No Refuge

For challenging a policy that discriminated against certain refugees, a federal employee’s career was ruined. Despite being cleared, he still awaits justice

A Bad Year V (2006) / by Sam Dargan

Lloyd Fournier sits on a wooden bench in a Toronto park on a warm spring day and tilts his dull, grey eyes to the sky as he recalls his nightmares. The unsettling images arrive uninvited to disturb his sleep and his life. One memory stands out for Fournier, a businessman turned gatekeeper for the Immigration and Refugee Board (IRB), a quasi-judicial tribunal that delivers rulings on thousands of would-be refugees who arrive in Canada each year. He remembers a middle-aged, slightly built Syrian who stood before him several years ago wearing a black eye patch. As Fournier pressed him for details about the Syrian police, the man lifted the patch to reveal the garbled remains of a right eye stabbed with a scalding poker. “This is what they gave me,” he said.

“I saw mutilated people that still haunt me,” says the drawn-looking fifty-nine-year-old. “The cases stay with me a long time, too long a time.”

Fournier’s thin face, framed by an unruly beard and a brown Stetson, shows a slight grimace as he thinks back on the scene and begins to recount the arc of his tumultuous career inside the IRB. Raised in southwestern Ontario, Fournier was, at heart, a contrarian. A self-confessed child of the counterculture and an opponent of the Vietnam War, he provided safe haven to US draft dodgers while attending the University of Windsor in the late 1960s and early 1970s. When Fournier moved to Brampton, a bedroom community northwest of Toronto, where he still lives, his politics were decidedly Liberal red in a sea of Conservative blue. “I was a round hole in a square peg,” he says, smiling. As a globe-trotting businessman, he gravitated to helping immigrants and refugees—the proud descendant of Acadians was always mindful of those forced from their homelands or searching for a better life. With the support of his church, Fournier was soon offering newcomers advice on untangling red tape so they could secure landed-immigrant status, and he helped to steer migrants into the skilled trades.

In time, Fournier built a comfortable life in suburbia, with a wife and children. An admirer of Pierre Trudeau, he ran for city council, served as the president of the local riding association, and made an unsuccessful bid for a federal seat, most often operating under the Liberal banner. There were other disappointments along the way, but when Fournier was named to the IRB’s refugee-protection division in June 2001—with a teacher, a lawyer, a real estate broker, a journalist, and another businessman—he seized the opportunity with a mixture of excitement and anticipation. Surrounded by family and friends, Fournier promised at his swearing-in ceremony to carry out his duties faithfully and impartially. “I was proud, very proud. It was an honour,” he says. “This job is part of nation-building. You have a hand in deciding who stays in this country and who does not.”

Fournier readily acknowledges that his Liberal party ties, coupled with his volunteer experience, played a deciding role in his IRB appointment by the citizenship and immigration minister, Elinor Caplan, and he is unapologetic about it: “Why would any government not want to surround itself with people that are at least sympathetic to their point of view? ”

Fournier understood, as well, that Canada’s door has often been guarded by influential and sometimes invisible mandarins. Indeed, this nation’s checkered immigration record—the notorious head tax on Chinese labourers; the forced return of “boat people” who sailed into Vancouver harbour from Hong Kong in 1913; the turning back of European Jewry during the World War II era, and the wartime internment of Japanese Canadians—had Fournier privately echoing historian Irving Abella’s blunt verdict that powerful bureaucrats and the governments they served “knew what kind of people [Canadians] wanted and how to keep out those we did not.” Despite his misgivings, Fournier was eager to get started.

But before the fresh batch of IRB members could adjudicate cases, they were schooled in immigration and refugee law, the rules of evidence, legal precedents, and how to write a decision. Fournier welcomed the training as evidence of the board’s diligence. He began his new job on July 3, 2001, convinced that he was prepared to make judgments about the lives and futures of people based solely on the merits of their claims.

Fournier quickly gained a reputation as a respected board member who cleared cases with care and speed. In December 2002, eighteen months into the job, his official performance review described him as “hard-working and productive . . . helpful, personable and eager to take on additional work.” The appraisal added that his case preparations were thorough, his hearings focused, and that he delivered decisions expeditiously. “The amount of work completed by Mr. Fournier early in his mandate is a significant achievement,” read the report.

