TABLE OF CONTENTS
- THE REVIEW MANDATE
- THE AUTHOR'S QUALIFICATIONS
- THE REVIEW METHODOLOGY
- THE DATA AND INFORMATION COLLECTED
- THE AUTHOR'S ANALYSIS
- THE AUTHOR'S CONCLUSIONS AND RECOMMENDATIONS
Holding hearings in selected refugee cases via videoconferencing, with a Board member located in one city and a refugee claimant located in another, is an IRB management strategy for bringing under-utilized member resources in one Refugee Protection Division (RPD) office to the assistance of over-taxed member resources in another. It is also used for delivering adjudicative services to refugee claimants in remote locations while minimizing the travel demands on either the RPD members or the claimants.
The use of videoconferencing by the other two IRB Divisions for various types of hearings has been a known practice for over ten years, and it has also been used for some period of time in the western offices of the RPD (notably Calgary) for some refugee hearings. However, its use by the RPD really only came to the fore when the videoconferencing of hearings was introduced into the Toronto area in a major way in the late summer of 2003 as a strategy for bringing the RPD's adjudicative resources in other cities to aid in the reduction of what was by then a serious Toronto backlog.
Refugee claims filed originally in Toronto were selected by the RPD to be transferred to another city - most commonly to Montreal or Calgary or Vancouver - on the understanding that the refugee claimants in those files would not travel to those cities for their hearings but would have their claims dealt with via videoconferencing. The cities to which the files were transferred were selected on the basis of the availability of member resources with the relevant source-country expertise.
The videoconferencing works as followsNote 1. On the day and at the time the Board has specified for the hearing, the claimant whose file has been transferred, and his or her representative (assuming there is one), attend at a specially equipped hearing room in the RPD office in the city where the claim originated. (This room will be referred to in this report as the "claimant's room".) In that room they find a small table at the head of which sits a television set and a small camera. The camera sits on top of the set. The television screen itself measures 26" across and 19" up and down. The lighting in the room is the same as one finds in any office. The claimant and representative sit down facing the television set and wait.
When the television set comes on, they see typically three people on the screen: (1) the Board member who will be adjudicating the claim, (2) the Refugee Protection Officer (RPO) assigned to the case, and (3) the interpreter. The member is seen sitting fairly deep within the screen, behind the "bench", as he or she would be in a traditional in-person hearing. The RPO and the interpreter are sitting closer to the camera on either side of a short table running from the front of the bench towards the camera.
The member, interpreter and RPO are being televised from an RPD office in another city in a similarly equipped special hearing room (referred to in this report as the "member's room"). Here too the lighting is standard office lighting. What the member, RPO and interpreter see on their screen are the claimant and representative (if there is one) sitting at a small table. The claimant is usually sitting at the far end of the table facing the camera directly, with the representative sitting at the side of the table. There is, however, no firm rule as to where claimants are to sit, and they may choose to sit at the side of the table opposite their representative. The member may also direct them to sit in the location that he or she thinks is likely to be most conducive to observing them.
The cameras in each room can be remotely adjusted to shift the direction in which they are pointing and each has a zoom feature. The remote control for turning the cameras on or off, adjusting their direction and zooming in or out - a remote control resembling a standard television remote control - is on the bench beside the member. Thus whether the zoom feature is utilized at any time in either room is in the member's discretion. Typically, the camera direction or focus in the member's room is not adjusted during the hearing so that the picture seen by the claimant and representative in the claimant's room remains constant throughout. In the claimant's room, however, the member may from time to time use the zoom feature to focus the camera more closely on the claimant, or on whomever may be speaking. When that occurs the representative is excluded from the picture. However, not all members use the zoom feature. It is not unusual for the camera in the claimant's room to be left throughout the hearing in one position with both the claimant and the representative visible on the screen.
In the member's room, there is also a small "feedback" screen sitting out of camera range on the member's bench in which the member can see the picture of the member's room that is being transmitted to the claimant's room. In Edmonton and Winnipeg, the claimant's rooms also have feedback screens showing what is being seen on the screen in the member's room. So, in Edmonton or Winnipeg, when the member zooms in for a close-up look at the claimant, claimant and counsel can see that happening on the feedback screen. There are, however, no feedback screens in the Toronto hearing rooms.
The microphone in the claimant's room is a multidirectional microphone sitting in the center of the table and it is turned on and off by a button on the microphone. Thus the claimant or his representative control the audio portion of the proceedings coming from their room. The member may also moot the sound emanating from the member's room. (When the sound is off in either room a symbol appears on the screen confirming that to be the case.) In the member's room, in addition to the multidirectional microphone, there are three traditional table microphones sitting in front of the member, RPO and interpreter respectively.
The hearing starts when the screen in the claimant's room comes to life and the board member appears on the screen and begins to speak. The member commences the hearing in the same way that an in-person hearing would be commenced. There may or may not be some added explanation about the video equipment and how it will be used. The hearing then continues with the same structure and procedures of an in-person hearing. The video part of the hearing is not taped. Accordingly, like other hearings, the only "transcript" available after the hearing is that which is made from the audio tape. (It is not, however, clear whether counsel and their clients are necessarily aware of this policy.)
Only a relatively small percentage of refugee hearings are videoconferenced. Of the 23,302 refugee hearings completed by the RPD Division between September 2003 and August 2004, only 1,060 (4.5%) were videoconferenced. The percentage is higher in some particular locations, most notably in Toronto, Edmonton and Winnipeg where the percentages appear to be in the order, respectively, of 10%, 15% and 22%.Note 2
The Refugee Protection Division's (RPD) Policy Statement concerning the transfer of files for videoconferenced hearings is Policy No. 2004-01 dated June 28, 2004. While this Policy Statement is recent, it reflects the policy the Board has followed since the general initiation of the use of videoconferencing in refugee hearings in Toronto in the summer of 2003. It provides for the transfer of files and the assignment of cases to videoconferenced hearings on the RPD's own initiative and "in accordance with operational requirements". The policy is to be implemented "where a disproportionate share of the RPD's workload is found in one or more regions/districts, and there are resource capacities in other IRB offices that have previously dealt with claims from the same source countries".
The Board does not consider all refugee claims to be appropriate for videoconferencing. The policy statement specifically identifies the following cases as inappropriate:
those involving unaccompanied minors or other persons who, in the opinion of the RPD, may be unable to appreciate the nature of the proceedings; those involving detained persons (priority processing); and those likely to present a significant degree of case complexity.
Of the cases likely to present a significant degree of complexity, the Policy identifies particularly those in which the Minister's counsel is intervening and participating at the hearing in person, or where a large number of persons will be participating.
The fact that a claimant is unrepresented is not of itself a reason to exclude the case from the videoconferencing policy. Ten % of the Toronto cases transferred for videoconferenced hearings involve unrepresented claimants.
While the transfer of a case and its designation for videoconferencing takes place on the initiative of the Board, the policy allows for applications on behalf of a claimant to have a case that has been selected for videoconferencing re-assigned for an in-person hearing on the grounds that there are special circumstances that make an in-person hearing more appropriate. Also, the board member to whom the case is assigned may also decide on his or her own initiative that this is not a case that is appropriate for a videoconferenced hearing. However, while no data has been provided on this point, the anecdotal evidence suggests that such re-assignments are rare.Note 3
The use of videoconferencing for refugee hearings has been the subject of criticism from immigration and refugee lawyers and consultants, and from refugee advocacy organizations.Note 4
In the spring of 2004, the IRB decided that it was time for a critical review of the videoconferencing of refugee hearings and the author of this report, S. Ronald Ellis, was asked to do that review.
This report describes the review mandate, the author's qualifications, how the review was conducted, the information the author considered, his analysis of that information, the conclusions he came to, and his recommendations.
THE REVIEW MANDATE
The review mandate was defined in the following terms.
To review the Board's use of videoconferencing in refugee hearings for the purpose of assessing the impact the technology may have on the fairness of the hearings and whether the practice maintains an appropriate balance between fairness and efficiency.
It will be noted that the mandate does not include consideration of the legal question as to whether the use of videoconferencing is compatible in a technical sense with the common law requirements of procedural fairness or with the Canadian Bill of Rights or the Charter. The question on which the Audit and Evaluation Committee was interested in having an administrative tribunal expert's disinterested opinion was whether in terms of a reasonable balance between fairness and efficiency the use of videoconferencing in refugee hearings could be said to be appropriate.
As far as the legal question is concerned, there are recent jurisprudential and other indications that the videoconferencing of testimony in adjudicative proceedings is no longer a stranger to Canadian law.
Of direct relevance to the author's mandate is section 164 of the Immigration and Refugee Protection Act that now provides:
"Where a hearing is held by a Division, it may, in the Division's discretion, be conducted in the presence of, or by a means of live telecommunication with the person who is the subject of the proceedings."
See also the Federal Court decision in Gonzales (see footnote 3 above).
It may also be noted that the Criminal Code now makes explicit provision for videoconferenced testimony from witnesses. Section 714.1 authorizes a court to "order that a witness in Canada give evidence by means of technology that "permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances".
Applications under the latter provision were heard by the Alberta Court of Queen's Bench in R.v. Dix,  A.J.No. 486, and by the Saskatchewan Court of Queen's Bench in R.v. Young,  S.J.No. 590. The applications were approved in the former case and the use of videoconferenced testimony was found not to be appropriate under the circumstance pertaining in the latter case. In neither case, was the actual quality of the videoconferencing an issue. The Court in Dix merely observed that it understood that the technology would permit the witness to be seen and heard in her location and the witness to see and hear the courtroom proceedings and the questioning by counsel. In both cases, it was the testimony of witnesses - not the accused - that were in issue and one expects that the Code's reference to the testimony of witnesses "in the virtual presence of the parties and the courts", was not intended to encompass the "virtual presence" of a party, which is to say of the accused.
The B.C. Supreme Court has had two occasions to experience hearing witness testimony via videoconferencing. In 2003, in R.v. GibsonNote 5, the Court described the experience in these terms:
"[video link] … was entirely acceptable. I could clearly see and observe the witness, …, including her facial expressions and body language. In fact, I would say that a well-placed camera may accentuate the expressions of a witness under cross-examination." … on balance I am satisfied that the use of video technology will not preclude a fair trial and will not in any way impede the right to make full answer and defence."
This view confirmed an earlier observation by the same Court in Bradleyv. BradleyNote 6:
"[videoconferencing] … had all the features of evidence given in court except for the actual presence of the witness." "There was nothing about the manner in which the witnesses testified that suggested that the remote location of the court and the mode by which the evidence was being taken had any influence upon them. They were cross-examined to good, and sometimes telling, effect. It was difficult to see how further cross-examination in the presence of the court would have made a material difference."
The Yukon Territorial Court has also had occasion to experience the receipt of videoconferenced testimony, and found "no difficulties that would breach any principle of fundamental justice". Indeed, in its view, "the use of video testimony enhanced the capacity of the court to evaluate testimony".Note 7
However, it is apparent that the legal issues concerning the RPD's use of videoconferencing have not yet been finally settled. In the recent decision of the Federal Court in Lazo, Sixto Edgar Salinas v.M.C.I.Note 8, a refugee claimant applied to the Court for an order staying his hearing proceedings where the hearing was to be conducted via videoconference. He argued that credibility cannot be fairly assessed in such a hearing and so it was incompatible with the requirements of the Charter and Bill of Rights. The Court rejected the application but only on the grounds that the application was premature since the issue of procedural fairness could be raised after the RPD rendered a final decision.
It should also, perhaps, be noted that in the BC and Yukon cases in which the hearing of testimony via videoconferencing was referred to favourably by the courts, the testimony in question was the testimony of witnesses, not of parties with a stake in the outcome.
THE AUTHOR'S QUALIFICATIONS
The author's qualifications do not include subject-specific expertise or experience in the field of immigration or refugee law or procedure. Neither do they include any prior experience with the videoconferencing of hearings. The author understands that he was retained to conduct this review principally because of his expertise in the design and management of administrative tribunals and his experience both as an administrative-law counsel and as an administrative-tribunal adjudicator."
THE REVIEW METHODOLOGY
1. Orienting the Author
The author met with RPD managers at the end of June 2004. At that meeting, he was briefed about the RPD's videoconferencing policy and the value of the videoconferencing strategy from the Board's management perspective. He was also informed of the general nature of the complaints the Board was receiving concerning this policy.
Subsequently, the author met with in Toronto with David Vinokur, Senior Counsel,Legal Services, Immigration and Refugee Board, for a briefing on the Immigration and Refugee Protection Act as it applies to refugee claims, and on the legal and factual issues that typically arise in refugee hearings.
Then, to see how a regular refugee hearing was typically structured, the author sat in on one traditional, in-person refugee hearing in Toronto.
2. The Author's Personal Observation of the Use of VideoConferencing in Refugee Hearings
The author has observed approximately ten hours of videoconferenced refugee hearings. He attended in the claimant's hearing rooms at 505 University Avenue in Toronto and observed two hearings from that perspective. In both cases, the member's hearing room was located in Montreal. He also attended in member's hearing rooms in Montreal and observed two hearings from that perspective. In both of the latter cases, the claimant's hearing rooms were also located in Toronto at 505 University Avenue. These observations were arranged by the Board and were, of course, conducted with the consent of the claimants, their counsel and of the presiding Board members.
More opportunities than this to personally observe videoconferencing in action were offered by the Board, but it was the author's view that additional personal observations were not necessary. Without actually stepping into the shoes of counsel and of a member in numerous cases - which was obviously not a practicable proposition - there was clearly a limit to what it was possible to learn from mere observation.
