[Recorded by Electronic Apparatus]
Thursday, May 4, 1995
.0834 
[English]
The Vice-Chairman (Mr. Dromisky): Order. Thank you very much for coming, everyone. It's nice to see you all here so early in the morning. We have a reduced quorum, so we might as well continue.
The purpose of this session this morning is pursuant to Standing Orders 110 and 111, reviewing of the Order in Council appointments to the Immigration and Refugee Board. Before the committee is Jean-Guy Fleury, who was appointed deputy secretary of the Human Resources Branch of the Treasury Board Secretariat on January 21, 1992. He is now executive director.
Mr. Fleury, do you wish to make a statement before we proceed? Which format would you prefer?
.0835
Mr. Jean-Guy Fleury (Executive Director, Immigration and Refugee Board): No, Mr. Chairman, I would prefer to answer questions. I think the members have a copy of the CV.
The Vice-Chairman (Mr. Dromisky): Accompanying Mr. Fleury is Mr. Philip Palmer, who is the advocate general, director of judicial services.
Mr. Nunez.
[Translation]
Mr. Nunez (Bourassa): Good morning, Mr. Fleury.
Mr. Fleury: Good morning.
Mr. Nunez: I have obtained a copy of your curriculum vitae, and there is a difference between the one we received recently and the one that was published at the time of your appointment.
You were named Executive Director of the IRB on April 18, 1995, at a salary between $110,100 and $129,700 - I don't know your exact salary - for a six-year period.
As you know, your appointment has aroused a great deal of curiosity, particularly among journalists, and also a great deal of suspicion among groups that work with immigrants and refugees and immigration lawyers, because you hid the fact that you had worked for the Canadian Security Intelligence Service for three years.
I would like to start by asking you why you hid the fact that you had worked for CSIS for three years. I would also like to know what your responsibilities were and the exact dates of your employment with CSIS.
Mr. Fleury: To begin with, I would like to say that I did not hide anything. The curriculum vitae you have before you is the one I sent to all interested parties throughout the selection process.
When the Board Officials made the announcement - I believe it was on March 3 - they decided to summarize my CV and, on their own initiative, left out any reference to the three years I spent at the Canadian Security Intelligence Service. If you look very closely, you will find that they also did not mention the four years I spent working for unions.
I don't think this was done to mislead anyone. It was simply an attempt to summarize a 30-year Public Service career, in six different departments and one central agency, and four years in a union.
It is unfortunate, because I did not need that publicity. Obviously, I did not appreciate this very much. So that's my first explanation.
I worked at the Canadian Security Intelligence Service from 1988 until 1991, thus, for three years. I had left the federal government and I was on leave without pay or on assignment during the time when there were some human resources problems. Given my expertise in this field, I decided to try to work in a completely different area, for a separate employer, where there would be greater latitude in human resources policies.
My responsibilities at the service were as a manager. I was more or less a vice-president of human resources.
Mr. Nunez: But here I see that you were: ``assistant deputy-minister, human resources''.
Mr. Fleury: Yes, I was the equivalent of an assistant deputy-minister in the Public Service. I'll use the Public Service term, which was Deputy Director or sous-directeur. Thus my responsibilities were in the area of human resources management and training. I did not work on the operations side.
.0840
Mr. Nunez: As the Assistant Deputy Minister for Human Resources, you know all the staff of the Secret Service.
Mr. Fleury: I met many people over the three years. I know a large percentage of the staff.
Mr. Nunez: Did you know that during your time at the service, it had information sources at the IRB?
Mr. Fleury: No.
Mr. Nunez: No?
Mr. Fleury: You asked whether I knew any information sources?
Mr. Nunez: That is correct.
Mr. Fleury: No.
Mr. Nunez: You were the ADM, Human Resources. And there was no special contact...?
Mr. Fleury: With the outside? No. We should not confuse a human source, that is an individual who gives the Service information, and Human Resources, which really involves the internal management of CSIS. I was part of the internal management of the Service.
Mr. Nunez: Are you saying that you did not know there were CSIS informants at the IRB?
Mr. Fleury: That did not come under my jurisdiction.
[English]
The Vice-Chairman (Mr. Dromisky): Be careful. Don't go in the areas of policy.
Mr. Nunez: I don't understand, Mr. Chairman.
The Vice-Chairman (Mr. Dromisky): You were just going into the area of policy, and I think we should avoid policy. We'll keep to operational issues and procedure.
Mr. Nunez: I think I am under the jurisdiction; he was the deputy director of this service.
