Judges and Adjudicators
Everyone knows that judges are the people who decide cases in court, but what that actually looks like can vary greatly depending on the country and legal system. I came to Canada from a country that follows the civil (Roman) law tradition, where judges take an active role in courtroom proceedings. In that system, judges often question witnesses directly and apply codified laws, even stepping in when the lawyers miss something. If a lawyer failed to raise an important point, the judge might still consider it on their own initiative.
That all changed when I began practicing in Canada. Here, under the common law system, the judge acts more like a referee than a player. The onus is on the lawyers to bring forward the evidence, make legal arguments, and guide the court toward the outcome they seek. If you don’t ask the court, you won’t receive. Some of my clients found this surprising. They’d say, “But the judge should know that,” or “Can’t the judge just look it up?” And I would always tell them: “No, whatever we want the judge to consider, we have to bring it before them.”
In Canada, judges listen carefully to what the lawyers on both sides present, whether it’s the Crown and the defence in criminal cases or opposing counsel in civil matters, and make decisions strictly based on that evidence and the relevant case law. A judge will only intervene if there’s a breach of procedure.
Now, immigration law operates a little differently. Instead of traditional courts, we have tribunals, less formal, but by no means less serious. These tribunals handle life-altering decisions: whether someone is allowed to remain in Canada, whether a refugee claim is accepted, or whether a permanent resident may lose their status. The adjudicators who preside over these hearings are known as Members of the Panel, and they’re addressed as “Madam Member” or “Mister Member.” Interestingly, many adjudicators come from diverse professional backgrounds, education, politics, public service, and not all have formal legal training.
In refugee hearings, Members must have specific knowledge about the claimant’s country or region. They begin by questioning the refugee directly, an approach intended to focus the hearing and avoid unrelated tangents. This system was put in place after some lawyers allowed their clients to share lengthy, unfocused narratives. While this method of questioning is meant to be non-adversarial, it is still inquisitive, after all, the Member is trying to assess whether the claim is both credible and genuine.
This unique dynamic, where the adjudicator leads the questioning and sometimes covers most of the ground, places tremendous importance on the role of the counsel before the hearing. As lawyers and immigration counsel, our job is to thoroughly prepare our clients in advance, ensuring they understand the process, anticipate the questions, and stay focused on the key facts that support their case.
For your reference, see the Immigration and Refugee Protection Board