3. The Author's Confidential Interviews of Counsel
The author thought it would be important to talk personally, on a confidential basis with a number of counsel with significant experience in acting for refugee claimant's in videoconferenced hearings. Accordingly, at his request, the Board compiled a list of all representatives who had acted for a refugee claimant in a videoconferenced hearing in at least ten cases over the past two years. That list contained 24 names and from that list the author randomly selected and interviewed 14.Note 9
4. Confidential On-line Survey of Board Members
It seemed to the author that another obviously important source of information about the relative viability and appropriateness of videoconferenced hearings would be RPD panel members who had had significant experience of presiding over both in-person and videoconferenced refugee hearings. Accordingly, at his request, the Board identified the 53 Board members who had presided over at least ten videoconferenced hearings and they were individually invited by the author - by e-mail message - to participate in an on-line survey on the understanding that they would be participating anonymously and their answers to the survey would not be attributable to them.
The survey was bilingual, and included a mix of multiple-choice, short response and open-ended questions. It was administered by an outside consultant - Intersol, and their representative Lise Hebabi - and utilized Intersol's proprietary survey software. The substance of the questions originated with the author but the survey was designed by Intersol. The survey was available on-line with password-protected access from September 2 to September 27, 2004.
5. Confidential On-line Survey of Refugee Protection Officers
Another set of inherently interesting expert witnesses to the efficacy or otherwise of videoconferenced hearings is, of course, the RPOs. They not only have the experience of functioning themselves through the mediation of the camera and video screen in their questioning of the claimant, but they also have a uniquely informed vantage point from which to observe the functioning in that environment of members, claimants, representatives and interpreters and to compare that functioning with what they are used to seeing in in-person hearings.
The Board identified the 43 RPOs who had the experience of participating in at least ten videoconferenced hearings and through e-mail messaging they were each invited by the author to participate in the same on-line survey as was offered the members, with the same guarantees of anonymity and non-attribution of their answers.
6. Confidential On-Line Survey of Interpreters
Interpreters are another category of hearing participants whose perspective on the merits of videoconferenced refugee hearings as compared to in-person hearings seemed to the author to be inherently important.
The 51 interpreters who had participated in at least 10 videoconferenced hearings were identified by the IRB and invited to participate by a printed letter from the author that explained the purpose of the review, guaranteed anonymity and non-attribution of answers. The letters also contained information on how to access the on-line survey through their Web browser. Follow-up calls were made to each of the invited interpreters by Board staff to ensure that they were aware of the password. The survey was the same one offered to the members and RPOs and was available on-line during the same four weeks in September.
7. The Decision not to Survey Refugee Claimants Themselves
Once we had decided to explore the individual opinions of various categories of participants in the hearing environment, the Board raised the question as to whether the claimants themselves should not be asked about their experiences. This seems on the surface to be an obvious strategy. Where the issue is the relative fairness of a videoconferenced hearing, what could be more relevant than the impressions the claimants had of the fairness of the hearings they personally experienced?
However, the author advised the Board against such an attempt at this time. Because of the inherent importance of this question, the author's reasons for that advice, as set out in an e-mail message to the Board's project manager on August 10, 2004, are set out here in full:
"I do not think that including refugee claimants in a focus group [the original thought was that this consultation with claimants might be accomplished through a focus group technique] is likely to produce useful evidence. My reasons are as follows:
- They will presumably have very little experience with the use of video in a hearing - typically on only one or two occasions. They will also not have had their claim heard through both a video hearing and a normal hearing and so will typically have nothing to which to compare their video experience. In these circumstances, one would not know whether the negative experience (assuming that was a claimant's response) was attributable to the video, or merely to the style of the particular panel's conduct of the hearing, or to a natural first reaction to a formal hearing environment under stressful circumstances, or to the influence of their representative's views on video hearings, etc.
- It would be difficult, in my view, without extensive and careful questioning, to separate out a claimant's response to the use of video from his or her experience in winning or losing. The losers in particular may be counted on to be generally negative about the experience and their opinion of the use of video will be seen to be so influenced by that negativety (sic) (whether it is or not) as to destroy its weight as useful evidence. The opinion of winners might be more significant but in terms of value to an objective assessment it too will be questionable.
- It seems likely that finding and gaining the co-operation of claimants in participating in a focus group will be disproportionately successful with winners than with losers, thus destroying the representative nature of the sample.
- It seems to me that claimants approached to participate in a focus group are likely to consult their representatives beforehand and one could not be confident as to the extent to which their expressed opinions had been influenced by their representative.
A survey - as opposed to a focus group - could be designed to produce useful results, but it would be a sophisticated and extensive - and expensive project. A survey that simply asked claimants with experience of a video-conferenced hearing what they thought of that experience would suffer from the same problems as having claimants participate in a focus group. To be potentially useful, such a survey would have to survey samples of an equal number of claimants whose hearing was of the normal variety and of claimants with comparable characteristics whose hearings utilized the video conferencing, and would explore the quality of the hearing experience of each sample relative to a number of selected criteria, such as level of comfort, their perception of the fairness of their hearing, the extent to which they felt they were able to communicate their story, the perception as to whether the panel members were listening to them, etc.
The questions would not advert to the use of the videoconferencing per se. The goal would be to compare the qualities of the hearing experience of the two samples, and if the data from the sample whose hearings were in fact of the VC variety evidenced a significantly lower - or higher - quality of experience then we would have something useful.
But it would be a major project. The sample selection criteria would have to be carefully considered. To be validly comparable, both samples would have to have claimants with an equal range of inherent difficulties in their case, with a similar range of age, and ethnic and gender diversity, with a similar range of education levels and English (or French) language capabilities or non-capabilities - ideally with the same representatives, the same adjudicators and, possibly, interpreters. And the problem of recruiting losing claimants to the samples would be the same as for the focus groups so that to build samples with a sufficient number of losing claimants would be difficult. Then there would be the difficulty of doing this survey utilizing interpreters - and having to judge what influence the interpreters may be having on the respondents' understanding of the questions, and on the surveyor's understanding of the responses.
All in all, I do not think that it is a viable project. Certainly, it could not be accomplished inside several months.Note 10
8. Review of Refugee Advocacy Organizations' Views
The Board provided a copy of a letter dated 6 October 2003 written to the Chairperson of the IRB from the Canadian Council of Refugees (the "Council") bringing to the Chairperson's attention the Council's "serious concerns over the use by the Immigration and Refugee Board of videoconferencing technology for refugee claim hearings", together with the Chairperson's letter in response dated November 5, 2003. The Council's letter had enclosed two earlier documents: a November 1998 formal resolution by the Council calling upon the Board to "immediately stop the use of video-conferencing for the conduct of refugee claim hearings and detention reviews"; and a set of extensive written "Comments on Draft Policy on Use of Video Conferencing by the IRB", dated 31 August 1999. The Board also provided the author with copies of both of the latter two documents. The author has carefully reviewed all four of these documents.
The author has also had a 40-minute telephone interview with the President of the Refugee Lawyers Association of OntarioNote 11.
9. Consultation with Academics in the Field of Communications
At the Board's suggestion, three academics working in the field of communications were consulted: Mark Federman, Chief Strategist, McLuhan Management Studies, McLuhan Program in Culture and Technology at the University of Toronto; Doctor Martine Lagacé, a social psychologist on the Faculty of the University of Ottawa, whose research expertise touches upon the psychology of communication, specifically in the context of interpersonal and organizational communication; and Professor Liora Salter, FRSC, sociologist and Director of Graduate Studies at Osgoode Hall Law School, York University. Professor Salter is cross-appointed at York University to the Faculties of Osgoode Hall Law School and Environmental Studies. She is, as well, an Adjunct Professor at the Institute for the History and Philosophy of Science and Technology at the University of Toronto. Professor's Salter's field of study is sociology and law with a special interest in the science of communication in those fields. Her current project in the field of communication is a book she is about to publish entitled "Plainspeak: Getting Legal and Scientific Information into the Hands of the Public".
For convenience, these three academic experts are referred to collectively in this report as "the scientists".
Each of the scientists was asked by the author to conduct a literature search of their respective fields and to bring to his attention studies and reports that in their view were of particular relevance and value on the video-conferencing issues. The author also met with them on an individual basis and each provided a short written summary of their analysis of the literature and its import and their views concerning the use of videoconferencing in refugee hearings. Copies of their full reports together with detailed resumés will be found in the Board's files.
We also obtained from the National Justice Institute a copy of a December 2003 presentation to a judges' conference in Banff, Alberta, by Dr. Stephen Porter of the Department of Psychology at Dalhousie University entitled "Issues in Credibility Assessments: The Truth About Lies" in which the role of the assessment of demeanour in determinations of credibility is examined. The NJI also provided a collection of recent judicial authority on the same subject.
10. The Experience and Practice in Other Countries
The Board conducted a survey of the use of videoconferencing in refugee hearings in a number of other countries.
11. Statistical Comparison of Results
At the author's request, the Board's statistical department did a straightforward comparative study of the percentages of wins and losses in refugee claims that were decided through in-person hearings and the percentage of wins and losses in refugee claims decided through videoconferenced hearings.
THE DATA AND INFORMATION COLLECTED
In this Section of the Report the reader will find, amongst other things, an extensive report of what the author derived from his interviews with counsel, and an equally extensive report of what was found in the responses of Board members, RPOs and interpreters to the On-Line Surveys. The author found the detail of these interviews and responses important to the development of his understanding of the breadth of the issues, and offers that detail here in order to give the interested reader the same opportunity.
1. Information Derived from the Author's Telephone Interviews with Counsel
As mentioned above, the author (and from here on, for easier reading, I will refer to myself in the informal first-person) conducted telephone interviews with 14 lawyers or consultants (referred to here for convenience as "counsel" or "respondents") who, according to the Board's records, had participated in 10 or more videoconferenced refugee hearings over the preceding two years.Note 12 Twenty of the individuals in the Board's list of all counsel who, the Board's records showed, had experienced as counsel at least 10 videoconferenced hearings practised in the Toronto area, and two practiced in each of Winnipeg and Edmonton. No counsel practising in locations other than Toronto, Winnipeg and Edmonton met the criteria.
For the first round of interviews, I arbitrarily selected every second name on the Toronto list, and both of the names on the Winnipeg and Edmonton List. My intent was to complete that first round and then consider in the light of the results of those interviews whether extending the interviews to other names on the list would be advisable. In the first round, two of those selected turned out not to be available and two further names from the Toronto list were added, this time selected on the basis of the need to help with the gender balance. Ultimately, I interviewed 14 counsel - 10 from the Toronto area, two from Winnipeg and two from Edmonton. None of the counsel interviewed were previously known to me (except for one who reminded me during the interview that he had been in my contracts class at Osgoode, circa 1978). Since the interviews of these 14 respondents did not disclose wide variations in views, I concluded at the end of those interviews that nothing would be gained by extending the interviews to more of the Toronto counsel.
The preponderance of Toronto counsel in videoconferenced hearings was not unexpected as it is known that the bulk of the refugee claims that have been heard in video-conferenced hearings were originally filed in Toronto.
Each counsel's co-operation was solicited through a letter from me e-mailed by the Board on my behalf. The letter explained my terms of reference, enclosed a copy of my professional biography and a set of the questions that I would be asking during the interview, and gave assurances that their participation in the interviews would be on an anonymous and non-attributable basis. The Board staff administered the appointments schedule.
It may be noted that there was no element of self-selection in this group. Each of the counsel selected to be interviewed agreed to participate.
The interview questions read as follows. They are in substance the same questions that were used in the surveys of the members, RPOs and interpreters.
Questions for the Interview
- In what capacity do you attend refugee hearings?
- In approximately how many refugee hearings have you participated in the last two years?
- Please select all location pairs in which you have experienced a video-conferenced refugee hearing in the past two years.
- Where were you typically located when you experienced video-conferenced refugee hearings?
- How much experience have you had with video conferencing in other contexts?
- Since September 2003, the IRB has been upgrading the video conferencing technology in some locations. Have you noticed any difference in the quality of video-conferenced refugee hearings since then?
- If you feel that quality has improved, what do you see to be the major improvements?
- If you feel that quality has deteriorated, what new problems or issues have emerged?
- What do you see to be the principal advantages and strengths of video-conferenced refugee hearings as compared to the IRB's traditional style of hearings?
- What do you see to be the principal disadvantages and weaknesses of video-conferenced refugee hearings as compared to the IRB's traditional style of hearings?
- Comparing your experience of vide-oconferenced hearings with traditional face-to-face IRB hearings, what is your personal level of confidence in the soundness of decisions?Note 13
- As you may know, the use of video-conferenced hearings by the IRB in non-refugee cases has been a relatively common practice for a number of years. That practice has traditionally not attracted much criticism or controversy. In your opinion, is there something unique about refugee hearings that present special challenges in a video-conferenced hearing environment?
- If it were decided that video conferencing in refugee hearings was here to stay and you were somehow given the personal responsibility for putting that technology to the best use, what adjustments if any would you make to the existing protocols and arrangements?
- Do you have any comments on the questions?
- Is there anything you'd like to say that I haven't asked you about?
If something else comes to mind after the conversation, please feel free to contact me at [the author's telephone number].
The interviews commenced when I telephoned the selected counsel at the agreed time, introduced myself and described what I proposed to do during the interview.
