of the rule by the Governor in Council.
|
161. (1) Sous réserve de l’agrément du
gouverneur en conseil et en consultation avec les vice-présidents et le
directeur général de la Section de l’immigration, le président peut
prendre des règles visant :
a) les travaux, la procédure et la
pratique des sections, et notamment les délais pour interjeter appel de
leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis
à donner, ainsi que les délais afférents;
b) la conduite des personnes dans les
affaires devant la Commission, ainsi que les conséquences et sanctions
applicables aux manquements aux règles de conduite;
c) la teneur, la forme, le délai de
présentation et les modalités d’examen des renseignements à fournir dans le
cadre d’une affaire dont la Commission est saisie;
d) toute autre mesure nécessitant, selon
lui, la prise de règles.
(2) Le ministre fait déposer le texte
des règles devant chacune des chambres du Parlement dans les quinze
premiers jours de séance de celle-ci suivant leur agrément par le
gouverneur en conseil.
|
[28]
IRPA
emphasises the importance of informality, promptness and fairness in the
Board’s proceedings.
|
162. (2) Each Division shall deal with all
proceedings before it as informally and quickly as the circumstances and the
considerations of fairness and natural justice permit.
|
162. (2) Chacune des sections fonctionne, dans la
mesure où les circonstances et les considérations d’équité et de justice
naturelle le permettent, sans formalisme et avec célérité.
|
[29]
In
keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad
discretion on members in their conduct of a hearing.
|
165. The Refugee Protection Division and the Immigration
Division and each member of those Divisions have the powers and authority of
a commissioner appointed under Part I of the Inquiries Act and may do
any other thing they consider necessary to provide a full and proper hearing.
|
165. La Section de la protection des réfugiés et la
Section de l’immigration et chacun de ses commissaires sont investis des
pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur
les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à
la procédure.
|
[30]
Part
I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers
commissioners of inquiry as follows:
|
4. The commissioners have the power of summoning
before them any witnesses, and of requiring them to
(a) give evidence, orally or in writing, and on oath
or, if they are persons entitled to affirm in civil matters on solemn
affirmation; and
(b) produce such documents and things as the
commissioners deem requisite to the full investigation of the matters into
which they are appointed to examine.
5. The commissioners have the same power to enforce
the attendance of witnesses and to compel them to give evidence as is vested
in any court of record in civil cases.
|
4. Les commissaires ont le pouvoir d’assigner devant
eux des témoins et de leur enjoindre de :
a) déposer oralement ou par écrit sous la foi du
serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en
matière civile;
b) produire les documents et autres pièces qu’ils
jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête
dont ils sont chargés.
5. Les commissaires ont, pour contraindre les
témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en
matière civile.
|
[31]
The
following provisions of IRPA respecting the decision-making process of the RPD
are also relevant.
|
170. The Refugee Protection Division, in any
proceeding before it,
(a) may inquire into any matter that it considers
relevant to establishing whether a claim is well-founded;
…
(g) is not bound by any legal or technical rules of
evidence;
(h) may receive and base a decision on evidence that
is adduced in the proceedings and considered credible or trustworthy in the
circumstances;
…
|
170. Dans toute affaire dont elle est saisie, la
Section de la protection des réfugiés :
a) procède à tous les actes qu’elle juge utiles à la
manifestation du bien-fondé de la demande;
[…]
g) n’est pas liée par les règles légales ou
techniques de présentation de la preuve;
h) peut recevoir les éléments qu’elle juge crédibles
ou dignes de foi en l’occurrence et fonder sur eux sa décision;
[…]
|
(ii) Guideline 7
[32]
Paragraphs 19
and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h),
are of immediate relevance in this appeal, while paragraphs 20-22 provide
context.
|
19.
In a claim for refugee protection, the standard practice will be for the
RPO to start questioning the claimant. If there is no RPO participating
in the hearing, the member will begin, followed by counsel for the claimant.
Beginning the hearing in this way allows the claimant to quickly understand
what evidence the member needs from the claimant in order for the claimant to
prove his or her case.
20.
In a claim for refugee protection where the Minister intervenes on an issue
other than exclusion, for example, on a credibility issue, the RPO starts the
questioning. If there is no RPO at the hearing, the member will start the
questioning, followed by the Minister's counsel and then counsel for the
claimant.
21.
In proceedings where the Minister intervenes on the issue of exclusion,
Minister's counsel will start the questioning, followed by the RPO, the
member, and counsel for the claimant. Where the Minister's counsel
requests another chance to question at the end, the member will allow it if
the member is satisfied that new matters were raised during questioning by
the other participants.
22.
In proceedings where the Minister is making an application to vacate or to
cease refugee protection, Minister's counsel will start the questioning,
followed by the member, and counsel for the protected person. Where the
Minister's counsel requests another chance to question at the end, the member
will allow it if the member is satisfied that new matters were raised during
questioning by the other participants.
23.
The member may vary the order of questioning in exceptional circumstances.
For example, a severely disturbed claimant or a very young child might feel
too intimidated by an unfamiliar examiner to be able to understand and
properly answer questions. In such circumstances, the member could decide
that it would be better for counsel for the claimant to start the
questioning. A party who believes that exceptional circumstances exist must
make an application to change the order of questioning before the hearing.
The application has to be made according to the RPD Rules.
|
19. Dans toute demande d'asile, c'est
généralement l'APR qui commence à interroger le demandeur d'asile. En
l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et
est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet
ainsi au demandeur d'asile de connaître rapidement les éléments de preuve
qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
20. Dans les demandes d'asile où l'intervention du
ministre porte sur une question autre que l'exclusion, la crédibilité par
exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience,
le commissaire commence l'interrogatoire; viennent ensuite le conseil du
ministre puis le conseil du demandeur d'asile.
