Weighing evidence

On this page​

1. Introduction
2. General principles
• 2.1 Evidence
• 2.2 Legal and technical rules of evidence
• 2.3 Credible or trustworthy evidence
• 2.4 What it means to weigh evidence
  
• 2.5 Factors to consider in weighing evidence
3. Evidence and the decision-making process
• 3.1 Before the hearing
• 3.1.1 Determine which party has the burden of proof
• 3.1.2 Identify the issues
• 3.2 During the hearing
• 3.2.1 Determine admissibility
• 3.2.2 Begin to consider credibility
• 3.3 After the hearing
• 3.3.1 Make findings on credibility
• 3.3.2 Weigh the evidence
• 3.3.3 Make findings of fact
• 3.3.3.1 Consider legal presumptions
• 3.3.3.2 Consider giving the benefit of the doubt
• 3.3.4 Apply the standards of proof
• 3.3.5 Render the decision
  
4. Standard of proof and burden of proof
• 4.1 Refugee Protection Division
• 4.2 Refugee Appeal Division
• 4.3 Immigration Division
• 4.4 Immigration Appeal Division
5. Viva voce evidence
• 5.1 General principles
• 5.2 Failure or refusal to testify
• 5.2.1 Failure to testify
• 5.2.2 Refusal to testify
• 5.2.3 Compellability of witnesses
• 5.3 Teleconferencing and videoconferencing
• 5.3.1 Teleconferencing
• 5.3.2 Factors to consider
  
• 5.3.3 Videoconferencing
• 5.4 General factors to consider regarding viva voce evidence
6. Documentary evidence
• 6.1 General lack of credibility and documentary evidence
• 6.2 Authenticity concerns
• 6.3 Obligation to consider all the evidence
• 6.4 No obligation to refer to all the evidence
• 6.5 Obligation to refer to critical contradictory evidence
• 6.6 Selective reliance (“p​icking and choosing”)
• 6.7 Non-application of the strict rules of evidence
• 6.8 Opportunity to cross-examine
• 6.9 Bias of author
• 6.10 POE notes and other minister’s information
• 6.11 News reports and newspaper articles
• 6.12 Prior inconsistent statements or information
• 6.13 Relevance of documentary evidence in successor state scenarios
• 6.14 Factors to consider relating to the weight of documentary evidence
7. Evidence of identity
• 7.1 Refugee claimant’s obligation to establish identity
• 7.2 Weighing identity documents
• 7.3 Failure to establish identity
8. Expert/opinion evidence
• 8.1 Qualifications and expertise
• 8.2 Assessing experts’ conclusions
• 8.3 Objectivity
• 8.4 Expert evidence relating to credibility
• 8.5 Factors to consider relating to the weight of expert evidence
9. Foreign law and foreign judgments with particular reference to adoptions
• 9.1 Introduction
• 9.2 Terminology
• 9.3 Proof of foreign law
• 9.3.1 Declaratory judgments and deeds
• 9.3.2 Presumption of validity under foreign Law
• 9.3.3 Parent and child relationship created by operation of foreign law
• 9.3.4 Power of attorney
• 9.3.5 Revocation of adoption
• 9.3.6 Severing the pre-existing legal parent-child relationship
• 9.3.7 Public policy
10. Judicial notice and specialized knowledge
• 10.1 Judicial notice
• 10.2 Specialized knowledge
• 10.2.1 Notice requirement
• 10.2.2 Specialized knowledge must be specific and verifiable
• 10.2.3 Reliance on findings from previous cases
• 10.2.4 Information not considered to be specialized knowledge
11. Other common issues
• 11.1 Self-serving evidence
• 11.1.1 General principles
• 11.1.2 Factors to consider relating to the weight of self-serving evidence
• 11.2 Hearsay evidence
• 11.2.1 General principles
• 11.2.2 Factors to consider relating to the weight of hearsay
• 11.3 Evidence of children
• 11.3.1 General principles
• 11.3.2 Factors to consider relating to the weight of evidence provided by children
• 11.4 Evidence of persons living with mental health conditions
• 11.4.1 General principles
• 11.4.2 Factors to consider relating to the weight of evidence provided by persons living with mental health conditions
• 11.5 Speculation
• 11.5.1 RPD and RAD caselaw
• 11.5.2 IAD caselaw
• 11.5.3 ID caselaw​

• Appendix A: The rules of evidence and the ​ ​Canada Evidence Act
• A.1 Rules of Evidence
• A.1.1 Hearsay rule
• A.1.1.1 Rule
• A.1.1.2 Rationale
• A.1.1.3 Exceptions to the rule
• A.1.2 Best evidence rule
• A.1.2.1 Rule
• A.1.2.2 Application of the rule
• A.1.3 Opinion evidence
• A.1.3.1 Original rule
• A.1.3.2 Rationale
• A.1.3.3 Exceptions to the rule
• A.1.3.4 Current rule
• A.1.4 Self-serving evidence
• A.1.4.1 Rule
• A.1.4.2 Rationale
• A.1.4.3 Application of the rule
• A.1.4.4 Exceptions to the rule
• ​​ A.2 Canada Evidence Act
• A.2.1 Business records
• A.2.2 Affidavits and oaths taken abroad
• A.2.3 Evidence of foreign law
• A.2.4 Witness’s capacity to give evidence
• A.2.5 Judicial notice
• A.2.6 Authentication of electronic documents
• A.2.7 Non-disclosure of specified public interest i​nformation

Abbreviations