[Translation]
You say in your curriculum vitae that you served 230,000 public servants when you were working for the public service. How many employees did you serve when you were working for CSIS?
Mr. Fleury: Unless I'm mistaken, that is information I cannot disclose. I believe that is not public information. I'm not sure of that and if I am mistaken, we can perhaps obtain the information for you.
Let me try to clarify things. You referred to 230,000 public servants. In that case, I was employed by the Public Service. I was Deputy Secretary, Human Resources for the Public Service, the employer for the government. I can assure you that the 230,000 public servants did not report to me.
[English]
The Vice-Chairman (Mr. Dromisky): Thank you, Mr. Nunez. Mr. Hanger.
Mr. Nunez: May I speak after?
The Vice-Chairman (Mr. Dromisky): We'll come back to you later. Now we jump to Mr. Hanger.
Mr. Hanger (Calgary Northeast): Thank you, Mr. Chairman.
If anything, Mr. Fleury, I would have to say, contrary possibly to the opinion of my colleague here, that your time in CSIS would be to your advantage in a position like this. Although I don't necessarily agree with the whole process, I would look at that as being an advantage.
I am curious. There have been several developments, more concerns really than anything else, regarding the breakdown of the process, in my own view, where for instance in a case out of Montreal - and these are situations where you as a IRB member undoubtedly will be faced with - a study was done by some RHOs or one RHO on a series of Bangladesh claimants who used false arrest warrants as a reason for claiming refugee status here. There was an investigation done, and it was determined that these individuals had indeed submitted falsified claims. Yet the claimants were given status here in the country.
With this information, how would you handle that?
.0845
Mr. Fleury: First of all, I don't think it would be within the domain of my expertise or within my role on the board. It is more on the policy side. It would not be up to me to make any decisions of that nature. If any of our employees lodged complaints vis-à-vis their work, I would certainly have a say.
I am trying to answer the question the best I can. It's because you are giving me an example I am not aware of or -
Mr. Hanger: Let's put it in general terms. Obviously it is going to reflect somewhere in your domain, given a situation where such a case has come before. It is not just one case; it is a series of such falsified claims that would undoubtedly fall within your domain. I know there are many because I can cite other examples.
How would you handle that situation? I am not saying that you as a decision-maker are sitting in the position of a judge, but even in your position as one of the leaders within the IRB, how would you advise a judge if he or she were faced with such a case or series of cases?
Mr. Fleury: Again, I am not excusing myself for it. This is my twelfth day on the job. I am just starting briefings. But I sense from your question it is a policy area that maybe Mr. Frecker would be in a better position to address after me.
I would have to look at the policies and what we are talking about to see if there is a labour relations or employee relations connotation, how it affects our policies and personnel, and how we deal with our own individuals as employees.
I just want to say one thing for the record, because you did start with CSIS again. I feel very upset that I have to sound apologetic for having worked for an organization that is a good organization, and for the contribution I made to it.
Mr. Hanger: I recognize that, and I appreciate the witness pointing it out. Let's look more toward labour relations.
The RCMP denied involvement in this camera issue in Montreal and indicated it never authorized the installation. So I would have to ask who provided the illegal opinion and -
The Vice-Chairman (Mr. Dromisky): Mr. Hanger and members of the committee, I think we have to be very careful here. I think questions based on hypotheses or guessing are not within the parameters of our responsibilities this morning. We are really trying to find out more about this gentleman's qualifications and his competency to be in this role.
Mr. Hanger: Let's relate it to competency. How would you evaluate such a situation, given the fact that you are operating within the realm of either privacy or criminality in a situation where you have a camera being installed? This is something you are going to be dealing with.
Mr. Fleury: First of all, I am starting to be briefed in the organization and I understand there is a police investigation, so I don't think it is appropriate for me to comment on that incident for now. Obviously in the long run I will have to review what happened from A to Z, and I will. I also expect there will be representations by the union on that issue.
Mr. Assadourian (Don Valley North): I have two short questions to ask. First, it says that those who are interested in the job should apply by November 15, 1994. Did you apply for the job or were you asked to apply?
Mr. Fleury: That's a good question. I had been at the Treasury Board in a very tough, demanding job for four years. It was quite clear to everyone it was my last year with the Treasury Board and my last preparation for the budget. I knew I was going to have a change in career, possibly this summer.
.0850
I found that the job was open through the papers, actually, and I wasn't sure whether it was an Order in Council or a public service job as an executive director. So I inquired at the PCO as to the nature of the job and it was clarified to my satisfaction. I suspected it was an Order in Council job.
