Independent review for IRB member

The Immigration and Refugee Board of Canada recently announced that it is planning to initiate an outside independent review of the cases previously heard by a member of the board who was recently charged by the RCMP.

Last month, Refugee Protection Division board member Stevan Ellis, 47, was charged by the RCMP with "breach of trust and knowingly making or issuing a false document or statement or accepting or agreeing to accept a bribe or other benefit in respect to a refugee application, s. 129(1)(a) of the Immigration and Refugee Protection Act."

The allegations and charges resulted from a videotaped conversation in which Ellis was alleged to have suggested to a refugee applicant that he would help her with her claim in return for sexual favours. The conversation was videotaped by the claimant's partner and sent to various media outlets and the IRB.

Within hours of the board finding out about the allegations, Ellis was removed from his duties on the board and his access to its premises was withdrawn. The IRB is also conducting an internal investigation.

In addition to Ellis, The Globe and Mail reported last month that Toronto IRB member Lloyd Fournier is no longer hearing refugee cases. While the IRB would not confirm the reasons, an unnamed source told The Globe Fournier's suspension resulted from sexual misconduct complaints against him.

Jean-Guy Fleury, chairperson of the IRB, told the Commons standing committee on citizenship and immigration last month that he would initiate the review of the cases heard by Ellis, and later announced that Law Society of Upper Canada complaints resolution commissioner Clare Lewis would be conducting the review.

According to Fleury, Lewis will provide advice regarding the "scope and means of the review of the member's case files," while the subsequent review will be carried out by IRB officials under Lewis's direction. Lewis will then provide Fleury with a confidential written report, and Fleury will issue a public statement on the issue.

According to a statement by Fleury, other measures in place to guard against "ethical transgressions" and conflicts of interest on the board are the members' code of conduct, protocol for addressing member conduct issues, the senior IRB officer role, the evolution of the appointment process, and the performance appraisal process.

Alex Stojicevic, a lawyer with Vancouver firm Maynard Kischer Stojicevic and vice-chairman of the citizenship and immigration section of the Canadian Bar Association, said that the CBA supports the decision to initiate a review.

"They, I think, have learned from previous incidents that this sort of thing needs to be dealt with quickly and effectively and it appears that they've done this and so we applaud the swift action they're taking to preserve the integrity of the administration of justice here.

"We do support the board, we think the board is an integral part of the process, and why it is that way is because the appointments recently have been merit-based, particularly in the last five years, which is a change that the Canadian Bar Association insisted be transparently put forward," he said.

"Mr. Ellis is unfortunately one of the vestiges of a system that was tainted by patronage to some degree, but we believe the board has gotten past that point and has now, and has for the past several years focused on merit-based appointments based on competence, reinforcing that the members are independent decision makers," he added.

Commenting on the independent review, Stojicevic said, "Anybody else who came forward with this kind of complaint now would perhaps be reluctant to do it if they were dealing with another board member. If it was an independent review, I think people would perhaps be a little more willing to come forward or participate. And it's important for the board's own integrity. They have to maintain the absolute highest standard."

According to the IRB, there were over 27,000 total claims finalized by the Refugee Protection Division last year and over 5,500 in the first three months of this year.

Raoul Boulakia, a member of the executive and former president of the Refugee Lawyers Association, told Law Times this is the first time the IRB has called for a general review of a board member's decision making because of one incident of misconduct.

"It's unclear how they're going to correlate the alleged impropriety with the one claimant to every single decision he has made or if they are even asking for that, so we have to wait and see what they are asking for to understand what their purpose is.

"There may be lawyers who will want a second chance if their case was rejected by Mr. Ellis, but I can say for sure, as a lawyer who has won some cases with him, that if they try to take those determinations away I would be fighting that," he said.

"The RLA hasn't been invited to have standing, and I think that the RLA should have standing because what they are proposing could have an impact on many claimants and many lawyers and Mr. Lewis should be hearing from the RLA. It shouldn't be something that is done behind closed doors," he added.

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