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![]() Association of Canadian Court AdministratorsPresentation by Immigration and Refugee Board of Canada Chairperson Jean-Guy Fleury Realising Accountability and Independence at the IRBOttawa, Crowne Plaza Hotel (Check against delivery) IntroductionGood morning. I was extremely pleased to accept the invitation to speak at this forum, eager even, particularly when I learned the topic to be discussed – enhancing accountability and independence at administrative tribunals. Not surprisingly perhaps, this very concept has been a preoccupation since I became Chairperson of the Immigration and Refugee Board of Canada (IRB) in 2002. My anticipation grew even further upon learning that my co-panellist would be the Honourable Pierre A. Michaud. It is indeed an honour to participate on the panel with Mr. Michaud today. Before I go further, a few words on the structure of my presentation. I will begin with a brief description of the IRB for those of you who may not be familiar with our mandate. Following the introduction to the Board's work, I will take a few minutes to share with you my thoughts on the fluid environment in which the Board operates, the evolution of the Board's thinking on questions of independence and, especially, tribunal accountability. Next I will turn to the practical elements of accountability and explain what accountability means to the IRB today. To ensure that the Board responds to the evolving challenges of immigration and refugee adjudication in the 21st century, the IRB has pursued a course of transformation and innovation. We are responding to changes in the kinds of cases we see and fluctuations in the number of cases we receive. The transformation also reflects the growing maturity of the IRB, the direction on the role of tribunals provided by the Courts, and by evolving accountability demands from the Government. I will next provide a glimpse of some of the major initiatives we have pursued as part of our transformation agenda and highlight how we have been particularly cognizant of the need to maintain both independence and accountability as we innovate and transform the institution. By way of conclusion, I will share some of the lessons we've learned along the way. The IRB TodayOur mission is to make well-reasoned decisions on immigration and refugee matters — efficiently, fairly and in accordance with the law. We provide an important service to Canadians by ensuring that Canada meets its international obligations and, as a tribunal, that we deliver justice quickly and fairly to those who come before any of our three divisions. We are Canada's largest administrative tribunal, making anywhere from 40,000 to 60,000 decisions annually. We are fundamentally a human rights tribunal and are critically aware that the decisions we take will have a major impact on the lives, safety, security and freedom of those who appear before us. The Immigration and Refugee Protection Act provides the IRB jurisdiction to hear and decide cases on immigration and refugee matters. The IRB currently consists of three divisions: the Refugee Protection Division; the Immigration Appeal Division, and the Immigration Division. Immigration Division (ID)The Immigration Division, our smallest division, conducts admissibility hearings of people alleged to be inadmissible to or removable from Canada, and holds detention reviews for those detained for immigration reasons. The Immigration Division has 28 members who are public servants. Immigration Appeal Division (IAD)The Immigration Appeal Division hears a range of types of appeals, primarily from
The IAD has approximately 37 Governor in Council (GIC) appointed members. Refugee Protection Division (RPD)Our largest division, the Refugee Protection Division determines whether people who appear before it are "Convention refugees" or other "persons in need of protection." We have some 120 GIC members at the RPD. The three divisions are supported by nearly 1,000 public servants who provide case management, legal, administrative and operational support, both in the regions and in Ottawa at headquarters. Changing EnvironmentThe IRB carries out its mandate within a complex and ever-changing environment. We do not control the number of cases referred to us in any given year. Both international and domestic factors affect the number of refugee protection claims made in Canada – they are subject to changes in global conflict and the security environment. Shifts in international migration patterns, which can affect the number of people seeking admission to Canada, are influenced by international and domestic trends in the economy and shifts in our demographics. Today we are seeing a downward trend in the number of refugee claimants, both in Canada and worldwide. At the same time, we have seen an increase in the number of immigration appeal cases, especially sponsorship appeals. As a tribunal, we must be prepared to respond quickly and appropriately to these fluctuations and to proactively prepare for inevitable future shifts in our working environment. I have been talking about the context that is particular to the work of the Board – the world of immigration and refugee issues. There is another context to bear in mind – the environment in which all public institutions in Canada, including the Board, operate today. Conference organizers perceptively noted in our agenda that in today's world the public (and Parliament) are more demanding, more sceptical and less deferential to organizations like tribunals and courts. Through the Management Accountability Framework, the Government has also become increasingly specific in