Weighing Evidence - Chapter 5: Viva Voce evidence

5. Viva Voce evidence

5.1 General principles

Viva voce is Latin meaning “with the living voice” and refers to evidence given by a witness orally, as opposed to evidence given in a written form such as an affidavit. Evidence given by a witness under oath or affirmation is referred to as “testimony.” Testimony may be either viva voce or in written form.

As discussed in Chapter 2, all Divisions of the Board may receive and base decisions on evidence that is considered credible or trustworthy in the circumstances. In general, it does not matter whether testimony is given under oath, given under affirmation, or unsworn: provided that it is relevant and subject to a few exceptions, testimony is generally admissible evidence.

The advantage of viva voce evidence over documentary evidence is that the witness is available for cross-examination, and thus the strength of the evidence may be tested. That is why credible viva voce evidence is sometimes given more weight than documentary evidence.^{Footnote 55} Jurisprudence suggests that a panel may properly believe documentary evidence over the sworn testimony of a witness provided that the panel states clearly and unmistakably why it prefers the former.^{Footnote 56}

In assessing its credibility, viva voce evidence may be compared to the documentary evidence in order to identify any discrepancies, contradictions, or inconsistencies. Generally, a witness should be given an opportunity to explain any inconsistencies in their evidence. Please refer to Legal Services' reference paper Assessment of Credibility in Claims for Refugee Protection for further discussion of this issue.

The IRB will generally exclude witnesses from the hearing room before they testify, so their testimony will not be tainted by hearing the evidence of other witnesses.^{Footnote 57} If a witness is not excluded from the hearing room, the fact that they have heard the testimony of other witnesses may affect the credibility, and therefore the weight, of their testimony.

However, there are exceptions to the general rule noted above. For example, a witness who is also a party to a proceeding will generally be present during the entirety of that proceeding as of right. In that case, the witness's testimony cannot be discounted simply because they were present when another witness testified.^{Footnote 58} Accordingly, counsel should be encouraged to lead the evidence of the claimant, appellant, or person concerned before that of the other witnesses.^{Footnote 59}

Similarly, it would be improper to refuse to allow a witness to testify simply because they had already heard another witness's testimony. The issue is not one of admissibility, but rather the credibility of the evidence and how much weight is to be assigned to it.^{Footnote 60}

In Wysozki,^{Footnote 61} the Federal Court concluded that the rules of procedural fairness were not violated when a member of the IAD asked an appellant to testify without allowing him to refer to his personal notes and his documents previously submitted into evidence, in an effort to assess the credibility of his testimony. The court noted that the appellant, who was self-represented, still had the opportunity to present his case.

Where the viva voce evidence of two witnesses conflicts, the testimony of one witness may be preferred over and given more weight than that of another, provided that the panel gives reasons for deciding in this manner.

Finally, in refugee determination proceedings, the panel should not refuse to hear the testimony of a potential witness simply because the witness has made a refugee claim against the same country. The witness should be allowed to testify, and then the credibility of that evidence may be assessed by the panel.^{Footnote 62} This principle is essentially that the evidence of witnesses should not be prejudged, and in that sense it applies to all four Divisions.

5.2 Failure or refusal to testify

5.2.1 Failure to testify

In some cases where a key witness fails to testify, the decision-maker may draw an inference that the witness did not testify because the testimony would have been adverse to the interests of the party who, otherwise, would have been expected to call the witness.^{Footnote 63} Care should be exercised in drawing such a negative inference, and the failure to testify should be weighed against all the other evidence presented. It may be that the evidence was not necessary to establish the case. If there is a reasonable explanation for the failure to testify, an adverse inference should not be made.^{Footnote 64}

An adverse inference may be drawn against a party who fails to call material evidence that is particularly and uniquely available to that party.^{Footnote 65}

Drawing an adverse inference is permissive, not mandatory.^{Footnote 66} The Federal Court has stated that the IRB can draw an adverse inference when evidence is available or could be made available but is not produced, or when a person can and is given the opportunity to testify but does not testify, even though the legal and technical rules of evidence do not apply.^{Footnote 67}

In Okwe,^{Footnote 68} the IAD had drawn adverse inferences from the failure of the appellant's wife, mother-in-law, other relatives, and friends to testify at his hearing. At the hearing of his appeal, the appellant stated that his wife had just had her tonsils out and he requested a postponement to allow his wife and mother-in-law to testify. The postponement was not granted. The panel concluded the appellant had no support from his family or the community, despite letters on file from both. In overturning the IAD's decision, the Federal Court of Appeal found that adequate explanations had been provided for the failure to testify.

