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10. REPRESENTATIVES FOR MINORS AND INCOMPETENT PERSONS 10. REPRESENTATIVES FOR MINORS AND INCOMPETENT PERSONS

10.1 INTRODUCTION

This chapter uses the term

• "minors" to describe "persons under the age of eighteen years",

• "incompetents" to describe persons who are "unable, in the opinion of the Division, to appreciate the nature of the proceedings",

• "designated representative" to describe persons designated under subsection 69(4) of the Immigration Act to represent "minors" or "incompetents".

The Immigration Act contains special procedural safeguards for persons who may not be capable of understanding the legal process in which they are involved. The Act provides for the appointment of, and payment to, representatives for "minors" and "incompetents" who are the subject of Refugee Division proceedings [ Immigration Act, ss. 69(4), (5)]. The right to the "designation" of a representative is in addition to the person's right to be represented by counsel, and designation of a representative is necessary even where the minor or incompetent appears at the hearing with a lawyer or other counsel.

The Act further requires that the designated representative be paid an honorarium fixed by the Chairperson and also be paid the reasonable expenses incurred by the designated representative in connection with the case. However, a parent or guardian who is designated as representative is not entitled to receive an honorarium and expenses.

10.2 MINORS - OVERVIEW OF THE LAW

The Immigration Act [s. 69(4)] requires that a representative be appointed for a minor even where the minor appears with a lawyer or other counsel at the hearing. This was illustrated in Kissoon v. Canada (Minister of Employment and Immigration), [1979] 1 F.C. 301 (C.A.) where the Federal Court of Appeal ruled that an adjudicator made an error of law in failing to designate a representative for a 17-year-old who was accompanied by legal counsel at an inquiry. The provisions of the Act [ss. 29(4), (5)] dealing with the appointment of representatives at immigration inquiries are substantially the same as the provisions dealing with the appointment of representatives at Refugee Division hearings [ss. 69(4), (5)].

The determination as to whether a claimant is a "minor" does not usually pose a problem. The age of the claimant may be satisfactorily established through documentary evidence or testimony.

On occasion, a claimant may possess a travel document in his or her own name indicating that the holder of the document is 19 years old; nevertheless, the claimant may state that he or she is actually only 17 years old. The reverse situation could also arise. In each case, the decision as to whether a representative must be designated has to be made on the basis of the evidence available. The panel will have to determine whether the documentary evidence or the oral statements are more likely to be accurate in the particular case.

Where a claimant is under 18 years of age, the Refugee Division must designate a representative for that person, but if the claimant turns 18 during the course of the proceedings, the representative is no longer required under the Act and should be relieved of authority.

The Act provides a minor the right to have a designated representative, and, in general, Refugee Division matters should proceed expeditiously [s. 68(2)]. Therefore, a hearing should not be purposely delayed until the claimant has reached 18 years of age merely to avoid having to designate a representative for a minor.

10.3 INCOMPETENTS - OVERVIEW OF THE LAW

The Act provides that "where a person who is the subject of any proceedings before the Refugee Division … is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings" [s. 69(4)].

In the absence of any indication to the contrary, it is reasonable to presume that a claimant is able to appreciate the nature of the proceedings.

The issue of the claimant's competence may arise through notice that the adjudicator presiding at the claimant's earlier inquiry designated a representative for that person under subsection 29(5) of the Immigration Act for the purpose of the inquiry because, in the opinion of the adjudicator, the claimant was "unable to appreciate the nature of the proceedings".

The appointment or lack of appointment of a representative at the inquiry, however, should not be the sole factor in deciding whether a representative must be designated for the purpose of Refugee Division proceedings. It is possible that a person's mental condition could change between the earlier proceedings and the Refugee Division proceedings or that new information about the person's condition is available.

A determination that the claimant is unable to appreciate the nature of the proceedings may be based on:

• admissions of the claimant or counsel about the claimant's ability to understand what is going on,

• observable behaviour at the hearing (including responses to questions asked by the Refugee Division),

• expert testimony or a report on the claimant's mental health or intellectual capacity.

It should be noted that a person may have a mental disorder or diminished intellectual faculties but still be able "to appreciate the nature of the proceedings". The Refugee Division should satisfy itself based on the claimant's behaviour and general demeanour, in addition to any other testimony or report, that a representative is needed.

