Protocol addressing conduct issues

Context

In order to manage this responsibility and equally, to maintain public confidence in the work that Citizenship Judges perform, a new Protocol Addressing Conduct Issues (Protocol) has been developed. This Protocol replaces the “Public Complaints Process”.

Background

The Citizenship Act (Act) confers 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 requirements for Canadian citizenship. In this way, Citizenship Judges exercise a quasi-judicial power that affects 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 gives 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 quasi-judicial 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 have the power to summon applicants for a hearing 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. Again, these ambassadorial 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 quasi-judicial and ceremonial functions and the impact of their ambassadorial function require that Citizenship Judges adhere to the highest standards of personal conduct in fulfilling their duties. Citizenship Judges recognize this fact and commit themselves in the Supplementary Guidelines on Conflict of Interest for Citizenship Judges 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. In recognition of this possibility, the Minister of Citizenship and Immigration has delegated the authority to the Senior Citizenship Judge (Senior Judge) under subsection 26(2) of the Citizenship Act to respond to and manage complaints regarding judges and if necessary, to liaise with the Minister, the Privy Council Office and the Conflict of Interest and Ethics Commissioner (Commissioner) regarding their resolution.

Principles

The Protocol has been developed in support of the premise that a public institution such as the Citizenship Commission will be strengthened by a transparent, accessible, prompt and effective process for dealing with complaints raised by the public.

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. After enquiries and analysis, both parties will be informed of the disposition of the complaint.

The Commission 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 administrative justice apply to both of these processes. In particular, it is expected that the person designated by the Senior Judge 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. The standard of proof for a finding of misconduct is that of a balance of probabilities based on clear and convincing evidence.

A Citizenship Judge who is the subject of a complaint may request legal representation. Such requests will be considered by the Privy Council Office and must be made through the Senior Judge. When a request for legal representation is made, all actions to consider the complaint under the Protocol will be placed in abeyance. The complaint will be reinstated once the decision of the Privy Council Office on legal representation has been delivered.

Applicability

The Protocol applies to complaints about the conduct of full-time and part-time Citizenship Judges in the performance of their quasi-judicial, ceremonial and ambassadorial functions.

If a Citizenship Judge’s term of office ends while a complaint is being dealt with under the Protocol, the complaint will proceed until it is officially closed. However, the Senior Judge will have no authority to recommend or implement remedial measures as the

Commission loses jurisdiction to deal with former Citizenship Judges once their term expires. Similarly, complaints received against Citizenship Judges after their terms have expired will not be considered under the Protocol. 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 quasi-judicial function. Applicants who wish to contest a decision made by a Citizenship Judge can file an appeal 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 Citizenship and Immigration Canada office in question.

Where a complaint is made about the conduct of a Citizenship Judge, it is referred to the Senior Judge. If a concern is raised about the conduct of the Senior Judge, it is referred directly by the complainant to the Privy Council Office which will designate a representative to assume the duties performed by the Senior Judge in the process. In such situations, the Senior Judge is treated as a Citizenship Judge.

In order for complaints to be considered under the Protocol, complainants must identify themselves and provide their contact information. The Citizenship Commission 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 legal 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 should not be allowed to become a vehicle for removing Citizenship Judges from hearings.

Citizenship Judges may be assigned to hear cases of applicants whom they did not approve on 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 Senior Judge. In addressing a complaint, the Senior Judge 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 Senior Judge. The Senior Judge 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 Senior Judge’s decision in resolving a complaint through the informal process is final.

Formal process

Complaints of a sufficiently serious nature are dealt with through the formal process. This calls for a formal investigation to be conducted by a designated officer who will report his findings to the Senior Judge. Both the complainant and the Citizenship Judge will have the opportunity to review and make representations regarding the report of the designated officer.

Where the Senior Judge 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 will make a formal recommendation to the Privy Council and to the Minister as to the final disposition of the complaint. This recommendation will suggest administrative measures as appropriate. The final disposition of the complaint will be left to the discretion of the Governor in Council.