When they asked me if I was interested, I said I was certainly not interested then because I was working on the budget and we were heavily into discussions with the unions. I left it at that. Eventually they phoned me back and said if I was interested they would arrange a meeting with the chair so I could have a full discussion to see if it was the kind of job I would be interested in, as an exploratory. That's how it emerged.
Mr. Assadourian: This was when?
Mr. Fleury: I don't have my dates clear. I know I was in the midst of preparation of the budget, and the first phone call of inquiry could have been in September or October. The job became vacant in September. I would have to follow that through. Then the normal process of selection took place and I had different interviews.
Mr. Assadourian: Based on your biography and your activities with the different departments of the government, which one of them do you think will be most valuable to you in your new position?
Mr. Fleury: That's interesting. It would probably be the last one, and I'll explain why. Although I was deputy secretary of human resources, labour relations and everything related to unions, I was part of the corporate Treasury Board and we made representation to Treasury Board ministers every week on submissions.
I got to know all the other issues of management, whether it was contract management, quality, or the introduction of technology in the workplace - all the new initiatives that were taking place in management. The board was going through a very fundamental change in terms of how the central agencies were relating to departments. Departments were being given more capacity to work and tailor their needs in terms of management.
This is what I wanted to see, because I had never been in a central agency before. I had always criticized it for being too centralist. One day somebody asked me why I didn't do something if I thought that way. So a group of individuals and I took the philosophy our ministers were pronouncing and set out to delegate more to departments. We got into all the other management issues such as quality of service and so on.
I would think the last job was probably the most valuable, but I must say that every job I've had has made me what I am now as an individual, and made me a better individual. I don't regret taking any of them.
Mrs. Terrana (Vancouver East): I would like to say good morning and welcome.
Having worked for the government, private industry and public, I must say you are very well qualified for the job. I think they are very lucky to have you.
How many people are you dealing with in terms of staff?
Mr. Fleury: Within the board?
Mrs. Terrana: Yes.
Mr. Fleury: From reading briefing books, I think we have about 940 employees, of which there would be about 160 to 180 Order in Council. But I'm looking after the other side of the operations, which would be the public servants, and there would be around 700 or 800.
Mrs. Terrana: That would be not just in Ottawa, but across the country.
Mr. Fleury: Yes, across the country and the regional operations.
Mrs. Terrana: There must be quite a fair amount.
Mr. Fleury: It's fantastic. I'm very lucky in some ways, because it is just the right size to influence change. Sometimes change in big departments will take six or seven years, because with 40,000 employees in Revenue Canada - Taxation...
.0855
In the size of our operation and the nature of what we do, which is what also attracted me even though I had no background in it, it is an ideal situation in that you can sense your value-added and also build on the teams that are there and on what has been done.
[Translation]
Mrs. Debien (Laval East): Good day, Mr. Fleury. Welcome before the Committee. The press release we were given states that you will be responsible at the IRB for statistical analysis, activities co-ordination and follow-up as well as personnel training.
I would like to talk to you about the last part of your mandate, that is personnel training. Several witnesses have complained about the lack of training of certain officials and commissioners of the IRB.
Furthermore, it is well known that important cuts have been made to the IRB's budgets. Some people have said they feared that the Research department resources would be cut. Considering the fact that information, research and personnel training are very important, what are the aims you have set for yourself, in particular in terms of personnel training?
Mr. Fleury: As former Director of Human Resources and Training, I can assure you that in today's world, continuous training is an absolute necessity.
Today, it does not suffice to give an employee a couple of small training courses or expect that a recent university graduate will not need any training. There is always a need for continuous training. This way of thinking greatly speeds up the implementation process. It's the theory. Let's now see what is the practice.
We try to make sure that the training meets the needs of the positions to be filled and of research. At the present time, and this started before I joined the Commission, people are trying to see how resources can be best allocated in the Department or in the Commission.
I want to make sure that training is relevant, that the necessity of continuous training is well understood and that the Commission's money is spent in those areas where it is needed.
[English]
Mr. Hanger: Would you say that morale in the Immigration and Refugee Board is good?
Mr. Fleury: Every day my staff asks me if I've made a judgment on that, and I've reserved judgment. I must say that morale is tough everywhere, whether it be in public service.... We're going through difficult times. But I'll address what I've seen so far.
I think it's too early for me to come to a good judgment on morale as a concept and as an issue. Everyone has a morale issue individually, and an institution also has a morale issue. You have to be able to divorce that but understand it.
To answer your question, from what I've seen so far, there is certainly a sense of individuals who are seeking to see new things being looked at, some leadership issues.
