- The ID should consider discussing best practices related to indicators #2 and #3 as part of the training provided to its members. Members should consider Indicator #2 in conjunction with their responsibility to ensure that the Minister discloses all relevant evidence. These considerations / best practices should include:
- Remind members of the importance of providing the person concerned with the opportunity to respond to evidence and to make comments, even when the person concerned is represented by counsel, in particular when counsel was not present in the previous hearing and/or new to the case, e.g., appointed the same day as the hearing.
- In case of late disclosure of evidence by the Minister, members should consider allowing a recess to enable the parties to review and understand evidence and ultimately, to be able to have an opportunity to present and respond to evidence and to make representations.
|Yes ||The Division will deliver training to members that addresses best practices related to late disclosure by the Minister and the provision of an opportunity to the person concerned to respond to evidence and make comments.||ID||Q3, 2022-23|
- The ID should organize training and/or develop a communiqué to remind members to follow the below-mentioned recommendations outlined in the Quality Performance Report: Immigration Division 2019-2020.
- All relevant evidence is disclosed by the Minister in advance and with enough time to allow the detained person or their counsel to review it and respond,
- All evidence is translated for the person detained where appropriate, and routinely asking the person detained on the record if the evidence has been translated for them,
- Objections to evidence raised by the person detained are dealt with appropriately, particularly when they are unrepresented by counsel.”
- The Division agrees that the Minister is expected to disclose all relevant evidence sufficiently in advance of the hearing so as to allow the person concerned and their counsel sufficient time to review it and respond.
- The Division disagrees with the recommendation that members ask the person concerned questions regarding their review of evidence with counsel, where they are represented. Such questions would be inappropriate in light of the need to respect the privacy of communications between a counsel and their client. The Division agrees that all evidence should be translated for the person concerned and appreciates the evaluator’s commendation of a member’s efforts to balance fairness and efficiency by explaining the content of late disclosure to an unrepresented person concerned.
- The Division also agrees that objections to evidence must be dealt with appropriately.
|While training has previously been provided in the areas addressed by recommendations a) and c), refresher training will be delivered on the issue of disclosure, particularly with regard to unrepresented individuals. This training will also address translation of evidence for the person concerned where appropriate.||ID||Q3, 2022-23|
- The ID should consider offering guidance and training to members in order to inform a more principled approach to the consideration of the factors set out in section 248 of the Immigration and Refugee Protection Regulations before ordering continued detention. The guidance can touch on the process of weighing all the R248 factors together and the interpretation of COVID-19-related detention conditions in this process.
The Division agrees that members should raise the issue of conditions of detention, including in relation to Covid-19, where it is relevant to do so, for example depending on the public health situation in a given province or the age or health profile of the person concerned. However, there is no basis in the case law that members must always raise the issue of conditions of detention. Further, the Division notes that all members have received extensive training on the application of the factors set out in section 248 and apply them at every detention review.
|The Division will undertake further training on how to address the issue of conditions of detention as part of ongoing professional development.||N/A||N/A|
- When a case is complex and proceedings are long, members can consider taking a short recess before rendering their decision and reasons. A short recess would allow members to ensure that all determinative issues are addressed in their reasons.
|Yes||The Division will deliver training to members that addresses best practices related to the delivery of oral decisions and reasons, including in situations where a case is particularly complex or proceedings are especially long.||ID||Q3, 2022-23|
- Remind members of the rules and good practices to ensure they address parties’ evidence that runs contrary to the member’s decision and why certain evidence was preferred.
|Yes||The Division will deliver training to members that addresses best practices related to the delivery of oral decisions and reasons, including by taking steps to ensure that contrary evidence is addressed and by explaining why certain evidence was preferred.||ID||Q3, 2022-23|
- Ensure that vulnerable persons, such as minors or persons with mental health issues understand well the reasons and their implications. To this end, members should be reminded of this objective. In addition, the ID should continue its efforts to appoint a designated representative, when needed.
As the evaluator notes in her observations, “in almost all hearings assessed, members used plain language, gave clear and concise reasons that were coherent and accessible.” This is consistent with the Division’s view that members, in line with the training they have received, endeavour always to deliver their decision and reasons in a way that is understandable to the person concerned.
|The Division will remind members, as part of training that addresses best practices related to the delivery of oral decisions and reasons, of the need to adjust their delivery to ensure understanding on the part of the person concerned, particularly in cases where the individual is experiencing mental health issues or is a minor.||ID||Q3, 2022-23|
- The ID should consider changing or upgrading the online technology used for virtual hearings. All hearing types were impacted equally, although in provincial detention facilities, it was more likely to have background noise problems than in immigration holding centres and other locations. Technical issues have negative impacts on the quality of the proceedings when the hearings are frequently paused or interrupted. Although it is hard to establish causal connection, one can reasonably hypothesize that technical issues are likely to result in feelings of anxiety for participants, in particular, vulnerable persons concerned and members who are responsible for resolving the technical issues while at the same time presiding over hearings. Members can’t reasonably be expected to have technical skills and expertise needed to resolve the issues. A more stable connection, better quality technology, and more technical support would alleviate the burden on members.
The ID agrees with the evaluator that a stable connection, quality technology and readily available and knowledgeable technical support are critically important in a remote hearing context.
- The ID will continue to work with IMIT, Canada Border Services Agency and provincial authorities to transition from teleconferencing to videoconferencing technology at detention facilities wherever possible.
- The Division will continue to communicate concerns regarding the stability of connections and availability of technical support to IMIT as appropriate when issues arise so that these matters may be addressed.
- IMIT will perform site audits to identify deficiencies at detention centre conference facilities.
- IMIT will continue to upgrade existing Hearing Rooms with improved audio and video capabilities to mitigate issues with background noise and speech clarity.
- IMIT will deliver training to members in relation to new Hearing Room upgrades and operation, video conference processes, and technical support engagement.
- There was clearly a lack of awareness and training for the requirements of Indicator #34. One should acknowledge the degree of complexity in relation to ID hearings, including the various methods that the ID must use to conduct its hearings remotely during the pandemic. Some of these methods entail more potential privacy risk than others. Nonetheless, the ID should consider a communiqué and training to members in order to ensure they advise participants about the privacy risks of virtual hearings and to obtain consent/agreement to having a private hearing conducted via MS Teams.
The Division acknowledges that the procedure it had established to communicate the risks associated with holding a private hearing through Microsoft Teams was not followed in the applicable cases reviewed by the evaluator. This was largely due to the fact that that this procedure had just been implemented prior to the sampling period and was insufficiently clear given the multiple ways in which the ID conducts its hearings and the possibility that a given hearing may change between public and private during the course of a single sitting. The Division has since changed its practices with respect to communicating privacy risks, and now does so before the hearing date.
|The Division changed its practices with respect to communicating privacy risks, and now does so before the hearing date to ensure that the person concerned is aware of the attendant risks and is afforded the opportunity to raise a concern at the hearing should they not be comfortable proceeding by means of Microsoft Teams. ||ID||Completed|