7.2 ROLE OF THE DESIGNATED REPRESENTATIVE
It is the member's responsibility to ensure that the person whom he or she is preparing to designate as a representative understands that role. When the prospective representative is a professional, generally a lawyer or a social worker, it is usually unnecessary to explain the role, because he or she should be quite familiar with it [see also 7.3.1 - Steps before the hearing]. However, when the person is not familiar with IRB proceedings, usually a family member or a friend, it is important that the member explain the role of representative to that person [see also 7.3.5 - Information to be provided to the designated representative].
In Espinoza,Note 1 the member designated the father as the representative for his three minor children. The Federal Court wrote as follows at paragraph 29 of the decision:
[…] it is the responsibility of the Board, before designating a representative to ensure that the representative understands what it is to be a representative and the consequences of being named a representative by the Board.
7.2.1 Assistance in decision making
A designated representative must act in the best interests of the person he or she is representing by helping the person make decisions concerning the proceedings of which he or she is to be the subject,Note 2 especially to retain and instruct counsel. The extent to which a designated representative may intervene in an admissibility hearing or detention review can vary [see also 7.2.3 - Participation by a person who is under 18 years of age or unable to appreciate the nature of the proceedings and 7.4.2 - Presence and participation by the person under 18 years of age at the hearing].
7.2.2 Distinction between the role of a designated representative and the role of counsel
A person may act as the designated representative and counsel at the same time. However, the two roles must not be confused even though, in some respects, the responsibilities of one may encroach on the responsibilities of the other. The designated representative acts as a sort of litigation guardian in relation to the proceedings concerning the person who is under 18 years of age or unable to appreciate the nature of those proceedings. The representative's role is distinct from that of counsel, which is to provide legal advice, prepare the case and present the evidence and make oral submissions.
In some circumstances, the designated representative may be asked to testify if his or her testimony is relevant to the decision that the member is to make and if, for example, the person concerned is very young or if the extent of his or her ability is such that it would be of little use, or even impossible, to question him or her. When the two roles are assumed by one person, the member must inform that person that, if asked to testify, he or she cannot act as counsel.
7.2.3 Participation by a person who is under 18 years of age or unable to appreciate the nature of the proceedings
The designation of a representative for a person who is under 18 years of age or unable to appreciate the nature of the proceedings does not mean that that person cannot take part in the hearing. The role of a designated representative varies depending on the represented person's level of understanding.
As much as possible, the designated representative should explain, in simple terms, the purpose and possible consequences of the hearing and invite the represented person to take part in the decisions that concern him or her. For example, a 17-year-old student will naturally have a right to influence the proceedings, whereas an 8-year-old will depend almost entirely on the representative. Similarly, a person who is unable to appreciate the nature of the proceedings and who suffers from a temporary attention deficit should be consulted more than a person who has a serious cognitive impairment.
7.3 PROCEDURE FOR DESIGNATING A REPRESENTATIVE
7.3.1 Steps before the hearing
Rules 3(o) and 8(1)(m) provide that the Minister must inform the Immigration Division if he or she believes that a person who is to be the subject of an admissibility hearing or a detention review is less than 18 years of age or is unable to appreciate the nature of the proceedings.
This duty is also imposed on counsel. Under the provisions of Rule 18, counsel must also provide contact information for any person in Canada who, in his or her opinion, meets the requirements to be designated as a representative. Usually, this is the father, mother, another family member or a friend.Note 3
When the registry office receives such information, it will make arrangements to ensure that the prospective designated representative is present on the day fixed for the hearing. If necessary, the counsel of record is consulted. Furthermore, when there is a counsel of record, it is very often a member of the person's family in Canada who has retained the person's counsel.
If the parties do not know anyone who meets the requirements to be designated as a representative for the person less than 18 years of age or unable to appreciate the nature of the proceedings, the registry office will make arrangements to ensure that such a person is present. The IRB has agreements to that effect with various organizations depending on the region (for example, lawyers' associations, provincial social services, NGOs).
Consequently, a potential representative is usually already present on the day fixed for the hearing. If the member sees that the person concerned is less than 18 years of age or is unable to appreciate the nature of the proceedings and no representative is present in the hearing room, the hearing will have to be adjourned so that the registry office can arrange to have a representative present when the hearing resumes.
7.3.2 Duty to designate a representative
Even if a possible representative is present in the hearing room, the responsibility to designate him or her as representative lies with the member. The member must perform this duty at the outset of the hearing or risk invalidating the entire proceeding. In Phillip,Note 4 the member first questioned the children, aged five and eight years, in the absence of their mother and then designated her as their representative and provided her with a summary of the children's testimony. The Federal Court quashed the member's decision and noted that, although a late designation does not always invalidate the entire proceeding, a representative should be designated at the outset of the hearing. If the need to appoint a representative for a person less than 18 years of age or unable to appreciate the nature of the proceedings does not become evident until later in the course of the hearing, the member will have to decide whether the hearing should proceed or recommence, depending on the evidence that has been presented.