A year later, that report card helped Fournier win a five-year reappointment and prompted senior irb managers to ask him to join the refugee-protection division’s Central European team. Fournier agreed and moved to the new unit in the fall of 2003. “They were quite happy to have me there because they were really swamped with cases,” he boasts. “I was a star member. I was out-producing everybody.” His cherished independence intact, Fournier believed that he alone enjoyed the authority to render decisions on his files “and that nobody would dare question them.”

In early December 2003, Tamas Csepregi, a young, dark-haired Hungarian Rom, and his wife, Beata, stood before Fournier and quietly appealed to remain in Canada. Csepregi was the identical twin brother of Attila, a Rom who had fled to Canada with his wife in the late 1990s. The couple joined scores of Roma who had immigrated to Canada and claimed refugee status because of abuse and discrimination they endured back home. Pejoratively referred to as gypsies and falsely thought of as stateless vagabonds, Roma refugees present an intriguing challenge for host countries. While most who come to Canada hail from the Czech Republic and Hungary, “back home” can be difficult to define and verify. Nonetheless, in 1998, the IRB accepted an overwhelming majority of Roma claimants. The next year, however, less than 10 percent of the Hungarian Roma cases were approved. How to account for the dramatic drop?

In late 1998, senior IRB officials took the unprecedented step of crafting a lead case based on the claims of four Hungarian Roma, including Attila Csepregi. At the time, an irb spokesperson publicly insisted that the lead case was designed only to help members “determine the cases more quickly, and in a way that’s consistent.” Critics worried that the very idea of a lead case was anathema to the Charter of Rights and Freedoms and, more particularly, to the board’s guiding principle—to judge cases individually and impartially. If successful, the lead case could establish, immigration lawyers and advocates charged, a chilling administrative precedent that the IRB could apply to other religious, national, or ethnic groups.

The IRB ventured into this extra judicial territory through a hearing that appeared designed to protect Hungary’s interests at the expense of the Roma and a refugee-determination system that is routinely held up as a model of probity and fairness. Most tellingly, Hungarian officials were brought in to testify during the fourteen-day hearing on conditions Roma claimants faced in their homeland, while witnesses sympathetic to their plight were denied standing on the grounds that they no longer lived in Hungary. At the time, Hungary was lobbying for admission into the European Union and was eager to erase blots on its human rights record, including state ostracism, deep poverty, and roving bands of violent, neo-Nazi skinheads, aspects of Hungarian life that particularly afflicted the Roma.

On January 20, 1999, two IRB members ruled against the four claimants (including Attila and his wife), concluding that while they faced discrimination in their homeland, it did not amount to persecution. The precedent had been established, and, not surprisingly, the number of Hungarian Roma accepted into Canada plummeted in the following months. It has remained low ever since.

Lawyers and Roma advocates cried foul, charging that the process had been rigged, and launched an appeal of the decision. The IRB tried to dampen the criticism by insisting that members were not bound by the lead case: “Each case [is] still heard on its own merits,” an IRB official said. “Our members are required to do that.” But like other adjudicators, Fournier immediately understood the real intent of the lead-case ruling. “It became very easy to say no. It became a task, and this is the awakening, to hear somebody [and] be persuaded . . . to say, yes, there is a case here.”

The hearing into the refugee claim of Tamas and Beata Csepregi took place on December 8, 2003, and Fournier began writing his decision shortly thereafter. When done, he sent a draft to his secretary to be proofread and typed. Then something unusual happened. “I was called into a presiding member’s office and told that he had heard through the grapevine that I was going to make a decision that might not be good for me,” says Fournier. He was warned that his decision would be watched and that a positive ruling “would not be very well received by the board.”

Fournier told his colleague that he would consider this advice and then told his secretary to “have the [decision] prepared and ready for my signature.” While he was disturbed that word of his favourable ruling had been leaked, Fournier remained confident that his autonomy would not be challenged.

Ten days after the hearing, on December 18, Fournier was summoned to a meeting with senior IRB officials to answer questions about an alleged incident at a November 14 hearing involving two Hungarian homosexual claimants. The charge: Fournier made “an apparent invitation for the claimants to kiss as part of his examination of the claimants’ sexual orientation.” Fournier denied the allegation, insisting that he had never invited the men to kiss, but rather had told them to stop. Nonetheless, the IRB deputy chairperson found that his actions were “inappropriate and a breach of the [IRB’s] Code of Conduct.”

