Guidelines for Trauma-Informed Adjudication

A directive issued by the Chairperson of the IRB to guide members in conducting fair hearings and making well-reasoned decisions.

The Refugee Protection Division, Refugee Appeal Division, Immigration Division, and Immigration Appeal Division. These are the main branches of the IRB handling different types of cases.

This guideline specifically focuses on improving access to justice at the IRB, aiming to make it easier for individuals appearing before the Board to have their voices heard and their cases fairly assessed.

The guideline is designed to help IRB members understand and respect how people describe their own experiences, whether using "person-first language" such as "a person with a disability" or "identity-first language" such as "a disabled person."

Members should be mindful that individuals appearing before the Board might use different terms to describe their experiences of trauma, such as "victim" or "survivor." This shows respect for their choices.

The guideline highlights the importance of members being aware of and avoiding the influence of common myths and stereotypes associated with individuals appearing before the Board, especially when assessing credibility.

This guideline aims to replace and update previous guidelines, ensuring that the procedures for dealing with vulnerable persons are consistent with current best practices.

While guiding members, this guideline explicitly states that it doesn't change any legal requirements set out in legislation and established case law. It serves as an additional tool to help with practical application.

When individuals experience a traumatic event, it can significantly affect their ability to manage their emotions, thoughts, and overall mental well-being.

Applying the principles of trauma-informed adjudication during legal proceedings recognizes that individuals who have experienced trauma might need special considerations to participate fully and fairly.

A technique used to examine how different identity factors like gender, race, or disability can intersect and create unique forms of discrimination. This helps understand the cumulative impact of various social factors on an individual.

Acknowledging and considering the interconnected factors of an individual's identity, including their past experiences and social context, during legal proceedings.

Members participating in IRB proceedings must be mindful of protecting individuals' privacy, especially when dealing with sensitive information about their vulnerabilities, disabilities, or personal characteristics.

Members of the IRB are encouraged to work with all parties involved to identify and implement suitable accommodations for individuals facing challenges in participating in proceedings.

Anyone participating in an IRB proceeding can request accommodations if they need them. This might be due to a disability, vulnerability, or other personal characteristics.

Trauma is a deeply distressing or disturbing experience that can significantly impact a person's physical and emotional well-being, leading to long-term effects on their functioning.

The concept of trauma-informed adjudication emphasizes the importance of recognizing the impact of trauma on an individual's ability to participate fully in legal proceedings.

Intersectionality emphasizes the interconnectedness of different identity factors, highlighting how these factors can influence someone's experiences of discrimination or marginalization.

Applying an intersectional approach requires members of the IRB to consider the unique circumstances and social context of each individual involved in a proceeding.

The IRB recognizes the importance of protecting the privacy of individuals involved in proceedings, particularly when dealing with sensitive information related to their vulnerabilities, disabilities, or personal characteristics.

Members of the IRB are encouraged to proactively identify barriers individuals may face in participating in proceedings and work collaboratively to find solutions that ensure inclusivity and accessibility.

Individuals participating in IRB proceedings have the right to request accommodations if they need them. This could be due to disabilities, vulnerabilities, or other personal factors that impact their participation.

IRBs are encouraged to make adjustments to their procedures to assist individuals, even without legal requirements, as long as it doesn't negatively affect the IRB's operations or the rights of other parties.

Accommodations should be tailored to the individual's needs, taking into account possible fluctuations in those needs.

Accommodations can be granted even if a designated representative (DR) isn't needed, as accommodation addresses specific needs, while a DR handles broader representation.

Even if a designated representative (DR) is appointed, accommodations may still be necessary, and the DR should identify and request them.

Accommodations should be granted as early as possible, ideally before an appearance before the Board.

Counsel, designated representatives, and unrepresented individuals should inform the IRB about any needed accommodations as soon as possible.

IRBs can proactively identify potential accommodation needs by reviewing the file, and contacting the individual, counsel, or DR for information.

If the IRB requires more information about a requested accommodation, they can seek additional details or schedule a pre-hearing conference.