Someone must be designated as a representative, even if the person less than 18 years of age or unable to appreciate the nature of the proceeding is accompanied by counsel. In Kissoon,Note 5 the Federal Court of Appeal ruled that the adjudicator (member) erred in law by failing to designate a representative for a 17-year-old who was accompanied by counsel. This principle has been followed by the Federal Court. In Csonka,Note 6 the Court reiterated that the duty to designate a representative and added that the hearing transcript must clearly reflect the designation.
7.3.3 Requirements for being designated
Even if a prospective representative is already present in the hearing room, the question of whether that person is suitable to represent a person less than 18 years of age or unable to appreciate the nature of the proceedings is the responsibility of the member, who must determine whether the person meets the requirements to act as a representative.
Rule 19 sets out the requirements for a person to be designated as a representative. The person must:
- be 18 years of age or older;
- understand the nature of the proceedings;
- be willing and able to act in the best interests of the permanent resident or foreign national;
- not have interests that conflict with those of the permanent resident or foreign national.
7.3.4 Choosing a designated representative
When one of the two parents, a family member or a friend of the person concerned is in Canada and appears to meet the requirements of Rule 19, that person will usually be designated to act as representative.
The age of the representative can easily be verified. More often than not, no verification is necessary because it is obvious that the prospective representative is older than 18. It is also relatively easy to determine whether the prospective representative understands the nature of the proceedings by asking the person to explain it briefly in his or her own words. The member must ensure that the representative understands the purpose of the hearing and its possible consequences for the person concerned.
In Espinoza,Note 7 the father was designated as the representative for his three minor children. The family of five, which had claimed refugee protection, consisted of the father, a Salvadorian, the mother and the three children, who were Mexicans. The member allowed the mother's claim and rejected that of the father and the three children. The Federal Court ruled that the member had erred in designating the father without ensuring that he understood his role as the representative for his children and the consequences that could ensue from a negative decision with respect to the children. It quashed the member's decision concerning the three children, finding that they had been denied a fair hearing. It is therefore up to the member to determine which person is the most apt to act as a representative.
Generally speaking, it is presumed that the father, mother, family member or friend is ready and able to act in the interests of the person concerned and that he or she does not have interests that conflict with those of the person concerned. However, some situations warrant an investigation of these two points.
For example, where a person less than 18 years of age is accompanied by one parent and the other parent is not present, it is always prudent to enquire as to the whereabouts of the absent parent and the family situation. The parents could be separated, and custody of the minor could be a subject of conflict. Where the person less than 18 years of age or unable to appreciate the nature of the proceedings is accompanied by a family member or a friend, it is always appropriate to ask where the parents are and to enquire about the circumstances of the trip to Canada (organization and purpose of the trip) and about the other people the person knows in Canada. Persons under 18 years of age or unable to appreciate the nature of the proceedings are vulnerable and might be victims of human trafficking.
If the person knows no one who is qualified to act as his or her representative, the member may designate a professional, usually a lawyer or a social worker. The registry office will very often have made the necessary arrangements, and the prospective representative will be present in the hearing room. It can be assumed that a professional will meet the requirements of Rule 19. If there is any doubt, the member can question the representative to ensure that he or she has the knowledge and experience required to act as representative and that he or she is subject to a professional code of ethics.
When the member is not convinced that the prospective representative meets the requirements for designation, the member should share his or her doubts with the parties and, if necessary, adjourn the hearing so that arrangements can be made to have another representative present.
A designation of someone to act as representative may be changed. If it becomes apparent in the course of a hearing that the designated representative is not performing his or her role correctly, the member should replace the representative. The reasons for this decision should be given.
7.3.5 Information to be provided to the designated representative
The designated representative should be informed of the reasons for his or her designation, his or her role, the purpose and possible consequences of the hearing for the person concerned, and his or her right to retain a lawyer or other counsel. The member should ensure that the designated representative has been given a copy of all the documents that will be used at the hearing. If the designated representative decides not to retain counsel, it is important to find out whether he or she is also assuming the role of counsel. The transcript of the proceedings must clearly reflect the role or roles of each.
7.4 PERSON UNDER 18 YEARS OF AGE
The member must designate a representative for any person who has not reached the age of 18.Note 8 When the person concerned is under 18, the member must designate a representative, and it is not necessary to assess whether the person concerned appreciates the nature of the proceedings.Note 9
Sometimes, a representative is designated at the outset of the hearing because the person concerned is not quite 18 years of age. If the hearing is continued and the person turns 18 between two sittings, the services of the representative are no longer required, and he or she should be relieved of his or her duties.