I took detailed written notes during the course of the interview and then personally transcribed those written notes into typed text. The typed transcripts were made immediately following completion of the interview. They are not just copies of the written notes, but are a somewhat fuller and more polished rendition of the interview reflected in the notes. Copies of the interview transcripts have been delivered to the Board.
The answers to Questions 2, 3 and 4 provided the following data. The estimates of the 10 Toronto respondents' as to the total number of refugee hearings they had individually participated in over the preceding two years added up to 3,163, of which they thought 306 had been videoconferenced - roughly 10%. The estimates of Winnipeg's two respondents as to their number of refugee hearings totaled 180 of which 40 were thought to have been videoconferenced - roughly 22%. Coincidentally, Edmonton respondents' estimates of the number of their hearings also totaled 180, of which 25 were videoconferenced - roughly 15%.
Of course, these numbers are far from being precise. The respondents were not working from records and were simply asked for their best "ball park" estimates. Moreover, too much should not be read into the percentages. They reflect an average estimated proportion over the course of a two-year period, and cannot be said to necessarily reflect the current rate at which refugee hearings are being videoconferenced. Moreover, the numbers take no account of the number of cases in which the claimant was not represented. However, I am not aware of anything that would suggest that the proportion of hearings being transferred for videoconferencing is currently changing, and, as will have been seen above, the proportion of unrepresented claims in Toronto that were sent to videoconferenced hearings over the past year was also 10%.
During the videoconferenced hearings, all of the respondents always attended the hearing with their clients in the claimants' rooms in the their home cities of Toronto, Winnipeg or Edmonton. However, the location of the member's room varied. In Toronto, the respondents' best individual recollections indicate that Montreal was the location of the member's room in 80% of the videoconferenced hearings, with Calgary being the next in line at about 15%, Vancouver in third place with about 5% and Ottawa being the member's location in only 2 instances.
In Winnipeg, the corresponding figures were: Calgary 78%, Montreal 13%, and Vancouver, 10%; and in Edmonton: Calgary 91% and Montreal 9% (in fact only 2 cases).
The respondents' experience with videoconferencing in contexts other than refugee hearings (Question 5) proved to be largely confined to the use of videoconferencing by the IRB in detention reviews. With one exception everyone had substantial experience with videoconferencing in that setting. The other contexts mentioned were "admissibility hearings" (1 respondent), immigration appeal hearings (1), remand hearings in criminal law matters (1), bail hearings (also in a criminal law context) (1), and IRB education meetings (1).
My early concern that improvements in the quality of the videoconferencing technology that the Board began introducing in some locations in September 2003 might be a confounding factor in assessing the significance of the respondents' reported experiences (which was the reason for Question 6) proved not to be well founded. Nine of the 14 respondents reported noticing no change in the technology during their experience of it. Four had noticed the introduction of improved equipment - clearer picture, better audio, improved synchronization between audio and picture - but it was clear that in responding to my questions they were directing their answers to their experience with the new equipment. The remaining two also reported not noticing any change in the equipment but remarked on what they saw to be the IRB members' growing facility and comfort in the use of the equipment.
The answers to Questions 7 and 8 are covered in the foregoing paragraph.
Question 9 asked the respondents for their views on the advantages of the use of videoconferencing in refugee hearings as compared to in-person hearings. The immediate and emphatic answer from 13 of the 14 was "none" or "zero". And it was not that the lone dissenter approved of the use of videoconferencing in refugee hearings, it was just that he saw some marginal advantages, including some personal advantages related to the administration of his (or her) practice. There was, however, general recognition that videoconferencing was certainly advantageous to the Board from an efficiency point of view, and about half of the respondents acknowledged that if video conferencing were the essential prerequisite for earlier hearings, that would be something to say for it. This group, however, did not concede that there was, in point of fact, no other way to achieve earlier hearings and felt that other options should have been pursued.
Question 10 provided the respondents with the opportunity to describe what they saw to be the disadvantages and weaknesses of videoconferenced refugee hearings. And here the respondents were quite vocal in their responses. In those responses one finds all of the various issues presented in one form or another. I have organized these responses into "major themes" and "additional issues".
- Eleven of the 14 respondents spoke strongly and directly about the problem of assessing credibility. Credibility, they pointed out, is a major issue in most refugee hearings and is inherently especially difficult to assess because of the cultural and language differences and the stress under which claimants testify. They were convinced that a Board member's assessment of a claimant's credibility - and the credibility of other witnesses - must be significantly hampered by the member being only able to watch the claimant or witness on the screen. As one put it: "I have had a number of cases that I lost that I believe strongly would have succeeded in an in-person hearing, and a number that I won and am frank to say might not have succeeded in an in-person hearing."
The Toronto respondents in particular believe that the members cannot see the faces of claimants or witnesses clearly, cannot look in the claimant's eyes, cannot see facial reactions, or other traditional credibility clues or nuances of the claimant's or witness's demeanor. (I say "believe" because, without a feedback screen in Toronto, these counsel can only judge what the Board member must be seeing of their client by the assumption that it is the same as what they, the counsel, see of the Board member. It turns out, as we will see, that this is often a mistaken assumption.)
One respondent recounts the experience of being in a series of detention hearings involving a particular client and viewing the client on the screen (in most detention hearings the counsel is in the same location as the member and the client is alone in the remote location). During those hearings, over the course of many hours, her own impression of her own client whom she had not otherwise met, was that he was a "strange fellow", "kind of an artifact on the screen", "with rough edges" probably, indeed, "a bit dangerous". Then circumstances conspired to have an in-person detention hearing where another member and the counsel ended up dealing face-to-face with the same person in a small room. In this setting, the client proved very "apprehendable and approachable", and "this time he was released."
One respondent, who claimed not to be "a fanatic on the subject" ("It isn't", he (or she) said, "that I can't stand it"), nevertheless held the view that credibility is important and the "artificial shield [of the video screen] makes its assessment more difficult".
In the view of these 14 respondents, the consequences of a wrong credibility call are potentially so significant in refugee cases that any technology that clearly hinders credibility assessments should not be used.
- Half of the respondents took strong exception to videoconferencing because of its impersonal nature. It is, they said in various ways, a mechanical, impersonal process and, for claimants who come with horrific, life experiences and difficult and compelling stories to tell and with their future - and sometimes their very lives - at stake, it is "demeaning and degrading".
The following particular responses capture the feelings on this issue: "The deep impersonalization of the hearing environment is the main problem"; [It is] "unconscionable that claimants have no direct personal contact with the persons deciding their fate"; "The member sits behind the video shield and there is no sort of personal dynamics [possible]"; "If a member is [not empathetic] to the claimant, the lack of personal contact in a video conference makes it too easy to maintain that attitude"; "The video makes it too easy to be mean"; "One member often renders negative decisions from the bench and then ‘click' she's gone"; "clients want to project their feelings and [faced with talking to the video screen] don't feel they can".
- Ten of the respondents identified as a major problem the fact that the interpreter was at the remote location with the Board member. (One respondent volunteered that this had not proven to be a problem.)
A number of aspects of this problem were identified. First, there is, it was said, no possibility of any personal dynamics between the interpreter and the claimant - no opportunity, while waiting for the hearing to commence or during breaks, for the claimant and interpreter to talk together. These are conversations that in the respondents' experiences have traditionally contributed importantly to a claimant's comfort both with the interpreter and with the hearing environment generally.
Also, with the interpreters at the remote location, the respondents find that the co-ordination of the testimony and the translation is significantly more difficult. With the interpreter sitting beside the claimant - or other witnesses - in an in-person hearing, a touch on the arm will quietly signal the need for the claimant to pause and wait for the translation. When the interpreter is located in the member's room, similar non-intrusive control is not possible.
There were also a number of mentions of the difficulties presented when the need arises for the translation of documents that are in the claimant's room when the interpreter is not present in that room.
Also, without the interpreter in the room beside the claimant it is impossible to conduct "simultaneous translations" - that is, a quiet running explanation by the interpreter for the claimant's ear only as to what is being said by the various participants. It appears that this is not a technique with which all the respondents are familiar - or use - but two respondents referred to the use of this technique while they delivered their final submissions as a means of not having their delivery hindered by frequent stops to allow for the translation - interruptions which they regarded as disrupting the flow and, therefore, the effectiveness of the submissions.
- Ten of the respondents mentioned the negative impact of videoconferencing on both their client's interaction and their own interaction with the presiding Board member.
They pointed out that one cannot see the member's eyes and often cannot see much of their facial features, so that gauging the member's reaction to testimony and/or submissions is difficult. One respondent put it this way: "The members on the screen are just little stick figures. I do not know them, I can't see their reactions". Another said: "this amounts to just an audio hearing - I can't see the member and I don't believe that he can see the claimant". Another: "I couldn't get a sense of who he was - just a small figure on a small screen". And another: "Not only does the member need to see my client, I and my client need to see the member."
When the Board member is a black person, the lighting is such that it is apparently literally impossible to see his or her face at all. Two respondents mentioned the latter particular experience. (And they took from that experience the inference that when their clients were also from the black community their faces too would not be seen at all by the members.Note 14)
Also, the inability to interact informally with the member in off-the-record moments, when the hearing is breaking for lunch or at other times, etc., was mentioned by five respondents as something they thought was often important to the smooth and efficient progress of a hearing and which was entirely missing in a videoconferenced hearing.
Two respondents made the additional point that the use of video conferencing meant that they were always dealing with members who they did not know and who did not know them. Thus a counsel's normal ability to develop over time a working relationship with members in which both sides know the other's style and characteristics, know what to expect, etc., went for naught in a video conference with members from another city. One example of this that was cited was when a member discourages claimant or counsel from pursuing a particular part of the claimant's story. If one knows the member, one can tell whether that means that the member accepts that part of the story. However, if one does not know the member, experience suggests that one cannot safely make that assumption.
One respondent offered: "What I miss most is the rapport with the Board members".
- Eight of the respondents commented on the fact that clients specifically told them that they did not like the video conferencing, that it obviously caused them additional stress and anxiety. "Most clients are scared of the camera." One example provided was that of an English-speaking client who was a refugee claimant who had been a journalist in his home country and was experienced with the judicial processes in that country. He was "appalled" by the videoconferenced hearing.
- Five respondents reported that they regularly experienced technical problems -- blurry pictures; is the audio on or off? (confidential chat between counsel and client being overheard); pictures being cut off or freezing in mid-hearing; audio feedback from time to time so that one hears oneself speaking after the words have actually been spoken; difficulty in turning the equipment on; hearings canceled because the equipment can't be made to work. One respondent estimated that in nearly 40% of videoconferenced hearings in which he (or she) participated there were long delays or cancellations because of equipment difficulty. Another put that estimate at 10%. However, the majority of respondents do not report having these kinds of difficulties.
- The handling of documents during the hearing was seen as a "big problem" by four of the respondents. This occurred whenever it happened that there were documents produced by the claimant at the last minute and thus present in the claimant's room but not in the member's room. This, it appears, is not an uncommon experience. There are facilities for faxing documents to the member's room in the remote location - and in some locations "scanning" equipment - but this equipment does not always work well. For instance, some identification papers are designed not to be copied and so cannot be faxed. And where the fax works it, often takes 30 minutes or so for the faxed document to make its way into the member's hands. The nature of the problem was illustrated by one respondent's description of a situation in which the document was held up directly in front of the camera in the hope that the interpreter in the other city would be able to make it out in that fashion.
- The added complication in the administration of a respondent's hectic practice by his or her office having to make timely filing of documents via mail to the different remote locations -- i.e., from Toronto to Vancouver, Toronto to Calgary.
- The logistical and administrative problems created by the time-zone differences between the location of the claimant's room and the member's room was mentioned by two respondents. If a Toronto case is heard in Calgary or Vancouver, it will typically start at three or 4 p.m. Toronto time and will end sometime in the late evening. Respondents report finding themselves and their clients participating in the hearing while all alone in the Board's now vacant Toronto premises without the protection of the special security-or medical-emergency arrangements normally available during regular hours, and having to exit a darkened and locked building when the hearing ends.
- Two respondents mentioned the problem that the member viewing the claimant's room from the remote location does not have control of the hearing room where the testimony is being given. Examples were cited of family members, off camera, coaching the claimant without the member being aware of this. In two separate cases, claimant's children were observed holding up answers written on a pad of paper. The respondents try to deal with this themselves, but find it awkward and stressful to be in the position of representing the client on one hand and disciplining the hearing room on the other.
- Two respondents took strong exception to the absence of any official Board presence in the claimant's room at the outset of the hearing. The claimant, they complained, is directed to a hearing room and there is no one there in an official capacity to receive him or her, to explain what is about to happen, to turn the equipment on or to say how it will work, to offer assistance if anything goes wrong, to introduce the Board member who will hear the case - to warrant, in fact, that this is, indeed, an official IRB proceeding. Very often, they report, the hearing does not start on time, and all the claimant and his or her representative know is that the screen is blank. They sit there for 20 or 30 minutes. Nothing happens. No one comes to say what is wrong. Eventually counsel places a long-distance call to the duty desk in Montreal: "Is the hearing proceeding?" "Are we in the right place?" "When will it start?" and so on. In Toronto, respondents have been told that the Board receptionists have no time to help with these inquiries.
- Is there a security problem? One respondent reported having concerns as to whether claimants can be assured that in these hearings, broadcast via satellite, testimony that is often of a very private and sometime dangerous nature will not be picked up by unauthorized persons.