terms of its demands for a thoroughly modern and accountable public service. We expect the Government to call us to task when we do not meet their expectations of accountability. The IRB, whose mandate is very much in the public eye, has been responsive to these expectations and shifts in public perceptions. This is the context in which I want to examine the concepts of independence and accountability, and how they have evolved at the IRB. A Natural EvolutionAs you are no doubt aware, a great deal has been written and debated on the subject of tribunal independence and accountability. Academics, legal practitioners, tribunal members and Chairs, and of course, most authoritatively, the Supreme Court of Canada, have all weighed in on the subject. Certainly I am not the first IRB Chairperson to speak publicly on the topic. Former IRB Chairpersons Nurjehan Mawani and Peter Showler delivered papers related to this subject in 1999 and 2002 respectively. One can readily see in their speeches, available to the public on the IRB website, that the Board has naturally evolved in its thinking on accountability and on the nature of our relationship with and within the executive arm of government and our portfolio partners. That evolution, of both thought and practice, has continued under my mandate as Chairperson, and will undoubtedly continue after my departure. Quite rightly in my view. Administrative tribunals should be inherently dynamic and supple. Maturing Understanding of ResponsibilitiesOur current thinking on independence and accountability takes as its point of departure certain fundamental concepts. The most basic and most important of these is understanding what it means to be an independent, quasi-judicial administrative tribunal. We naturally look to our enabling statute, the Immigration and Refugee Protection Act1, and to the jurisprudence from the courts to guide us, including the decisions of the Supreme Court of Canada in Ocean Port2 and Bell Canada3 In our view, quasi-judicial tribunals like the IRB are creations of Parliament, with a specialist adjudicative mandate. They are created to be responsive to the public policy agenda, accountable in terms of budgets, provide value for money, and be in tune with the direction of the statutes they administer. Yet, these tribunals must be institutionally independent and independent in terms of individual adjudication. Independent, yet flexible, arms-length from political and executive processes, yet fully accountable. Courts, by contrast, have a distinct status under the constitution, are wholly independent and are accountable only to other courts through the judicial hierarchy and our system of precedent. The Supreme Court's decisions in Ocean Port and Bell Canada would seem to uphold our contention in this regard. In Ocean Port the Court indicated that tribunals do operate as part of the executive, that “they thus may be seen as spanning the constitutional divide between the executive and judicial branches of government.”4 In Bell Canada the Court further clarified the role of quasi-judicial tribunals, noting that a ‘spectrum' of tribunal types exists: Some administrative tribunals are closer to the executive end of the spectrum … Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers bring with them stringent requirements of procedural fairness, including a higher requirement of independence.5 I am certain that the IRB, like the Canadian Human Rights Tribunal discussed in the Bell Canada decision, falls at the higher, quasi-judicial end of this spectrum. In practice what this means for the Board is that both independence and accountability are non-negotiable. We must give meaning to each concept such that both are manifest in our daily practices, in how we manage cases, hear cases and in how we decide them. It also means that we must reconcile independence with accountability and accountability with independence. Measured RisksSaying that the two concepts can be respected is one thing. Actually doing it is another. At times this requires taking measured risks in the service of improving the Board's operations as a whole. Mistakes can be made. Many of you may be aware of the January 2006 Federal Court of Appeal's decision in Geza.6 In this case the court found that there was a reasonable apprehension of bias in relation to the Board's handling of a “lead case” in 1998. The Board's purpose in conducting the “lead case” was to promote consistent, informed, efficient, and expeditious decision-making. While acknowledging the appropriateness of the Board's attempts to maintain and enhance consistency and quality in its decisions, the Court cautioned that: …procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence.7 In Thamotharem8 and Restrepo Benitez9, the Federal Court considered the Chairperson's Guideline 7 with respect to the order of questioning at a refugee hearing. The judges came to differing conclusions on an issue relating to the possible fettering of the independence of decision-makers. We await further guidance on this, as both cases are now before the Federal Court of Appeal. As these instances illustrate, realising independence and accountability is not without risks. But there is also a risk in not acting – as I have indicated earlier, the IRB lives in a world which changes rapidly. A failure to respond to change would make us increasingly unable to act on our core mandate. IndependenceWhat is independence?While our interpretation of tribunal accountability has evolved over the 18-year history of the IRB, the requirements of procedural fairness and natural justice have remained the touchstone for our deliberations on change. The