21. Dans les demandes où l'intervention du
ministre porte sur la question de l'exclusion, le conseil du ministre
interroge d'abord le demandeur d'asile; il est suivi de l'APR, du
commissaire, puis du conseil du demandeur d'asile. Le commissaire donne
au conseil du ministre la possibilité de ré-interroger le témoin à la fin de
l'audience s'il est convaincu que les interrogatoires par les autres
participants ont soulevé de nouvelles questions.
22. Dans les demandes d’annulation ou de constat de
perte d’asile présentées par le ministre, le conseil du ministre commence
l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne
protégée. Le commissaire donne au conseil du ministre la possibilité de
ré-interroger le témoin à la fin de l’audience s’il est convaincu que les
interrogatoires par les autres participants ont soulevé de nouvelles
questions.
23. Le commissaire peut changer l'ordre des
interrogatoires dans des circonstances exceptionnelles. Par exemple, la
présence d'un examinateur inconnu peut intimider un demandeur d'asile très
perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de
comprendre les questions ni d'y répondre convenablement. Dans de telles
circonstances, le commissaire peut décider de permettre au conseil du
demandeur de commencer l'interrogatoire. La partie qui estime que de telles
circonstances exceptionnelles existent doit soumettre une demande en vue de
changer l'ordre des interrogatoires avant l'audience. La demande est faite
conformément aux Règles de la SPR.
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D. ISSUES AND
ANALYSIS
Issue 1: Standard
of review
[33]
The
questions of law raised in this appeal about the validity of Guideline 7 are
reviewable on a standard of correctness: they concern procedural fairness,
statutory interpretation, and the unlawful fettering of discretion. The
exercise of discretion by the Chairperson to choose a guideline rather than a formal
rule as the legal instrument for amending the procedure of any of the Board’s
Divisions by is reviewable for patent unreasonableness.
Issue 2: Does
Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right
to procedural fairness?
[34]
Justice
Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded
that the jurisprudence did not require that, as a matter of fairness, claimants
always be given the opportunity to be questioned first by their counsel (at
paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”),
for determining where to locate refugee protection hearings on the procedural spectrum
from the informal to the judicial. Largely on the basis of the adjudicative
nature of the RPD’s functions, the finality of its decision, and the importance
of the individual rights at stake, he concluded (at para. 75) that “a higher
level of procedural protection is warranted”.
[35]
However,
recognizing also that the content of the duty of fairness varies with context,
Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model
for the determination of refugee claims by the RPD, in the sense that there is
no party opposing the claim, except in the rare cases when the Minister intervenes
to oppose a claim on exclusion grounds. Consequently, in the overwhelming
majority of cases, the task of probing the legitimacy of claims inevitably
falls to the RPO, who questions the claimant on behalf of the member, and/or to
the member of the RPD conducting the hearing, especially when no RPO is
present. This is an important reason for concluding that not all the elements
of the adversarial procedural model followed in the courts are necessarily required
for a fair hearing of a refugee claim: see paras. 72-75.
[36]
Justice
Blanchard also acknowledged that claimants may derive tactical advantages from
being taken through their story by their own lawyer before being subjected to
questioning by the RPO, who will typically focus on inconsistencies, gaps, and
improbabilities in the narrative found in the claimant’s personal information
form (“PIF”) and any supporting documentation, as well as any legal weaknesses
in the claim. The tactical advantage of questioning first may be particularly
significant in refugee hearings because of the vulnerability and anxiety of
many claimants, as a result of: their inability to communicate except through
an interpreter; their cultural backgrounds; the importance for them of the
RPD’s ultimate decision; and the psychological effects of the harrowing events
experienced in their country of origin.
[37]
Nonetheless,
Justice Blanchard concluded that these considerations do not necessarily rise
to the level of unfairness. Indeed, in addition to shortening the hearing, questioning
by the RPO may also serve to improve the quality of the hearing by focusing it and
enabling a claimant’s counsel to make sure that aspects of the claim troubling
the member are fully dealt with when the claimant comes to tell his or her
story. Consequently, in order to be afforded their right to procedural
fairness, claimants need not normally be given the opportunity to be questioned
by their counsel before being questioned by the RPO and/or RPD member.
[38]
Justice
Blanchard noted, for example, that RPD members receive training to sensitize
them to the accommodations needed when questioning vulnerable claimants, that claimants
may supplement or modify the information in their PIF and adduce evidence before
the hearing, and that expert evidence indicated that vulnerable claimants’
ability to answer questions fully, correctly and clearly is likely to depend
more on the tone and style of questioning than on the order in which it occurs.
[39]
Moreover,
the duty of fairness forbids members from questioning in an overly aggressive
and badgering manner, or in a way that otherwise gives rise to a reasonable
apprehension of bias. Fairness also requires that claimants be given an
adequate opportunity to tell their story in full, to adduce evidence in support
of their claim, and to make submissions relevant to it. To this end, fairness
may also require that, in certain circumstances, a claimant be afforded the
right to be questioned first by her or his counsel. In addition, Guideline 7
recognizes that there will be exceptional cases in which, even though not
necessarily required by the duty of fairness, it will be appropriate for the
RPD to depart from the standard order of questioning.
[40]
I
agree with Justice Blanchard’s conclusion on this issue and have little useful
to add to his reasons. Before us, counsel did not identify any error of
principle in the Applications Judge’s analysis nor produce any binding judicial
authority for the proposition that it is a breach of the duty of fairness to
deny claimants the right to be questioned first by their own counsel. Criticisms
were directed more to the weight that Justice Blanchard gave to some of the
evidence and the factors to be considered. I can summarize as follows the principal
points made in this Court by counsel.
[41]
First,
the importance of the individual rights potentially at stake in refugee protection
proceedings indicates a court-like hearing, in which the party with the burden
of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993),
69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the
rights involved in the determination of a refugee claim, as well as the
generally “judicial” character of the oral hearings held by the RPD, militate in
favour of affording claimants a high degree of procedural protection. However,
its details must also be tailored to fit the inquisitorial and relatively
informal nature of the hearing established by Parliament, as well as the RPD’s
high volume case load, considerations which reduce the power of the claim to aspects
of the adversarial model used in courts, including the order of questioning.