In Waqas,^{Footnote 69} the applicant had sponsored her spouse's application for a permanent residence visa. The applicant's aunt had introduced her to her future husband via the internet and they began an online relationship. A visa officer denied the spousal permanent residence application and the denial was upheld by the IAD because the marriage was entered into primarily for the purpose of acquiring a status or privilege under the IRPA. The Federal Court confirmed the IAD's determination to draw a negative inference from the failure to have the aunt testify or provide an affidavit about the arranged marriage. According to the court, a negative inference may be drawn from the failure to bring any witness who is given the opportunity to provide potentially dispositive testimony.

The IRB cannot draw an unfavourable conclusion from the fact that an accused individual did not testify at their criminal trial.^{Footnote 70}

5.2.2 Refusal to testify

A claimant's refusal to testify in a refugee determination proceeding may lead to an adverse inference that seriously undermines their claim. In a proceeding before the CRDD, the claimant's refusal to testify led to the panel's finding that the claimant was neither credible nor trustworthy. At the start of the hearing, the panel denied the claimant's request for an adjournment to obtain new counsel and provided a number of reasons for refusing the request. The claimant thereupon declined to give oral testimony. The panel informed him that his failure to testify might cause it to draw a negative inference, and that in the absence of his oral testimony, the sworn testimony in his Personal Information Form (PIF) and the documentary evidence would be the basis upon which the panel would determine his claim. The panel then found serious inconsistencies between the PIF and the port-of-entry notes. Finding itself with no ability to put these inconsistencies to the claimant due to his refusal to testify, the panel determined the claimant was not a Convention refugee.^{Footnote 71}

In Zhang,^{Footnote 72} the Federal Court upheld the RPD's determination that a claim was abandoned under subsection 168(1) of the IRPA because the applicant was in default in the proceedings. During the hearing, the applicant refused to answer the panel's questions both before and after an unsuccessful motion for the panel's recusal. The court found that the applicant had tried to circumvent the dismissal of her recusal motion, disregarded her obligation to answer questions, “member shopped”, and delayed the process. The court stated that the circumstances of each case will determine whether the non-responsiveness of a witness or refugee protection claimant will lead to abandonment of a proceeding or a negative inference with respect to credibility. However, where non-responsiveness of a claimant so clearly has elements of both disregard for the process and lack of diligence in the pursuance of a refugee protection claim, it is not unreasonable to find that such conduct falls within the scope of subsection 168(1) of the IRPA.

5.2.3 Compellability of witnesses

Sections 127 and 128 of the IRPA provide for an offence and punishment in cases where an individual refuses to testify. These provisions are seldom relied on to prosecute a witness. Nevertheless, it is useful to be aware that such provisions exist. When a witness refuses to testify, or counsel advises them not to testify, the panel may remind them of the existence of such provisions. If charges are laid, it would be outside of and apart from the hearing process. It is normally the Royal Canadian Mounted Police who would lay charges. It is recommended that decision-makers seek the advice of Legal Services in situations where a witness refuses to testify.^{Footnote 73}

In criminal proceedings, an accused person has the right to refuse to testify in recognition of the long-standing right not to be forced to incriminate oneself. In civil proceedings, there is no such general provision against being compelled to testify. The courts have long characterized immigration and refugee proceedings as being civil rather than criminal in nature.^{Footnote 74} Thus, even though a witness may be compelled to testify before the IRB,^{Footnote 75} the witness may still be extended certain protections under section 13 of the Canadian Charter of Rights and Freedoms^{Footnote 76} and section 5 of the Canada Evidence Act,^{Footnote 77} namely the right not to have compelled “incriminating” evidence used against them in subsequent proceedings.

5.3 Teleconferencing and videoconferencing

Section 164 of the IRPA authorizes the four Divisions of the IRB to hold a hearing “… by a means of live telecommunication with, the person who is the subject of the proceedings.” The IRB has the lawful authority to control its process and to set its own procedure, as long as the principles of natural justice and fairness are followed.^{Footnote 78} It thus may choose to conduct hearings and receive evidence by teleconference or videoconference for various reasons, including operational necessity.

Courts have held that there is generally no denial of natural justice or fundamental justice in the use of video testimony.^{Footnote 79} However, in exceptional situations, hearings by teleconference or videoconference may not be appropriate.^{Footnote 80}

5.3.1 Teleconferencing

Teleconferencing involves taking a witness's evidence by telephone. The IAD has for many years taken evidence in this manner, especially in the case of applicants who are overseas, where it would be difficult or impossible for them to testify otherwise. In such cases, the person calling the witness makes arrangements for the telephone call through the Registrar and is generally responsible for paying the long distance charges for the call.^{Footnote 81} When a witness who testifies by teleconference requires the services of an interpreter, the interpreter is generally present in the hearing room.

