Protocol addressing citizenship judge conduct issues

Table of contents

• Context
• Background
• Principles
• Applicability
• Complaints arising during hearings
• Administration

Context

In order to manage complaints against Citizenship Judges and equally, to maintain public confidence in the work that Citizenship Judges perform, a Protocol Addressing Citizenship Judge Conduct Issues (Protocol) has been developed. This Protocol replaces the “Public Complaints Process” and all previous versions of the Protocol Addressing Conduct Issues.

Background

The Citizenship Act (Act) and Citizenship Regulations confer upon Citizenship Judges the authority to carry out two important functions in the citizenship process. Under the Act, Citizenship Judges have the sole authority for deciding whether applicants meet the physical presence requirements for Canadian citizenship, once a citizenship officer has determined that he or she cannot approve the application for citizenship on that ground. In this way, Citizenship Judges make decisions that affect the rights of the individuals whose cases they decide.

Citizenship Judges also carry out a ceremonial function. They preside at citizenship ceremonies where they administer the Oath of Citizenship to new Canadians and present them with their certificates of Canadian citizenship. The Citizenship Regulations give Citizenship Judges the duty of emphasizing the responsibilities and privileges of citizenship to new citizens at ceremonies. As the authority that swears in new Canadians and imparts to them a vision of Canadian citizenship, the ceremonial role of Citizenship Judges has significant symbolic value.

Both the decision making and ceremonial functions involve Citizenship Judges in direct interaction with applicants and members of the public. In making a decision about an application, Citizenship Judges may hold a hearing with an applicant in order to resolve outstanding issues. Similarly, citizenship ceremonies are by their very nature public events, where applicants, their friends and family, and members of the public are in attendance.

Citizenship Judges also assume a third function, that of promoting the institution of Canadian citizenship in their communities by encouraging citizenship acquisition, particularly among marginalized and vulnerable newcomers. These duties bring Citizenship Judges before the public, where their authority as decision-makers and stature in presiding at ceremonies reinforce the message they deliver to their audience.

The importance of their decision making, ceremonial and promotional functions require that Citizenship Judges adhere to the highest standards of personal conduct in fulfilling their duties. Citizenship Judges recognize this fact and commit themselves to acting with impartiality, respect, sensitivity to cultural differences, compassion, open-mindedness and collegiality when dealing with applicants and the public.

Notwithstanding this commitment, it is possible that situations may arise where an individual could become concerned about the conduct of a Citizenship Judge at a hearing, ceremony or promotional activity. The Director General of Citizenship and Passport Program Guidance (Director General) will respond to and manage complaints regarding judges and if necessary, liaise with the Minister, the Conflict of Interest and Ethics Commissioner (Commissioner), or other relevant authorities regarding their resolution.

Principles

The Protocol has been developed in support of the premise that public confidence in the work of the Citizenship Judges will be strengthened by a transparent, accessible, prompt and effective process for dealing with complaints raised by the public. In addition, in support of a collegial and efficient workplace, internal complaints from departmental staff can also be made under this process.

The Protocol will ensure fairness to all parties concerned. The process will respect their personal rights and dignity, while ensuring that all complaints are dealt with appropriately.

All complaints will be dealt with as quickly as fairness and thoroughness permit. Individuals making complaints (complainants) will receive prompt acknowledgement of their concern and Citizenship Judges will be informed of any complaint against them at the earliest opportunity.

Immigration, Refugees and Citizenship Canada (IRCC) recognizes that complaints should be dealt with in a manner appropriate to the severity of the allegation. Accordingly, the Protocol consists of two separate procedures. Complaints best suited to informal resolution will follow the informal process; while those requiring a structured investigation will follow the formal process.

The general principles of procedural fairness apply to both of these processes. In particular, it is expected that the person designated to conduct an investigation at the formal level (designated officer) will be impartial, thorough and fair, both to the complainant and to the Citizenship Judge. Citizenship Judges against whom a complaint has been made will have a full opportunity to respond. Provided that the principles cited above are respected, wide latitude and flexibility are permissible in conducting investigations.