[42]
Second,
the procedure set out in Guideline 7 is derived from the erroneous notion that
the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries,
refugee claimants have the burden of proving a claim, which the RPD
adjudicates.
[43]
I
do not agree. The Board correctly recognizes that the RPD’s procedural model is
more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu
v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para.
82). I cannot conclude on the basis of the evidence as a whole that the Board adopted
the standard order of questioning in the mistaken view that the RPD is a board
of inquiry, even though it decides claimants’ legal rights in the cases which
they bring to it for adjudication and claimants bear the burden of proof. This
conclusion is not undermined by a training document (“Questioning 101”),
prepared by the Board’s Professional Development Branch in 2004 for members and
RPOs, which contains a somewhat misleading reference to the compatibility of
the standard order of questioning with “a board of inquiry model”.
[44]
A
relatively inquisitorial procedural form may reduce the degree of control over the
process often exercisable by counsel in adversarial proceedings, especially
before inexperienced tribunal members or those who lack the confidence that
legal training can give. Nonetheless, the fair adjudication of individual
rights is perfectly compatible with an inquisitorial process, where the order
of questioning is not as obvious as it generally is in an adversarial hearing.
[45]
Third,
placing RPD members in the position of asking the claimant questions first,
when no RPD is present, distorts their judicial role by thrusting them into the
fray, thereby creating a reasonable apprehension of bias by making them appear
to be acting as both judge and prosecutor. Guideline 7 is particularly
burdensome for members now that panels normally comprise a single member, and there
is often no RPO present to assume the primary responsibility for questioning
the claimant on behalf of the Board.
[46]
I
disagree. Adjudicators can and should normally play a relatively passive role
in an adversarial process, because the parties are largely responsible for adducing
the evidence and arguments on which the adjudicator must decide the dispute. In
contrast, members of the RPD, sometimes assisted by an RPO, do not have this
luxury. In the absence in most cases of a party to oppose the claim, members
are responsible for making the inquiries necessary, including questioning the
claimant, to determine the validity of the claim: see IRPA, paragraph 170(a);
Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1
F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the
member or the RPO may ask probing questions does not make the proceeding
adversarial in the procedural sense.
[47]
To
the extent that statements in Rajaratnam v. Canada (Minister of Employment
and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of
the RPD hearing a refugee claim is restricted to asking the kind of questions
that a judge in a civil or criminal proceeding may ask, they are, in my
respectful opinion, incorrect, especially when no RPO is present.
[48]
The
fact that members question the claimant first when there is no RPO present does
not distort the inquisitorial process established by IRPA and would not give
rise to a reasonable apprehension of bias on the part of a person who was
informed of the facts and had thought the matter through in a practical manner.
Inquisitorial processes of adjudication are not unfair simply because they are relatively
unfamiliar to common lawyers.
[49]
Fourth,
Guideline 7 interferes with claimants’ right to the assistance of counsel
because it prevents them from being taken through their story by their counsel
before being subject to the typically more sceptical questioning by the RPO. I
do not agree. Guideline 7 does not curtail counsel’s participation in the
hearing; counsel is present throughout and may conduct an examination of the
client to ensure that the claimant’s testimony is before the decision-maker.
The right to be represented by counsel does not include the right of counsel to
determine the order of questioning or, for that matter, any other aspect of the
procedure to be followed at the hearing.
[50]
Finally,
no statistical evidence was adduced to support the allegation that Guideline 7
jeopardizes the ability of the RPD accurately to determine claims for refugee
protection. There is simply no evidence to establish what impact, if any, the
introduction of Guideline 7 has had on acceptance rates.
[51]
In
summary, the procedure prescribed by Guideline 7 is not, on its face, in breach
of the Board’s duty of fairness. However, in some circumstances, fairness may
require a departure from the standard order of questioning. In those
circumstances, a member’s refusal of a request that the claimant be questioned
first by her counsel may render the determination of the claim invalid for
breach of the duty of fairness.
[52]
Consequently,
if the Chairperson had implemented the reform to the standard order of questioning
at refugee determination hearings in a formal rule of procedure issued in
accordance with paragraph 161(1)(a), it would have been beyond challenge
on the grounds advanced in this appeal respecting the duty of fairness,
including bias. The somewhat technical question remaining is whether the
Chairperson’s choice of legislative instrument (that is, a guideline rather
than a formal rule of procedure) to implement the procedural change was in law open
to him.
Issue 3: Is
Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter
on RPD members’ exercise of discretion in the conduct of hearings?
[53]
As
already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached
different conclusions on whether Guideline 7 unlawfully fettered the discretion
of members of the RPD in deciding the order of questioning at a refugee
determination hearing. The records in the two applications were not identical.
In particular, there was more evidence before Justice Mosley, comprising some
forty decisions and excerpts from transcripts of RPD hearings, that RPD members
are willing to recognize exceptional cases in which it is appropriate to depart
from the standard order of questioning.
[54]
In
the circumstances of these appeals, it is appropriate to consider all the
evidence before both judges. From a practical point of view, it would be
anomalous if this Court were to reach different conclusions about the validity
of Guideline 7 in two cases set down to be heard one after the other. However,
I do not attach much, if any, significance to the differences in the records.
Justice Blanchard properly based his conclusion, for the most part, on what he
saw as the mandatory language of Guideline 7.
(i) Rules, discretion
and fettering
[55]
Effective
decision-making by administrative agencies often involves striking a balance
between general rules and the exercise of ad hoc discretion or, to put
it another way, between the benefits of certainty and consistency on the one
hand, and of flexibility and fact-specific solutions on the other. Legislative
instruments (including such non-legally binding “soft law” documents as policy
statements, guidelines, manuals, and handbooks) can assist members of the
public to predict how an agency is likely to exercise its statutory discretion and
to arrange their affairs accordingly, and enable an agency to deal with a
problem comprehensively and proactively, rather than incrementally and
reactively on a case by case basis.
