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The open court principle and the importance of public access to IRB hearings

October 27, 2020

Ms. Suzanne Gilbert
Deputy Chair of the Immigration Appeal Division
Minto Place, Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1
By Email

Dear Ms. Gilbert,

Re: The open court principle and the importance of public access to IRB hearings

We write on behalf of the Canadian Civil Liberties Association (CCLA) to express concern regarding the accessibility of the Immigration and Refugee Board’s (”IRB”) hearings to members of the public. Specifically, it has come to our attention that students have encountered difficulty when attempting to observe hearings of the Immigration Appeal Division (“IAD”) in Toronto, contrary to s 166(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). As you know, s 166(a) requires proceedings to be held in public.

We realize that COVID-19 has presented unique challenges for courts and tribunals and that in-person attendance of hearings by the public may not be feasible. Nevertheless, your statutory obligation continues to apply. A solution must be developed, and solutions have been developed by courts and tribunals around the world. We urge the IRB to develop a solution across all regions to ensure that members of the public can observe hearings remotely and that the spirit of the open court principle is upheld.

As stated by former Chief Justice Beverley McLachlin, the open court principle is a fundamental element of Canadian law, which assists in the search for truth, improves judicial accountability and preserves public confidence in the justice system.1 The concepts of accountability and public confidence are particularly important in the context of immigration hearings, where the party appearing before the tribunal may be vulnerable and the stakes are particularly high.

Courts have repeatedly highlighted the importance of the open court principle, noting that it is tied to the rights guaranteed by s 2(b) of the Canadian Charter of Rights and Freedoms and that its educational component enables members of the community to understand how courts work.2 Without access to hearings, how can the public understand the process used to make decisions that are potentially life-altering for the party appearing before the tribunal, their family and their community? The fact that the IRPA requires public hearings in certain circumstances underscores their importance.

Many other courts and tribunals, including the Western IAD, facilitate remote access to hearings by the public via videoconference. We understand that students are able to contact the Western IAD via telephone to obtain remote access information in order to observe hearings remotely. This aligns with the policy note on the IRB website, which states that the use of videoconference improves access to proceedings for members of the public and media.3

However, when an inquiry was made to the Central IAD regarding the possibility of observing hearings, it was suggested that granting students remote access would be complicated, and that instead IRB members who were willing to have students observe could contact the students directly. This process essentially makes public access the exception rather than the rule. This is contrary to both the IRPA and the open court principle, which requires a compelling reason to deny public access. Public access should not be subject to the discretion of individual IRB members.

Public access to hearings at the Central IAD is a statutory and constitutional right. Limiting that right is unreasonable, particularly when the Western IAD is able to facilitate public access via videoconference. Public health restrictions have been imposed for over seven months and are unlikely to be lifted in the near future, making it imperative that this issue is addressed without delay. We urge you to require that all regions of the IAD honour the open court principle by ensuring the public can access hearings.

Sincerely,

Cara Zwibel, Director, Fundamental Freedoms Program
Julia Sande, Articling Student

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