Applicability

The Protocol applies to complaints about the conduct of full-time and part-time Citizenship Judges in the performance of their decision making, ceremonial and promotional functions.

If a Citizenship Judge’s term of office ends before a complaint has been dealt with under the Protocol, the complaint will proceed until it is officially closed. However, the Director General may not be able to recommend or implement remedial measures for former Citizenship Judges once their term expires. It should be noted that the Conflict of Interest Act applies to Citizenship Judges following the expiry of their term of office.

The Protocol applies only to complaints raised about the conduct of Citizenship Judges. It does not apply to the decisions or exercise of discretion by Citizenship Judges in the course of their decision making function. Applicants who wish to contest a decision made by a Citizenship Judge can file an application for leave and judicial review to the Federal Court of Canada.

The Protocol does not apply to complaints against public servants involved in the citizenship process. Such complaints can be brought to the attention of the Manager of the IRCC office in question.

Complaints made about the conduct of a Citizenship Judge will be addressed at the Director General level.

In order for complaints to be considered under the Protocol, complainants must identify themselves and provide their contact information. IRCC does not respond to anonymous allegations and all complaints must be submitted in writing.

Complaints arising during hearings

A complaint about the conduct of a citizenship judge may arise during the course of a hearing before that Citizenship Judge. If the complaint relates to bias, the proper course of action is for the issue to be raised at the hearing itself. The applicant should explain why he or she feels that the Citizenship Judge cannot render a fair and impartial decision and request that the Citizenship Judge withdraw from the case. The Citizenship Judge will consider this request and provide a decision and reasons to the applicant. The Citizenship Judge will note the request, decision and reasons in the applicant’s file.

If such a request is not made during the hearing or if it is made and rejected, a subsequent complaint made under the Protocol does not automatically require the Citizenship Judge to withdraw from rendering a decision in the applicant’s case. The Protocol is not a vehicle for removing Citizenship Judges from hearings.

If the Judge declines to withdraw from the case him or herself, the appropriate recourse for the applicant is to seek leave for a judicial review of the decision to the Federal Court.

Citizenship Judges may be assigned to hear cases of applicants whom they did not approve in a previous application. It should be noted that, the mere fact of having previously rendered a negative decision on an application does not in and of itself demonstrate that the Citizenship Judge is incapable of being impartial in the consideration and analysis of a new application.

Informal process

The intent of the Protocol is to deal with complaints informally wherever possible. Informal resolution is often more prompt, less costly, and more mutually satisfactory than a formal process.

Complaints made about the conduct of a Citizenship Judge are addressed by the Director General of Citizenship and Passport Program Guidance Branch. In addressing a complaint, the Director General will contact the complainant and the Citizenship Judge, make informal inquiries and attempt to resolve the complaint. Where appropriate, this may involve remedial measures determined by the Director General. The Director General may also resolve such a complaint unilaterally by concluding that it is not well founded or is serious enough to warrant a formal investigation. The Director General’s decision in resolving a complaint through the informal process is final.

Formal process

Complaints of a sufficiently serious nature, as determined by the Director General, are dealt with through the formal process. If the complaint falls outside of IRCC’s scope of authority, such as a criminal offence or a human rights abuse that falls under the purview of the Canadian Human Rights Commission, the complaint will be forwarded to the appropriate authority or decision-making body to address the matter.

The formal process calls for a formal investigation to be conducted by a designated officer who will report his findings to the Director General. Both the complainant and the Citizenship Judge will have the opportunity to review and make representations regarding the report of the designated officer. The standard of proof for a finding of misconduct is that of a balance of probabilities based on clear and convincing evidence.