concepts of independence and impartiality are woven into the fabric of our institution. All Board operations, policies and procedures are developed in light of the Board's status as an independent tribunal with an adjudicative mandate. IRB policies reflect the facts that the Board, although a part of the executive arm of government, is institutionally independent and that individual decision-makers are independent in their decision-making. Policy at the Board is subordinate to statutory and common law authorities and duties, including the rules of natural justice and procedural fairness. The Board's adherence to these principles is scrutinised by the courts day in and day out through judicial review of Board decisions. AccountabilityWhat is accountability?The word ‘accountability' is generally understood as being required to account for one's conduct. Defining the individual components of accountability in a tribunal setting is rather more difficult. I will not pretend to provide you with an exhaustive list of what constitutes tribunal accountability, but I will highlight the key aspects that we have been focusing on. Before elaborating this point, however, I should quickly address the question of what the IRB is accountable for. We are accountable above all for the life-changing decisions we are mandated to make under the law. We are also accountable, as any public institution is, for discharging our mandate in a responsible and prudent manner. To whom is the IRB accountable?We are accountable to the people whose lives are affected by our decisions. We are accountable to Canadians because the members and public servants at the Board do not act in their own right, but on behalf of Canadians. There are many ways in which we render account. The variety of ways we do so is itself a reflection of the fact that tribunals can be highly responsive public institutions. Unlike the Chief Justice of a court, I am frequently called before Parliamentary Committees to answer to Parliamentarians. The Board has an open and active relationship with stakeholders, including lawyer's groups and NGOs. We talk to the media regularly. We account for our performance in a number of regular reports to Parliament and central agencies. And, of course, each one of our decisions may be reviewed by the Federal Court. Elements of Tribunal AccountabilityThe key elements of accountability at the IRB are likely common to most adjudicative tribunals; those that I list today are far from original.10 The first I would put forward is quality decisions. This means accurate, fair and consistent decisions. At the IRB we continually seek to improve quality through various means, including, professional adjudicative support from a variety of experts including lawyers and country-of-origin experts, geographic specialisation in refugee determination, Chairperson's Guidelines, Jurisprudential Guides and policies designed to promote institutional decision-making. Timely decisions are another critical measure of our performance. Timely in the sense of no undue delays to get to a hearing, to conduct the proceedings themselves and to issue reasons. As is the case with quality decisions, specific IRB policies and procedures promote timely decisions and efficiency. Reasons are expected to be produced within 60 days at the IRB. We also have broad (non member-specific) productivity expectations. We encourage the early resolution of claims and appeals whenever possible, and increasingly use public servants to assist members with matters that may be resolved without a hearing, such as mediation of immigration appeals or expedited interviews of refugee claimants. Accountability also demands that members of the public who appear before our divisions are heard by courteous, ethical, professional and qualified decision-makers. Here I must draw attention to our rigorous merit-based appointment system and performance appraisal system. Robust training and professional development programmes are also critical to ensuring our members are professional and qualified. Issues of ethics and courteous, professional behaviour are also set out in the member Oath of Office and Code of Conduct. The public also has access to a member complaint process. Informal, accessible procedures should be one of the hallmarks of an administrative tribunal. This means ensuring that processes and procedures are as simple as they can be and that relevant information is readily available in both official languages and easily understandable. Increasingly documents and forms should be available electronically to promote accessibility and in-keeping with Government-on-line requirements. Woven into all the previous ‘elements' of accountability I've mentioned thus far is the idea of an effective case management system. This means having a modern electronic case management system and ensuring that, for example, duplication of process and needless work is eliminated and economies of scale are employed as much as possible. Finally, a modern tribunal must show that it has effective management practices. These include:
The IRB's Transformation AgendaI have mentioned the need for tribunals in the 21st century to be responsive to changing environments and changing public expectations. I also outlined the essential elements of independence and accountability, and indicated that there is a risk in not acting. At its worst, a tribunal that ignores its changing circumstances could cease to fulfil its mandate. What I want to discuss now is how we have applied those notions of independence and accountability, first while dealing with high volumes of refugee claims and now with an increasing number of immigration appeals. We have called this management approach our transformation agenda. I would like to outline for you several milestones along the path of our transformation agenda. On one level, these milestones may appear to be a series of disconnected initiatives put in place largely to address efficiency or productivity issues within a particular division. However, each is rooted in a number of common themes that run through our transformation agenda:
