Address to the National Hearings Officer Training Session
Cornwall, Ontario, September 12, 2012
Introduction / caveat
Thank you for that kind introduction and for inviting me this evening. Je vous remercie pour cet gentil introduction, et aussi de m’avoir invité ce soir. I will do no more damage to the language of love, and trust that you forgive me for making my comments tonight only in English, malgré ma commande évidente de la langue française.
Over the years, judges of the Federal Court have spoken regularly at education seminars, to lawyers from the private Bar who represent individuals or families in proceedings under the Immigration and Refugee Protection Act (for which I will use the short-hand IRPA from now on), as well as to lawyers from the public Bar who represent the Ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness, typically the respondent in matters arising under IRPA.
To the best of my knowledge, this is the first opportunity we have had to speak to Hearings Officers. Your role is not so very different from legal counsel before the IRB or before the Federal Court, in that you all take on an advocacy role that supports and is part of the proper functioning of our system of justice.
Before venturing too far into my address, I must offer this caveat. When I, as a judge, speak outside of Court, I speak only for myself, not for the Federal Court as a whole or for my colleagues on the Court, though I trust that my views are shared by most.
I hope that my remarks tonight are of interest and use to you.1
Initially, it was suggested that I provide an overview of the last 10 years of litigation under IRPA. However, I intend to exercise my judicial prerogative and instead focus on advocacy skills before the IRB. It is the evening after a long day of discussions and deliberations, and the dance floor awaits. A half hour talk on 10 years’ worth of jurisprudence is not likely to improve your digestion. I think that a brief talk on advocacy skills, particularly in light of judges’ experience after looking at many IRB cases that are heard in the Federal Court, may be more practical in your day to day work. That, at least, is my hope.
Advocacy is persuasion. There are some who are of the view that good advocates are born and not made. I do not subscribe to that view. In my view, the only natural born masters of persuasion are con artists. And contrary to what some jokes may suggest, lawyers are not con artists.
Overview of Federal Court Mandate / Statistics
First, some context. As you probably know, the IRB is Canada’s largest administrative tribunal, and its decisions make up the largest single group of cases brought by applicants on judicial review to the Federal Court. Applicants don’t have an automatic right to come to the Court, but simply the right to bring an application for judicial review, on limited grounds. In order to get a full Court hearing, they must obtain leave of the Court to do so and this requires that they show that there is a fairly arguable case on the merits.
Over the last decade, applications for judicial review under IRPA ranged from a low of 5,513 in 2007 to a high of 10,653 in 2004. For this year, by the end of August 2012, the Court has already received 8,755 and, if this trend continues, 2012 will be a record year for the number of applications received by the Court under IRPA.
Of these applications, typically the Court holds a full hearing on the merits for somewhere between 10 and 20% of the cases filed. When a full hearing is held, the Court reviews the IRB decision according to ever-evolving principles of administrative review, established over the years through numerous Supreme Court of Canada decisions.2
In most cases a decision of an administrative tribunal such as the IRB will be reviewable for reasonableness on (i) issues of fact, discretion or policy, (ii) inextricably intertwined legal and factual issues, and (iii) issues relating to the interpretation of the tribunal's enabling (or home) statute or "statutes closely connected to its function, with which it will have particular familiarity."
It is important to highlight this second category – issues of fact and law. The IRB regularly determines issues of fact. For example:
- was the applicant convicted of a specific criminal offence in another country?
- was the applicant a member of a particular organization?
- are certain individuals actually members of the same family?
The IRB also regularly determines issues of fact intertwined with legal concepts. For example:
- is the applicant inadmissible on the ground of criminality?
- is the applicant excluded for complicity in war crimes?
- are the individuals members of the family class?
These questions require the application of facts to legal concepts.
For such questions, the Federal Court is to intervene only if the Board’s determination is unreasonable – which means that it is not within a range of “possible, acceptable outcomes which are defensible in respect of the facts and the law.” The Court gives judicial deference to administrative decision-makers. Because of the deference given to these types of decisions, the evidence and submissions presented at the Board’s hearing, take on added importance for two reasons.
First, the Board’s decision is most often that last word on the question because so few IRB decisions are reviewed by the Federal Court. Second, the few that are reviewed by the Federal Court are, with few exceptions, based solely on the record as it stood before the Board. No new evidence can be presented at the judicial review stage. Therefore, the IRB record frames the issues before the Court: not just whether the Board’s conclusions are reasonable, but are they reasonable in light of the evidence on the record?