I think that some of the beating in the press has not helped the organization.
Mr. Assadourian: Coming from whom?
Mr. Fleury: I'm not even making a judgment on whether they're.... I'm saying that it's very important for your self-worth when you work that you can identify with your work socially afterwards and that you're proud when you go home.
Mr. Hanger: I agree 100%.
Mr. Fleury: I'll go back to the service. I haven't been to the regions yet, so I don't want to say that there's a big morale problem.
.0900
One thing we will do for sure, though, is we will put in the tools necessary to measure morale. IBM does that. They gauge themselves with a basic questionnaire. They take their base. Then every year they measure with their staff and they can tell by sector, by manager, if the morale issues are being addressed. It is not a solution to all problems, but at least you're dealing with facts, as opposed to ``there's a morale issue''.
Mrs. Terrana: From what you saw, do you agree with the recent changes in the Immigration and Refugee Board?
Mr. Fleury: I'm going to answer in theory. I am not an expert on judicial process, although from a labour relations point of view I did see administrative tribunal...arbitration and so on. It's not comparable, but there is a sense of what it's all about.
I have a feeling, reading all the documentation, the Hathaway report and what the chair has done with her managers, that it is certainly heading in the right direction. I've a sense also that it's going to be a good transformation. It's not going to be just a process. You can sense that it's going to be a big transformation for staff and everybody. A task force has been struck and I think it's heading in the right direction. We're both sitting on the steering committee. I have a good sense of what they've done so far.
But it's going to be tough. It's not going to be easy.
Mrs. Terrana: I imagine. Thank you.
The Vice-Chairman (Mr. Dromisky): Thank you very, very much for your presentation this morning.
Mr. Nunez: We have enough time. The population and myself want to know who Mr. Fleury is, what his past is, the national security -
The Vice-Chairman (Mr. Dromisky): Mr. Nunez, please. We agreed to the regulations and the means of operation for the session this morning, and we will continue to abide by the -
Mr. Nunez: You agreed, not we. We have enough time -
The Vice-Chairman (Mr. Dromisky): Mr. Nunez, we will abide by those rules and regulations.
Thank you very much for appearing before us and for your succinct and clear answers. We truly appreciate the kind of presentation you've made on the concerns the members of the committee had.
Mr. Fleury: I'd like to make one concluding remark, if I may, Chair. I was born and raised in Lower Town, one kilometre from here. I used to come to watch the debates. It's an honour to be here. Thank you.
The Vice-Chairman (Mr. Dromisky): Thank you very much, Mr. Fleury.
.0905
[Translation]
M. Nunez: Mr. Frecker, before being appointed to the Commission, were you interviewed by a selection jury? What was the process?
[English]
Mr. John P. Frecker (Full-time Member and Deputy Chairperson, Convention Refugee Determination Division, Immigration and Refugee Board): I continued to maintain an interest in the board since the work I did for the Law Reform Commission. It's been a subject of abiding interest, even though I was working in a completely different domain in the past three years.
I had fairly regular contact with the board. My contract in the area of working on the revision of the Pest Control Products Act was coming to an end in March. When the advertisement for the position of executive director appeared in December, I contacted Mrs. Mawani, whom I knew quite well, and expressed an interest and submitted my curriculum vitae for that position.
I subsequently was advised that the position for deputy chair, vice-president, was also open because of the resignation of Mr. Schelew. I indicated that I would also be very interested in being considered for that position, were it to....
Mr. Nunez: Were there other candidates?
Mr. Frecker: Yes. As far as I know, there was a short list. When I was contacted by the minister's office for an interview, I was told that four or five other candidates were being considered at that time and that they would get back to me after the interview.
That process took place around Valentines Day. I was planning to travel back to Newfoundland, where my family lives, but I had to cancel the trip to go for that interview. A few weeks later I was advised that the nomination had been approved.
[Translation]
Mr. Nunez: Could you describe us your duties? Why is your salary lower than that of the Director General? Are you duties less important?
[English]
Mr. Frecker: No, I think it is because of the designation of positions. The chairman's position in the board is a GIC-9 position. The executive director, who is the person who has overall responsibility for the civil service component - that's the 700 to 750 employees - is a GIC-8. The deputy chairs - the deputy chair of the appeal division and the deputy chair of the refugee division, which is my position - are classified as GIC-7s. I presume that's the Treasury Board's or the Privy Council's, cabinet's, allocation of ranking within the organization.
[Translation]
Mr. Nunez: You are aware of the problem your predecessor was faced with. What will be your position? What do you think about the refugee acceptance rates? Do you believe they are too high or too low?
