The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing. A colleague of the complainant later took carriage of the file after the complainant left the law firm, and was considered to be the complainant for the purpose of the complaint process.
The refugee claim was based on gender-based violence, and the claimant had been identified by the RPD as a “vulnerable person” under the IRB’s Chairperson’s Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB.
The allegations related to the member’s behaviour and tone, as well as statements made during the hearing. The complaint alleged that during questioning, the member insisted on placing before the claimant three photos of herself showing visible injuries. It was also alleged that the member made comments and used expressions which were disrespectful, and which relied on myths and stereotypes about victims of violence.
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 the Director of the Office of Integrity for investigation. The Chairperson subsequently 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. The member confirmed that he did not have any comments on the draft report; written submissions were received from the complainant. The investigator then prepared a final investigation report.
In the report, the investigator concluded that there was no breach of the Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- During the hearing, the member’s demeanour was professional and courteous. While he at times asked pointed questions or expressed skepticism about some of the claimant’s responses, the member did so without being disrespectful or impolite.
- The claimant had been identified as a vulnerable person, and it befell the member to show great sensitivity towards her and her circumstances as a victim of sexual abuse, and to avoid retraumatizing her. However, this did not prevent the member from asking sensitive questions for the purpose of testing credibility.
- It was reasonably necessary for the member to place the photographs before the claimant in the circumstances because they raised important questions regarding credibility, which the member had a duty to evaluate. It was difficult to see how the claimant could have responded to some of the questions without seeing the photos. Showing photos of this nature to a vulnerable witness should be avoided unless it is reasonably necessary to accomplish a member’s decision-making functions. The member struck the right balance between fulfilling his adjudicative responsibilities and taking care not to traumatize the claimant.
- As regards the allegation that some of the member’s comments relied on myths and stereotypes and demonstrated a lack of understanding of the dynamics surrounding gender-based violence, the comments and questions identified in the complaint were generally not inappropriate. In examining whether the questions posed breached the Code of Conduct, it is important to keep in mind the inquisitorial nature of a member’s role. Though some of the questions posed were rather probing, they were relevant to the matters at issue, and were not disrespectful or impolite.
- The member ought not to have stated that the claimant “made” five children (“faire des enfants”, in French), as such an expression has a negative connotation, contributes to the objectification of women – especially vulnerable female claimants – and is not the most respectful way of saying that the claimant had five children. The member used the expression only once, after it had been used several times by the interpreter. A single use of the expression in the particular context of the hearing did not amount to a breach of the Code of Conduct. However, the member should be advised not to use this expression in the future.
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 no breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson. The member was reminded not to use the impugned expression in the future.
The complaint was dismissed, and the file was closed.