In Question 11 respondents were asked how they would compare their level of confidence in the soundness of the ultimate decision between decisions arrived at through a videoconferenced hearing, and those arrived at through a traditional, in-person hearing, and were asked to choose one of the following answers: "Much higher in video hearings", "Higher in video hearings", "No difference", "Higher in in-person hearings", or "Much Higher" in in-person hearings. Six respondents chose "much higher" in in-person hearings. Five selected "higher" in in-person hearings. One said somewhere between higher and much higher in in-person hearings, and two said "it depends" - it depends on the quality of the member. If a member is a highly competent and dedicated adjudicator, probably, the two respondents thought, he or she would be able to overcome the obstacles presented by the video, so there would likely be no difference in the outcome. If the member is not such a good adjudicator, then the likelihood of the outcome being a sound one would be "much higher" with an in-person hearing.
None of the respondents believed that videoconferencing would justify a higher level of confidence in the soundness of the decision or that there was no difference in their level of confidence as between videoconferenced and in-person hearings.
Question 12 addressed the Board's impression that the use of videoconferencing in non-refugee cases, which has been a common practice for a number of years, had not attracted much in the way of criticism or controversy.Note 15 In view of that experience, I was interested to know what the respondents thought would account for the different reception of the use of videoconferencing in refugee hearings as compared to its use in other Board contexts.
Six of the respondents did not agree that the Board's impression was justified. According to them, the use of video in the Board's other contexts was also unfair and objectionable. It was clear, however, that even these six did not place their objection to video use in other contexts at the same level as their objection to its use in refugee hearings.
The unanimous view was that comparing refugee hearings to detention hearings and other Board hearings was like comparing apples to oranges. In the latter hearings, particularly in detention hearings, credibility was rarely an issue and the facts were rarely in dispute. Usually the claimant did not testify and it was just a matter of the claimant's representative making submissions to the member. Also, unlike detention hearings, the decision in a refugee hearing was final and the nature of the consequences of a wrong decision was at an entirely different level of seriousness. As one respondent put it, the refugee hearing is a genuine claimant's "one shot" at a life in Canada secure from the dangers at home.
It is also to be noted that in detention hearings, unlike refugee hearings, the claimant's representative is in the same room with the member, both observing the claimant on the television screen.
Question 13 asked the respondents what suggestions for improving the videoconferencing of refugee hearings they would have if the use of that technology was to continue and they were given the chance to say how it might be improved. There was a general reluctance to buy into this question because the respondents generally were not comfortable with the premise. However, while one respondent said he had no idea what to suggest, most, when pushed, had some suggestions to make.
Eight of the respondents immediate reaction was that the very first thing they would do would be to place the interpreters in the claimant's room with the claimant and the claimant's representative. One respondent would also have the RPO located in the claimant's room. Five respondents would improve the equipment: make the screens bigger, the lighting on the participants brighter, more like ordinary television. One respondent suggested putting the control of the zoom feature on the camera in the member's room in the hands of the claimant's representative so that he or she could choose to have the member in a "close-up" view on the screen. Several respondents suggested changes in the criteria for selecting a file for transfer and videoconferencing. One suggested that using video conferencing for "continuations" might be justified. She (or he) had had experience with a videoconferenced continuation following an in-person initial hearing, and the continuation hearing seemed to go well because, in his (or her) view, the member and the claimant and the representative had all had an opportunity to create some kind of personal relationship or trust in the prior in-person hearing. Others would confine the videoconferencing to expedited interviews or to pre-hearing conferences in complex cases.
Other individual suggestions included: better training of members in the use of the technology; a better explanation and introduction in the claimant's room at the outset of the hearing; not using the technology if the assigned member is inexperienced or if the claimant's representative is inexperienced; arranging it so that not more than two faces are on the screen at the same time; making sure that the original documents in the case are in the member's room and the photocopies in the claimant's room; making it a rule that in a videoconferenced hearing negative final decisions may not be delivered from the bench.
From a logistics point of view, one respondent would establish a central document filing point and give the Board the responsibility for distributing the documents to the remote locations.
Question 14 invited criticism of the questions that had been asked, and none of the respondents had any problem with the questions. Question 15 gave the respondents an opportunity to add anything that had not been covered by the questions, and the only additional point that was relevant to this review was that one respondent thought that the videoconferencing strategy lead to a marginalizing of the role of counsel in refugee hearings similar to what, in his (or her) view, was happening with the introduction of the policy of reverse-order questioning. He (or her) pointed out that for the Board member to see the claimant clearly, counsel has to be "removed from the picture", and counsel's interaction with the member is for various reasons significantly impaired.
2. Information Derived From the Confidential On-line Surveys of Board Members, Refugee Protection Officers, and Interpreters
The invitation to participate in these anonymous, on-line surveys were sent to 55 Board members, 43 RPOs and 51 interpreters. Twenty five members (45%), 16 RPOs (37%), and 17 interpreters (31%) responded. The substantive questions in the on-line questionnaires were the same for each of these groups as those I asked in my interview survey of counsel, and the participants were given the same assurances of anonymity and non-attribution of their answers.
The surveys were administered by Intersol and the results were compiled by Intersol's representative Lise Hebabi. A copy of the Intersol report which covers all three surveys may be found in the files of the IRB.
In general terms, the differences between the perceptions of the counsel as described in my report of my interviews and the perceptions of the members of all three of these groups are quite dramatic. It would be only a slight exaggeration to say that the overall view of counsel could be best captured by saying that almost all "hate it", whereas the responses from the members, RPOs, and interpreters show that in these three groups, at least a majority "like it".
In beginning a more detailed breakdown of the results of these surveys, it is of interest to note where the respondents in each of these groups are located.
Of the 25 responding Board members, 11 are in Montreal, eight are in Vancouver, five in Calgary and one in some unspecified place.
Of the 16 responding RPOs, 12 are in Montreal, three in Calgary, and one in Vancouver.
Of the 16 responding interpreters, seven are in Montreal, four in Calgary, four in Vancouver, and two in Winnipeg.
It is of interest that the responding members were for the most part very experienced adjudicators. Eighteen of the 25 had presided over more than 100 refugee hearings and five of them between 50 and 100 hearings. The remaining two had presided over more than 10 and less than 50. Their experience with videoconferenced hearings was less intense but still substantial. Five had presided in more than 50 videoconferenced hearings, and 15 between 10 and 50. The experience of five of the group was limited to less than 10 videoconferenced hearings.
The 16 RPOs were also very experienced for the most part. Eleven had participated in over 100 refugee hearings, 2 had participated in over 50 refugee hearings, one in over 10 hearings and only one in less than 10 hearings. Their experience with videoconferenced hearings was less but still quite substantial: two had participated in more than 50, nine had participated in more than 10, and five had participated in less than ten.
The experience of the 16 interpreters was comparable. Seven had interpreted in over 100 refugee hearings, three in over 50, four in more than 10, and one in less than 10. One of the interpreters did not answer this question. Their experience with videoconferenced hearings was for the most part also comparable to that of the other groups. Three had participated in over 50, six between 10 and 50 and six in less than ten.
When the Board members were asked to identify the "location pairs" between which they had experienced hearings being videoconferenced over the past two years, there were 11 hits on Toronto-Montreal, eight on Toronto-Vancouver, five on Toronto-Calgary, five on Winnipeg-Calgary, four on Edmonton-Calgary.
The experience of the 16 RPOs' was more concentrated in Toronto-Montreal hearings with 12 hits on that pairing, three on Winnipeg-Calgary, two on Toronto-Calgary and one on Toronto-Vancouver.
The experience of the 16 interpreter respondents was more evenly spread with seven hits on Toronto-Montreal, five on Toronto-Vancouver, four on Winnipeg-Calgary, three on Toronto-Calgary, and three on Edmonton-Calgary.
The responses of the 25 Board members to Question 11 which asked them to compare the level of their confidence in the ultimate soundness of their decisions as between hearings they presided over of the traditional kind and those that were videoconferenced present a particular contrast to the corresponding answers of the respondent counsel. Twenty found no difference in the level of their confidence as between the two types of hearings. Only four thought the traditional style hearing gave them a "higher" level of confidence. None of the members thought the traditional style hearing was a reason for a "much higher" level of confidence.
The 16 RPO's showed a similar level of confidence in the efficacy of the videoconferenced hearing in producing comparably sound decisions. Eleven thought there was no difference, only three thought the traditional hearing would be reason for a "higher" level of confidence. Two offered no opinion.
There was a bit more variation in the opinions of the 16 interpreters. Nine thought there would be no difference, four thought the traditional hearing would be grounds for a "higher" level of confidence as to the soundness of the decisions, and three thought that the traditional hearing would be grounds for a "much higher" level of confidence.
It may be noted that no one in any of the three groups thought that videoconferenced hearings should be regarded as a reason for having a higher confidence in the soundness of the decision, as compared to traditional, in-person hearings.
In response to Question 9 that asked the respondents to list the advantages they saw in the use of videoconferencing in refugee hearings, all three groups spoke largely with one voice. With a handful of single exceptions, the advantages they saw all related to videoconferencing as a tool that would permit more effective and efficient management of the Board's resources in various and sundry ways.
When asked to identify the disadvantages or problems associated with videoconferencing (Question 10), three members and two interpreters could think of no disadvantages worth mentioning. The disadvantages or problems listed by the other members of these three groups in response to this question can, like the comparable list derived from my interviews with counsel, be divided into two categories: major themes and additional issues.
The major themes were these:
- Problems in dealing with documents in videoconferenced hearings was the clear preoccupation of a large percentage of the respondents. Fourteen of the 25 respondent members made particular mention of this, as did six of the 16 RPOs and two of the 16 interpreters.
- Next in order of priority were the limitations perceived in the videoconferenced hearings in assessing credibility. This was referred to in various ways but they all fall into the category of problems in assessing demeanour using this technology. Eight of the members referred to this, as did four of the RPOs and three of the interpreters.
- The next problem most commonly mentioned was the impersonal, potentially alienating nature of a videoconferenced hearing. Five of the members, four of the RPOs and one of the interpreters made particular mention of this aspect of videoconferencing. This problem was thought to be especially serious in cases in which allegations of physical or sexual abuse or torture figured in the hearing.
- Five respondents - one member, one RPO and three interpreters - commented on problems associated with the interpreters not being in the same room as the claimants. Prominent amongst these was the inability to effectively control claimants who are talking too fast.
Additional issues identified in the responses to this question include:
- Technical glitches of various kinds. (4) Inadequate lighting in the Vancouver members' rooms was mentioned three times.
- The special problems presented by unrepresented claimants. (4) These four respondents were obviously of the view that videoconferencing should not be used where a claimant is unrepresented.
- Victims of physical or sexual abuse or torture may not do well testifying to a television screen. (4)
- Audio problems. (4)
- The hearings tend to take longer. (3)
- They are more fatiguing. (2)
- The logistical problems presented by the time-zone differences. (2)
- Lack of staff, technical support at the claimant's end of the hearing. (2) Toronto was seen to present a particular problem in this respect.
- The hostility videoconferencing engenders amongst particularly Toronto lawyers intrudes into and complicates the hearings. (2)
- The involvement of counsel from other provinces who are not used to the procedures and rules in the province to which the file has been transferred is sometimes a problem. (1)
- The complications in the administration of the file arising from its transfer from its original location. (1)
In response to the question as to whether there were unique aspects of refugee hearings as compared to hearings in other IRB contexts that might explain the opposition the Board encountered in the videoconferencing of refugee hearings which it did not encounter to nearly the same degree when it used that technology in those other contexts (Question 12), the Board members, RPOs and interpreters tended to think not. Twelve of the 25 members, eight of the 16 RPOs and eight of the 16 interpreters thought there was really no significant difference. These are, of course, dramatically different views from those strongly held by refugee counsel.
But by no means all respondents in these three groups saw no difference. Five members, two RPOs and one interpreter recognized that in refugee hearings credibility was usually a bigger issue; one member, four RPOs and two interpreters identified in various ways the "human factor" as being different - refugees were, for example, often dealing with a traumatic history that would not typically be a feature in other types of hearings (2); the evidence is generally more detailed (1); and the documentation is often more complex (1).
Question 13 asked the respondents what they would suggest in the way of improvements in the protocol or technology.
Five members, three RPOs and two interpreters were of the view that no improvements were needed.
Fixing the document problem - the problem of accessing and inspecting documents during the hearing - was the preoccupation of six members, four RPOs and one interpreter. The suggestions in this respect included getting "the scanner" to work properly, better management of the fax machines, routinely scanning all the documents in the file of a case that was to be videoconferenced into a computer and providing claimants and counsel and the member and RPO with in-hearing access to the documents through individual laptops.
Improvements in the technology was the focus of several suggestions. Make it more reliable said one member; improve the clarity of the image said one member and two interpreters; solve the sound problems said another two of the interpreters; and give us easier hand controls was the suggestion of another member. And one member, one RPO and two interpreters would introduce larger screens or multiple screens so that the camera could zoom in on the claimant or other witness, without losing the opportunity to watch the claimant from a longer view and to continue to observe the interaction amongst the others in the room.
Three members and one RPO would not allow the technology to be used at all if the claimant was unrepresented.
Two members would organize better staff support during the hearings.
One member and one RPO would change the scheduling strategies to leave scheduling windows in the videoconferencing hearing-room schedules to allow for quicker scheduling of videoconferenced continuations.
One of the RPOs and one interpreter would provide for better training of members in the use of the equipment. And one RPO would provide instruction booklets to claimants and counsel. Along the same lines, was one interpreter's suggestion that at the beginning of each hearing the interpreter be given an opportunity to describe the technology to the claimant and explain how it would be used.