[English]
Mr. Frecker: That's a very telling question. I think it's at the core of some of the problems the board has experienced.
The preoccupation with acceptance rate, I think, is a fundamental mistake. The board members are charged with determining refugee claims. They have to listen to the evidence that's before them and make very difficult decisions. The acceptance rate can be an indicator of the nature of the claims, or it can be an indicator of a problem if the rate is out of line with what one would expect. I don't think we should obsess about the acceptance rate, whether it's too high or too low.
What we should be worried about is, are we making the right decisions? Are we dealing with the evidence before us effectively? Are we getting the information we need to get to make intelligent decisions? Are we training our members adequately to deal with that information?
I look at the acceptance rate as being merely a management indicator. If I see wild variations from one month to another, or in different parts of the country, then that causes concern. But I don't look at that as: members are good members or bad members because they're harsh on refugees or too lenient. I want to know how they are dealing with the evidence. I respect the right of every member to make that difficult choice themselves according to their own conscience.
Mr. Hanger: You've had a great deal of experience, obviously, in law. You've served two terms with the Law Reform Commission of Canada.
Mr. Frecker: Yes, two and a bit, I guess, before the commission was abolished.
Mr. Hanger: I'm very curious about the new procedures that are about to be adopted, if not already instituted, I understand, for the hearing officers. What do you think of a situation where you have the refugee hearing officer and now he or she is renamed into another position; however, that officer meets with the IRB member? Don't you think that looks like a prosecutor meeting with a judge prior to hearing a case?
.0910
Mr. Frecker: I think that is an ongoing misapprehension of the process. A lot of counsel who represent refugees express that fear.
To characterize the refugee determination process as equivalent to a criminal prosecution is just wrong. Refugees come to this country making a claim to status. They say they've been persecuted in their countries of origin. They bring to the table certain facts.
The board is constituted under the act with the powers of a commission of inquiry under the Inquiries Act. The hearing officer, as the assistant to the board member, works with the member to investigate the material before them, to assemble the evidence necessary, to work with counsel. They have no interest adverse to the refugee claimant. All they're interested in is getting to the bottom of the story.
Mr. Hanger: What about natural justice?
Mr. Frecker: Natural justice is respected, because the policy we're putting in place requires complete disclosure of the information that passes between the hearing officer and the member, complete disclosure of any documents accumulated by the board on its own initiative or given to the board by the Immigration Department. It asks for full cooperation between the board as the inquiry agency and counsel representing the claimant. We're trying to work in an environment to get around this atmosphere of having something against refugee claimants.
There are fraudulent refugee claimants, and we deal with that.
Mr. Hanger: Credibility.
Mr. Frecker: There are refugee claimants who have suffered terrible psychological trauma and have difficulty expressing themselves. We deal with that.
Mr. Hanger: Mr. Rankin, a well-known refugee lawyer in Vancouver, just revels in the fact that this procedure is coming through. He feels he will have more business in the Federal Court now than he has ever had in the past. It seems to be a reflection out there of the immigration and refugee bar that they are going to enjoy more business than ever before with these new procedures, given the one main point that natural justice is literally ignored in this whole process, since there are no representatives of the Crown, if you will, or the minister, in any of these hearings, and the fact that the judge sits with the prosecutor to hear the case before they go out and listen to it.
The Vice-Chairman (Mr. Dromisky): I think we're going over the border here. How does that statement relate to the witness's competence, qualifications, and so forth?
Mr. Hanger: I believe it is incumbent upon this witness to address that particular point, because here is a point now that is going to be reflected in additional costs. I believe this gentleman would have to make some judgments somewhere along the line, if not right now.
Ms Clancy (Halifax): On a point of order, Mr. Chairman, I would like Mr. Hanger to explain to me - I don't necessarily disagree with him, but I want to know how he considers that question would relate to Mr. Frecker's qualifications.
Mr. Hanger: Certainly he's a lawyer. He will be sitting as a director in the Immigration and Refugee Board. The procedures are going to have to be evaluated by someone as far as the decision-making process is concerned, so they will fall into this man's review.
Ms Clancy: But how does that relate to his actual qualifications?
Mr. Hanger: His competence? How is he going to deal with this situation?
Ms Clancy: That's hypothetical, I think.
Mr. Hanger: You think that's hypothetical?
Ms Clancy: I protest that it's a hypothetical question.
The Vice-Chairman (Mr. Dromisky): I agree.
You don't have to answer or respond to the statements Mr. Hanger has made.
Mr. Frecker: I would be delighted to answer the question.