Decisions to grant accommodation rest with the member or member manager. However, the presiding member has the authority to modify or end accommodations after informing the individual being accommodated and providing an opportunity to respond.

Individuals seeking accommodations should formally apply to the Board under the relevant Division's rules. Flexibility in assessing adherence to the rules is encouraged, especially for individuals who are not represented or have barriers to interpreting the rules.

Requests for accommodation should detail the specific type of accommodation needed and the barriers to participation.

Accommodations must not unfairly disadvantage any party's ability to present their case and participate fully in the proceeding.

For accommodations beyond minor or administrative adjustments, the views of all parties should be sought before granting the accommodation.

Members should consider oral requests for accommodation made during hearings, where feasible. They can also proactively provide accommodations if they observe a need for it during a hearing.

While supporting documentation may be considered case by case, the need for documentation should be proportionate to the accommodation being requested.

A situation where a person's demeanor or behaviour alone is not enough to decide the truthfulness of their testimony.

The connection between the harm experienced and one of the Convention grounds for refugee protection.

The cumulative effect of several acts of discrimination can constitute persecution, even if each instance alone wouldn't be considered severe enough.

An individual's disability and/or vulnerability may not automatically qualify them for refugee protection based on healthcare access alone.

Even if parts of a claim are deemed less credible, the claim can still be accepted if the person faces a credible risk based on their profile.

A person may not be able to express fear due to their disability, but objective evidence of risk in their country of origin can still support their claim.

A person's reluctance to seek state protection in their home country doesn't automatically negate the presumption that the state could protect them.

The effectiveness of state protection should be evaluated in real-world practice, not just based on laws or intentions.

The specific circumstances of the person, including their disabilities and vulnerabilities, must be considered when evaluating the reasonableness of an Internal Flight Alternative (IFA).

A person's health condition may affect the reasonableness of an IFA, requiring them to prove they cannot access adequate medical treatment in the proposed location.

A person's health condition may make relocation unreasonable if they require regular treatment or assistance that's not available in the proposed location.

Beyond medical availability, the impact of return on the claimant's mental and physical health should be considered when assessing the reasonableness of an IFA.

Medical evidence can be crucial in determining the reasonableness of an IFA, but must be carefully evaluated.

Disabilities and vulnerabilities should be considered when assessing various factors related to removal, cooperation, and identification procedures.

IRB members should provide individuals the opportunity to explain the lack of supporting documentation when assessing the merits of a case.

Experts, such as psychologists and social workers, can contribute evidence based on their specialized knowledge.

Expert reports should generally include: individual's history, relevant diagnoses, functional limitations, prognosis, and treatment recommendations.

The IRB should carefully consider the content of expert reports and explain their decision-making process.

A medical report can independently support or refute an individual's claims about past events. It is not solely based on the individual's statement.

IRB members should consider an individual's disability or vulnerability, including its potential impact on their ability to testify, when assessing credibility.

Not all disabilities or vulnerabilities affect a person's ability to provide credible evidence. Credibility needs to be judged on a case-by-case basis.

Factors like trauma, medical conditions, cognitive difficulties, and age limitations can impact an individual's ability to present their case.

The presence of factors affecting testimony doesn't automatically mean an individual should be found less credible. Inconsistent or implausible evidence needs to be considered.

When there's evidence that an individual's personal situation might affect their testimony, the IRB should consider how this might explain any inconsistencies, omissions, or memory failures.

If an individual's testimony appears unreliable due to a disability or vulnerability, the IRB should consider whether additional evidence is needed to assess its reliability.

When a credibility concern arises, and the individual has a disability or vulnerability, the IRB should: 1. Ask if they want to provide an explanation and 2. Assess if the explanation is reasonable.

The assessment of whether an explanation is reasonable should consider the individual's personal circumstances and their potential impact on memory.

Findings of implausibility should be reserved for very clear cases. The IRB should consider cultural, economic, and political context when making this assessment.