Further, there is one key element central to all of these undertakings, without which the Board would have never achieved what it has in the past few years. I challenge you to identify that key element in my stories below. RPD Action PlanLet me begin back in March 2003 when our inventory of claims waiting to be heard in the RPD reached an all time high of 52,00012. Not only was this indicative of a lack of capacity in the RPD, but it also meant that perhaps as many as 32,000-35,000 individuals—those above and beyond what we consider to be an effective working inventory of files—were in limbo while they waited for the Board to do its work and adjudicate their claims. The ability of the Board to discharge its mandate was in question. There is nothing like a crisis to generate innovative thinking. The result of that thinking was the transformation agenda, which began with the introduction of the Chairperson's Action Plan for the RPD. Here are some examples of how we addressed the backlog. We:
The results have included greater quality and consistency in decision-making; the number of countries with a significant variance in acceptance rates amongst regional offices has dropped dramatically over the past three years. We have also seen an improvement in the management of claims, and in the years following the implementation of the Action Plan our output reached unprecedented levels. We dramatically reduced the backlog from a peak of 52,000 three years ago, to about 20,000 today13. We did so in a manner that effectively meet the dual requirements of adjudicative independence and accountability to claimants and to the Canadian public. There is more to do and the Action Plan will continue to evolve. Along with former IRB Chairpersons, I have committed to Parliament to 6-month average processing times at the Refugee Protection Division – they are currently 12 months, an improvement from the 14+ months at the height of the backlog, but more work needs to be done. I remain committed to the six-month goal. IAD InnovationOur changing environment includes an increase in recent years in the number of immigration appeal cases, particularly refusals of sponsorship requests. We launched an Innovation Initiative in the Immigration Appeal Division to address workload pressures, to better meet the needs of our clients and to make a long-term investment in the division, whose work is so critical to the overall immigration portfolio. We have released a preliminary Report on the initiative on our website. The report represents our vision for the future of the division and charts a course for the Appeal Division as a less formal, more flexible and more responsive tribunal. An implementation plan is currently being developed as our consultations with Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) continue and we determine what can reasonably be done in both the short and longer terms. The Innovation Plan's recommendations converge around the following themes:
IAD Innovation will bring about cultural change at the IAD, making it a less formal, more proactive body, reflective of its status as an administrative tribunal. Integration across DivisionsGreater integration of the IRB's three divisions remains the Board's top strategic priority and a critical element of its transformation agenda. The senior management team believe that the IRB has matured as a tribunal and is capable of integrating procedural, administrative and adjudicative activities in all three of its divisions. This will enrich the work of independent decision-makers and improve the ability of the Board to be responsive to shifts in its caseload. Furthermore, an integrated approach is consistent with the core values of flexibility and responsiveness to business needs that are key components of public service modernisation. All new IRB initiatives are developed with the priority of integration in mind. The Chairperson's Guideline on Vulnerable Persons, to be released this fall, was developed for all three divisions of the Board and is an example of that approach. In 2005 the Board strengthened its capacity to support decision-makers. The Board's Adjudicative Support Directorate is mandated to provide tribunal support from a cross-divisional perspective. While the jurisdictions and the issues that are the subject of adjudication differ from division to division, all three are fundamentally in the same business of holding hearings and rendering decisions in relation to immigration and refugee matters. The Board can achieve greater integration, greater operational flexibility and a shared knowledge base if the IRB moves towards an integrated approach to tribunal support, ever cognizant of the inherent differences in the divisions' work. To date the Adjudicative Support Directorate has determined that the quality of adjudicative processes in the three divisions can be enhanced by ensuring that each case has been streamed for treatment which corresponds to the demands of that case, that there is consistency in the streaming of similar cases and that every case is ready for resolution either without a hearing or via adjudication at a hearing based on the best available evidence. Our focus for the future is therefore