2. GENERAL PRINCIPLES
"'Evidence' includes all the means of proving or disproving any matter, i.e., oral testimony, written records, demonstration, etc. The term "evidence" 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 evidence."Note 1
2.2. RELEVANT PROVISIONS OF THE IMMIGRATION AND REFUGEE PROTECTION ACT
In weighing and assessing evidence, it should always be kept in mind that the Immigration and Refugee Board is not a court of law, but an administrative tribunal which is not bound by the strict rules of evidence.Note 2
Pursuant to subsection 175(b) of the Immigration and Refugee Protection Act the Immigration Appeal Division is not bound by the technical rules of evidence. Subsections 175(b) and (c) of the Immigration and Refugee Protection Act provides:
The Immigration Appeal Division, in any proceeding before it,
(b) is not bound by any legal or technical rules of evidence; and
(c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
The RPD and Immigration Division have virtually identical statutory provisions which specifically exempt them from the application of the Rules of Evidence.
Subsections 170(g) and (h) of the Immigration and Refugee Protection Act provides:
The Refugee Protection Division, in any proceeding before it,
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;
Subsections 173(c) and (d) of the Immigration and Refugee Protection Act provides:
The Immigration Division, in any proceeding before it,
(c) is not bound by any legal or technical rules of evidence ; and
(d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
The Rules of Evidence are derived from caselaw, and are applied by the Courts to ensure the reliability of the evidence that is relied on to reach a decision. These rules may result in the refusal to admit evidence into the court's record. The Rules of Evidence and their rationale are set out in Appendix A to this paper.
Since the Board is not bound by the rules of evidence, it may receive into evidence, evidence which would not be admissible under those rules. Nevertheless, the rationale for these rules may be used in assessing the reliability of that evidence. One or more rules may be relevant to any particular piece of evidence.
HOWEVER, the Board errs in law if it gives no weight to a document because its contents were not proved in accordance with the rules of evidence.Note 3
Thus, the assessment of the evidence should be framed in terms of the credibility and trustworthiness of the evidence, as that is the test set out in the Immigration and Refugee Protection Act.
2.3. CREDIBLE OR TRUSTWORTHY EVIDENCE
The Immigration and Refugee Protection Act provides that the Board may receive evidence it considers credible or trustworthy. In applying the former credible basis test, the Federal Court has treated "credible" and "trustworthy" as having the same meaning: "credible".Note 4
While, the wording of the above provisions of the Immigration and Refugee Protection Act tend to support the position that the Board should not receive, or admit, evidence unless it is determined to be credible or trustworthy, this is rarely done in practice. There are several reasons for this. Once evidence is excluded, it is hard to later admit it. It is much simpler to admit the evidence and 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. For example, where the prejudicial value of the evidence far outweighs its probative value.
Table of Cases
- Attorney General of Canada v. Jolly  F.C. 216 (C.A.)
- Sheikh v. Canada (M.E.I.),  3 F.C. 238; 71 D.L.R. (4th) 604; 11 Imm. L.R. (2d) 81 (C.A.)