Canadian Refugee Procedure/RPD Rule 58 - Observers

RPD Rule 58

The text of the relevant rule reads:

Observers

Observers
58 (1) An application under rule 57 is not necessary if an observer is a member of the staff of the Board or a representative or agent of the United Nations High Commissioner for Refugees or if the claimant or protected person consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.

Observers — factor
(2) The Division must allow the attendance of an observer unless, in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.

Observers — confidentiality of proceeding
(3) The Division may take any measures that it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

RPD Rule 58 should be read in conjunction with section 166(e) of the IRPA

Section 166(e) of the IRPA provides:

166 Proceedings before a Division are to be conducted as follows:
...
(e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection;

For further details, see: Canadian Refugee Procedure/Proceedings must be held in the absence of the public.

It is best practice to provide counsel with an opportunity to comment on the presence of any observers who are RPD employees

In Azanor v. Canada, an opportunity was provided to counsel to comment on the presence of persons observing the hearing, and it was not taken. The court concluded that "it is conceivable that the presence in the hearing room of the Principal Applicant’s two children, and the two observers from the IRB, created some awkwardness and discomfort for the Principal Applicant. Nevertheless, objections to this were not raised by the Principal Applicant or her counsel at the time of the hearing. These objections were only raised afterwards. In the absence of complaint, the RPD Member did not err in proceeding with the sensitive yet relevant line of questioning concerning the Principal Applicant’s sexual identity."

A panel should ensure the proper comportment and behaviour of observers

A panel should ensure the proper comportment and behaviour of observers. A panel should not allow observers to make comments or gestures to witnesses, for example.