The complainant acted as counsel for a detainee who at the time of the incident in question, was unrepresented in a detention review before the Immigration Division (ID).
The allegations in the complaint relate to comments made by the member. The complainant made serious allegations with respect to the fairness of the detention review process.
The complainant also alleged that in her decision the member:
- failed to treat the detainee’s statement as evidence
- made factually inaccurate statements
- relied uncritically on numerous statements which the Canada Border Services Agency hearings officer made at the previous detention review, which were unsupported by evidence
- failed to engage in even the most minimal “active adjudication” although the detainee was unrepresented and had minimal education, and made problematic comments about persons with mental health issues
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some or all of the allegations in the complaint would be investigated or if the complaint should be dismissed because it was outside the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).
The Chairperson found that although the member ultimately concluded that she did not have jurisdiction to rule on a particular issue for which she sought submissions, this was an adjudicative matter which related to the member’s functions and authority as an independent member of the Board.
However, in his letter of March 19, 2019, the Chairperson informed the parties that given the seriousness of the allegations in the context of the Report of the 2017/2018 External Audit (Detention Review), the Chairperson decided that the complaint would be investigated by way of a process which offers a broader scope of review and he referred it to the Deputy Chairperson of the ID for investigation.
More specifically, the Chairperson asked the Deputy Chairperson to investigate whether there were ongoing systemic issues remaining with the detention review process following the Division’s acceptance of the findings of the Detention Review, particularly with respect to unrepresented detained individuals and as regards persons suffering from mental health issues.
As a follow-up to this matter, the Deputy Chairperson met with the member. The member recognized that there was a need for improvement. More broadly, the Deputy Chairperson instituted mandatory training for the Division shortly thereafter with respect to mental health and unconscious bias.
The file was then closed.