Administration

1. All complaints about the conduct of a Citizenship Judge will be referred at the first reasonable opportunity to the Senior Judge. Complaints can be sent to the Senior Judge by fax at (613) 954-4621 or by mail at the following address:

Office of the Senior Citizenship Judge
Citizenship Commission
219 Laurier Avenue West, Room A-920
Ottawa, Ontario
K1A 1L1

2. Upon reviewing the complaint, the Senior Judge will decide whether further action is required.

  1. If no further action is required, the Senior Judge will write to the complainant and explain why further action is not required.
  2. If further action is required, the Senior Judge will decide whether the complaint should be dealt with informally or formally and follow the steps of the appropriate procedure.

Informal procedure

3. The Senior Judge will acknowledge receipt of the complaint and provide the complainant with a copy of the Protocol.

4. The Senior Judge 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 and the response will be disclosed to the complainant for comment.

5. Comments provided by the complainant will be disclosed to the Citizenship Judge for final comment.

6. The Senior Judge will:

  1. conduct informal inquiries; or
  2. gather or arrange to have gathered, information;
  3. communicate or meet with the complainant and the Citizenship Judge, individually and/or together in order to achieve an informal resolution.

7. Based on the outcome of the course of action in Step 6 above, the Senior Judge may:

  1. close the complaint by writing to the complainant and explaining why it is without substance or not serious enough to warrant further consideration; or
  2. where the complainant and the Citizenship Judge are satisfied with an informal resolution, the Senior Judge will close the complaint by writing to both parties and confirming this outcome and outlining any remedial measures that he or she determines necessary.

8. Where the Senior Judge 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.

Complaints about the conduct of the Senior Judge will be referred at the first reasonable opportunity to the Deputy Secretary to Cabinet by mail at the following address:

Privy Council Office
Senior Personnel and Special Projects Secretariat
Postal Station B
59 Sparks Street
Ottawa, Ontario
K1A A03

The Privy Council Office will designate a representative who will take on the role of Senior Judge in administering these provisions.

Formal procedure

9. The Senior Judge will acknowledge receipt of the complaint in writing and provide the complainant with a copy of the Protocol. The Senior Judge may request further details about the complaint. Where and when necessary, the Senior Judge may liaise with the Privy Council Office, the Commissioner and/or the Minister at any time during the formal process.

10. The Senior Judge will send a copy of the complaint to the Citizenship Judge in question. The Citizenship Judge may provide a written response to the Senior Judge. The Senior Judge shall cross disclose — the Citizenship Judge’s written response to the complainant — any comments from the complainant on the Citizenship Judge’s response

11. The Senior Judge will review the Citizenship Judge’s written reply:

  1. If no further action is required, the Senior Judge will close the complaint file by writing to the complainant and explaining why the complaint is without substance or does not warrant further consideration.
  2. If a formal investigation is required, the Senior Judge will advise the complainant and the Citizenship Judge in writing and will appoint a designated officer to conduct the investigation.

12. The designated officer will:

  1. respect the principles of administrative law and ensure that all parties are dealt with fairly;
  2. have the latitude within the principles outlined above to conduct the investigation as he deems appropriate;
  3. 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 Senior Judge; and
  4. upon completion of the investigation, report in writing to the Senior Judge with findings and reasons for the decision.

13. A copy of the designated officer’s report will be sent to the complainant and the Citizenship Judge to allow them to make written representations to the Senior Judge.

14. Upon reviewing the report of the designated officer and the written representations of the complainant and the Citizenship Judge, the Senior Judge will determine whether the complaint is founded or unfounded.

  1. If the complaint is founded, the Senior Judge will report in writing to the Privy Council Office and to the Minister with recommendations as to the disposition of the complaint including any appropriate administrative action. A copy of this letter will be forwarded to the complainant and the Citizenship Judge. The final disposition of the complaint will be left to the discretion of the Governor in Council.
  2. If the complaint is unfounded, the Senior Judge will close the complaint file. The Senior Judge will write to the complainant explaining why the complaint is unfounded. A copy of the letter and the report will be forwarded to the Citizenship Judge.

A complaints log will be established to track the progress of all complaints concerning conduct issues and to record their final disposition.

A summary of the complaints considered under the Protocol will be provided to the Minister as part of the Citizenship Commission’s Annual Report.

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