The balance of the suggestions came from single individuals, but many of them were not without interest. These included: create a specialized national videoconferencing unit and assign videoconferenced hearings only to members of that unit; use videoconferencing only if counsel have agreed in advance; put the interpreters with the claimants (this, not from an interpreter but from a member); locate claimant and counsel side by side at one table so that the camera focus can be tighter on the claimant without losing the counsel; do not allow controls in the claimant's room [this suggests the current availability of such controls which no one else has suggested to me]; give the RPOs a separate remote camera control and their own feedback screen; arrange it so that simultaneous translations continue to be possible [presumably this would require a separate telephone connection between the interpreter and the claimant]; have bigger rooms; have smaller tables; do not schedule Toronto-Vancouver hearings on Friday afternoon; improve the lighting in Vancouver.
Only one respondent - an interpreter - could think of nothing to suggest, and another interpreter declined to offer any suggestion because he (or her) didn't like to even think of videoconferencing as a long-term proposition.
In Question 14, the respondents were asked to "add any other comments, opinions or information that you think would be relevant to the review". In my telephone interviews with counsel this question did not tend to elicit much additional material. The counsels' responses to the prior questions had for the most part exhausted what they wanted to say. But in the on-line surveys of the members, RPOs and interpreters, many of the respondents took advantage of this open-ended opportunity, to summarize their views, or to emphasize what they thought to be particularly important. In the interest of ensuring that the reader comes away from this report with a good understanding of not only the substance but also the overall tone and emphasis of these respondents' views, I have elected to set out the actual responses to Question 14 in extenso.
I will begin with the responses of the Board members. Fifteen of the 25 members responded to the Question-14 invitation with comments. Three responded they had nothing to add, and seven did not respond. The responses read as follows:
- Je suis d'opinion que l'utilisation de la vidéoconférence ne nuit nullement aux demandeurs d'asile. Je ferais toutefois une exception dans les cas de demandes d'asile de mineurs et dans les cas o—le représentant du solliciteur général interviendrait
- It's not the best way to do a hearing, but it is adequate.
- The other end needs to ensure the hearing room is ready. That can mean that the fax machine has paper, memory is clear (I once had paper added and the fax printed 75 pages of spammed material before we could use it for our purposes)
- These hearings are much better than I had anticipated - no real problems with communication - my biggest concern is the perspective of the claimants - their reaction to the decision maker not being in the room - does this impact on the way they give their evidence and do they feel justice is being done?
- This region has used Videoconferencing for hearings for a long time, and our experience is a positive one. Very few hearings are postponed or adjourned because of technological problems, and conversely, many hearings that would be delayed for months can go ahead through videoconferencing. When we started doing hearings this way with Toronto, counsel they objected strenuously, but after a few months, they have uniformly ended their objections as they become accustomed to the process. The savings in time, cost and wear and tear on travelling members and their family life make videoconferencing a very desirable option for regions such as ours.
- The IRB internally needs to ensure better communication and a higher level of responsibility in the location where the panel is not. I often feel that Toronto doesn't care what happens to us.
- À date, je n'ai eu à traiter que de vieux cas datant depuis trois ou quatre ans et dans un cas de cinq ans. La majorité des pays traités étaient la Hongrie, la Bulgarie, et un cas du Soudan, un de l'Ouzbékistan et deux sur le Pérou. La majorité des situations portaient sur les Roms, la violence conjugale et un problème de nature politique. La plupart de ces cas posaient des problèmes importants de crédibilité qui ont entraîné une forte proportion de décisions négatives. Mais j'ai eu aussi des décisions positives. La vidéoconférence ne m'a pas empêché de bien faire mon travail et les demandeurs ont eu les mêmes chances de s'expliquer que s'ils avaient été en salle présents avec moi.
- Cases should be better prepared to avoid what is now a problem - the inability to proceed because the case is not ready - claimant not represented and does not know what is happening - cases from the same family should not be heard two weeks apart, one in \Montreal and the other in Toronto
- Have a national program whereby claimants are told after submitting their Personal Information Form where their hearing will be and with which region. For example the claimant may arrive in Toronto but for administrative efficiency the claim will be heard by videoconference with a member in Montreal. This will make the process more efficient and allow for a true national policy which will be able to respond to punctual needs as they arise.
- I believe it is a valuable initiative and contributes greatly to the services offered by the Board and also helps in managing caseloads and productivity.
- C'est un outil efficace.
- I am not aware of the actual cost of the use of videoconferencing as compared to the traditional method but I imagine it is cheaper in the long-term to use the equipment.
- Au début, j'avais beaucoup de réserve au sujet des vidéoconférences, aujourd'hui je considère que dans 95% des cas tout va très bien et je ne crois pas que le demandeur d'asile soit défavorisé par ce processus - bien au contraire.
- I personally have enjoyed the video-conferencing, other than for a few counsel, the majority have been excepting (sic) of the changes and appreciate the IRB finalizing claims earlier than they originally expected. In addition, the excellent interpreters that we have secured during the video-hearings have also assisted in creating a professional atmosphere. Further when we began hearing claims by video, from the two countries we were assigned, the claims were years old, and now we are able to complete the same countries within six months of their arrival in Canada. This is notable and should be celebrated by all Canadians. I strongly endorse the video-conferencing for all the reasons I have articulated above, and many more I could verbalize, however I have to go to my next hearing.
- I believe video conferencing should continue to be a practice at the IRB. I find it an efficient and pleasant way of hearing claims. It has been said that claimant and member cannot 'make connections' when video conferencing but I have personally found that not to be the case. The ability to 'zoom-in' on a person allows one to see quite clearly expressions on the claimant's face and body language - when used respectfully and not as a method of intimidation (i.e. really close up for long periods of time), this method has, in my opinion, proved useful and non-threatening.
Next are the Question-14 responses of the RPOs. Only six of the 16 RPOs responded with comments (one responded they had nothing to add, and nine did not respond). Accordingly, one has to read the following comments recognizing that one is not necessarily getting a representative cut of the RPOs' views. However, one might assume that these are the more strongly held views. They read, as they were written, as follows:
- Je considère que cette technologie est un avantage qu'il faut continuer à utiliser.
- I have found video-conferencing VERY satisfactory. In the beginning, there were some issues regarding being able to use the technology, but with practice and training those problems can easily be overcome. I find the sound and video quality excellent. I see no significant disadvantage of using video-conferencing from either a practical level or from the perspective of providing a claimant with a fair hearing. In the few video-conferences in which I have participated, I have experienced no difficulties except with respect to documents and confusion on using the machines. Both of these issues can be easily addressed. …
- Personally, I do not see any difficulties with videoconferencing in 95% of the cases. (see question 13). My experience with the technology has been very positive. I have far more of an issue in having interpreter's by phone than VC'ing a hearing.
- Counsel indicated that they thought it ruined their practice. Odd secondary consequences - a lot of claimants abandoned their Toronto lawyers and came to Montreal. Also the style of representation is different - information form in Toronto, presentation in Montreal, legal aid rules very different in both provinces - very thick file in Toronto, not read in Montreal because not used to so much documentation. Some sense that there might be a discrepancy between the first claimants who went through the system at the beginning and later. That does not necessarily mean that the end decisions are faulty, just a very different experience.
- In my opinion, the Board needs to reflect on the cumulative effect(s) of its many recent procedural reforms on video-conference hearings. For example, the Chairperson's Guidelines on the Conduct of Hearings, specifically with respect to the change in order of questioning (whereby the RPO or Member questions the claimants first) creates a hearing room dynamic that is a stark contrast to what was, not too long ago, a face-to-face hearing before a three-member panel wherein first questioning was by counsel... I am not arguing against the use of video-conference technology. I am in favour of the Board using it. Indeed, the Board certainly needs to embrace change and adopt new, more efficient ways of doing things and the use of video-conference technology is broadly consistent with those principles. However, I do think that the Board needs to be mindful of its overall effect [on] tribunal processes and sensitive to its impact on particular claimants in specific circumstances.
- I think the technology should not disappear. By keeping the technology around, cases can be distributed around the country to make sure a claimant is heard shortly after his arrival in Canada. The indirect costs of a claimant waiting 2 to 3 years to be heard (use of Medicare, social welfare when a claim gets a negative response etc.) should be weighed against the ones incurred by the IRB when offering this technology. I would also like to use the technology to observe how other RPOs and commissaires work in Toronto. It is perhaps a way to have a better harmonization of decisions.
Finally here are the Question-14 responses of the interpreters. Only eight of the 16 responding interpreters responded to Question 14 with comments (four responded they had nothing to add, and five did not respond). Accordingly, here too one has to read the following comments taking care to keep in mind that these are not necessarily representative views.
They read, as they were written, as follows:
- Body language and emotion will never come through on a camera as they would in person, as credibility is an issue in every case, this is a definite disadvantage for the claimant. As an interpreter, it makes communication less natural, more time is spent repeating. When more than one person speaks at a time, it makes accurate interpretation nearly impossible.
- Non, je trouve ennuyant que les avocats préparent mal le client.
- I think that people sometimes may feel intimidated by having their hearing through video-conference but in my opinion you can make someone feel comfortable and relaxed to testify through a camera as well as in person. I feel very comfortable doing both types hearings. As I mentioned before, the only thing that makes a difference are the people involved.
- I think that video conferencing is good. You are clearly able to see the expressions on the claimants face and it is possible to hold the hearing in a fair, expeditious manner if everybody is in agreement with the process. It is only when somebody does not agree with doing it this way that a problem may arise.
- J'ai une très grande expérience en interprétation simultanée reconnue par plusieurs Ministères, autant au niveau du Gouvernement provincial du Québec ainsi qu'au Gouvernement fédéral du Canada. Sous cette lumière, je souligne encore et encore, que SEULEMENT le contact professionnel en personne donnera une objectivité concernant les décisions des commissaires désignés par la CISR, au cours des audiences.
- I can only state, that in my capacity, as an interpreter, I have adjusted very well to the system. I believe that the video conferenced hearing is a great asset to the IRB, enabling busy locations throughout the country to get help with their case load and thus, allowing the system to work in a more expeditious manner.
- Maybe remove the microphones that are not in use to make it easier for claimants to know where to speak to.
3. Information Derived from Consultation with the Scientists
Mark L. Federman
Based on his understanding of the science of communication and his review of the scholarly literature relative to the issues presented by the use of videoconferencing in refugee hearings, Mr. Federman offers the following advice (as set out in the final paragraph of his report).
In their chapter on "Genres," McLuhan and Watson further describe varieties of narrative approaches and illustrate the various effects that emerge, and their particular utility in telling specific types of stories. When the chapter is taken as a total field, it becomes clear that McLuhan and Watson are actually referring to cultural differences via the stories they have chosen as examples. The message of these two chapters becomes clear: Differences in meaning occur between cultures, not only because of the differences in cultural grounds - although that is a major contributing factor - but also from the way each culture sensorially perceives events, and how narrative itself is constructed, and therefore is received.
The Immigration and Refugee Board assesses applicants for their eligibility to remain in Canada after applying for asylum. That is what it does, and thus, in media terms, is its content. As a medium, I would contend that its message is one of deciphering and creating meaning from among multiple, interacting cultural grounds - the applicant in the context of his or her homeland and its socio-political circumstances, rubbed against that of the adjudicator in the context of Canada overtop the ground conditioning of his or her own homeland. This is a supremely challenging enterprise, to say the least! Multiplying the complexity of this "business of culture" by the mediation effects created through videoconferencing introduces the significant possibility of inconsistency, inaccuracy, and altered judgement. (Emphasis on the last sentence added by Ellis)
Doctor Martine Lagacé
Dr. Lagacés search of the literature for scholarly, peer-reviewed articles containing the keywords that she felt to be germane lead her to approximately 1600 articles (including a few books), which covered a broad spectrum of videoconference topics and issues. The search results were then reviewed and she selected 50 articles (including a few books) as being of particular relevance and interest on the videoconferencing issues. The Abstracts of those articles - and books - may be found attached to her report. Her summary of her findings and observations reads as follows:
"Literature review reveals that academic research on the psychological impact of videoconferencing has mostly been done in relation to a) health care /medicine-psychiatry; b) education / distance learning; and c) the workplace in general / job interviews, group discussions, conflict resolution, etc. Very few studies relate specifically to the use of videoconference in the context of refugees/asylum seekers hearings. Furthermore, many studies do not refer specifically to videoconference but to mediated-communicationNote 16 in general (for example, computer-mediated communication, teleconference, email communication, etc.). Consequently, the observations outlined in this report are mostly derived and extrapolated from the results of peer-reviewed published articles (and a few books) in regards to the use of videoconference in the context of health care, education and the workplace in general. These articles have mostly focused on questions related to judgment, decision making and efficiency of communication in comparing face-to-face vs. mediated-communication.
Results from the identified articles reflect mixed evidence regarding the psychological impact of mediated-communication. (including videoconference) in comparison with face-to-face communication. Some researchers argue for a positive and more efficient interaction in the case of videoconferencing, while others argue that mediated-communication does not deliver all the advantages observed from face-to-face interactions (specifically the non-verbal cues, like facial expression, eye-to-eye contact, posture, etc.). In this matter, it is interesting to note that many researchers in communication and psychology consider these non-verbal cues as being the core and most revealing part of interpersonal communication.