Concerned about this stain on his reputation, Fournier hired a prominent Toronto constitutional lawyer to seek redress from the IRB. The board backed down and agreed to withdraw the allegations, but Fournier pressed for an apology and to have the matter stricken from his employment record. Ultimately, the board yielded to both demands. Exonerated, Fournier’s colleagues told him that he was now “bulletproof.” Fournier was less sanguine. He knew that his ability to act independently was under siege, and he sensed that the worst was yet to come.

On February 10, 2004, Fournier thrust open Canada’s doors to Tamas Csepregi and his twenty-four-year-old wife. He found that the Roma couple had “a well-founded fear of persecution” and that Hungary was unable or unwilling to protect them. Fournier also accepted their testimony that when word of the 1999 lead case had filtered back to Hungary the pair was repeatedly threatened “by unknown individuals” because of their relationship to the claimants. Dismissing the official line, Fournier reasoned that Hungary was indeed eager to prevent the human rights embarrassment of a “massive exodus of Roma refugee claimants” at a time when it was seeking EU inclusion. In sum, Fournier’s ruling was an emphatic repudiation of the negative lead-case ruling and the IRB’s decision-making machinery.

In rendering his decisions, Fournier routinely tried to build a wall between himself and what he calls the IRB’s “peculiar species”—the board’s stable of lawyers and Refugee Protection Officers (RPOs). He bristled at the board’s practice of having in-house lawyers vet members’ decisions, calling it an overt challenge to their authority. As for the RPO, his contempt is palpable. “I have never seen an RPO come into a hearing with evidence that is of benefit to the claimants,” he says.

The IRB, Fournier came to believe, was deliberately shutting Canada’s door to legitimate refugee claimants, and he responded by no longer sending his decisions to lawyers for review and by barring RPOs from attending his hearings. Fournier says that his superiors “tolerated” both moves because he was clearing hundreds of cases a year and the IRB was facing a huge backlog.

On March 1, 2004, just a month after Fournier formally delivered his Roma ruling, the Justice Department went to the Federal Court of Canada to have the decision quashed. It was an extraordinary move by Ottawa to try to undo an IRB member’s positive ruling and to interfere directly with a refugee determination process. “It was the first time that I had a positive decision challenged. It was unusual,” Fournier says. “I had lots of negative [rulings] challenged, usually by the claimants.” Government lawyers argued that Fournier made errors in his ruling, principally ignoring the lead case.

On October 28, 2005, a Federal Court judge threw out the government’s case, ruling that he could not find grounds for overturning Fournier’s decision. “My decision was upheld,” Fournier says. Then, he added, “All hell broke loose for me at the board . . . I became persona non grata.”

Fournier was transferred from the Central European division to the Africa team, and a senior member of the IRB who regularly went to noon mass with him at Toronto’s St. Michael’s Church suddenly stopped attending. Then, in quick succession, Fournier was accused of coming to work drunk and of writing other members’ decisions, and he learned that he was under renewed investigation after a male interpreter complained about his questioning of a claimant. All of these allegations were eventually dismissed, but Fournier “could see that these guys were going to go after me.”

As the workload, investigations, and court challenge began to exact a psychological and physical toll on Fournier, he learned of the final and perhaps most serious accusation to be levelled against him. On January 9, 2006, he was called into the office of a senior IRB manager who, along with a board lawyer, told him that they were probing allegations that he had tried to kiss an interpreter in an elevator following a hearing in November 2005. Fournier acknowledged trading phone numbers with the interpreter and meeting for a coffee, but angrily denied the accusation. “Maybe I’m in here because of the Csepregi case, because that didn’t make the board very happy,” Fournier said.

“You’re only here because of [the allegation],” the IRB official replied.

“I’ve certainly learned a lesson from this, and that is not to trust anybody in this building,” Fournier told the pair as the meeting ended. Without his knowledge, a formal complaint about the alleged incident was later sent to the IRB’s deputy chairperson.

While Fournier grappled with his private travails, in early April 2006 the IRB was dealing with the public fallout of embarrassing revelations flowing from a Federal Court of Appeal decision on the lead Roma case: in a surprising unanimous decision, the court overturned the 1999 IRB Roma ruling and a lower-court decision upholding the board’s right to construct such a case.