This leads to my presentation on advocacy before the Board, which is all about putting evidence and argument on the record, keeping in mind that the record serves more than one audience – certainly the Board Member, but also, sometimes, the Federal Court, occasionally the Federal Court of Appeal, and on rare occasion the Supreme Court of Canada.
It has been said that “Of every hundred cases, ninety win themselves, three are won by advocacy, and seven are lost by advocacy.”3
I will offer five tips on what makes for a strong advocate which I hope will help you in your day-to-day work.
Tip #1: Be candid and honest
I would recommend that you all read the decision of the Federal Court in Tursunbayev v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 504. It was a judicial review application from a detention review before the Immigration Division. There were allegations of misconduct on the part of the Hearings Officer. As you know, in detention reviews, the Hearings Officer provides representations as to the facts known to the Minister as well as the steps the Minister has taken and the results of those steps. This is in addition to submissions as to the result the Board ought to reach.
The applicant before the Federal Court alleged that representations made by the Hearings Officer at the detention review were misleading and that this resulted in a denial of natural justice and an unreasonable decision. Although the Court, after careful consideration of the transcript, gave the Hearings Officer the benefit of doubt, the following was made clear:
 Individuals representing the Crown before courts and tribunals always have an obligation to be candid and fair in their dealings both with litigants and with the courts and tribunals themselves. The fact that the comments in question were made by the Minister’s representative in submissions rather than in evidence does not in any way reduce or limit the representative’s duty of candour.”
Bottom line: Hearings Officers have to be candid in their dealings with tribunals. This is especially important in detention reviews, which are done informally, and a lot of "evidence" actually comes in through representations made by the Hearings Officer.4
This also highlights a point concerning the Tribunal record – whatever you say may be used for or against you. The digital recording system is running, and a transcript is made for the Federal Court’s record, and judges read this record, particularly when an issue like this arises.
Be fair with the record, especially in relation to facts. Here, I shall quote something from a paper on advocacy by Justice Harlan of the US Supreme Court:
The third thing that is of the essence of good advocacy is “candor.” There is rarely a case, however strong, that does not have its weak points. And I do not know any way of meeting a weak point except to face up to it. It is extraordinary the number of instances one sees where through a question from the court of the argument of one’s adversary a vulnerable point is laid bare, and the wounded lawyer ducks, dodges and twists, instead of facing up to the point four square. Attempted evasion in an oral argument is a cardinal sin. No answer to an embarrassing point is better than an evasive one. With a court, lack of candor in meeting a difficult issue of fact or of law goes far to destroying the effectiveness of a lawyer’s argument, not merely as to the point of embarrassment, but often as to other points on which he should have the better of it. For if a lawyer loses the confidence of the court, he is apt to end up almost anywhere.5
So, Justice Harlan’s view, and one commonly shared by judges, and I expect by Board members, is this: meet any weakness in your case head-on. State your opponent’s argument fairly – and then rebut it.
This leads me to Tip #2.
Tip #2: Don’t forget the facts
I frequently find myself saying to counsel who has just made a submission “Can you point me to where in the record there is evidence to support that submission?”
All too frequently the response is something like this: “My Lord, unfortunately the record is not as fulsome as I would wish – we make do with what we are given.”
Board members receive a voluminous record, often with conflicting evidence and competing submissions, and then must render a decision, sometimes under pressing time constraints. Remember that IRB members, like Federal Court judges, have a heavy caseload, often with complex issues both fact and legal. The decision-making process is even more challenging when, as is common before the IRB, the evidence is received via an interpreter, and facts must be established concerning events in another country and culture and applied to legal categories that have serious human consequences for the applicants, sometimes looking forward to what might happen rather than simply what has already happened.
The reality of judicial review of IRB decisions is this: Except for issues that involve breaches of natural justice, all that is before the Court is the certified tribunal record – the record of the testimony, exhibits, and submissions of counsel at the IRB hearing. That record cannot be augmented by further affidavit evidence.
As fascinating as the law is, it must be applied to facts and if the facts are not in the record, they are not before the Court.
To do his or her job well, the decision-maker needs the Hearings Officer and counsel to assist with understanding the pertinent facts, what really is at issue, what parts of the IRPA are relevant, and how they apply to the facts.