The above conflicting results can partly be explained by the fact that there might not be a direct relationship between types of communication channel and psychological impact. Studies seem to suggest that important variables seem to mediate this relationship. The nature of the communication during which videoconference is being used and personality factors are identified as potential mediating variables. In other words, studies show that videoconferencing does not seem to exert a direct psychological impact (whether positive or negative) - its impact is more seen through mediating variables. In the following paragraph, these variables will be further detailed.
The nature of the communication refers to the specific context in which the communication takes place; personality factors are related to individual differences. For example, in regards to the nature of communication, some studies have revealed that in the context of a job interview, some applicants prefer a mediated type of communication as a more efficient type of interaction. Although, even among these studies there is still mixed evidence. In the case of studies assessing interviews where sensitive information has to be delivered, results are clearer: participants are more comfortable in a face-to-face type of communication when delivering sensitive information (Sussman, Sproull, 2001). Moreover, when the communication session involves emotionally charged information, studies point to the face-to-face communication as a more efficient interaction in comparison with mediated-communication. These results can partly be explained by the fact that highly emotional situations need to be assessed through verbal and non-verbal cues (especially eye contact), immediate feedback and natural language. It might also be the case that these emotional situations may lead to less structured interviews and in these circumstances, face-to-face communication is preferred by participants (Chapman, 2002).
Personality factors relate to individual differences that may also mediate the psychological impact of videoconferencing. Researchers underline the importance of taking these personality factors into consideration when assessing the efficiency of a mediated-communication. For example, vulnerable individuals (from a psychological perspective) prefer face-to-face interactions, where the non-verbal cues are sometimes more revealing than language itself. Following on this argument, studies also point to the difficulty of communicating through a mediated channel when individuals carry psychological burdens. As an example, Mc Daniel (2003) underlines the fact that patients with serious past trauma, those who might carry a borderline diagnosis or paranoia may not respond well to it.
All the emphasis in the foregoing paragraphs - the use of bolding and italics - appears in the original.
Dr. Lagacé's conclusions are set out in the following passage:
The case of refugee / asylum seekers hearings reflect similar features as the ones pointed out in the above studies. Specifically, in these cases, the nature of the communication involves highly emotional and sensitive information; furthermore, refugee / asylum seekers often carry heavy psychological burdens. Drawing on the findings of studies on the psychological impact of mediated-communication where sensitive and highly emotional information has to be transmitted, we can conclude that videoconferencing might not be the most efficient and comfortable way to communicate for the refugee / asylum seekers.
[Emphasis was added here by Ellis.]
However, because the literature contained no studies that could be said to have addressed directly the effect of communications mediated by videoconferencing in refugee cases, Dr. Lagacé also saw the need for further research before one could be confident as to the proper conclusion. The final paragraph in her report makes that point.
In conclusion, there is a strong need for further empirical research evidence on this question. For example, research could be conducted using a comparative qualitative / quantitative methodology, through interviews and questionnaires with refugees already in Canada. For the moment, the current literature does not speak in favor of interpersonal interactions through videoconferencing versus face-to-face interactions.
[Emphasis added again by Ellis.]
Professor Liora Salter FRSC
Professor Salter's views run along the same lines as those of Doctor Lagacé. Having regard for the emotional and traumatic stories that must often be told by asylum seekers, there is substantial reason for concern about the efficacy of communications mediated by video in refugee hearings. On the other hand, there is nothing in the literature to suggest that the potential problems have ever in fact been investigated in that particular setting. She agrees that there might prove to be too many confounding factors at play in any claimant's reaction to their experience of a videoconferencing hearing for it to be possible for an empirical study to isolate the role of the videoconferencing itself. However, she thinks that a relatively inexpensive exploratory study could be designed that would determine the probable value of a major study and that it would be inappropriate, in any event, not to attempt to discover the claimant's perception of a videoconferenced hearing.
She also does not believe it would be appropriate to rule out the use of videoconferencing without first attempting such a study. In her view, it is not impossible that a well thought out use of videoconferencing in a refugee hearing context might present advantages.
A list of the articles to which Professor Salter has had reference together with abstracts for the most relevant of those articles will be found attached to her full report.
As mentioned previously, the "scientists'" full reports and resumés are on file with the Board.
4. The Experience and Practice in Other Countries
The Board's study of the use of videoconferencing in refugee protection proceedings amongst its "International Partners" confirmed that eight countries - Belgium, Denmark, Finland, Ireland, Netherlands, Norway, UK and Sweden - did not use videoconferencing either because the size of the country did not make it necessary or the technology was considered cost prohibitive. Three countries - Germany, Spain and Switzerland - did not respond to the survey request in time to be included in the study. Only the United States and Australia confirmed the use of videoconferencing in refugee matters. It has been used in the United States by the Executive Office for Immigration Review (EOIR) since the mid-90s, and in Australia by the Department of Immigration and Multicultural and Indigenous Affairs, (DIMIA) since 2002, and by the Refugee Review Tribunal (RRT) since 1997.
In both countries, the videoconferencing was introduced because of its contribution to efficiency and in neither country is the use of the technology conditional on the consent of the claimants.
In the EOIR, no limitations on the usefulness of videoconferencing have been identified. However, in Australia, DIMIA reports that its case officers still consider face-to-face questioning to be preferable because it allows for more personal interaction, and the RRT reports that there is a perception "by some members" that "videoconferencing makes the assessment of an applicant's/witness's credibility more difficult". The RRT comments, however, that "it has been emphasized on a number of occasions within the context of the Tribunal's member professional development program, including in relation to cross-cultural issues, that the kind of visual cues which videoconferencing downplays are often the kind of matters which should not be heavily relied upon by the RRT in making its decision."
No attempt had yet been made in either country to evaluate its use of videoconferencing.
EOIR reports that the American Immigration Lawyers Association is on record as opposing the use of videoconferencing, but both DIMIA and RRT claim that its use is now accepted among its stakeholders as an established part of the review process.Note 17
5. Statistical Comparison of Results as Between Video-Conferenced Hearings and In-Person Hearings
The effort to compare results as between video-conferenced hearings and traditional, in-person hearings has proven to be fraught with uncertainties. How does one know, for example, that one is comparing apples with apples? Were the qualities of the adjudicators similar? How did the complexity and challenges compare? And so on. All that one can safely say is that there is nothing in the comparisons that were done that would suggest any meaningful differences in the success rate as between the two types of hearings. If anything, the data suggested that the videoconferencing might have given the claimants a slight edge.
THE AUTHOR'S ANALYSIS
1. The Three Background Realities
In approaching an assessment of the Board's videoconferencing strategy there are three fundamental realities that must form the essential background for any analysis. The first is that from a resource- management perspective the videoconferencing of refugee hearings is inherently an immensely useful strategy - arguably, in the RPD context, almost an indispensable strategy. The second is that the determination of a refugee claim presents adjudicative responsibilities and challenges of incomparable seriousness and difficulty. And, the third is that in a refugee hearing the assessment of credibility, which is typically at the heart of refugee claim determinations, depends to a large extent, when all is said and done, on the Board member's assessment of the claimant's demeanour.
In pursuit of the IRB's commitment to "hear claims simply, quickly and fairly", the Refugee Protection Division must make fair and effective in-person hearings available in or near all of the Canadian cities to which displaced persons of the world choose to come in their search for refuge. The management challenges facing the IRB's Refugee Protection Division in its attempt fulfill that commitment are highly complex and difficult - indeed, in a number of respects, unique. What other administrative tribunal is required to deliver sophisticated adjudicative services that are expert in the politics, law, economics, and social environment of many different countries, while coping with a caseload that is not only very largeNote 18 - a burden that obviously it shares with numbers of other tribunals - but also, in terms of both the numbers of cases and their geographic distribution, extremely volatile?
Competence in the adjudication of issues such as those presented in refugee hearings is not easy for a tribunal to come by. Capable and qualified individuals must be attracted to the service in the first place, then those new members must be trained and, through modulated, in-service experience, allowed time to develop the special adjudicative skills and subject-matter expertise on which competence in this context must be based. I have had no direct information from the RPD management on this point, but from my own experience I would be surprised if it did not take in the order of two years for a qualified and capable new appointee to reach maximum effectiveness as an adjudicator of refugee claims.
The aggregate of the competencies so developed is the RPD's core asset - acquired by a significant investment in both time and money. But it is an asset that has two inherent defects that are particularly relevant to the issues being addressed in this report. One is that it is not very mobile, and the other is that it cannot be quickly supplemented. Thus, when the Board finds that, because of the vagaries of refugee politics - if one may respectfully put it in those terms -the volume of claims has risen in one location and dropped in another, or the source-country expertise that was in large demand in one location is suddenly needed to a greater extent somewhere else, it has a problem in responding effectively to such changes. In the short term, it can arrange some shift in its adjudicative assets through requiring members from the previously busy but now less busy location to travel to hearings in the newly busy location. But there are obvious limits to the amount of such travel that is sustainable or operationally desirable. Requiring refugee claimants to travel to distant cities for their hearings is also not a viable solution.
A longer term fix would be to move experienced members permanently to the newly busy location or recruit additional members who reside in that location, and those might well be the strategies adopted by a commercial enterprise. But it is not so easy for an administrative tribunal. In the first place, the people who comprise a tribunal's adjudicative corps - lawyers, or people with equivalent qualifications, appointed to limited terms - are inherently resistant to geographic dislocation. And the strategy of recruiting new recruits has two serious downsides. In the first place, it would take two or three years to recruit those new members and bring them up to speed, and, in the second place, they could be accommodated in the tribunal's budget only by denying re-appointments to experienced members in the now less busy location. Trading experienced members for new recruits is, from an overall institutional perspective, inherently problematic at any time, for a number of reasons, not least of which would be the undermining of the tribunal's competitiveness in the labour market to which it looks for the recruitment of new members. It will, therefore, rarely be an attractive policy.
These strategies of re-location or replacement of adjudicative resources are also strategies that are especially difficult for the Board to contemplate or justify when there is no guarantee that the changes in the volume or geographic distribution of service-demands that would justify such permanent moves this year may not disappear next year, or the year after.
In addition to the problems presented by sudden changes in the volume of service demands and/or the unexpected shifting of their location, the management of the tribunal's adjudicative assets is also inherently complicated by the natural dispersion of the service demands across the country. It is not enough for the Board to be able to deliver Country X expertise in Toronto, it may also have to deliver it at the same time in Vancouver, and Halifax, and Edmonton, and perhaps, in Whitehorse.
Given the nature of these unique management challenges, it is not difficult to understand the attractiveness and potential value of the videoconferencing technology from a management perspective. In this context, an ability to routinely deliver effective refugee adjudicative services from central facilities to distant locations without the inefficiencies involved in moving the adjudicative assets to those locations could transform the RPD's organization and planning. It takes little imagination to think of multiple ways in which such a faculty might contribute to the Board's work. One obvious example would be the ability to concentrate the expertise for a particular source country in only one location irrespective of where the claimants may reside, with the corresponding efficiencies and contributions to the quality of the expertise and the consistency of decision-making for refugees from that country. And there would be many others ways of making effective use of such flexibility.
In summary, then, any assessment of the appropriateness of the Board's use of videoconferencing must be respectful of that technology's powerful potential for making the RPD's immensely challenging work more manageable and its decision-making more effective and more consistent.
But all that is on the one hand. On the other, and entitled to equal respect, is the second background reality to which I have referred - the immensely serious and difficult adjudicative responsibilities and challenges inherent in the determination of refugee claims.
Never mind that many of the claims are inevitably false, many of them are entirely genuine, and determining which is which - which claimant is to be rejected and sent back to their home country and which is to be accepted - is a responsibility for which one may look long and hard within Canada's domestic, administrative justice system before finding anything of a comparable quality. Indeed, the closest comparator is a criminal trial. If, in a criminal trial, the judge or jury gets it wrong, an innocent person goes to jail for possibly many years, or a criminal goes free. In a refugee hearing, if the Board member makes a mistake on the credibility issue, the consequences are potentially even more serious. If the mistaken credibility call goes against a claimant, not only does he or she and his or her family lose the unique and treasured opportunity of a secure future in Canada, but on being returned to their own country they face the personal security issues from which they have originally fled and the danger in some cases of torture and death. Also, in the criminal trial there is a measure of comfort in knowing that there are reasonable grounds to believe that most of the persons being tried will in the nature of things be in fact guilty. But in refugee hearings we know that a significant proportion of the claimants facing the inevitable risk of the adjudicator making a mistake will be in fact people who are genuinely seeking refuge from serious dangers. And the responsibility is exacerbated even more in the refugee hearing by the fact that the burden of proof is on the claimant, not the government.
On the other hand, if the mistaken credibility call goes in favour of claimants who are actually perjuring themselves, Canada ends up with citizens of very questionable quality who may well present serious security risks, and the regular immigration channels and procedures are undermined.
The adjudicative challenge is also uniquely exacerbated in refugee hearings because of the limited availability of direct evidence of the events on which the claim is based. The events took place in another country far away. Willing eyewitnesses are inherently hard to find - and, if they are to be found, it will usually be exceptionally difficult to get their testimony before the adjudicator. Moreover, in the country where the events occurred official documents and supporting records will often be found in short supply. The government in charge of such things is likely in the nature of things to be hostile to persons claiming to have fled alleged abuse in their country. Thus, adjudicators will frequently find themselves faced with making a final decision that is heavily dependent on their findings on the credibility issue.
Taking all of these factors into account, it is, in short, hard to imagine a more serious or more difficult adjudicative challenge.
That brings me, then, to the importance of the assessment of a claimant's demeanour in a Board member's judgement as to the claimant's credibility - the third element of the background realities against which this analysis must be made.
