Policy no.
2003-01
Effective Date: March 21, 2003
Policy on the Use of Jurisprudential Guides
1. Background
This policy governs the exercise of the Chairperson's authority
to identify a decision as a jurisprudential guide in the Immigration Division,
the Immigration Appeal Division and the Refugee Protection Division of
the Immigration and Refugee Board (IRB,
or the Board). This policy establishes:
- a framework that guides in which cases the exercise of that authority
may be carried out, and
- the process for deciding to identify a decision as a jurisprudential
guide.
Decisions of the Immigration Division, the Immigration Appeal Division
and the Refugee Protection Division are all subject to judicial review,
with leave, by a Higher Court, namely, the Federal Court of Canada –
Trial Division. Decisions of that Court are subject to further appeal
to the Federal Court of Appeal, if the Trial Division certifies a question,
and then to the Supreme Court of Canada, with leave.
The IRB
must follow decisions of the Federal Court and the Supreme Court of Canada.
However, a decision of any division of the IRB
is not binding on a subsequent panel of that division.
1.1 Statutory Authority
The Chairperson has the legislative authority to issue guidelines and
to identify decisions as jurisprudential guides to assist members in carrying
out their duties [Immigration and Refugee Protection Act, s. 159(1)(h)]:
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
(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;
1.2 Adjudication Strategy
The IRB's
ability to establish a consistent and coherent body of jurisprudence depends,
in part, on the establishment of a coordinated and rational approach to
its adjudicative function. To be most effective, each division must establish
a selective and strategic approach to the adjudication of issues. This
adjudication strategy is aimed at identifying the relatively small number
of cases that merit the division's particular attention because
they are cases that have the potential to shape the Board's jurisprudence.
These cases are the exceptional, as opposed to the routine, cases.
A number of different options are available that, taken together, constitute
the tools that the Board has at its disposal to support its adjudication
strategy. These are not mutually exclusive options, and any or all of
them could be exercised at any particular time. These tools include the
following:
- Chairperson's guidelines
- Identification of decisions as jurisprudential guides
- Identification of decisions as persuasive decisions
- Use of three-member panels (Refugee Protection Division and Immigration
Appeal Division)
- Conduct of a lead case
- Consultation amongst members on draft decisions in accordance with
the principles in Consolidated-Bathurst Packaging Ltd.
v. International Woodworkers of
America, Local 2-69, [1990] 1 S.C.R.
282
- The Board seeking leave to intervene in a Higher Court proceeding
Guidelines and jurisprudential guides are complementary tools, the purpose
of which is to promote consistency, coherence and fairness in the treatment
of cases at the Board. The inclusion of such a statutory provision on
guidelines and jurisprudential guides indicates Parliament's intent that
the Chairperson should be involved in the adjudication strategy of the
IRB
as a whole, in order to assist decision makers on matters of substantive
and procedural importance.
Accordingly, the IRB
has developed this policy which governs the exercise of the Chairperson's
authority to identify a decision as a jurisprudential guide.
2. Who may Exercise this Authority?
The Chairperson has been given this authority under the Act, although
the Chairperson may delegate this function under s. 159(2) of the Act. This authority is to be exercised at the Chairperson's
discretion, after consulting with the Deputy Chairpersons and the Director
General of the Immigration Division.
The relevant Division Head shall submit any decision believed to be suitable
to the Chairperson. The decision and reasons shall be accompanied by a
memorandum from staff, countersigned by the General Counsel, evaluating
the legal considerations that could flow from the identification of the
decision as a jurisprudential guide.
3. Circumstances for Exercise of Chairperson's Authority
Section 159(1)(h) of the Act gives the Chairperson two separate
powers – 1) to issue guidelines and 2) to identify decisions as
jurisprudential guides. The stated purpose for the exercise of both of
these powers is the same – to assist members in carrying
out their duties.
The circumstances in which the Chairperson may consider exercising his
or her authority to identify a decision as a jurisprudential guide are
as follows:
- To address an issue of importance to the Board,
- To address an emerging issue,
- To resolve an ambiguity in the law, or
- To resolve inconsistency in decision-making.
A decision may be identified as a jurisprudential guide on either a question
of law or a question of mixed law and fact.
4. Criteria for Selecting a Decision
The following general criteria are used to select a particular decision
for identification as a jurisprudential guide. The decision and reasons
must be:
- well-written,
- provide a detailed and clear analysis,
- consider all of the relevant issues in the case, and
- the Chairperson must be of the view that they contain persuasive reasoning
that should be followed.
5. Consultation
In general, the Chairperson must consult with the Deputy Chairpersons
and the Director General of the Immigration Division, as required by s. 159(1)(h) of the Act.
Where it is the Chairperson who decides to exercise his or her authority
to identify a decision as a jurisprudential guide, the Chairperson shall
consult with the Deputy Chairpersons and the Director General of the Immigration
Division, as applicable, on the selection of a particular decision. However,
as discussed in section 2 above, in most cases it will be the relevant
Division Head who, on his or her own initiative, will submit a decision
believed to be suitable to the Chairperson.
External consultation shall take place only in exceptional situations,
which shall be determined at the discretion of the Chairperson.
6. Whether Jurisprudential Guide Expires?
The identification of a decision as a jurisprudential guide remains in
effect unless and until the Chairperson expressly revokes it.
The Board will monitor decisions that have been identified as jurisprudential
guides, as part of its continuous monitoring of the review of IRB
decisions by Higher Courts. The Chairperson will make such a revocation
if a Higher Court subsequently overturns the particular decision, or if
the decision is inconsistent with a subsequent Higher Court decision.
In any other case, the decision whether or not to revoke the identification
is left to the Chairperson's discretion, after consulting with the
Deputy Chairpersons and the Director General of the Immigration Division,
as applicable.
7. Effect of Identification of Decision as a Jurisprudential
Guide
The identification of a decision as a jurisprudential guide will be communicated
to the public. The selected decision and reasons will be released in both
English and French, and, where applicable, identifying information removed
in order to maintain the privacy of the person concerned. Parties and
their counsel will therefore be expected to know which decisions have
been identified as jurisprudential guides.
At the time that the Chairperson identifies a decision as a jurisprudential
guide, the Chairperson will also issue a statement setting out the scope
of the jurisprudential guide.
Members are expected to follow the reasoning in a decision
identified as a jurisprudential guide to the extent set out in the accompanying
statement, unless there is reason not to do so, where the facts underlying
the decision are sufficiently close to those in the case being decided
to justify the application of the reasoning in the jurisprudential guide.
A member must explain in his or her reasoning why he
or she is not adopting the reasoning that is set out in a jurisprudential
guide when, based on the facts of the case, they would otherwise be expected
to follow the jurisprudential guide.
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