The Vice-Chairman (Mr. Dromisky): All right, very briefly.
Mr. Frecker: Mr. Rankin is well known for his intemperate - I will not say ``intemperate'', but his colourful statements, and he made the same statement when we were in Vancouver this week. I just don't share his assessment that this is going to be a great revenue generator for him and the Federal Court. We have reviewed these procedures very carefully with very experienced external and internal counsel and are quite satisfied the rules of natural justice are fully respected in this process.
Again, I remind the hon. member that this is not a prosecution. That's a fundamental mis-characterization of the process.
Ms Clancy: Thank you very much, Mr. Frecker. On your stellar qualifications - particularly for a person coming from Newfoundland, even though you did somehow go astray and end up at Queen's law school - Perhaps you might tell the committee, for their edification. As I understand it, the part of any review that could still be obtained from the Federal Court would include a review relating to the principles of natural justice, would it not?
.0915
Mr. Frecker: It's absolutely fundamental, Mr. Chair. That's what the Federal Court jealously guards. We have to be on our toes to make sure that our processes respect natural justice. Natural justice is nothing more than common-sense fairness at the end of the day.
We are very cautious, and very concerned, to maintain this process as a fair process, one that is fair both to claimants and to the Canadian public to make sure the system is not subject to abuse.
[Translation]
Mrs. Debien: Good morning, Mr. Frecker. Welcome to the committee.
I have read your curriculum vitae and I can see that you have quite a relevant experience as a lawyer and as a researcher. However do you have a firsthand experience in matters of immigration? For example, have you ever attended a hearing? That is my first question.
My second question is on the report that you have prepared in February 1991 The Determination of Refugee Status in Canada: A Review of the Procedure published by the Law Reform Commission. In your report you are critical of the operations of the RIB. Could you tell us briefly what those criticisms are, namely the ones concerning the necessary discussion and analysis that should be undertaken in terms of the qualification of the members and their training.
I am sorry to insist on training, information and documentation but as a former teacher, those are to me major issues since many witnesses who came here have told us that there were deficiencies in that respect.
Mr. Frecker: I hope there will be enough time to answer this question because it is very broad.
[English]
I'll try to address your questions in order. Your first question is whether I have personal experience in the refugee or immigration hearing process. I have experience as an observer, not as a participant. During the study we did for the Law Reform Commission, I, with the other researchers, attended a number of hearings and spoke with all of the participants in the process to get an understanding of how it operated.
My background in private practice was completely divorced from the area I ultimately ended up in at the commission. I worked mainly in corporate commercial law and in taxation. I had an academic background in administrative law, which is what I acted on at the commission. I understand the process, but I have never been an advocate in the process.
With regard to the report, it's substantial. I'll summarize the main recommendations at the time. The first was to abolish the two-tier hearing process. That was acted on in Bill C-86. We also recommended moving away from the two-commissioner process to a single commissioner who would preside over the hearings. That is being acted on in legislation the minister has announced will be forthcoming.
We looked at a whole series of operational concerns about how the hearings are conducted. I think it's too detailed to try to get into here. I'd be delighted to meet with any of the members to go over these recommendations and the background to the report.
We also recommended what I think is a very important one that we're still looking at in the reform of the process internally. That is to have some form of internal review of decisions as a quality control mechanism to reduce the number of cases that have to go to the Federal Court in hopes that if, for instance, there's a violation of natural justice the board will exercise its inherent jurisdiction to correct its own errors.
Those are the sorts of recommendations.
As to the question of qualification, we felt very strongly in that study that there's a need to recruit people who are qualified. We said the qualifications weren't necessarily legal qualifications or formal training, but qualifications of character. Those qualifications are decisiveness, the ability to listen, to digest complex facts, to make decisions and to take specialized training that the board would provide in the substantive area of refugee determination or immigration law.
.0920
I think we are seeing a move in that direction with the appointment of the committee under Mr. Fairweather, which will be vetting both reappointments and new nominations. There is a commitment by the board - and we're very pleased to see the commitment by the government - to ensure that the people who are doing these very important jobs, which have life and death significance for the claimants who come before us, are people who are competent and capable of meeting the challenges.
Mr. Hanger: Are you going to require or request that written positive reasons be given for decisions, as well as negative ones?
Mr. Frecker: We're not going to require it because we don't have any statutory authority to require it. There is a policy that is about to be set up for consultation with members to get the exact parameters of it, encouraging members to provide positive decisions.