"Demeanour" is the traditional catch-all label for the various non-verbal clues to credibility that a judge picks up - both consciously and unconsciously - through close observation of a witness during his or her testimony. Changing facial expressions, the way the voice is used, the various aspects of the so-called body language, the look in the eyes, and so on are all aspects of "demeanour". Many judges are confident that they can tell whether a witness is lying or not merely by observing his or her demeanour in the witness box. The overriding importance that the assessment of demeanour has traditionally been thought to play in the determination of credibility in our judicial justice system may be seen in the established legal principle that appeal courts should almost never question a trial judge's findings on credibility because only the trial judge has "seen" the witnesses.
Of course, modern judges are now far less confident about the reliability of their "read" of a witness' demeanor as the basis for a credibility call. Indeed, empirical studies of the judging function have recently suggested that it is the adjudicators who are most confident of their ability to judge credibility based on a witness' demeanor who are least likely to get the credibility call right.Note 19 And where the judging of credibility is complicated by cultural and language differences between judge and witness, the culturally-influenced, intuitive reactions of a judge from one culture to the observed demeanour of a witness from another are fraught with inherent uncertainties. Accordingly, in traditional adjudicative forums, judges are being told in their training sessions to be wary of credibility conclusions based on their assessment of demeanour. They are being told to rely much more on objective indicators: Is the witness' account of events reasonably plausible having regard to the circumstances in which they are said to occur? Is the testimony coherent overall? Is it reasonably consistent with other evidence? And so on.
The Board member who in his response to the on-line survey made the following point was reflecting this modern unease with dependency on demeanour-based credibility findings (shared, the reader will have noted, by the Australian Refugee Review Tribunal (see above)), and no doubt giving vent to his own doubts - doubts that any thinking person is bound to feel - about the ability to correctly interpret demeanour cues across cultural lines.
Finally, I think that hearings by video-conference may, to a degree, help the Board move away from troublesome 'demeanour' credibility findings in some cases, (see, for example, Valtchev v. Canada (Minister of Citizenship and Immigration) 2001 FCT 776) as a claimant's demeanour in delivering testimony is slightly more remote in doing hearings by video-conference, forcing the Board to focus on examining the substance of testimony, where it properly should in my opinion.
However, notwithstanding these reservations, unless and until we move to audio-only hearings, a witness's observed demeanour will always be inevitably a huge influence on credibility findings - particularly in refugee hearings where there is often little else to go on. The reality is that it is humanly impossible for an adjudicator to observe a witness' testimony over the course of an hour or two without being significantly influenced, consciously or unconsciously, by all the non-verbal cues, and subtle nuances of the witness's demeanour. Professional adjudicators, aware of the dangers of relying too heavily on demeanour, and sensitive to the problems presented by the cultural and language differences, will throughout a hearing be busy making allowances and being careful about conclusions based on their observations of the witness' demeanour. However, at the end of the day, it is in fact impossible for them not to have derived much of what they have concluded about the witness's character and probable truthfulness from what they have seen of the witness's demeanour during the hearing.
It is no surprise, therefore, to find this reality clearly reflected in the RPD's own training material. The Legal Services publication on "The Assessment of Credibility in Claims for Refugee Protection", dated June 28, 2002, while making the need for caution in relying on demeanour clear, also underlines the importance of its inevitable role.
In the Section on "General Principles and Observations", section 1.9 addresses the subject of how a witness's testimony is to be assessed. The opening paragraph reads as follows:
A decision-maker customarily takes into account the integrity and intelligence of a witness and the overall accuracy of the statements being made. The witnesses powers of observation and capacity for remembering are important factors. And assessment is customarily made of whether the witness is honestly endeavoring to tell the truth, that is, whether the witness appears frank and sincere or biased, reticent and evasive. [Emphasis added.]
Then, following that paragraph is a list of the factors considered by the courts in assessing credibility and, amidst a number of "objective" criteria, one also finds the following factors that are clearly elements of "demeanor": "desire to be truthful"; "general integrity"; "general intelligence"; and "demeanour while testifying".
In section 2.37 (at page 33), the paper addresses the problem of "demeanour" directly, and, while here one also finds the inevitable warnings about the need for caution, one also finds emphasis on the ultimate importance of demeanour.
In assessing the credibility of the evidence, the RPD can evaluate the general demeanour of the witness as he or she is testifying. This involves assessing the manner in which the witness replies to questions, his or her facial expressions, tone of voice, physical movements, general integrity and intelligence, and powers of recollection.
The Federal Court has recognized that every judge's assessment of credibility is influenced by a witness's demeanor."
Thus, in any analysis of the appropriateness of the videoconferencing of refugee hearings, the inevitable central role in such hearings of the assessment of a claimant's demeanour must be an integral part of the background against which that analysis is to be made.
So much, then, for the three "background" realities. Let us begin the analysis of the information and data that came to my attention during the course of the review.
2. Assessment of Demeanour in Videoconferencing
Concerns about the perceived limitations on an adjudicator's ability to effectively read the demeanour of claimants and their witness in a videoconferenced hearing were the concerns most often mentioned in my interviews with counsel (11 of 14). But the responses to the on-line surveys, particularly by the Board members and RPOs tell a different story.
A large majority of the Board members - all very experienced adjudicators and speaking anonymously - evinced clear confidence that their ability to assess demeanour was in fact not hindered by this technology - that, indeed, in the view of some, it was enhanced. Twenty of the 25 responding members said they could see no difference in their ability to reach sound decisions between in-person hearings and videoconferencing, and when asked to specifically address the disadvantages they saw in the videoconferencing only eight of the 25 indicated any reservation concerning the assessment of demeanour.
This is evidence that needs, of course, to be viewed with some caution. Obviously, it would be surprising if Board members were not generally confident about the soundness of their own decisions whether or not they were made in an in-person hearing or via videoconferencing. Moreover, one needs to recognize that all respondent Board members are apt to have present somewhere in the back of their minds an awareness of the inherent, personal advantages for members in having the use of videoconferencing in refugee hearings continue. But, nevertheless, the unqualified assertion of confidence in the efficacy of the technology by 17 of 25 experienced adjudicators when they were responding under a guarantee of anonymity has to be accepted as some significant evidence of the inherent effectiveness of the technology in at least allowing adjudicators to clearly "see" the claimant's demeanour.
And that evidence finds further support in the responses of the Refugee Protection Officers. Eleven of the 16 responding RPOs reported there being no difference in their level of confidence in the soundness of the ultimate decisions whether the hearings were in-person or videoconferenced. And when asked specifically to list the disadvantages they saw in the use of videoconferencing, only four of the 16 mentioned reservations about the assessment of demeanour.
The reader will have also noted the consistency of these responses concerning the ability to assess demeanour of witnesses in a videoconferenced hearings with the views of the BC and Yukon Territory judges on the same subject referred to earlier.
Why do counsel for refugee claimants see this issue so differently from their professional colleagues on, as it were, the other side of the screen? From comments found in the survey responses, one may surmise that some board members and RPOs might be prone to dismiss the stated concerns of counsel, particularly of Toronto counsel, as being politically motivated - as part and parcel of their perceived habitual opposition to Board policies generally. However, in my interviews with counsel I found nothing that would support that suspicion. The counsel I spoke with were clearly expressing genuine professional concerns.
However, in looking more closely at the interview responses as they relate directly and indirectly to this issue of the camera's ability to convey an accurate impression of the claimant's demeanour as that demeanour is actually displayed, some interesting nuances may be detected that suggest that on this particular issue, counsel's views may not be quite as different from their colleagues on the Board as a first read of that evidence might suggest.
It is interesting in this respect to note that, when counsel - generally opposed altogether to videoconferencing - were asked specifically to compare their level of confidence in the soundness of the outcomes as between in-person and videoconferenced hearings, only six of the 14 would assign a " much higher" rating to in-person hearings. Five saw their level of confidence to be "higher" but not "much higher" - two actually put it in just those terms, with the emphasis on the "not". One thought the level was higher than "higher" but not as high as "much higher". And, two of the respondents, after careful deliberation, offered the view that, if one had a really good adjudicator, the obstacles videoconferencing presented to getting it right would likely be overcome.
These responses are obviously open to a number of interpretations. One possibility is that some counsel were simply recognizing that there are more elements of the process influencing outcomes than just the use of camerasNote 20 and that some of these - such as the quality of the member one draws - were so central as to likely outweigh the negative influence of videoconferencing. But they left me with the overall impression that, assessed solely on the ability of the camera to "see" the claimant's demeanour, a majority of counsel were not actually prepared to say that videoconferencing could never work.
It must also be noted that negative views on this point were, indeed, most strongly held by Toronto counsel and here I found a confounding factor that might well explain the strength of that reaction and help to explain some of the dramatic difference on this issue between counsels' views and the views of the Board members and RPOs.
The fact is that, on the screens that they watched, the Toronto counsel I interviewed may never have seen a close-up view of anyone. All they ever saw of the Board member was a small figure sitting deep in the screen behind the bench -- a figure whose face could hardly be discerned at all. As there was no feed-back screen, they could not see the image of their client that was being seen by the members, RPOs and interpreters. My own observations of the hearings in the claimants' rooms in Toronto led me to share counsels' concerns on this point. I watched five hours of videoconferencing in Toronto and would not have recognized either of the presiding members were I to have met them in the adjacent hallway as I left the hearing. I came away from that experience assuming that the Board members' view of the claimants and witnesses would be approximately the same quality. Hence, based on my Toronto observations, I felt quite pessimistic about an adjudicator's ability to assess demeanour using this technology.
However, when I went to Montréal and spent five hours observing videoconference hearings sitting in a chair right beside the member, and saw the quality of the portrayal of the claimant when the use of the zoom feature brought him or her into a close-up view, I began to think that the problem was not an intractable one. I also observed that the use of the zoom feature varied between members. One member did not using the zoom at all but attempted to read the witness's demeanor only with the witness being seen as a remote figure, sitting deep in the screen at the end of the table in the claimants room, in much the same position as the position the members assumed on the Toronto screens.
I suspect, therefore, that one's understanding of the effectiveness of the technology in permitting a clear view of the claimants demeanour, may be substantially influenced by what one has personally experienced or not experienced with the effective use of the close-up capabilities of the camera. Having personally observed how well it works in the hands of a member comfortable with the equipment, it seems to me that it is not possible to be dismissive of the technology insofar as its ability to permit the assessment of demeanour is concerned.
If the installation in Toronto had been the same as it is in Winnipeg and Edmonton with a feedback screen showing Toronto counsel the view of their clients that the members in Montréal or Calgary or Vancouver were seeing, it may be that much of counsels' criticism on this point would not have risen.
Also, if, in the claimant's room, it were possible to bring the Board member's face into the same close-up focus that I saw used for viewing claimants in the member's rooms in Montréal, much of the concerns of counsel with their and their clients's inability to see or read the member's reactions to their submissions or testimony may also not have arisen. And I may say that the latter concerns are in my view entirely legitimate. It is not enough that Board members can see and assess the demeanor of claimants. For a fair and effective hearing, the claimant and his or her counsel must be able to see and assess and react to the demeanour of the member -- as they are able to do naturally in an in-person hearing.
When I suggest that, when properly organized, videoconferencing may possibly allow a panel member to assess demeanour effectively, I am not taking into account the psychological distancing affect of video mediation on bi-lateral communications described in the scholarly literature referred to by the scientists - the "flattening" of information that videoconferencing is seen to produce. Those are affects that cannot be observed, and, certainly, in my own observations of these hearings I could not "see" that affect. While this is, of course, what the scientists would expect, nevertheless I cannot, in reviewing this technology, base my recommendations on something negative that I cannot see or feel. To pick that up would require a sophisticated empirical study, and I shall come back to that in due course.
3. Impact of Videoconferencing on the Quality of a Claimant's Testimony
In my view, the more intractable problem is likely to be the impact of the impersonal, mechanical, technology-dominant environment on claimants and on their ability to reach a level of comfort with the proceedings that allows them to tell their stories naturally and effectively -- that allows them to present themselves in these proceedings as the persons they really are. It is not a question only of whether the demeanour that is displayed can be effectively read and assessed through the mediation of the camera, there is also the question of the influence of the technology on the quality of the displayed demeanour. In videoconferenced hearings, claimants are required to perform with the additional stresses presented by a highly impersonal environment and by having to give that performance speaking to a person on the television screen while being filmed and with the interpreter only a face on the screen. Viewed only from the perspective of everday experience, how likely is it that this combination of circumstances would not have some negative impact on the naturalness of most complainants' performances? And, of course, all three scientists identify problems of this nature as, indeed, reasons for legitimate concern, particularly with respect to the effective telling of emotionally fraught stories.
Not all counsel referred to this problem, but a majority did and those who had experienced this problem felt strongly about it. Even amongst the Board members, RPOs and interpreters - people who only experienced the videoconferencing in the members' rooms with no personal contact with the claimants - one found some unease with this aspect of the technology.
THE AUTHOR'S CONCLUSIONS AND RECOMMENDATIONS
My main conclusion is that the RPD should not make a final decision about the appropriateness of the use of videoconferencing in refugee hearings without further and more sophisticated trials and investigation.
The important concerns addressed by the scientists about the efficacy and appropriateness of video-mediated communication in refugee matters cannot be appropriately ignored. Neither would it be right to ignore the inherent reservations evidenced in the survey responses as to the possible negative impact on the ability of refugee claimants to perform in videoconferenced hearings at levels of comfort that allow them to communicate effectively and to display demeanour that reflects their true selves.