Quoting extensively from internal IRB emails obtained by the plaintiffs’ lawyers, the court found that the IRB knew that Ottawa was concerned about a possible influx of Roma and had fashioned the lead case primarily to bar them from entering Canada—just as lawyers and Roma supporters had suspected. It also found that the board “was not acting independently” and that an IRB member who rejected the lead-case claims had helped to organize and plan the lead case. The judges described this member’s conflict of interest as “particularly unfortunate.” The court mirrored Fournier’s positive decision concerning Tamas Csepregi in rescinding the lead-case ruling, a move that has paved the way to the potential review of hundreds of rejected Roma cases.

For Fournier, the court’s decision confirmed what he had long been convinced of: political calculations framed in part by bureaucrats had infected a refugee-determination system whose independence is supposed to be sacrosanct. “It’s a fiasco,” he says. But none of the members associated with the lead case was disciplined or reprimanded. Indeed, one member intimately involved in the affair was appointed a Justice of the Peace.

On the morning of September 19, 2006, Fournier was busy preparing for hearings at the board’s offices in downtown Toronto. He had heard nothing new about the allegations of impropriety against him and hoped “it was all over.” Still, he was anxious because later that day he was scheduled to meet the IRB’s number-two man, who had arrived from Ottawa.

Fournier’s worst fears were realized when he walked into the IRB’s sixth-floor boardroom that afternoon. The deputy chairperson and a lawyer were waiting for him. He was handed a letter informing him that his access card to the building was being deactivated and that he would be “working from home with pay, as required by the Board from time to time.” In the meantime, the minister of citizenship and immigration would decide whether Fournier should be subject to disciplinary measures. “I was numb,” he says. After the brief meeting, he went to his office to gather his coat and some belongings. “I figured that in the end the truth would come out and I would win,” he says.

Fournier began seeing a psychologist to treat depression and fatigue, and he waited to learn his fate. Then, in early October, another scandal erupted at the IRB. It involved a member who was secretly videotaped allegedly offering to look kindly upon a young South Korean woman’s refugee claim in exchange for sexual favours. Snippets of the tape were aired on national television, and the spotlight was uncomfortably fixed on the IRB. Questions swirled about how decisions are made, about who gets into Canada and why.

Ten days after the story hit the airwaves, word of Fournier’s own alleged misconduct was leaked to the press. “IRB member faces sex complaint, source says: Man no longer hears cases, board confirms,” an October 13 headline in the Globe and Mail blared. Fournier read the story, which named him directly, in disbelief. “I just felt like running away from it all,” he says. “I didn’t think the IRB would resort to such a tactic.”

Angry, Fournier called a senior board official demanding an explanation and a chance to speak to Jean-Guy Fleury, the IRB chairperson. A week later, he received a short reply from Fleury: “I do understand your concerns . . . but it would not be appropriate for me to discuss the matter with you at this time.”

In early November, another story ran in the Globe. It featured more details about Fournier and his case, including an ambiguous reference to a “consensual relationship” between Fournier and a lawyer who had appeared before the board. “She was a friend,” he says. Indeed, to avoid any appearance of impropriety, months earlier and with the IRB’s consent, Fournier had recused himself from cases involving the lawyer and her firm.

Fournier had had enough. On November 13, 2006, he wrote to Canada’s Auditor General, Sheila Fraser. In a fifteen-page letter, he provided details about the leaked stories and described the “arbitrary, unfair and vindictive” accusations and investigations that, taken together, constituted a “vendetta” by civil servants in “retribution” for his repudiation of the Roma lead case. He also raised the alarm that bureaucrats had increasingly “infringed upon the independence of members’ ability to render fair, reasonable and uninfluenced decisions” on refugee claims. On November 21, Fraser responded, telling Fournier that she did not have the mandate to probe his complaint. “I was furious,” he says. “There was no response to . . . a complaint about the fundamentals of what they’re doing. They’re tampering with a judicial process.”

In early December, Fournier received a letter from Monte Solberg, the minister of citizenship and immigration, informing him that an independent investigator had been hired to investigate “allegations made against you.”

Solberg appointed Brian Gover as the government’s chief investigator into the matter. The experienced Toronto criminal lawyer had been part of high-profile probes before, acting as counsel to the commission of inquiry into the tainted water scandal in Walkerton, Ontario, and he is currently a member of the legal team for the Air India inquiry. While admitting that the no-nonsense attorney “scared the heck out” of him, Fournier welcomed the investigation because, he says, he was determined not to quit but did not have the money or the stamina to sue the IRB. “At the end of the day they would have broken me financially, and you can’t win that battle,” he says.

