Reglamento de Restaurantes y afines

Where it is found that the person concerned cannot appreciate the nature of the proceedings associated with his or her case, an ID Member must assign a designated representative (DR) pursuant to IRPA.275

A person is “unable to appreciate the nature of the proceedings” if he or she, “cannot understand the reason for the hearing or why it is important or cannot give meaningful instructions to counsel about his or her case.”276 _{Ultimately, it} is up to the ID Member to determine whether the detainee fits this description based on medical reports or observed difficulties in meetings or discussion before the hearing.277 _{To this end, the Member may take various factors into}

consideration.278 _{Before assigning a DR, the Member should discuss the possible consequences with the person}

concerned (unless the nature of the illness prevents it).279

Minister’s counsel must inform the ID if a detainee needs a DR;280 _{this should typically occur before a hearing, but if}

the Member sees that a person concerned requires a DR during a hearing, the hearing will be adjourned until a DR is found and can be present.281 _{The duty to designate a representative lies with the Member.}282 _{If the Member fails to}

perform this duty at the outset of a hearing, it may invalidate the entire proceeding.283

The duty to inform the ID that a detainee requires a DR is also imposed on the detainee’s counsel.284 _{Counsel must}

provide contact information for anyone who (in the counsel’s opinion) meets the requirements of a DR (usually a parent, other family member, or friend).285 _{Once the registry office receives this information, it will ensure the prospective}

DR is present on the hearing date.286 _{If the parties do not know anyone who meets the requirements to be a DR, the} registry office will make arrangements to find a DR.287 _{To this end, the IRB uses a list of “167(2) Representatives”} called to fulfill the DR role “on a rotational basis.”288 _{It appears that these DR positions are filled through an application}

and screening process, culminating in a training session.289

A DR “must act in the best interests of the person he or she is representing by helping the person make decisions concerning the proceedings of which he or she is to be subject, especially to retain and instruct counsel.”290 _{The DR}

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is responsible for both protecting the interests of the person concerned, and explaining the process to him or her.291

The extent to which a DR intervenes in an admissibility hearing or detention review can vary.292 _{A DR may also act as}

counsel at the same time, but the two roles must not be confused: the DR acts as a litigation guardian, while counsel provides legal advice, prepares the case, presents evidence and makes oral submissions.293 _{In cases where the DR}

chooses to testify, he/she cannot also act as counsel.294

The responsibilities of a DR include:

• deciding whether to retain counsel, then retaining and instructing counsel or assisting the minor or

incompetent person in instructing counsel;

• making other decisions regarding the case or assisting the minor or incompetent person to make

those decisions;

• informing the minor or incompetent person about the various stages and procedures in the

processing of his or her case;

• assisting in gathering evidence to support the minor or incompetent person’s case and providing

evidence and being a witness at the hearing if necessary;

• generally protecting the interests of the minor or incompetent person and putting forward the best

possible case to the Division.295

The role a DR varies depending on the represented person’s level of understanding.296 _{As much as possible, the DR}

should explain, “in simple terms, the purpose and possible consequences of the hearing and invite the represented person to take part in the decisions that concern him or her.”297

To be designated as a representative, a person must be:

• 18 years of age or older,

• understand the nature of the proceedings,

• be willing and able to act in the best interests of the permanent resident or foreign national, and • not have conflicts of interest with those of the permanent resident or foreign national.298

Once designated, the DR should be informed of the reasons for his/her designation, his/her role, the purpose and possible consequences of the hearing for the detainee, and his/her right to retain counsel.299 _{The Member should}

ensure the DR has a copy of all documents that will be used at the hearing.300 _{If it becomes apparent that the DR is}

not performing his/her role correctly, the Member should replace him/her and give reasons for this decision.301

In June 2012, remuneration of DRs was standardized across regions for all divisions to eliminate disparities and “improve practices linked to remuneration paid to DRs.”302

Our interviews with counsel reveal several key issues with DRs. First, the decision to appoint a DR is entirely at the discretion of the Member, and it is often challenging to convince the Member that a DR is required. Members often take at face value detainees’ assertions that they understand the proceedings, and almost always require a medical assessment before they consider appointing a DR.

Several counsel also reported that some of the DRs who are consistently appointed by the ID are unhelpful: “some come to detention reviews every 30 days and listen, and they don’t provide any alternatives for release,” noted one counsel, “a DR’s remuneration does not cover any preparatory work, and yet “90% of the detention work is done before the hearing,” noted another. According to counsel, some DRs never meet or speak with their client, and some do not even speak the same language.

VOICES FROM THE INSIDE: Uday*