[56]
Though
the use of “soft law” an agency can communicate prospectively its thinking on
an issue to agency members and staff, as well as to the public at large and to
the agency’s “stakeholders” in particular. Because “soft law” instruments may
be put in place relatively easily and adjusted in the light of day-to-day
experience, they may be preferable to formal rules requiring external approval
and, possibly, drafting appropriate for legislation. Indeed, an administrative agency
does not require an express grant of statutory authority in order to issue
guidelines and policies to structure the exercise of its discretion or the interpretation
of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities
Commission) (1994), 121 D.L.R. (4th) 79 (Ont. C.A.) at 83 (“Ainsley”).
[57]
Both
academic commentators and the courts have emphasized the importance of these
tools for good public administration, and have explored their legal
significance. See, for example, Hudson N. Janisch, “The Choice of Decision-Making
Method: Adjudication, Policies and Rule-Making” in Special Lectures of the Law
Society of Upper Canada 1992, Administrative Law: Principles, Practice and
Pluralism; David J. Mullan, Administrative Law (Toronto: Irwin Law,
2001) at 374-79; P.P. Craig, Administrative Law, 5th
edn. (London: Thomson,
2003) at 398-405, 536-40; Capital Cities Communications Inc. v. CRTC,
[1978] 2 S.C.R. 141 at 171; Vidal v. Canada (Minister of
Employment and Immigration) (1991), 49 Admin. L.R. 118 (F.C.T.D.) at 131; Ainsley
at 82-83.
[58]
Legal
rules and discretion do not inhabit different universes, but are arrayed along
a continuum. In our system of law and government, the exercise of even the
broadest grant of statutory discretion which may adversely affect individuals
is never absolute and beyond legal control: Roncarelli v. Duplessis, [1959]
S.C.R. 121 at 140. (per Rand J.). Conversely, few, if any, legal rules
admit of no element of discretion in their interpretation and application: Baker
at para. 54.
[59]
Although
not legally binding on a decision-maker in the sense that it may be be an error
of law to misinterpret or misapply them, guidelines may validly influence a decision-maker’s
conduct. Indeed, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2,
McIntyre J., writing for the Court, said (at 6):
The fact that the Minister in his policy
guidelines issued in the Notice to Importers employed the words: “If Canadian
product is not offered at the market price, a permit will normally be
issued; …” does not fetter the exercise of that discretion. [Emphasis added]
The line between law and guideline was
further blurred by Baker at para. 72, where, writing for a majority of
the Court, L’Heureux-Dubé J. said that the fact that administrative action is contrary
to a guideline “is of great help” in assessing whether it is unreasonable.
[60]
The
use of guidelines, and other “soft law” techniques, to achieve an acceptable
level of consistency in administrative decisions is particularly important for
tribunals exercising discretion, whether on procedural, evidential or substantive
issues, in the performance of adjudicative functions. This is especially true
for large tribunals, such as the Board, which sit in panels; in the case of the
RPD, as already noted, a panel typically comprises a single member.
[61]
It
is fundamental to the idea of justice that adjudicators, whether in
administrative tribunals or courts, strive to ensure that similar cases receive
the same treatment. This point was made eloquently by Gonthier J. when writing
for the majority in Consolidated-Bathurst Packaging Ltd. v. International
Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 at 327 (“Consolidated-Bathurst”):
It is obvious that coherence in
administrative decision-making must be fostered. The outcome of disputes should
not depend on the identity of the persons sitting on the panel for this result
would be “difficult to reconcile with the notion of equality before the law,
which is one of the main corollaries of the rule of law, and perhaps also the
most intelligible one”. [Citation omitted]
[62]
Nonetheless,
while agencies may issue guidelines or policy statements to structure the
exercise of statutory discretion in order to enhance consistency,
administrative decision-makers may not apply them as if they were law. Thus, a decision
made solely by reference to the mandatory prescription of a guideline, despite
a request to deviate from it in the light of the particular facts, may be set
aside, on the ground that the decision-maker’s exercise of discretion was unlawfully
fettered: see, for example, Maple Lodge Farms at 7. This level of
compliance may only be achieved through the exercise of a statutory power to
make “hard” law, through, for example, regulations or statutory rules made in
accordance with statutorily prescribed procedure.
[63]
In
addition, the validity of a rule or policy itself has sometimes been impugned
independently of its application in the making of a particular decision. Ainsley
is the best known example. That case concerned a challenge to the
validity of a non-statutory policy statement issued by the Ontario Securities Commission
setting out business practices which would satisfy the public interest in the
marketing of penny stocks by certain securities dealers. The policy also stated
that the Commission would not necessarily impose a sanction for non-compliance
on a dealer under its “public interest” jurisdiction, but would consider the
particular circumstances of each case.
[64]
Writing
for the Court in Ainsley, Doherty J.A. adopted the criteria formulated
by the trial judge for determining if the policy statement was “a mere
guideline” or was “mandatory”, namely, its language, the practical effect of
non-compliance, and the expectations of the agency and its staff regarding its
implementation. On the basis of these criteria, Doherty J.A. concluded that the
policy statement was invalid. He emphasized, in particular, its minute detail,
which “reads like a statute or regulation” (at 85), and the threat of sanctions
for non-compliance. He found this threat to be implicit in the Commission’s pronouncement
that the business practices it described complied with the public interest, and
was evident in the attitude of enforcement staff ,who treated the policy as if
it were a statute or regulation, breach of which was liable to trigger
enforcement proceedings.
(ii) Guideline 7 and the
fettering of discretion
(a) Is
Guideline 7 delegated legislation?