Refugee Division members should avoid commenting specifically on a claimant's mental state of health or intellectual capacity, unless there is expert testimony to support the conclusion. There is no need to state in specific terms what the apparent medical condition of the claimant is (nor, ordinarily, is the Refugee Division member qualified to do so). The Refugee Division member only has the have reasonable grounds for forming an opinion that a person is unable to appreciate the nature of the proceedings.

10.4 PROCEDURE FOR DESIGNATING A REPRESENTATIVE

The Act or Rules do not set out any specific criteria or guidelines for the designation of a representative under subsection 69(4). However, given the purpose of the procedure, the following minimal criteria would appear to be appropriate. The person to be designated to represent the claimant:

• must be over 18 years of age;
• must be able to appreciate the nature of the proceedings;
• must be willing to represent the claimant;
• must be readily able to do so;
• must not stand to gain anything by having a negative decision made against the claimant in the case (i.e., no conflict of interest).

Where the claimant has a parent, other relative, legal guardian, or trusted friend who appears to be capable and can meet the above criteria, then that person will usually be designated as representative.

In other cases, the Refugee Division member may select a representative from a list of professional persons in their region, generally lawyers or social workers, who are available and willing to accept the appointment. Potential representatives named on the list should have been screened to ensure that they have satisfactory knowledge and experience for the task at hand and that their actions will be governed by a code of professional conduct.

Another factor which may often be important in selecting a suitable representative is the representative's familiarity with the language and culture of the claimant.

The designation of a representative is not considered to be final. A new representative may be appointed if it becomes apparent during the course of the hearing that the representative does not meet the minimum criteria for appointment or if the representative is wilfully impeding the conduct of the hearing.

Although the actual "designation" of a representative is made by the presiding member at the time of the hearing so that it forms part of the formal record of the proceedings, operational staff play a facilitating role both prior to and after the formal designation. The policies and procedures for operational staff of the Refugee Division are set out in paper called Operational Policy & Procedures Paper/ Designated Representatives - CRDD and IAD/ The Role, Honoraria and Expenses , January 24, 1995. This paper deals with, among other things, the contract for payment to a designated representative.

The Trial Division has commented that it is proper practice to designate a representative at the outset of the hearing, not later. In Phillip, Mary Francisca v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. IMM-434-98), Rothstein, December 11, 1998, the female claimant (the mother) was wrongfully required to leave the hearing while the panel questioned her children, age 5 and 8, in her absence. The Refugee Division thus failed to comply with subsection 69(2) of the Act, which provides that "… proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable…" That error was sufficient for the Court to set aside the decision of the Refugee Division. Rothstein J. went on further to state:

In Phillip, the following question was certified for appeal: 10.5 THE ROLE OF THE DESIGNATED REPRESENTATIVE

The role of designated representative should not be confused with the role of counsel. The two roles are not identical, although in some areas there may be some overlapping responsibility. One person may fulfil the roles of designated representative and counsel at the same time.

The representative's role is to try to ensure that the wishes of the minor or incompetent are carried out with respect to the proceedings. Where the designated representative cannot adequately determine what the claimant's wishes are, the representative may act, in what seems to the representative to be, the "best interests" of the claimant.

The representative's role involves helping the minor or incompetent to make decisions with respect to the proceedings. The representative should, to the extent possible, inform the claimant as to the seriousness and purpose of the proceedings.

One of the most important duties of the designated representative is to decide who should be counsel for the claimant. The representative may choose to act as counsel or may hire other counsel. The representative may assist the minor or incompetent in instructing counsel.

The representative should help to ensure that information adduced at the proceedings related to the claimant is reliable. There is nothing to prevent the designated representative from giving evidence as a witness at the hearing, if he or she has relevant evidence to give.

Counsel's role is to give legal advice, plan the case, make objections where necessary, and to present evidence and make submissions or arguments on the evidence and points of law.

The extent of the role of the designated representative will vary according to the circumstances of each case. For example, a 17-year-old university student would, of course, retain the right to influence proceedings, whereas the decisions of an 8-year-old would be virtually exclusively in the hands of the representative.

