2. General principles
“Evidence” includes all the means of proving or disproving any matter (i.e. oral testimony, written records, demonstration, etc.). It does not include arguments on behalf of the parties (sometimes called “submissions” or “representations”), which are made to persuade the decision-maker to take a certain view of the evidenceFootnote 2
2.2. Legal and technical rules of evidence
When weighing evidence, decision-makers should keep in mind that the IRB is not a court of law, but an administrative tribunal which is not bound by any legal or technical rules of evidence.Footnote 3
The rules of evidence are derived from case law and applied by the courts to ensure the evidence that is relied on to reach a decision is deserving of weight. These rules may result in the refusal to admit certain evidence into the court’s record. Some rules of evidence and their rationales are set out in
Appendix A to this paper.
Since the IRB is not bound by the rules of evidence, it may admit evidence which would not be admissible in a court. Nevertheless, the IRB may consider the rationales for those rules in assessing the weight of evidence. One or more rules may be relevant to any particular piece of evidence.
However, the IRB errs in law if it gives no weight to a document simply because its contents were not proved in accordance with the rules of evidence.Footnote 4
2.3 Credible or trustworthy evidence
Immigration and Refugee Protection Act (IRPA) provides that the IRB may receive and base a decision on evidence it considers credible or trustworthy in the circumstances.Footnote 5 Courts have treated “credible” and “trustworthy” as having the same meaning,
Footnote 6 namely a piece of evidence’s worthiness of belief.Footnote 7 For the purposes of this paper, credibility includes both veracity (i.e. a witness’s honesty) and reliability (i.e. assuming the witness is being honest, whether the evidence provides an accurate account of the material facts).Footnote 8 For a detailed review of principles and case law relating to credibility, see Legal Services’ reference paper
Assessment of Credibility in Claims for Refugee Protection.
The wording of the relevant provisions of the IRPA tends to support the position that the IRB should not receive, or admit, evidence unless it is determined to be credible or trustworthy. However, this does not reflect the normal practice at the ID, IAD, or RPD. There are two reasons for this. Once evidence is excluded, it is hard to later admit it. It is much simpler to admit the evidence and subsequently give it no weight if that is warranted. Further, it is preferable to assess the credibility of the evidence based on the total evidence presented. Credibility decisions are not always easy to make, and often require careful thought and analysis. The hearing process would become very slow and tedious if a ruling regarding credibility had to be made as each piece of evidence was tendered. Nevertheless, there may be cases where the evidence should not be admitted at all, such as where the prejudicial effect of the evidence far outweighs its probative value.
However, this is not the case for the RAD, where each piece of new evidence submitted by a person who is the subject of an appeal must be assessed to determine its admissibility. Admissibility is determined by applying the criteria of
subsection 110(4) of the
IRPA. If any of those criteria are met, then the evidence must be assessed for its newness, relevance, and credibility; the evidence is only admissible if all three are satisfied.Footnote 9 Once admitted, the evidence is weighed in the context of the other evidence in the appeal record.
2.4 What It means to weigh evidence
Not all evidence is equally helpful in assisting a decision-maker to make findings; each piece of evidence must be weighed. For the purposes of this paper, to “weigh” a piece of evidence means to assess its credibility and probative value. In
Magonza,Footnote 10 Justice Grammond of the Federal Court wrote that evidentiary weight can be expressed using the following equation:
weight = (credibility) x (probative value)
The probative value of evidence is its capacity to establish the fact of which it is offered in proof (in other words, the degree to which the information is useful in answering a question that must be addressed).Footnote 11
The weight of a piece of evidence should not be confused with the sufficiency of evidence. The total evidence relating to a disputed fact is considered “sufficient” if its cumulative weight warrants a finding that the fact exists. Assessing sufficiency requires the exercise of practical judgment on a case-by-case basis and will attract much deference on judicial review.Footnote 12
It is important to remember that each piece of evidence should be weighed in light of all of the evidence in the case and the issues to be decided. Evidence may be given full weight, partial weight, more or less weight than other evidence, or no weight at all.
Ultimately, the weights of various evidence will be used to determine whether the burden of proof has been met in relation to each element of the definitions of Convention refugee or person in need of protection, or the relevant provisions of the
Immigration and Refugee Protection
Regulations).Footnote 13 With respect to refugee determination, decision-makers should keep in mind that evidence which may not be probative with respect to one protection ground, and therefore should be given little weight in coming to a finding on that particular ground, may be probative for the purpose of deciding on one of the other protection grounds.
2.5 Factors to consider in weighing evidence
Evidentiary weight should be determined in light of all of the circumstances and evidence of a particular case. The factors to be considered in weighing evidence are largely based on common sense.
The following are factors that may generally be considered by decision-makers when weighing evidence (note that the factors listed here and elsewhere in this paper are not intended to be exhaustive or mandatory):
- the circumstances surrounding the making of a statement;
- any information about the person who made a statement;
- the number of times information was passed on before being made known to the witness;
- whether the evidence is consistent with other credible or trustworthy evidence, including
viva voce and documentary evidence;
- whether the witness observed the events to which they testified;
- the circumstances surrounding the event;
- whether there is better evidence available and whether a reason was provided for not producing that evidence;
- whether the witness is drawing reasonable inferences or is simply speculating;
- whether the evidence is self-serving;
- the circumstances under which a document was created;
- whether the author of a document in evidence was made available for cross-examination, or would have been made available if required;
- whether some of the witness’s other evidence has been found to be not credible;
- whether the witness is disinterested in the result;
- whether the witness is biased;
- the witness’s qualifications and knowledge of the subject to which they testified;
- the witness’s attitude and demeanor; and
- the date of a document.