Note that this complaint was filed by the same complainant as in case no. 19-003 and the allegations in the two complaints are similar.
The complainant acted as counsel for a detainee who at the time 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 hearing.
The complainant also alleged that the conduct of the member at the hearing was problematic in the following ways:
- she failed to treat the detainee’s statement as evidence
- she created barriers to the detainee’s ability to present evidence
- she failed to engage in “active adjudication” although the detainee was unrepresented, and had minimal education
- she relied uncritically on numerous statements from the Canada Border Services Agency hearings oﬃcer, which were not supported by evidence; and
- she 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, he 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.