A legal framework that promotes fair and equitable processes by recognizing the unique experiences of individuals appearing before the IRB and ensuring their needs are considered.

This principle involves respecting an individual's choice in language when describing their own experiences, whether it be "person-first language" (e.g., "a person with a disability") or "identity-first language" (e.g., "a disabled person").

This guideline aims to replace and update previous guidelines, ensuring that the procedures for dealing with vulnerable persons are consistent with current best practices.

The IRB's obligation to consider all available alternative measures before proceeding with an action that would impact someone's privacy.

This guideline explicitly states that it doesn't change any legal requirements set out in legislation and established case law.

The ability of individuals appearing before the IRB to understand the processes and to make informed choices about their participation.

The principle of recognizing the impact of trauma on individuals' abilities to participate in legal proceedings.

This principle includes principles that foster choice and collaboration by giving someone dealing with trauma the choice to accept or reject medical treatment or other interventions.

This principle recognizes that different groups experience various forms of discrimination and oppression based on their intersecting identities.

This principle aims to avoid engaging in victim-blaming by focusing on the actions of the perpetrator, not on the reasons for their victimization.

It's important to show respect for the language choices of individuals when they describe their experiences of trauma.

This guideline emphasizes the need for IRB members to understand and respect how people describe their own experiences, whether using person-first or identity-first language.

It involves considering the impact of an individual's social location, including factors such as race, class, gender, and disability, on their lived experiences.

The Immigration and Refugee Protection Act is a federal law that governs immigration and refugee matters in Canada.

The Immigration Refugee Board (IRB) is an independent body that makes decisions on refugee claims and other immigration matters.

The IRB's Chairperson's Guideline provides practical guidance for IRB members on how to handle cases involving individuals who have disabilities and/or vulnerabilities.

The guideline encourages IRB members to consider alternatives to detention, such as imposing attainable conditions of release, for individuals with disabilities and/or vulnerabilities.

The guideline emphasizes that mental health issues and/or substance use disorders should be considered when making decisions about detention or release.

The guideline encourages early detention reviews for individuals with disabilities and/or vulnerabilities to ensure fair and timely processing of their cases.

An individual's disability and/or vulnerability, such as a diminished mental capacity or a substance use disorder, can be relevant evidence in immigration cases.

Members should consider the social and cultural background of an individual when assessing their credibility, as they might face unique barriers in providing information.

When assessing spousal relationships, members should focus on the individual's attributes rather than labeling them solely based on their disability and/or vulnerability.

Members should consider an individual's disability and/or vulnerability when deciding whether to grant humanitarian and compassionate (H&C) relief.

Members should impose stay conditions that are realistic and achievable for the individual, taking into account their disability and/or vulnerability.

Members should consider the feasibility of abstinence conditions for individuals with substance use disorders, taking into account their individual circumstances.

Members should encourage individuals with mental health issues and/or substance use disorders to participate in rehabilitation programs, but only with their consent.

Members should consider providing support to individuals with disabilities and/or vulnerabilities to ensure they can comply with stay conditions.

The guideline acknowledges that the concept of vulnerability is complex and encourages members to consider whether an individual faces barriers to fully participating in the IRB process.

The IRB must do what is reasonably possible to accommodate people with disabilities, ensuring their participation is fair and inclusive.

A service provider only needs to accommodate if doing so wouldn't cause significant hardship or disruption to their operations.

The IRB is required to take steps to safeguard a person's privacy, particularly when dealing with sensitive information about their vulnerabilities or disabilities.

The IRB aims to make procedures accessible to all individuals, removing barriers that might prevent them from fully engaging in hearings.

An individual can request adjustments to the IRB proceedings if their participation is hindered by a disability, vulnerability, or other factors.

The IRB is not bound by strict legal requirements for evidence, which allows for more flexibility in accepting expert opinions.

The IRB's role is to make decisions based on evidence, not to provide medical diagnosis or treatment.

Individuals should provide all medical evidence to the IRB to help understand any vulnerabilities that might affect their participation in the proceedings.