[65]
An
initial question is whether guidelines issued under IRPA, paragraph 159(1)(h)
constitute delegated legislation, having the full force of law (“hard law”). If
they do, Guideline 7 can no more be characterized as an unlawful fetter on
members’ exercise of discretion with respect to the order of questioning than
could a rule of procedure to the same effect issued under IRPA, paragraph
161(1))(a): Bell
Canada v. Canadian Telephone Association Employees, 2003 SCC 36, [2003] 1
S.C.R. 884 at para 35 (“Bell Canada”).
[66]
In
my view, despite the express statutory authority of the Chairperson to issue
guidelines, they do not have the same legal effects that statutory rules can
have. In particular, guidelines cannot lay down a mandatory rule from which
members have no meaningful degree of discretion to deviate, regardless of the
facts of the particular case before them. The word “guideline” itself normally suggests
some operating principle or general norm, which does not necessarily determine
the result of every dispute.
[67]
However,
the meaning of “guideline” in a statute may depend on context. For example, in Society
of the Friends of Oldman River v. Canada (Minister of
the Environment), [1992] 1 S.C.R. 3 at 33-37, La Forest J. upheld the
validity of mandatory environmental assessment guidelines issued under section
6 of the Department of the Environment Act, R.S.C. 1985, c. E-10,
which, he held, constituted delegated legislation and, as such, were legally
binding.
[68]
In
my view, Oldman River is distinguishable from
the case before us. Section 6 of the Department of the Environment
Act provided that guidelines were to be issued by an “order” (“arrêté”)
of the Minister and approved by the Cabinet. In contrast, only rules issued by
the Chairperson require Cabinet approval, guidelines (“directives”) do
not. It would make little sense for IRPA to have conferred powers on the
Chairperson to issue two types of legislative instrument, guidelines and rules,
specified that rules must have Cabinet approval, and yet given both the same
legal effect.
[69]
Guidelines
issued by the Human Rights Commission pursuant to subsection 27(2) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6, have also been treated as capable of
having the full force of law, even though they are made by an independent
administrative agency and are not subject to Cabinet approval: Canada
(Attorney General) v. Public Service Alliance of Canada, [2000] 1
F.C. 146 (T.D.) at paras. 136-41; Bell Canada at paras. 35-38.
[70]
In Bell Canada,
LeBel J. held (at para. 37), “on a functional and purposive approach to the
nature” of the Commission’s guidelines, that they were “akin to regulations”, a
conclusion supported by the use of the word “ordonnance” in the French
text of subsection 27(2) of the Canadian Human Rights Act. In addition, subsection
27(3) expressly provides that guidelines issued under subsection 27(2) are
binding on the Commission and on the person or panel assigned to inquire into a
complaint of discrimination referred by the Commission under subsection 49(2)
of the Act.
[71]
In
my opinion, the scheme of IRPA is different, particularly the inclusion of a
potentially overlapping rule-making power and the absence of a provision that
guidelines are binding on adjudicators. In addition, the word “directives”
in the French text of paragraph 159(1)(h) suggests a less legally
authoritative instrument than “ordonnance”.
[72]
I
conclude, therefore, that, even though issued under an express statutory grant
of power, guidelines issued under IRPA, paragraph 159(1)(h) cannot have
the same legally binding effect on members as statutory rules may.
(b) Is
Guideline 7 an unlawful fetter on members’ discretion?
[73]
Since
guidelines issued by the Chairperson of the Board do not have the full force of
law, the next question is whether, in its language and effect, Guideline 7
unduly fetters RPD members’ discretion to determine for themselves,
case-by-case, the order of questioning at refugee protection hearings. In my
opinion, language is likely to be a more important factor than effect in determining
whether Guideline 7 constitutes an unlawful fetter. It is inherently difficult
to predict how decision-makers will apply a guideline, especially in an agency,
like the Board, with a large membership sitting in panels.
[74]
Consequently,
since the language of Guideline 7 expressly permits members to depart from the
standard order of questioning in exceptional circumstances, the Court should be
slow to conclude that members will regard themselves as bound to follow the
standard order, in the absence of clear evidence to the contrary, such as that
members have routinely refused to consider whether the facts of particular
cases require an exception to be made.
[75]
I
turn first to language. The Board’s Policy on the Use of Chairperson’s
Guidelines, issued in 2003, states that guidelines are not legally binding
on members: section 6. The introduction to Guideline 7 states: “The guidelines
apply to most cases heard by the RPD. However, in compelling or exceptional
circumstances, the members will use their discretion not to apply some
guidelines or to apply them less strictly”
[76]
The
text of the provisions of Guideline 7 of most immediate relevance to this appeal.
Paragraph 19 states that it “will be” standard practice for the RPO to question
the claimant first; this is less obligatory than “must” or some similarly
mandatory language. The discretionary element of Guideline 7 is emphasized in
paragraph 19, which provides that, while “the standard practice will be
for the RPO to start questioning the claimant” (emphasis added), a member may
vary the order “in exceptional circumstances”.
[77]
Claimants
who believe that exceptional circumstances exist in their case must apply to
the RPD, before the start of the hearing, for a change in the order of
questioning. The examples, and they are only examples, of exceptional
circumstances given in paragraph 23 suggest that only the most unusual cases
will warrant a variation. However, the parameters of “exceptional
circumstances” will no doubt be made more precise, and likely expanded
incrementally, on a case-by-case basis.
[78]
I
agree with Justice Blanchard’s conclusion (at para. 119) that the language of
Guideline 7 is more than “a recommended but optional process”. However, as Maple
Lodge Farms makes clear, 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: see Ha v. Canada (Minister of Citizenship and Immigration), 2004
FCA 49, [2004] 3 F.C.R. 195.
[79]
To
turn to the effect of Guideline 7, there was evidence that, when requested by
counsel, members of the RPD had exercised their discretion and varied the
standard order of questioning in cases which they regarded as exceptional. No
such request was made on behalf of Mr Thamotharem. In any event, members must
permit a claimant to be questioned first by her or his counsel when the duty of
fairness so requires.