After reviewing the file, you may wish to take a piece of paper, draw a line down the middle, and on the left list the elements of the case (i.e., the relevant legal questions in play) and on the right the evidence available to support each element. Then prepare your witnesses, your representations, and your or submissions making sure every fact necessary to support the case has been presented.
For example, in a detention review, we know that a member is not to depart from decisions made by previous members unless there are clear and compelling reasons to do so. So, when doing a review, you must know the previous decisions and the evidence that was before those decision-makers, and you must summarize it for the member. Then you must marshal the new facts – what has happened since the last review – and point out whether there is anything new or not and if there is new evidence make submissions as why these new facts do not provide a clear and compelling reason to depart from the previous findings.
Fundamentally, most cases are decided on the facts and a failure to set them out clearly and completely is failed advocacy.
Tip #3: Written submissions matter
It is my sense that written advocacy plays a greater role on judicial review before the Federal Court than for administrative proceedings before the IRB, where the focus is on a relatively informal oral hearing rather than on extensive, written submissions and formal rules of procedure. However, the Immigration Division Rules do provide for a written response to a written application at Rule 39, and there is even more emphasis on written submissions when the new Refugee Appeal Division comes into play. The draft RAD Rules pre-published in the Canada Gazette that I have seen provide for written submissions, not different in length from the Court, allowing for 30 page memoranda.
In any event, where there is either an opportunity or a requirement for written submissions, the importance of a solid written argument cannot be overstated. Written argument serves as the Board member’s first impression of the proceeding and acts as a roadmap for your oral argument. Any submissions will be read by the Board member before the hearing, are with the Board member during the hearing, and stay with the Board member after the hearing. They may also be used as a reference in drafting reasons for the Board’s decision. They leave the Board member with an initial and a lasting impression of your case.
So if you are going to make written submissions, it is essential that they be written simply and concisely. Writing well is hard work, and writing concisely is harder than writing at length.
Blais Pascal in 1657 illustrated the point well when he wrote: “Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte”6 - I have made this longer than usual because I have not had time to make it shorter.
A badly written submission detracts from your arguments, so edit your submissions properly in order to achieve clarity and simplicity.
Take the time and trouble to write better and you will do better as well in the hearing room. Put yourself in the place of the Board member and ask yourself what this case is all about. What are the issues? How can I help the Board to reach the best solution? Clearly, you really need to understand the case before you can present it coherently, whether in writing or orally at the hearing. If you don’t know where you are going, you will take many side roads and detours to get you to your destination, but this makes for poor advocacy, and difficult reading for the Board member.
Tip #4: Follow the KISS principle [Keep It Simple and Straightforward]
Look composed and confident, use plain language and if you prepared written submissions, do not read them word for word … like I am doing now with my presentation!
A slow purposeful and well-crafted opening statement will serve you well, as it will give the Board member a map to where you are going. Begin the argument by telling the Board member what the case is all about and why your position should be followed. Do not emphasize unimportant details and arguments, and avoid generalities. Come to the Board prepared, do not oversell, and acknowledge weaknesses in your position. Know the record and demonstrate expertise over the subject matter.
In oral advocacy, the Board member develops a more complete opinion both of you as well as your argument. The way you deliver the content of your case is important. As with written submissions, be precise, be fair, and be objective. You probably appear regularly before the same Board members at the IRB, who like you are regionally based. Your reputation for presenting the evidence and arguing your position fairly will, in the long run, assist you – and the Board as well. There is nothing more helpful to a judge, or Board member, than competent advocates who can be trusted to state the facts accurately and present the legal principles clearly.
Tip #5: Remember to use “because”
I find that in a number of cases, the Board reaches conclusions on facts or legal questions without a sufficient logical analysis. The Board, in such cases says something like: “Upon review of the evidence, I find X.” Rather than stating something like this: “Upon review of the evidence, I find X because …” followed by an articulation of the reasoning why some evidence was chosen over other evidence, why one possible conclusion was ruled out, or why the conclusion reached was the preferred one.