on bringing greater analytical capacity to the case management process through triage, the identification of jurisdictional and procedural issues, the identification of alternatives to a hearing, and the identification of the work that the case demands, whether by the Board or by the parties. Management PracticeSo far, I have spoken about initiatives that are particular to the work of adjudicative tribunals. But I also noted earlier that the government has become more exacting in its demands of all public service institutions. If we fail to include modernized management practices as an element of our transformation agenda we run the risk that we will not be able to deliver on our mandate. Good management practice is necessary to ensure we deliver simple, quick and fair decisions. Drawing on generic public service management accountability tools, the IRB has developed a results-oriented management approach, bringing all of the improved management efforts and initiatives into centrally focused and integrated business plans for the IRB. We have also developed a modern Management Accountability Framework (MAF) initiative, which provides oversight of the Board's activities in the areas of business and management planning, risk management, public reporting, internal audit and program evaluation, values and ethics, and information management. These tools work well for us. To me this is persuasive evidence that an adjudicative tribunal can fit within and thrive in the executive branch of government without sacrificing its independence. Integrated Case Management System (ICMS)Any modern tribunal needs an efficient electronic case management system. The successful, timely and cost-effective development and implementation of our Integrated Case Management System (ICMS) project is a priority for the Board in the coming years. Until this system is in place, scheduled for early 2007 for the RPD, the IRB must manage with less efficient, patchwork and fractured systems. The ICMS is a new case management system that provides the IRB with a modern technological infrastructure, new case flow/workflow management tools, improved business intelligence thanks to new analysis and reporting capabilities, the automation of a number of manual processes, and an increased ability to move from a paper-based process to an electronic environment, both within the Board and externally for the parties who appear before us. OutreachTribunals are the face of justice most often seen by the average Canadian. As a tribunal, we have a duty and the flexibility to be more hands-on in terms of educating the public on our role and mandate. This is key if we want to avoid an increasingly confused and cynical public. It is important that Canadians understand what we are doing and how we are serving them better. The Board has become more assertive in reacting to misconceptions, errors and half-truths about our organization in the media. If facts are misrepresented we will respond, rather than hoping that our good record will eventually speak for itself. An important element of accountability is ensuring that the public understands the work we do. The IRB must also ensure that we continually inform our partners, stakeholders and the public at large of who we are and what we do, particularly in relation to our transformation agenda. We need to let them know why there is a need for innovation and where we intend to take the Board. Further to this end, the IRB has engaged in an on-going process of outreach. For example, the Board recently briefed MPs and their staff in Ottawa and across Canada on the nature of our work, and on how they should approach the Board on behalf of constituents, if needed. IRB outreach does not stop at the border. The Board has a respected reputation internationally and we are frequently called upon to train refugee decision-makers in countries around the world. It is also important in today's world that our American colleagues understand the facts about Canada's refugee determination system and not only the much-touted myths that abound in certain quarters. Merit-based Appointment ProcessIn 2004, the IRB implemented fundamental reforms of the appointment and appraisal processes for Governor in Council (GIC) Board members at the IAD and RPD. We have been truly leading edge in the establishment of a merit-based appointment process. Under the new process, as the Chief Executive Officer, the Chairperson of the IRB is accountable for the selection and the quality of IRB decision-makers. The Advisory Panel assisting the IRB Chairperson in the selection process is independent and representative of Canadians. The Panel includes membership from the legal community, academia, non-governmental organizations and human resources experts. The new independent, transparent and merit-based selection process ensures that only highly qualified candidates are considered for appointment. The qualifications of candidates are measured against a newly strengthened standard of competence to ensure that skills, abilities and personal suitability are the basis for the appointment. In recognition of this commitment to quality and accountability, the Government has been appointing from our list of qualified candidates. I am extremely proud of the merit-based system we have at the Board, and strongly believe that if the Chair of a tribunal is to be held properly accountable for the effective operation of the tribunal, the Chairperson must have a central role in an appointment process that is fully merit-based, open and transparent. Common and Key Element: The PeopleI asked you earlier to note the themes common to the initiatives I have just detailed.