But it is too early to say that these are problems that could not be solved with some felicitous adjustments in the protocol, procedures and technical facilities, at least perhaps for a significant proportion of cases. Both Dr. Lagacé and Professor Salter acknowledge the absence in the scholarly literature of empirical research directed specifically at the use of videoconferencing in refugee hearings and both would advise against a rejection of videoconferencing without first a program of research addressed specifically to the assessment of its use in that context. And, in my view, there are obvious adjustments that could be made in the protocol, procedures and technical facilities that would make the videoconference environment significantly more acceptable and comfortable. One such adjustment would be to have the interpreters sitting with the claimant explaining the procedures and technology, giving reassurances and support in the claimants own language. Another, would be to have claimants assisted by counsel who had come round to the view that this was an effective and appropriate use of the technology. Whether the latter circumstance would be possible of achievement is, of course, an open question. But there are a number of other adjustments that I mention later.
My recommendation is that the Board commit to a significant "testing period" during which the videoconferencing would be delivered in the most acceptable way possible and the relative fairness and effectiveness of videoconferenced hearings as compared to traditional hearings would be carefully and systematically evaluated through an independent and scholarly empirical study. The study ought to be done by academics with the qualifications of the academics who contributed to this review, and would involve a comparison of the experiences and perceptions of two sets of claimants - one set being those claimants whose cases are determined in videoconferenced hearings during the testing period, and the other set being those claimants with cases of comparable complexity and difficulty that are determined in traditional, in-person hearings during the same period.
But this could not be done quickly and there is at least one category of case that the available evidence - most notably the academic evidence - supports being exempted at once from videoconferencing. I refer of course to those cases in which the claimant's story involves sexual abuse or physical or mental torture or where the claimant is suffering from a post-traumatic stress disorder or seems otherwise psychologically fragile. Those are cases in which the communications are very likely to be - or at least appear to be - more effective when they occur in a face-to-face environment. It is too early to say categorically that it will never be appropriate to hear such cases in a videoconferenced hearing. One might envisage a time in the future, when the experience with videoconferencing has progressed and the protocols and arrangements have become more nuanced and sophisticated, when a hearing for even this type of case might be appropriately videoconferenced. But, for the foreseeable future that category of case should, in my opinion, join the other categories of cases exempted by the Board's policy.
It is also clear to me that it is not fair or appropriate to subject an unrepresented refugee to a hearing in which he sits alone in a small room in the presence only of a camera and a video screen. Those cases should also be immediately exempted or, if they are to be videoconferenced, the claimant should be accompanied in the hearing room by both an interpreter and an RPO.
The changes in the protocols, arrangements and equipment that I would recommend be implemented during the testing period are as follows:
- The absence of any "reception" at the beginning of the hearing in the claimant's room should be corrected. From a justice system perspective, it seems to me wrong that claimants attending a hearing in which their future is to be decided by an adjudicator in what is effectively a judicial proceeding, should not be received in the hearing room at the outset by a real person with official status, who can address the claimants by name, confirm that they are in the right place, introduce them to the equipment, explain what to expect, and so on. This would be a significant step in the creation of a receptive and comfortable hearing environment. It is apparent that this is not currently available, at least it would appear not in the Toronto hearing rooms.
- Make it the usual practice to locate the interpreters in the claimant's room with the claimant. Exceptions could be made where an interpreter in the required language is not available close to the geographic location of the claimant's room. It is apparent from the survey evidence that it is not impossible to have reasonable interpretation services with the interpreter in the member's room, but the advantages in terms of putting claimants at ease, and facilitating the efficiency of the translation are sufficiently clear that having the interpreters with the claimant as a regular rule is clearly desirable.
- Having the RPO also located in the claimant's room would be preferable in an ideal world. This however is not as important - except if the claimant is not represented.
- Install feedback screens in all of the claimant's rooms in the system. Fairness and effectiveness eachrequire that both the claimants and their counsel be aware at all times of the picture of their room that is being transmitted to the screen in the member's room.
- Review the lighting in both the claimant's and member's rooms in all locations.
- Install a pre-set control mechanism in the claimant's rooms that will allow counsel (or an RPO) to call up a close-up of the Board member as they feel it appropriate from time to time during the hearing. Claimants and their representative need to be able to see and read the ongoing reactions of the member to their testimony or submissions. These controls should be preset so that by pushing one button the screen displays a predetermined level of close-up, and by pushing it again, the display returns to a more distanced focus. Of course, with the feedback screens in the members' rooms, the member will always know what picture of him or her is being shown on the screen in the claimant's room.
- The member's control of the zoom feature in the claimant's room should be pre-set to a selection of views: a normal view - one that would display both the claimant and counsel- one or two levels of close-ups on the claimant or other witness, and a close-up on counsel. Each of these pre-set views to be summoned by pushing an appropriate button. The member should not be able to use the full capacity of the zoom feature - or be thought to be able to do so - to achieve an extraordinarily close view of a claimant's face.
- Adjust the normal view of the member's room as seen on the screen in the claimant's room so that the member and his or her bench are seen sitting relatively close to the front of the screen. This will mean that the RPOs will not appear in the normal view. However, it is not important that they be always on the screen. Where the interpreter is located in the member's room, since the claimant needs to see the interpreter, a second "normal" setting should be available that shows both the member and the interpreter. The controls in the member's room could also be pre-set so that by pushing a button the camera would automatically shift to a predetermined close-up of the RPO when he or she is speaking. This button could be available to both the RPO and the member, and also to the counsel in the claimant's room.
- It is essential that the document problems be solved. This was a dominant concern for many of the participants in the surveys including both counsel, members, RPOs and interpreters. One cannot have an adjudicative process which is routinely put off the rails whenever the need arises for the member or the claimant or counsel to examine a document and the document is not in the right place, or needs to be interpreted, or can't be read etc. The movement of documents back and forth amongst counsel, claimants, witnesses, board members and interpreters wherever those individuals may be located needs to be seamless and routine. Surely there is technology that would meet that need.
- In the building where each claimants' room is located, there needs to be a board staff member tasked with responsibility for the smooth running of the hearing, including the reception of the claimants and their counsel at the outset of the hearing, explaining how the equipment works, and what to expect, and who the presiding member is going to be. That staff member should stay in the room until the hearing starts and ensure that the picture is properly adjusted for clarity, and brightness, etc., If the hearing is delayed, the staff member should have the responsibility for finding the reason for the delay and fixing it. It is unseemly to leave these Board responsibilities on the shoulders of counsel or interpreters. The same staff member should also be available at the end of a phone should anything go wrong with the technology during the hearing.
- Indeed, there should be a direct telephone link - or, perhaps, an internet link - between the claimant's room and the member's room to facilitate communications when the video portion of the proceedings is going wrong. Such a link could perhaps also be so organized that, if the interpreter has had to be located in the members' room, he or she could provide simultaneous translation to the ear of the claimant alone while counsel is making submissions.
- I would also recommend that oral decisions delivered from the bench immediately at the end of the hearing should not be given in videoconferenced hearings except in circumstances where the member would be equally comfortable in giving an oral decision in a face-to-face hearing.
- Finding ways for members to maintain appropriate control of the hearing room at the claimant's end is obviously important. Perhaps a rule that a claimant may be accompanied by only one personal supporter (or observer), and seating arrangements that ensure that that person is in the "normal" picture setting along with the claimant and counsel, would do the trick. But if family, including children, and other supporters are to be generally excluded from the hearing room, it will be important that claimants have advance notice of the need to make child-care arrangements on the day of the hearing. An exception to the one-observer-only rule would have to be made for professional observers.
- Then there are a number of other problems and suggestions for improvement that one finds in the survey responses that should be considered. Amongst these are the problems presented by holding hearings across time-zone differences. In my view, if the Board schedules a hearing that it is intended will run into the evening past closing times at one of the locations, it has an obligation to provide evening support staff and make proper arrangements with Building security at that location. Leaving a refugee claimant and a representative working alone into the evening in an otherwise vacated premises is both disrespectful and unsafe. It will also be important to be able to ensure claimants that the broadcast of their testimony in a videoconferenced hearing is secure from unauthorized interception.
- The board member who suggested that the videoconferencing ought to be organized and delivered by a special, national unit of the RPD was onto something important, in my opinion. Involving all board members at all locations in videoconferenced hearings dilutes the competence with which the equipment is operated and prevents choosing members for assignment to videoconferencing hearings who have the particular talents and commitment necessary to make this technology work. Moreover, it means that individual counsel in the various cities find themselves dealing in their videoconferenced cases with an amorphous, de facto national bench - a bench consisting of such numbers of members that counsel has little chance of ever establishing any rapport with any particular member, or of getting to know the style and tendencies of the members with whom they are dealing from day-to-day. Neither will the members ever establish a rapport with counsel.
I think it would be important for the Board to explore the possibility of establishing for the period of the testing period a national videoconferencing unit, with a small number of specially selected adjudicative members in each location and with a central management team. Such a team would be empowered for the period in question to make all the decisions respecting videoconferencing: the selection and means of utilizing the equipment and managing its operation, and the procedures and protocols governing its use. It would be tasked, as well, with the responsibility - and given commensurate authority - for ensuring that those decisions are implemented in all of the regions.
The hearing procedures for cases assigned to such a unit, and the adjudicative culture in that unit, could also be standardized, so as to avoid counsels' experience of encountering in videoconferenced hearings procedures and adjudicative culture with which they are not familiar. Apparently, hearing procedures and adjudicative culture can vary significantly from province to province.
From information derived from the various interviews and surveys, it is clear that the system now in place suffers from lack of central control over regional implementation. The shortcomings in the Toronto set up -- the lack of feedback screens, the absence of any reception or readily available support staff - might be thought to have contributed significantly to the overall hostility to the system on the part of Toronto counsel. Also, the lack of lighting in the Vancouver office, obviously complained about often but never fixed, and the failure to arrange camera coverage in Calgary that would ensure that the features of black members could be seen on the screens in claimants' rooms, are all incidents that suggest a lack of sufficient regional commitment to making this technology as acceptable as possible for the clients it is intended to serve.
A national videoconferencing unit would also simplify the training requirements, allow for consistent use of the technology, and for the dissemination of best practices, etc. It might also allow for greater concentration during the testing period of particular source-country expertise.
- In the planning and design of the testing period and the adjustments to be made, it will be important for the Board to work closely with experienced counsel. This is technology that can offer important advantages to the refugee community and to refugee representatives as well as to the Board, and it should be possible to enlist those communities in assisting the Board in making it work as well as possible and in studying its advantages and shortcomings. Indeed, once the technology has been made more user-friendly in all of the ways mentioned above, it would be useful to have videoconferenced hearings conducted wherever possible with the consent of the claimant and their representative. Calling for volunteers might well prove viable. Videoconferencing on consent would go a long way to ensuring the environment of enhanced comfort that one is seeking.
I should make it clear, however, that I do not intend by the foregoing recommendation to suggest any devolvement of ultimate responsibility for the decisions to be made in the implementation of this testing period strategy. Obviously, the decisions have ultimately to be made by the Board.
That, then, completes the statement of my conclusions and recommendations.
One practical question that immediately presents itself, of course, is what it would be reasonable for the Board is to do with the cases already scheduled for videoconferencing, while the implementation of the recommendations proceeds?
As mentioned previously, in my view cases involving allegations of physical or sexual abuse or torture should be removed from the videoconferencing regime immediately, and cases involving unrepresented claimants should not now go forward unless an RPO and an interpreter are in attendance in the claimant's room. I would also recommend a short adjournment of videoconferenced hearings while the most important changes are put in place - subject, perhaps, to a claimant's consent to proceed under the existing arrangements. These immediate changes should include, in my view: the provision of an appropriate Board "reception" of claimants in the claimant's room and staff support to ensure that the hearing is started and the technology is working; placing the interpreter in the claimant's room; installing a feedback screen in the claimant's room; changing the "normal" view of the member's room so that it gives a closer look at the member; installing controls in the claimant's room that will allow counsel to call up a pre-set close-up of the member, and simplified controls in the member's room so that one button will call up a pre-set close-up of the claimant. Members should also be trained on the importance of viewing the claimant's testimony generally in the close-up mode.
Before ending this report, I need to make some mention of the fact that missing from the report is any attention to the cost of things. Board staff did an analysis of the costs involved in the use of videoconferencing in its present formulation which I have had the opportunity to see and it seems generally clear that compared to having members - or refugee claimants - travel distances to hearings, videoconferencing is a bargain. But the adjustments I have recommended, and the empirical study I have recommended, will obviously add further costs during the testing period that I have not attempted to estimate.
However, I have no practical option but to leave that problem to the Board. I must also make it clear that I am not nearly close enough to the Board's operational challenges and problems, nor sufficiently literate in a technical sense, to be able to be sure that all of my recommendations are in fact reasonably doable, within a reasonable budget. The Board will also have to make those judgements.
My contribution has been to provide the conclusions and recommendations that from the information to which I was exposed during the course of this review seem right to me, as judged from my perspective as an experienced tribunal adjudicator and manager. I hope they will prove to be useful.
ALL OF WHICH IS RESPECTFULLY SUBMITTED AT TORONTO, ONTARIO,
THIS 21 st DAY OF OCTOBER, 2004
S. RONALD ELLIS, Q.C.
Immigration and Refugee Board of Canada Response to the Report on Videoconferencing in Refugee Hearings