The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing. The member in question is no longer an employee of the IRB.
The hearing involved a refugee claimant who claimed to be the victim of domestic violence at the hands of her former partner.
The complaint alleged that the member demonstrated a lack of understanding of the phenomenon of domestic violence and of the claimant’s socio-cultural context, and that his questions and comments were based on myths and stereotypes. The complaint also alleged that the member created confusion that had the effect of destabilizing the claimant. Lastly, the complaint alleged that the member was disrespectful towards the complainant, accusing her of having coached the claimant and put words in the claimant’s mouth.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the allegations were within the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures). The Chairperson decided that the allegations were within scope and referred the complaint to an external investigator in order to facilitate a timelier resolution to the complaint.
The external investigator was a labour arbitrator, mediator and workplace investigator. She was formerly Vice-chair with the Human Rights Tribunal of Ontario.
Both parties were given the opportunity to discuss the matter with the investigator by telephone, to file written submissions and supplementary documentation, and to file replies to the submissions of the other party. The investigator reviewed the audio recording of the proceedings. A draft investigation report was prepared, and the parties were provided with an opportunity to comment on it. Neither party commented on the draft report. The investigator then prepared a final investigation report.
In the report, the investigator concluded that there was a breach of the Code of Conduct for Members of the IRB (Code of Conduct). The investigator made the following findings:
- The member reformulated certain questions, and at times, seemed not to understand or accept the answers provided by the claimant. While the confusion regarding some of the member's questions and the claimant's responses was regrettable, members are not held to a standard of perfection. There is no indication that the member deliberately created moments of confusion to unsettle the claimant.
- Although the member expressed skepticism regarding some of the responses about the circumstances of divorced women in the claimant's country of origin and the claimant's circumstances if she were to return there, the member was not disrespectful or rude. It is the member's role to question a claimant to determine whether they fulfill the criteria for asylum. Moreover, the way in which a member assesses the evidence, including a claimant's sociocultural factors, relates to the member's decision-making function and is not within the scope of the complaints process.
- The member was disrespectful towards the complainant when he accused her, without valid reason, of having coached her client (the refugee claimant). There is a distinction between preparing a client (which is expected) and coaching a client – which refers to influencing the content of testimony and is an unacceptable practice. While a member must take reasonable measures to ensure the integrity of the evidence, they must not make such accusations frivolously. In this case, there is nothing to suggest that the complainant acted inappropriately.
- The Chairperson's Directives are an important interpretive tool to help understand what standards of conduct are appropriate in a given circumstance. For instance, in interpreting the obligations under the Code of Conduct, it is relevant that the Chairperson's Guideline 4 calls for sensitivity to the particular circumstances of women who are victims of sexual violence. Some of the member's questions and comments were based on – and seemed to perpetuate and reinforce – myths and stereotypes regarding women victims of sexual violence. They demonstrated a fundamental misunderstanding of the dynamics surrounding domestic violence and Battered Woman Syndrome. Some comments implied that the claimant was partly responsible for the violence she had suffered, or that she was less credible because she had not taken certain measures to end the abusive relationship.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was a breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
As the member was no longer an IRB employee, remedial or disciplinary actions were not warranted under the circumstances.
The complaint was founded, and the file was closed.