We're looking at the cost implications of it. If you did it in every case - There are factors of time and resources we have to be careful about. We feel it's very necessary to have a jurisprudence on positive as well as on negative decisions, and to have a record of the decision-maker's capacity to deal with both types of claims as a tool in performance evaluation.
Mr. Hanger: When a negative decision is made, of course there is often an appeal to the Federal Court. Will the IRB consider such a position if a positive decision is made that is bad?
Mr. Frecker: Unfortunately, the IRB is the court. The IRB doesn't have the standing to make an appeal. If the minister -
Mr. Hanger: It cannot appeal to the Federal Court and then make those recommendations.
Mr. Frecker: No, if the board made an outrageous positive decision - and it's not beyond the realm of possibility that it happens - we would expect the minister to intervene and to -
Mr. Hanger: What would you consider an outrageous decision?
Mr. Frecker: It is a decision that's totally unsupported by the evidence. It's a decision that doesn't apply the convention, or where factors are completely unrelated to the question of determination of refugee status. Maybe somebody looking at it will say this person will be an excellent Canadian citizen but is nothing more than an economic migrant, and it would be inappropriate for that person to be accepted by the -
Mr. Hanger: Inthavong, who had actually murdered a young Canadian.
Mr. Frecker: Are you talking about the case in Vancouver?
Mr. Hanger: Yes.
Mr. Frecker: It was before my accession to the board.
Mr. Hanger: Something like that.
Mr. Frecker: The issue there is an exclusion question. If the board makes an inappropriate decision on the application of the exclusion clauses with respect to serious non-political crime, then I would think it's appropriate for the minister to intervene. Sometimes the problem that the board has in these cases is that the evidence before it is not clear. I don't know about that particular case, so I don't want to get into a discussion on specific cases.
Mr. Hanger: No.
Mr. Frecker: Members have a problem. Because of resource constraints for the minister's staff, very important negative evidence, if you will, simply doesn't come before the board. The decision-makers, the Federal Court has said repeatedly, can make the decisions only on the basis of the evidence before them.
If evidence of a person's previous criminal record or whatever wasn't before the board, then it's possible a positive determination could be made. It's then up to the minister to decide whether the evidence he has is sufficient to justify seeking a reopening of the case in the Federal Court.
The kinds of things I'm talking about that are within the board's jurisdiction are the technical errors, where a decision is rendered before all the witnesses have been called or something like that. This sometimes happens because of procedural confusion.
Clearly, the system will operate well only if there is a balance. The balance is that where there is a concern about the bona fides of the claim, it's the minister who has to carry that particular case. The board has to remain neutral.
The board is the decision-maker, and natural justice requires a distancing from the arguments in the case. The board, because it's an inquisitorial or a commissioned inquiry, has to take some initiative in making sure that relevant evidence is before it. It's a cooperative effort, with counsel, the minister and the board. We're making major strides to improve the system in that dimension.
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Mr. Assadourian: You mentioned earlier that your training is a big factor and the qualifications, as I remember, are also a factor. I'd like to come back to training.
When you get trained, do you consider also - Take a country like Sri Lanka, for example, which is a major refugee-producing country, or any country that produces refugees. Do you study the history of that nation, the conflict, the reasons that it produces so many refugees? Do you ever think of sending some IRB members there for a week or so to come back with this knowledge of why they produce so many refugees and how to handle it when the refugees come to claim? Is that a part of your training procedures?
The Vice-Chairman (Mr. Dromisky): Could you connect that to his qualifications and competencies and so forth?
Mr. Assadourian: Did you have any training in this fashion?
Mr. Frecker: I joined the board a month ago, Mr. Chairman, and I haven't been trained yet.
Ms Clancy: You're doing pretty well.
Mr. Frecker: In my former incarnation as a law reform commissioner and after that when I was working as an independent consultant, I did participate in board training programs on the other side. Now I'm going to get some of my own medicine.
The board expends a very substantial portion of its budget on training and information gathering. We have a documentation centre that is probably the best agency of its kind in the world. It gathers country-specific information and provides vast amounts of background to members for use in the determination of individual claims, background not geared to the individual claim but of the country conditions.
In our training programs we also bring in experts, who could be people from the countries or Canadian or American or other international experts on country conditions, who give seminars. These seminars are open to both the board members and the counsel who represent the advocates so that we're all working on an equal playing field.
The commitment is to have a transparent process where everybody knows what's going on. There's a constant effort to improve that because the only way we'll make good decisions is if we have good information and if we have members who have the training to digest that information and make rational decisions. There's always room for improvement.
The Vice-Chairman (Mr. Dromisky): You have two minutes each for questioning. Mr. Nunez is next.