Gover and a female associate conducted a methodical investigation of the charges. In his thirty-four-page report, delivered to the deputy minister of citizenship and immigration on January 22, 2007, Gover concluded that while Fournier “did on occasion display unwelcome and improper conduct in the workplace”—in remarking on one woman’s fur coat and making reference to a possible trip to Cuba with another woman—Fournier’s conduct “did not amount to sexual harassment of these women,” nor was it “a significant breach of requirements relating to his office.”

Gover also supported Fournier on the attempted-kiss allegation, pointing out a crucial gap in the interpreter’s story. He reasoned that since the elevator trip the pair shared only lasted about ten seconds (between the fifth and sixth floors), there wasn’t time for Fournier to have “put down or drop” the load of documents he was carrying and try to kiss the interpreter before she exited. Gover wrote that the interpreter’s failure to disclose to the IRB that she joined Fournier for a coffee shortly after the alleged elevator incident greatly undermined her credibility.

The veteran trial lawyer was particularly critical of the internal IRB investigation that led to Fournier’s banishment in September 2006, calling it “flawed and potentially biased.” He noted that one witness acted as an investigator and that a senior IRB official dismissed without reason Fournier’s central charge that the investigation was linked to his refusal to follow the Roma lead case. Gover gave qualified backing to Fournier’s charges that he had been singled out. While the IRB didn’t conspire to undermine Fournier’s standing and reputation, Gover concluded, there was some evidence that he came under “particular scrutiny” and received “disproportionate attention” from the IRB since his Roma ruling in early 2004.

Gover interviewed another IRB member who confirmed that he too had been pressured to deliver negative decisions on Roma refugees after the lead case—a case the member derisively called a politically motivated “dog-and-pony show.” The former member—who described Fournier as a star—told Gover that Fournier’s fortunes at the board changed dramatically after he rendered his decision on the Roma lead case. Gover suggested that the CIC examine more deeply Fournier’s charges that bias and political considerations at the IRB had seriously undermined members’ ability to make refugee rulings independently. In the end, the government-appointed investigator recommended that, in effect, Fournier should keep his job.

Fournier was at home at his desk when Gover’s report arrived, by email, in late January 2007. Nervous, he opened the attachment and began reading a report that described, in detail, his near-absolute vindication. Fournier was overcome with relief and joy. He shared Gover’s findings with family and friends and then, once again, waited—this time for the IRB to reinstate him, to apologize publicly, and to acknowledge the threat to IRB members’ impartiality his case represents. “There needs to be a full-scale inquiry into the goings-on at the board as far as judicial interference,” he says.

Fournier wrote again to Jean-Guy Fleury on February 19, 2007, urging Fleury “in the spirit of fairness” to take steps to rehabilitate his reputation. Fleury resigned as the IRB chairperson four days later, eight months before his mandate was scheduled to end. He cited the need to spend more time with his family.

Finally, on May 31, Fournier received a reply from Brian Goodman, the IRB’s interim chairperson, who joined the board with Fournier in 2001. Goodman’s letter did not contain anything about reinstatement, an apology, or a probe. Instead, he invited Fournier to a meeting to discuss the minister’s conclusions about his future with the board and “other outstanding issues.” Goodman made a solitary reference to Gover’s exhaustive and largely exculpatory report. “Mr. Gover concluded,” Goodman wrote, “there was not a significant breach of (the IRB’s) code of conduct . . . but that you did on occasion display unwelcome and improper conduct in the workplace. . . . It is now appropriate that I decide whether this conduct violated the code.”

Fournier was thoroughly dumbfounded. “They’re trying to do an end run around Gover’s report,” he says. “Now you’ve got a Conservative minister saying: I don’t care what the evidence is, I want this guy fried. That’s my reading of it.” Goodman’s two-page letter is also reflective, he insists, of the board leadership’s haughty nature, which is strikingly at odds with the quasi-judicial body’s stated goal of ensuring fairness in all its decision-making. And fairness demands, Fournier says, that he return to his job, not only for his sake, but for the sake of the IRB. “The work that should be done at the board is work that Canadians have every right to feel good about.”

Lloyd Fournier has put off meeting Goodman until the fall. In the meantime, he remains on sick leave, spending his time labouring in a small, sawdust-filled workshop in his home. “It’s a soothing feeling,” he says. “And I’m getting very good at it.”

Andrew Mitrovica