Canadian Refugee Procedure/Ancillary powers of the Board to control its process

Deliberative Secrecy.
The principle of deliberative secrecy prevents disclosure of how and why adjudicative decision-makers make their decisions. The "how and why" of decision-making are kept secret to protect the decision-maker and the decision-making process.
Access to information rights under the "Privacy Act" do not apply to a Board Member's notes.
The issue of how the principle of deliberative secrecy intersects with access to information rights under the federal "Privacy Act" was considered in "Tunian v. Chairman of the Immigration and Refugee Board." The Tunian family were refused refugee status. They applied pursuant to section 41 of the "Privacy Act" to receive the draft reasons and notes prepared by the member of the Refugee Protection Division of the IRB who made the decision determining that they were not Convention refugees. Section 41 of the Privacy Act gives the Court the jurisdiction to review instances in which an individual has been refused access to personal information. The "Privacy Act" provides individuals with a right of access to information about them where it is either in a "personal information bank" or under the "control" of a government institution. Access to the Member's notes was refused in this case on the basis that notes made by quasi-judicial decision-makers in the course of carrying out an independent adjudicative function are not in the control of the administrative tribunal but, rather, are in the control of the member themself. In this case, the court affirmed the decision "Privacy Commissioner v. Labour Relations Board" and held that the principles discussed therein apply to the Immigration and Refugee Board, particularly:It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice. ... As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.
Board Members are neither competent nor compellable witnesses as a result of the principle of deliberative secrecy.
The rule protecting deliberative secrecy is an exclusionary rule. The rule operates to prohibit compelled testimony from judges about their deliberations. It also provides that judges are not "competent" to testify about their deliberations. That is because the purpose of the rule is not to protect judges’ personal interests, but rather “to ensure public confidence in an impartial and independent judicial system”: "Kosko c. Bijimine." Gascon J. stated in "Laval v. Syndicat de l’enseignement de la région de Laval" that “[j]udges cannot of course choose to lift deliberative secrecy to explain the reasoning behind their conclusions whenever it suits them to do so.” Among the broader rationales that have been offered for expanding the operation of the rule in this way is to prevent judges themselves from subsequently augmenting or qualifying their reasons, which offends the need for finality in judicial decision-making and undermines public confidence in the administration of justice.
The applicability of this rule to Members of the Immigration and Refugee Board was considered in "Ermina v. Canada." In that case, the applicant’s refugee status had been vacated by a panel of the Board. At the hearing before the Board, the applicant had sought to elicit testimony from the chair of the panel that had originally granted her that status. The Board refused to hear such testimony, relying on the rule protecting deliberative secrecy. The applicant then tried to adduce an affidavit sworn by the former chair and containing the same information. The Board refused to receive that as well. On the ensuing application for judicial review, Tremblay-Lamer J. upheld the Board’s decisions in that regard, finding that the former chair was neither a compellable nor a competent witness. In that decision, justice Tremblay-Lamer explained that “[d]ecisions must be final and subject only to review in the ordinary channels.” In reaching that conclusion, she relied heavily on "Agnew v. Ontario Association of Architects", in which the Court elaborated on the rationale for extending the rule to administrative decision-makers:The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge.
Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and "a fortiori" no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination.
In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.
It is not necessary to catalogue all the different forms of mischief that might result from the compellability of judges and tribunal members to testify about their decisions. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here.