[Translation]
Mr. Nunez: You are the second in command at the IRB. How do you view relations between the IRB and our security services? What is your view of the union complaint involving cameras in Montreal? How are you going to deal with this, and what is the relationship between immigration on the one hand and public safety and national security on the other?
[English]
Mr. Frecker: Is this a short question, Mr. Chairman? I hope I don't get hooked or gonged on this. They are very important and interesting questions. I will attempt to answer them.
The relationship with the security services is an arm's length relationship. There is sometimes information that CSIS would have that's very relevant to the determination of refugee claims. If that information is of a nature that can be produced in the hearing so that it's available to the claimant, it's information that can be received by the board and the board has no difficulties dealing with that information. If it's information that's passed to the board under the table, it would be an infringement of natural justice and we simply can't entertain it.
CSIS does a job with respect to the protection of the security of Canada's borders and the protection of Canada against internal and external threats. If any of the people who come before the board have fallen within their purview and they have things they wish to bring before the board, all we demand is that it's information that can be at least available to the person who stands accused so they know the case they have to meet. It would be completely inappropriate for the board to engage in a hidden relationship with a security agency, as it would be for a court to engage in any kind of hidden relationship.
With regard to the cameras -
Mr. Nunez: And the union complaint.
Mr. Frecker: - and the union complaint, I can share with members an ironic comment. Somebody said it was probably more of a problem of occupational health than privacy invasion because the camera fell from the ceiling. That's not to say that we don't take that sort of thing very seriously. As Mr. Fleury indicated, this is a matter - not the cameras themselves, but the subject that was under review - that's subject to police investigation, so it's inappropriate to comment on the details.
Mr. Nunez: Why only Montreal?
.0930
The Vice-Chairman (Mr. Dromisky): Thank you very much. Mr. Hanger, please.
Mr. Hanger: You mentioned that you want to ensure that the best job is being done, that members and the board are going to do the best job they can. I'm curious about how that can be attained when the credibility of claimants cannot be questioned and when now senior immigration officers, upon receiving the first information from the applicant, are instructed to ask only designated questions and not go beyond that. You're limiting your information before the hearing is even heard. How can you do the best job you can?
Mr. Frecker: It's a very pertinent question, Mr. Chairman. I'll try to answer it within the two-minute limit, but if you'll indulge me I may have to go over the two minutes.
First, the new inquiry model we're putting into place is designed to enhance our ability to test credibility. It's a mis-characterization to say that credibility can't be questioned, because that's what the hearings are all about and that's why some of them take six or seven hours.
We have to be very careful to distinguish the roles of the board's staff, the hearing officer and the board members who preside on the claim, and the senior immigration officer who conducts the interview at the port of entry.
The questioning conducted by the senior immigration officer is circumscribed to some extent by the statute. He questions as to eligibility to be in Canada, and it's not ironclad. There's no tight boundaries around that. But it's not appropriate for the SIO at the port of entry to conduct the refugee hearing. That is for the board to do.
The board is in the process of negotiating a memorandum of understanding with Immigration to have the notes taken by the immigration officer routinely forwarded to the board so that they can be considered in each claim. This was something that was not being done because of concerns about how the interviews were being conducted.
It's not our place to tell the immigration officers what to do in their interview. They conduct their interview in accordance with the constraints of the act. Any information they gather that may be relevant to our inquiry is forwarded to us and will be forwarded to the counsel for the claimant and the claimant so that if they have any concerns they want to raise, if they feel things were inaccurately represented, they can speak to that at the hearing.
We're trying to use every tool possible to give a fair hearing and to enable the board effectively to test credibility, because that is the guts of process. I think your concern about that is a well-founded concern, but we're trying to address it.
The Vice-Chairman (Mr. Dromisky): Thank you. Anyone from the government side? All right.
Thank you very much for appearing before this committee this morning. It's quite obvious that both witnesses have acquired an in-depth understanding of their roles, and within such a short period of time. We commend you. Thank you very much.
Mr. Frecker: Thank you, and thank you to the committee.
The Vice-Chairman (Mr. Dromisky): Could the members of the committee remain for one minute, please.
Members of the committee, this is regarding the steering committee report you have before you, the eleventh report of the subcommittee on agenda and procedure. The purpose of the report's recommendation is simply to rescind a motion still on the books setting up a subcommittee to select the witnesses for last year's study of the Citizenship Act.
Shall the report carry?
Motion agreed to [See Minutes of Proceedings]
The Vice-Chairman (Mr. Dromisky): Thank you very much.
This meeting is adjourned.