[80]
In
at least one case, however, a member wrongly regarded himself as having no
discretion to vary the standard order of questioning prescribed in Guideline 7.
On July 3, 2005, this decision was set aside on consent on an application for
judicial review, on the ground that the member had fettered the exercise of his
discretion, and the matter remitted for re-determination by a different member
of the RPD: Baskaran v. Canada (Minister of Citizenship and Immigration)
(Court File No. IMM-7189-04). Nonetheless, the fact that some members may
erroneously believe that Guideline 7 removes their discretion to depart from the
standard practice in exceptional circumstances does not warrant invalidating
the Guideline. In such cases, the appropriate remedy for an unsuccessful
claimant is to seek judicial review to have the RPD’s decision set aside.
[81]
There
was also evidence from Professor Donald Galloway, an immigration and refugee
law scholar, a consultant to the Board and a former Board member, that RPD
members would feel constrained from departing from the standard order of
questioning. However, he did not base his opinion on the actual conduct of
members with respect to Guideline 7.
[82]
In
short, those challenging the validity of Guideline 7 did not produce evidence establishing
on a balance of probabilities that members rigidly apply the standard order of
questioning without regard to its appropriateness in particular circumstances.
[83]
I
recognize that members of the RPD must perform their adjudicative functions
without improper influence from others, including the Chairperson and other
members of the Board. However, the jurisprudence also recognizes that
administrative agencies must be free to devise processes for ensuring an
acceptable level of consistency and quality in their decisions, a particular
challenge for large tribunals which, like the Board, sit in panels.
[84]
Most
notably, the Supreme Court of Canada in Consolidated-Bathurst upheld the
Ontario Labour Relations Board’s practice of inviting members of panels who had
heard but not yet decided cases to bring them to “full Board meetings”, where
the legal or policy issues that they raised could be discussed in the absence
of the parties. This practice was held not to impinge improperly on
members’ adjudicative independence, or to breach the principle of procedural
fairness that those who hear must also decide. Writing for the majority of the Court,
Gonthier J. said (at 340):
The institutionalization of the
consultation process adopted by the Board provides a framework within which the
experience of the chairman, vice-chairmen and members of the Board can be
shared to improve the overall quality of its decisions. Although respect for
the judicial independence of Board members will impede total coherence in
decision making, the Board through this consultation process seeks to avoid
inadvertent contradictory results and to achieve the highest degree of
coherence possible under these circumstances. …
The advantages of an institutionalized
consultation process are obvious and I cannot agree with the proposition that
this practice necessarily conflicts with the rules of natural justice. The
rules of natural justice must have the flexibility required to take into
account the institutional pressures faced by modern administrative tribunals as
well as the risks inherent in such a practice. …
[85]
However,
the arrangements made for discussions within an agency with members who have
heard a case must not be so coercive as to raise a reasonable apprehension that
members’ ability to decide cases free from improper constraints has been
undermined: Tremblay v. Québec (Commission des affaires sociales),
[1992] 1 S.C.R. 952.
[86]
Evidence
that the Immigration and Refugee Board “monitors” members’ deviations from the
standard order of questioning does not, in my opinion, create the kind of
coercive environment which would make Guideline 7 an improper fetter on
members’ exercise of their decision-making powers. On a voluntary basis,
members complete, infrequently and inconsistently, a hearing information sheet
asking them, among other things, to explain when and why they had not followed
“standard practice” on the order of questioning. There was no evidence that any
member had been threatened with a sanction for non-compliance. Given the
Board’s legitimate interest in promoting consistency, I do not find it at all
sinister that the Board does not attempt to monitor the frequency of members’
compliance with the “standard practice”.
[87]
Nor
is it an infringement of members’ independence that they are expected to
explain in their reasons why a case is exceptional and warrants a departure
from the standard order of questioning. Such an expectation serves the
interests of coherence and consistency in the Board’s decision-making in at
least two ways. First, it helps to ensure that members do not arbitrarily ignore
Guideline 7. Second, it is a way of developing criteria for determining if
circumstances are “exceptional” for the purpose of paragraph 23 and of
providing guidance to other members, and to the Bar, on the exercise of
discretion to depart from the standrd order of questioning in future cases.
[88]
In
my opinion, therefore, the evidence in the present case does not establish that
a reasonable person would think that RPD members’ independence was unduly
constrained by Guideline 7, particularly in view of: the terms of the
Guideline; the evidence of members’ deviation from “standard practice”; and the
need for the Board, the largest administrative agency in Canada, to attain an
acceptable level of consistency at hearings, conducted mostly be single members.
[89]
Adjudicative
“independence” is not an all or nothing thing, but is a question of degree. The
independence of judges, for example, is balanced against public accountability,
through the Canadian Judicial Council, for misconduct. The independence of
members of administrative agencies must be balanced against the institutional
interest of the agency in the quality and consistency of the decisions, from
which there are normally only limited rights of access to the courts, rendered
by individual members in the agency’s name.
(iii) Is Guideline 7 invalid
because it is a rule of procedure and should therefore have been issued
under IRPA, paragraph 161(1)(a)?
[90]
On
its face, the power granted by IRPA, paragraph 159(1)(h) to the
Chairperson to issue guidelines in writing “to assist members in carrying out
their duties” is broad enough to include a guideline issued in respect of the
exercise of members’ discretion in procedural, evidential or substantive
matters. Members’ “duties” include the conduct of hearings “as informally and
quickly as the circumstances and the considerations of fairness and natural
justice permit”: IRPA, section 162. In my view, structuring members’ discretion
over the order of questioning is within the subject-matter of the guidelines
contemplated by section 159.
[91]
In
any event, the Chairperson did not need an express grant of statutory authority
to issue guidelines to members. Paragraph 159(1)(h) puts the question
beyond dispute, establishes a duty to consult before a guideline is issued,
and, perhaps, enhances their legitimacy.