Similarly the person who is incompetent by virtue of temporary lapses of attention should be consulted more than the person who is totally unaware of his or her surroundings. A designated representative, therefore, whether a parent or professional person, will not necessarily act as a substitute for the minor or incompetent in all respects and in all cases.  

10.6 INSTRUCTING THE REPRESENTATIVE

A person designated to represent a claimant should be advised of the circumstances that lead to the need for that designation and should be provided with a transcript of any proceedings to date, if available, and any other relevant documents.

It should be explained that the representative's role is to help ensure that the claimant is able to put forward the best possible case to the Refugee Division.

The representative will have to decide the matter of retaining counsel and, depending on the level of understanding of the claimant, that decision should be taken in consultation with the claimant. The record of the hearing should indicate that the representative understands that, in accordance with subsection 69(1) of the Act, the claimant may be represented at his or her own expense by a lawyer or any other person, and that a reasonable adjournment would be granted for the purpose of retaining counsel.

If the designated representative decides to act as counsel in addition to filling the role of the representative, the record of the proceedings should clearly contain this information.

Appendix 10A - Immigration Act, ss. 29 and 69

Immigration Act, ss. 29(4), (5):

Immigration Act, s. 69(1), (4) and (5): Appendix 10B - CRDD Rule 11

 

Appendix 10C - Selected Case Law

1. Ali, Abdourahman v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. T-3026-92), Dubé, July 26, 1995 (The three minor children were represented throughout the inquiry, at the beginning by counsel and later by the designated representative. It is true that the were absent for some sittings, but they had been duly summoned and it was the responsibility of the counsel or the designated representative to see that they were there if they thought it was necessary.)
2. Azdo v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 645 (C.A.) (The term "guardian" in s. 29(5) means legal guardian in the narrow sense.)
3. Ganji, Shalah Namdar v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. IMM-3632-96), Gibson, August 29, 1997. Reported: Ganji v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 95 (CRDD denied natural justice when failed to consult with the 15-year-old's mother, who was her designated representative, before ordering that the 15-year-old testify, without preparation, when the claimants had not intended that she testify)
4. Kissoon v. Canada (Minister of Employment and Immigration), [1979] 1 F.C. 301 (C.A.) (The adjudicator erred by failing to designate a representative even though 17-year-old had a lawyer at inquiry.)
5. Mandi, El-Menouar v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. IMM-1952-97), Campbell, February 24, 1998. (Half way through the hearing, the minor claimants (then 16, 15 and 12 years old) were excused from the hearing room by the panel. Before doing so, the panel should have: (1) ensured that counsel conferred with the claimant's mother (the designated representative) to ascertain if she wished the children excluded; (2) asked the mother if she wished the children removed; and (3) asked the children if they wanted to be removed. The minor claimants should be asked if they wish to testify.)
6. Phillip, Mary Francisca v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. IMM-434-98), Rothstein, December 11, 1998 (The female claimant was excluded from the hearing room while her children, aged 5 and 8, were questioned. When she returned to the hearing room, counsel asked the presiding member to summarize the children's evidence. It was only at that point that the mother was appointed designated representative. The presence of the claimant under s. 69(2) is mandatory: "The words 'whenever practicable', while recognizing that in some circumstances, it may not be possible for an applicant to be present, also require that when it is feasible, applicants must be present." Even if the exclusion was permissible, the summary provided to the female claimant was inadequate. A late designation may not invalidate all proceedings but it is proper practice to do the designation at the outset. The children were questioned without first establishing that they understood right from wrong, the importance of telling the truth and the consequences of lying. Application allowed. Question certified for appeal.)
7. Quinteros, Fabiana Jacqueline v. Canada (Minister of Citizenship and Immigration) (F.C.T.D., no. IMM-3519-93), McGillis, October 12, 1995 (Adjudicator properly designated mother to represent her minor children, without first determining whether the children were unable to appreciate the nature of the proceedings [ Kamtapersaud, Betty v. Canada (Minister of Employment and Immigration) (F.C.T.D., no.  T-378-93, Rouleau, November 23, 1993, not followed]; adjudicator properly confirmed that counsel was acting for the children; the 15-year-old child was not denied "meaningful" representation by counsel, as she voluntarily chose to leave the inquiry.)

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