Where the Director General determines in light of the findings of the investigation and in consideration of the representations of both the complainant and the Citizenship Judge, that a complaint is founded, he or she will make a formal recommendation to the Minister as to the disposition of the complaint, who may suggest administrative measures as appropriate. The Minister may then decide to make a recommendation concerning the findings of the complaint and the appointment of the Citizenship Judge to the Governor in Council. Any decision of the Minister to make a recommendation to the Governor in Council would be made in accordance with the principles of procedural fairness.

Administration

1. All complaints about the conduct of a Citizenship Judge will be referred at the first reasonable opportunity to the Director General. Complaints can be sent by email or by mail to the following address:
   1. Immigration, Refugees and Citizenship Canada
      Office of the Director General of Citizenship and Passport Program Guidance Branch
   2. 365 Laurier Avenue West, Jean Edmonds Tower South, 10^th Floor
      Ottawa, ON K1A 1L1
2. Upon reviewing the complaint, the Director General will decide whether further action is required.
   
   If no further action is required, the Director General will write to the complainant and explain why further action is not required. If applicable, the Director General will explain why the complaint does not fall within the jurisdiction of the Protocol.
   
   If further action is required, the Director General will decide whether the complaint should be dealt with informally or formally and follow the steps of the appropriate procedure.

Informal procedure

• The Director General will acknowledge receipt of the complaint and provide the complainant with a copy of the Protocol.
• The Director General will advise the Citizenship Judge of the nature of the complaint and provide a copy of the letter of complaint. The Citizenship Judge may respond in writing. An overview of the judge’s response may be shared with the complainant.
• Comments provided by the complainant will be disclosed to the Citizenship Judge for final comment.
  • In order to achieve an informal resolution, the Director General will:
  • conduct informal inquiries;
  • gather or arrange to have gathered, information;
• communicate or meet with the complainant and the Citizenship Judge, individually and/or together with the consent of both parties.
• Once the selected measures above are completed, the Director General will:
  • close the complaint by writing to the complainant and explaining why it is without substance or not serious enough to warrant further consideration; or
  • write to both the complainant and the Citizenship Judge advising of the outcome of the inquiries and any corrective measures that will be put in place.
• Where the Director General decides, at any time, that the complaint cannot or should not be resolved informally, he or she will advise the complainant and the Citizenship Judge in writing of this decision and the complaint will be referred to the formal procedure.

Formal procedure

• The Director General will acknowledge receipt of the complaint in writing and provide the complainant with a copy of the Protocol. The Director General may request further details about the complaint. If the Director General deems it is required, he or she may consult with senior departmental officials, Minister’s office staff or the Minister
• The Director General will send a copy of the complaint to the Citizenship Judge in question. The Citizenship Judge may provide a written response to the Director General. The Director General shall cross disclose — the Citizenship Judge’s written response to the complainant — any comments from the complainant on the Citizenship Judge’s response
• The Director General will review the Citizenship Judge’s written reply:
  • If no further action is required, the Director General will close the complaint file by writing to both parties.
  • If a formal investigation is required, the Director General will advise the complainant and the Citizenship Judge in writing and will appoint a designated officer to conduct the investigation.
• The designated officer will:
  • respect the principles of administrative law and ensure that all parties are dealt with fairly;
  • have the latitude within the principles outlined above to conduct the investigation as he deems appropriate;
  • put the substance of any allegations and evidence against the Citizenship Judge to the Citizenship Judge and include his response in the report to the Director General; and
  • upon completion of the investigation, report in writing to the Director General with findings and reasons for the decision.
• A copy of the designated officer’s report will be sent to the Citizenship Judge to allow them to make written representations to the Director General.
• Upon reviewing the report of the designated officer and the written representations of the Citizenship Judge, the Director General will determine whether the complaint is founded or unfounded.

If the complaint is unfounded, the Director General will close the complaint file and inform both parties in writing.

A summary of the complaints considered under the Protocol will be provided to the Minister.