[92]
An
express statutory power to issue guidelines was first conferred on the
Chairperson of the Board in 1993, as a result of an amendment to the former Immigration
Act by Bill C-86. Appearing before the Committee of the House
examining the Bill, Mr Gordon Fairweather, the then Chairperson of the Board welcomed
this addition to the Board’s powers:
I’m also pleased that the minister has
responded to the need for new tools for managing the board itself. In the
board’s desire to ensure consistency of decision-making, we welcome the
legislative provision allowing for guidelines…. The provision will reinforce my
authority, after appropriate consultations, and the courts have been very
specific about saying, no guidelines until you have consulted widely with the
caring agencies, the immigration bar, and other non-governmental organizations.
But the courts have given the green light for such provision provided we go
through those consultations.
This provision will reinforce my
authority, or
the chair’s authority – that is a little less pompous – after appropriate
consultations to direct members toward preferred positions and therefore foster
consistency in decisions. [Emphasis added]
(Canada, House of Commons, Legislative
Committee on Bill C-86, Minutes of Proceedings and Evidence, 34th Parl., 3d
sess., Issue 5 (July 30, 1992) at 80)
[93]
In
my view, the present appeal raises an important question about the relationship
between the Chairperson’s powers to issue guidelines and rules. In particular,
are these grants of legal authority cumulative so that, for the most part, the
scope of each is to be determined independently of the other? Or, is the
Chairperson’s power to issue guidelines implicitly limited by the power to make
rules of procedure? If it is, then a change to the procedure of any Division of
the Board may only be effected through a rule of procedure issued under paragraph
161(1)(a) which has been approved by Cabinet and subjected to Parliamentary
scrutiny in accordance with subsection 161(2).
[94]
The
argument in the present case is that Guideline 7 is a rule of procedure and,
since it reforms the existing procedure of the RPD, should have been issued
under paragraph 161(1)(a), received Cabinet approval and been laid
before Parliament. The power of the Chairperson to issue guidelines may not be
used to avoid the political accountability mechanisms applicable to statutory rules
issued under subsection 161(1).
[95]
For
this purpose, the fact that Guideline 7 permits RPD members to exercise their
discretion in “exceptional circumstances” to deviate from “standard practice”
in the order of questioning does not prevent it from being a rule of procedure:
rules of procedure commonly confer discretion to be exercised in the light of
particular facts.
[96]
An
analogous line of reasoning is found in the Ontario Court of Appeal’s decision
in Ainsley, where it was said that the Ontario Securities Commission’s
policy statement prescribing business practices of penny stock dealers which
would satisfy the statutory public interest standard was invalid, because it
was in substance and effect “a mandatory provision having the effect of law”
(at 84). In my opinion, however, Ainsley should be applied to the
present case with some caution.
[97]
First,
when Ainsley was decided, the Commission had no express statutory power
to issue guidelines and no statutorily recognized role in the regulation-making
process. In contrast, the Chairperson of the Board has a broad statutory power
to issue guidelines and, subject to Cabinet approval, to make rules respecting
a broad range of topics, including procedure.
[98]
Admittedly,
the Board’s rules of procedure (as well, of course, as IRPA itself and
regulations made under it by the Governor in Council) have a higher legal
status than guidelines, in the sense that, if a guideline and a rule conflict,
the rule prevails.
[99]
Second,
the policy statement considered in Ainsley was directed at businesses regulated
by the Commission and was designed to modify their practices by linking compliance
with the policy to the Commission’s prosecutorial power to institute enforcement
proceedings, which could result in the loss of a licence by businesses not
operating in “the public interest”. Guideline 7, on the other hand, is directed
at the practice of RPD members in the conduct of their proceedings. It does not
impose de facto duties on members of the public or deprive them of an
existing right. Guideline 7 lacks the kind of coercive threat, against either
claimants or members, in the event of non-compliance, which was identified as
important to the decision in Ainsley.
[100] The Commission’s
promulgation of detailed industry standards, other than through enforcement
proceedings against individuals, when it lacked any legislative power, raised
rule of law concerns. In my opinion, the same cannot plausibly be said of the
Chairperson’s decision to introduce a standard order of questioning through the
statutory power to issue guidelines, rather than his power to issue rules.
[101] Third, while
the Board can only issue formal statutory rules of procedure with Cabinet
approval, tribunals often do not require Cabinet approval of their rules. In Ontario, for
example, the procedural rules of tribunals to which the province’s general code
of administrative procedure applies are not subject to Cabinet approval: Statutory
Powers Procedure Act, R.S.O. 1990, c. S. 22, subsection 25.1(1). Hence, it
cannot be said to be a principle of our system of law and government that
administrative tribunals’ rules of procedure require political approval.
[102] Fourth, while
Guideline 7 changed the way in which the Board conducts most of its hearings,
it represents, in my view, more of a filling in of detail in the procedural
model established by IRPA and the Refugee Protection Division Rules, than
“fundamental procedural change” or “sweeping procedural reform”, to use the
characterization in the memorandum of the intervener, the Canadian Council for
Refugees.
[103] For example,
rule 16(e) includes the questioning of witnesses in the RPO’s duties,
but is silent on the precise point in the hearing when the questioning is to
occur. Similarly, while rule 25 deals with the intervention of the Minister, it
does not specify when the Minister will lead evidence and make submissions. Rule
38 permits a party to call witnesses, but does not say when they will testify.
[104] Fifth, the differences
in the legal characteristics of statutory rules of procedure and Guideline 7 should
not be overstated. Rules of procedure commonly permit those to whom they are
directed to depart from them in the interests of justice and efficiency. Thus,
rule 69 of the Refugee Protection Division Rules permits a member
to change a requirement of a rule or excuse a person from it, and to extend or
shorten a time period. Failure to comply with a requirement of the Rules does
not make a proceeding invalid: rule 70.