The Minister is a party to all proceedings before the IRB, playing a crucial role in shaping the outcome.

The rules of fairness and impartiality apply to all participants in IRB proceedings, including the Minister.

The IRB must assess the difficulties an individual faces in obtaining required documents, taking into account their situation.

When reviewing evidence, the IRB should consider the potential impact of trauma on an individual's ability to communicate or present their case.

A general request for accommodation is insufficient, as it lacks specific details needed by the IRB to provide effective support.

When a person's credibility is assessed, their sworn statements are considered true unless there is a valid reason to doubt them, such as negative credibility findings.

Witnesses who have experienced significant trauma may have memory gaps due to its psychological impact. The IRB must acknowledge this possibility when assessing their credibility.

A psychological report based on a fabricated story cannot make that story believable if the report lacks independent or clinical testing.

The IRB should be aware of and avoid common stereotypes and myths when assessing a person's credibility.

When assessing credibility, age alone isn't a reliable indicator of vulnerability. Other factors, like physical or mental limitations, must also be considered.

IRB members must be sensitive and understanding of how trauma can affect a person's ability to provide coherent testimony.

A lack of detailed documentary evidence can be problematic when assessing someone's credibility, especially if they've experienced trauma.

The IRB must ensure fair and impartial proceedings by avoiding biased assumptions and making informed decisions.

The IRB's Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board provides guidance on specific gender-related issues.

The IRB's Chairperson's Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board provides guidance on handling cases involving children.

Mental state evidence can be crucial when assessing whether it was reasonable to seek state protection.

The Refugee Protection Division (RPD) is obligated to examine the applicant's explanations for not seeking state protection, including evidence of their psychological condition.

The Supreme Court emphasizes that demanding bail conditions that are too difficult to follow disproportionately affects vulnerable individuals, particularly those struggling with poverty, addiction, or mental health issues.

Lapses in addiction recovery are expected and should not automatically be interpreted as poor rehabilitation prospects.

Individuals with limited cognitive abilities, like those functioning at a pre-kindergarten level, are often able to participate in proceedings with strong support.

In legal proceedings, it is crucial to consider the unique circumstances and social context of each individual, recognizing the interconnectedness of identity factors.

Members of the IRB are encouraged to proactively identify potential barriers individuals may face in participating in proceedings and work collaboratively to find solutions that ensure inclusivity and accessibility.

Individuals participating in IRB proceedings have the right to request accommodations if they need them. This could be due to disabilities, vulnerabilities, or other personal factors that impact their participation.

The expectation that trauma survivors will always express intense emotions when discussing their experiences, especially in cases of sexual violence, where survivors are often expected to show significant distress and shame.

This occurs when various factors like age, gender, disability, or social status combine to create a heightened vulnerability for an individual.

A legal framework that recognizes the intersectionality of various identity factors, such as gender, race, and disability, and their impact on a person's vulnerability.

This legal principle emphasizes the importance of considering the unique circumstances and social context of each individual when evaluating their refugee claim.

The legal obligation to protect the privacy of individuals during refugee hearings, particularly when dealing with sensitive information about their vulnerabilities or experiences.

The provision of support and adjustments to ensure that individuals with disabilities or vulnerabilities can fully participate in refugee hearings.

The right of individuals participating in refugee hearings to request accommodations to help them overcome barriers to participation.

The expectation that all individuals, regardless of their background or experiences, deserve fair and humane treatment in the legal system.

A legal principle that requires decision-makers to carefully consider all available evidence and testimonies, including those related to trauma, mental health, and vulnerabilities.

The legal requirement to avoid using harmful stereotypes or assumptions about certain groups of people when assessing refugee claims.

The recognition that a fear of persecution may be based on a combination of factors, rather than a single reason.

The assessment of the applicant's ability to access state protection in their country of origin, considering factors like their vulnerability, the effectiveness of the legal system, and the prevalence of discrimination.

The ability of individuals to access necessary medical care and treatment in their home country, which is an important consideration in assessing a refugee claim.