Thamotharem and Guideline 7 of the IRB: Rethinking the Scope of the Fettering of Discretion Doctrine

Abstract

The author examines Guideline 7 – Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division of the Immigration and Refugee Board. She critiques the use of the fettering of discretion doctrine when it is applied to procedural guidelines. She argues that it is based on a false ontology about the nature of rules and guidelines. She also critiques the use of the fettering of independence doctrine when applied to procedural guidelines aimed at enhancing the expediency, rather than consistency, of decision making. Her main argument is that Guideline 7 does not impede, per se, the ability of RPD members to decide according to their own conscience and opinion.