But the most important element to our transformation agenda? Without a doubt, the people of the IRB. Split among regional operations, serving three tribunals, including both GiCs and public servants, working in an environment of complex governance and at times less than favourable media-coverage and a polarized public, our employees continue to exhibit professionalism and dedication to the IRB and its goals. The success of our transformation agenda to date is undoubtedly directly attributable to the quality and dedication of the Board's employees. They believe in what we do and take pride in the institution. Lessons LearnedThe evolution of the IRB over the past number of years has seen us push limits, establish new policies and define many new procedures. Change on this scale is naturally not without risks, both managerial and legal. Examining past mistakes and ensuring that lessons are learned is an essential element of a successful and accountable public institution. We have learned many valuable lessons at the IRB. The first lesson I would like to share today relates to consultation. I firmly believe that thorough consultation, both internally and with key external partners and stakeholders, is critical to the ultimate success of any project. By consultation I mean meaningful consultation, real dialogue, early in the project development process and at the end as the project nears completion. While consensus will likely not occur on all points raised, the Board has to be able to demonstrate that concerns were heard, considered, and ultimately provide an explanation for the final decisions that were taken. Real consultation generates significant good will and ensures that stakeholders and partners are not caught off guard when new policies are implemented. Prior to undertaking a significant reform project questions of financing and project governance must be clearly established. Defining both governance and financial parameters at the outset will avoid potentially serious risks that could undermine the project at a later stage. In a tribunal setting it will at times be appropriate to exclude decision-makers from the elaboration of certain projects or policies, in order to safeguard their impartiality. I would, however, still encourage colleagues to wherever possible let their own people do the work. While outside consultants can be valuable in the elaboration of a reform project, the people who actually do the work on a daily basis are almost always in the best position to develop innovative solutions to everyday concerns and obstacles. Good communication throughout the development of a new policy or plan is key. Change intimidates and only clear, concise and timely communication will allay fears, build confidence in the future and maintain the necessary change momentum. Communication is not just words; it is also showing that leaders are personally engaged throughout the project. I would urge colleagues to pay particular attention to training needs as new policies or guidelines are elaborated. Thought must be given to properly planning training well in advance so that employees are not overwhelmed with intensive, substantive training over a short period of time. Too often during the final dash to deliver a project on time, an adequate training period is reduced thereby compromising the ultimate success of the initiative. Training must also be provided just in time – not months before needed or after a new policy is already in place. One final point on lessons learned. We have learned that a tribunal can engage fully with stakeholders, with the media and with Government departments without putting the tribunal's independence at risk. It is tribunal staff and members who have the specialized knowledge in their particular area of expertise. While certain precautions must be taken to make certain that the tribunal's independence is not impugned, ensuring that the experience, expertise and knowledge of the tribunal is shared with the public and with the government, particularly in the development of policies that may affect the work of the tribunal, is simply good management and an important aspect of being accountable to Canadians. ConclusionThe IRB fully understands that adaptation is now a permanent feature of an accountable public service. Indeed we have innovated at the IRB and I believe we are a more open and accountable institution today. We have tested and pushed the limits, and, at times, been corrected. I truly feel we are a leader in innovation, that we have preserved our independence and that we are serving appellants, refugee claimants and all Canadians better. We will of course continue to improve, to innovate and to correct in an unremitting attempt to fully realise the dual requirements of accountability and independence. ![]()
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