7.4.1 Determining age
Generally speaking, a person's age is easy to determine and may be established by an identity or other document. If there is no document whereby the age of the person concerned can be determined, a statement by the person as to his or her date of birth is usually sufficient to determine whether a representative needs to be designated. It sometimes, but seldom, happens that young people travelling alone are afraid to reveal that they are minors or are in possession of false identity papers, especially if they have travelled with an agent. Whenever possible, a member who has doubts about the real age of a young person because of that person's physical appearance or for other reasons should try to sort out the matter. The decision on whether or not to designate a representative must be based on the evidence available.
7.4.2 Presence and participation by the person under 18 years of age at the hearing
As explained in section 7.2.3 - Participation by a person under 18 years of age or unable to appreciate the nature of the proceedings, the role of the designated representative varies depending on the minor's age, which is often indicative of the person's ability to understand the nature of the proceedings. It is up to the member, however, to determine whether the minor should be present during the entire proceedings and the extent to which the minor should participate.
It is always preferable for a minor who is the subject of the hearing to be present at the hearing. However, when the minor is very young and clearly cannot participate in the hearing, his or her presence is not necessary as long as the designated representative and counsel, if any, are present throughout the entire proceedings. In fact, it is sometimes preferable to exclude very young children if they are so unruly that they disrupt the smooth conduct of the hearing. The designated representative and counsel, if any, should always be consulted before excluding a minor who is the subject of a hearing. If they consider his or her presence necessary, it is up to them to argue that he or she should remain.Note 10
When the minor is old enough to testify,Note 11 it is preferable to require his or her presence. In Mandi,Note 12 children aged 12, 15 and 16 were excluded from the hearing room. The Federal Court ruled that, before excluding the minors, the panel should have (1) ensured that counsel consulted the designated representative (in this case, the mother) to determine whether she wanted the children to be excluded; (2) asked the designated representative whether she wanted the children to be excluded; and (3) asked the children whether they wanted to be excluded. It also should have been determined whether the children would be asked to testify.
When the minor is old enough to testify, the designated representative should be consulted before allowing the Minister's counsel to call the minor as a witness or even to require his or her testimony. If the member finds that the minor's testimony is necessary, the minor and his or her representative must be allowed to prepare. In Ganji,Note 13 the Federal Court ruled that there was a denial of natural justice when the panel ordered a 15-year old girl to testify without consulting her designated representative, in that case, her mother, and without allowing them to prepare.
7.5 PERSON UNABLE TO APPRECIATE THE NATURE OF THE PROCEEDINGS
The member must designate a representative for any person who, in the member's opinion, is unable to appreciate the nature of the proceedings. If there is no indication to the contrary, it is reasonable to assume that the person concerned can appreciate the nature of the proceedings. Sometimes, the incapacity will not be apparent until the hearing, but, more often than not, the Minister's counsel or the counsel for the person concerned will indicate that a designated representative may be necessary. This opinion is generally based on:
- medical reports concerning the mental state or intellectual ability of the person concerned; or
- difficulties noted in meetings or discussions with the person concerned before the hearing.
It is up to the member to determine whether the person concerned is able to appreciate the nature of the proceedings of which he or she is the subject. To do so, the member must consider several factors.
7.5.1 Determining the inability to appreciate the nature of the proceedings
To decide whether the person concerned is able to appreciate the nature of the proceedings, the member may base himself on the following factors:
- admissions by the person who is the subject of the proceedings concerning his or her inability to understand what is going on;
- the testimony or report of an expert on the mental health or cognitive abilities of the person who is the subject of the proceedings;
- the behaviour observed at the hearing (namely, the responses of the person who is the subject of the proceedings to the questions that are put to him or her); and
- the observations of the parties.
Unless the nature of the illness prevents it, the member should always talk to the person who is the subject of the proceedings before designating a representative. In order to determine whether the person who is the subject of the proceedings appreciates the nature of the proceedings, the member should explain the possible consequences of the hearing in very simple terms and, then, ask the person to explain them in his or her own words. If the person is unable to do so, this will usually demonstrate the person's inability to appreciate the nature of the proceedings and will justify the designation of a representative for him or her.
7.5.2 Medical reports
The fact that there are medical reports does not mean that a representative should automatically be designated. A person may have a mental illness or limited intellectual skills but still be able to appreciate the nature of the proceedings. Medical reports are one factor that the member should consider. They must be current. Sometimes, they are sufficiently precise and detailed to indicate that it will probably be necessary to designate a representative, but the member must consider other factors, in particular, the behaviour of the person concerned, before designating a representative.
7.5.3 Comments on the state of health
The member should avoid making specific comments about the mental health or intellectual capacity of the person concerned, unless expert evidence supports a finding to that effect (the member is generally not qualified to do this). The member only has to form an opinion that the person is unable to appreciate the nature of the proceedings of which he or she is to be the subject.