My difficulty with the first approach, on judicial review, is that if the analysis is completely missing as to why the conclusion is reached, one cannot always conclude that the result is ‘reasonable in light of the evidence’ – the test that has to be met. These situations could be largely overcome by using the small word “because.” “I find this because …”
Let me suggest that this is something that Hearings Officers can assist us with and which also makes for strong advocacy. Include “because” in oral and written submissions. For instance: “The Minister takes the position that the applicant is a danger to the public because …” If the Board agrees with your position (and of course my remarks are directed equally to private Bar counsel), this facilitates the Board’s work and more likely leads to a finding on judicial review that the Board’s conclusions are ‘reasonable in light of the evidence’ – the correlation between the conclusions and the evidence are explicitly stated, rather than being left to the judge on judicial review to guess.
The explicit reasoning process is not simply for Board members and judges, though. It forces you, and then the decision-maker, to work through the rationale for the case and the ultimate decision. This is the stuff of advocacy. And if the reasoning for the conclusion cannot be expressed with words, then perhaps there is something wrong with the conclusion.
A sub-issue here concerns credibility assessments. Although reliance on credibility as a deciding factor appears to vary somewhat among Board members, it is clearly a fundamental issue whether the Board ultimately concludes that the applicant and various witnesses called in support are credible or not. Either way, the finding is crucial to the overall outcome. The evidence is either accepted and cited in support of the conclusion, or it is rejected. And for this reason, it is important that a proper assessment and reasoning process be done. In this regard, the Hearings Officer and private counsel have a role to play in providing submissions on the appropriate result and the underlying support for that result – both evidentiary as well as articulation of the rationale. “The Minister submits that the claimant is not credible because …”
These types of submissions can be developed in part during your preparation of the case, though of course a lot of new evidence can come up at the hearing itself, and it can be challenging to frame your position as the evidence and frame-work of the case as it evolves before your eyes. This is why preparation is so critical – if you only half know the case, then it is that much harder to adjust when new pieces are added at the hearing.
Those are my five tips.
- Be candid and honest
- Don’t forget the facts
- Written submissions matter
- Follow the KISS principle [Keep It Simple and Straightforward]
- Remember to use “because”
There are many others and there are others equally important. But I believe that if you keep these five in mind when appearing before the IRB, you will be a stronger advocate – and as a result you will assist the IRB and the Court should the matter come before us.
In the end, it is important to remember that our adversarial process leaves, in a sense, “winners” and “losers” – both before the IRB as well as on judicial review or appeal.
If the Board member reaches a conclusion that goes against your submissions or your appreciation of the evidence, there are different reactions. One comes from Paul Brown, former coach for the Cleveland Browns, who said: “When you win, say nothing. When you lose, say less.”
Litigation is not football – despite the fact that you may feel “bruised” after a hearing. I would instead say to you that when you “lose” a case where you sincerely feel that the Minister’s position ought to have been accepted, meet with your colleagues to understand why. Was your approach to the evidence sound? Were the legal questions properly understood and framed before the Board? Perhaps Hearings Officers do this already, to reflect on their work. This national seminar serves in part this function – an assessment of what is being done well versus what can be improved upon.
If you conclude that the decision is unreasonable based on the evidence, then ask Minister’s counsel to seek review in the Federal Court.
I hope that you have found some value in my address, I encourage you to become even more skilled as advocates, and I thank you again for this opportunity to speak to you.
Merci beaucoup. Thank you.
A copy of my presentation will be made available, upon request to the Court’s Media Contact, and will eventually be posted on the Court's web page, once translated.
2 Most recently cases such as Dunsmuir v. New Brunswick, 2008 SCC 9; Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals ,2011 SCC 59; and Smith v. Alliance Pipeline Ltd , 2011 SCC 7.
3 Attributed to Kemp, Q.C. by Theobald Mathew (1898-1964)
4 In Igbinosa v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1372, the Court noted that “…the Immigration Division can be very flexible about the evidence it considers. It is not bound by any legal or technical rules of evidence, and it may rely and base a decision on any evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.” This is a matter for the Board member to decide on a case by case basis. A Hearings Officer who has a reputation for being less than frank may find that his or her representations are given little weight by the member and may have to call witnesses to establish what the officer would otherwise merely state as fact.
5 “What Part Does the Oral Argument Play in the Conduct of an Appeal?” John M. Harlan,  41 Cornell L.Q. 1955-1956.
6 “Lettres Provinciales” The Yale Book of Quotations by Fred R. Shapiro, Section: Blaise Pascal, Page 583, Yale University Press, New Haven (2006).