[105] Finally, as I
have already indicated, the Chairperson’s power to issue guidelines extends, on
its face, to matters of procedure. Its exercise is not made expressly subject
to paragraph 161(1)(a), although a guideline issued under paragraph
159(1)(h) which is inconsistent with a formal rule of procedure issued
under paragraph 161(1)(a) will be invalid.
[106] On the basis
of the foregoing analysis, I conclude that, on procedural issues, the Chairperson’s
guideline-issuing and rule-making powers overlap. That the subject of a guideline
could have been enacted as a rule of procedure issued under paragraph 161(1)(a)
will not normally invalidate it, provided that it does not unlawfully fetter
members’ exercise of their adjudicative discretion, which, for reasons already
given, I have concluded that it does not.
[107] In my
opinion, the Chairperson may choose through which legislative instrument to
introduce a change to the procedures of any of the three Divisions of the
Board. Parliament should not be taken to have implicitly imposed a rigidity on
the administrative scheme by preventing the Chairperson from issuing a
guideline to introduce procedural change or clarification.
[108] I do not say that
the Chairperson’s discretion to choose between a guideline or a rule is beyond
judicial review. However, it was not unreasonable for the Chairperson to choose
to implement the standard order of questioning through the more flexible
legislative instrument, the guideline, rather than through a formal rule of
procedure.
[109] First,
Guideline 7 is not a comprehensive code of procedure nor, when considered in
the context of the refugee determination process as a whole, is it inconsistent
with the existing procedural model for RPD hearings. Second, the procedural
innovation of standard order questioning may well require modification in the
light of cumulated experience. Fine-tuning and adjustments of this kind are
more readily accomplished through a guideline than a formal rule. Parliament
should not be taken to have intended the Chairperson to obtain Cabinet approval
for such changes.
E. CONCLUSIONS
[110] For these
reasons, I would allow the Minister’s appeal, dismiss Mr Thamotharem’s cross-appeal,
set aside the order of the Federal Court, and dismiss the application for
judicial review. I would answer the first two certified questions as follows:
1.
Does the implementation of paragraphs 19 and 23
of the Chairperson’s Guideline 7 violate principles of natural justice by
unduly interfering with claimants’ right to be heard? No
2.
Has the implementation of Guideline 7 led to
fettering of Board Members’ discretion? No.
[111] Since I would
dismiss the application for judicial review, the third question does not arise
and need not be answered.
“John M. Evans”
“I
agree.
Robert
Décary J.A.”
SHARLOW
J.A. (Concurring)
[112] I agree with my colleague
Justice Evans that this appeal should be allowed, but I reach that conclusion
by a different route.
[113] As Justice Evans explains,
IRPA gives the Chairperson two separate powers. One is the power in paragraph
159(1)(h) to issue guidelines in writing to assist Members in carrying out
their duties. The other is the power in paragraph 161(1)(a) to make rules
respecting the activities, practice and procedure of the Board, subject to the
approval of the Governor in Council. Both powers are to be exercised in
consultation with the Deputy Chairpersons and the Director General of the
Immigration Division. In my view, these two powers are different in substantive
and functional terms, and are not interchangeable at the will of the
Chairperson.
[114] The subject of Guideline 7 is
the order of proceeding in refugee hearings. That is a matter respecting the
activities, practice and procedure of the Board, analogous to the subject
matter of the procedural rules of courts. In my view, the imposition of a
standard practice for refugee determination hearings should have been the
subject of a rule of procedure, not a guideline.
[115] I make no comment on the
wisdom of the Chairperson’s determination that the standard practice in refugee
hearings, barring exceptional circumstances, should be for the RPO or the
Member to start questioning the refugee claimant. That is a determination that
the Chairperson was entitled to make. However, to put that determination into
practice while respecting the limits of the statutory authority of the
Chairperson, the Chairperson should have drafted a rule to that effect, in
consultation with the Deputy Chairpersons and the Director General of the
Immigration Division, and sought the approval of the Governor in Council.
[116] Justice Evans notes that some
commentators have suggested that the implementation of a rule under paragraph
161(1)(a) is more onerous in administrative and bureaucratic terms than the
implementation of a guideline under paragraph 159(1)(h). That appears to me to
be an unduly negative characterization of the legislated requirement for the
approval of the Governor in Council, Parliament’s chosen mechanism of oversight
for the Chairperson’s rule making power under paragraph 161(1)(a). It is also
belied by the facts of this case, which indicates that the development of
Guideline 7 took approximately four years. I doubt that a rule with the same
content would necessarily have taken longer than that.
[117] The more important question in
this case is whether the Chairperson’s erroneous decision to implement a
guideline rather than a rule to establish a standard practice for refugee
hearings provides a sufficient basis in itself for setting aside a negative
refugee determination made by a Member who requires a refugee claimant to
submit to questions from the RPO or the Member before presenting his or her own
case.
[118] I agree with Justice Evans
that the standard procedure outlined in Guideline 7 is not in itself
procedurally unfair and that Guideline 7, properly understood, does not
unlawfully fetter the discretion of Members. In my view, despite Guideline 7,
each Member continues to have the unfettered discretion to adopt any order of
procedure required by the exigencies of each claim to which the Member is
assigned.
[119] It may be the case that a
particular Member may conclude incorrectly that Guideline 7 deprives the Member
of the discretion to permit a refugee claimant to present his or her case
before submitting to questioning from the RPO or the Member. If so, it is
arguable that a negative refugee determination by that Member is subject to
being set aside if (1) the Member refused the request of a refugee claimant to
proceed first and required the refugee claimant to submit to questioning by the
RPO or the Member before presenting his or her case, and (2) it is established
that, but for Guideline 7, the Member would have permitted the refugee claimant
to present his or her case first. In the case of Mr. Thamotharem, those
conditions have not been met.
[120] For these reasons, I would
dispose of this appeal as proposed by Justice Evans, and I would answer the
certified questions as he proposes.
“K. Sharlow”
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