In Farzam,^{Footnote 82} the Federal Court examined in detail the principles that apply to a judge's discretionary authority to allow witnesses to be heard via teleconference. It is up to the party requesting to call a witness to ensure that the request is made in a timely manner, the call is feasible both from a legal and technical point of view, and the evidence the witness is expected to provide is clearly relevant to the issues at stake.

In Cookson, the Federal Court of Appeal found that there was no breach of natural justice where the IAD allowed an appellant to testify by telephone from a remote location in B.C.^{Footnote 83} The Minister had argued that the IAD could not properly judge the appellant's demeanour, and that the Minister would be prejudiced in his ability to effectively cross-examine the appellant. The Court found that the IAD had properly weighed the appropriate considerations.

The RPD has used teleconferencing to hear the evidence of witnesses in other countries, including expert witnesses.^{Footnote 84}

The weight of the evidence taken by teleconference must be assessed in the same way as any other evidence. Although the visual cues that aid in assessing credibility are absent in teleconferencing, cross-examination of witnesses is possible, and in most situations effective questioning can be used to verify matters such as the identity of a witness. Additional controls may be required in some cases. For example, arranging for the call to be made from a specific site and/or in the presence of a government official may allay concerns like the possibility of coaching by an unseen third party during testimony. The panel should also bear in mind whether the identity of a witness appearing by telephone can somehow be verified prior to the hearing.^{Footnote 85}

5.3.2 Factors to consider regarding teleconferencing

The following is a non-exhaustive list of factors that may be considered when determining whether to allow testimony to proceed by teleconference, and if allowed, assigning weight to that testimony:

• operational necessity;
• the reason for the request that evidence be taken by teleconference;^{Footnote 86}
• whether it would be more effective to take the evidence by other means (e.g., videoconferencing);
• the relevance of the anticipated evidence to the issues of the case;
• whether the witness is alone in the room from which they are testifying;
• whether there are any sounds indicating that someone else is present or is coaching the witness;
• tone of voice and pauses in the testimony, which may have greater importance than usual as other indications of demeanour are not available;
• whether the witness has been appropriately cautioned against discussing the evidence or the case during breaks;
• the setting and time at the witness's location; and
• whether the witness has been provided any necessary access to relevant documents (by electronic means or otherwise).

5.3.3 Videoconferencing

Videoconferencing involves broadcasting images and sounds of the participants in the hearing process to different locations. Often the decision-maker is in one location and the rest of the participants, including the interpreter,^{Footnote 87} are in another. Documents are exchanged in advance of the hearing or exchanged during the hearing by electronic means. Videoconferencing offers participants in separate locales the next-best alternative to live, on-site interaction, because the participants can be seen^{Footnote 88} and heard, and witnesses can be cross-examined. However, the cost of using videoconferencing should always be kept in mind.

In Sundaram,^{Footnote 89} the Federal Court concluded that the RPD was not required to inform the applicant that his claim could be heard by videoconference, but should have considered its own discretionary powers to hold hearings in person or by videoconference.

5.3.4 Factors to consider regarding videoconferencing

The following is a non-exhaustive list of factors that may be considered when determining whether to allow testimony to proceed by videoconference, and if allowed, assigning weight to that testimony:

• operational necessity;^{Footnote 90}
• the relevance of the anticipated evidence to the issues of the case;
• whether it is necessary or merely preferable to be able to see the witness. If credibility is not in issue, the decision-maker may not need to see the witness (e.g., in the case of an expert witness), in which case teleconferencing may be a better option. If it is merely a matter of preference, the use of videoconferencing should be subjected to a cost/benefit analysis;
• the monetary cost of arranging a videoconference should be compared to the cost of alternative means to obtain that same evidence (e.g., having the witness transported to the hearing site, or holding the hearing where the witness is located);
• availability of facilities for videoconferencing;
• whether a request to have the hearing held by videoconference is reasonable in all the circumstances, in that communication would be effective, and the hearing would be full, fair, and expeditious;^{Footnote 91} and
• whether this measure is necessary to accommodate a vulnerable person.^{Footnote 92}

5.4 General factors to consider regarding Viva Voce e​vidence

The following is a non-exhaustive list of factors that may be considered when assigning weight to viva voce evidence generally:

• the opportunity of the witness to observe the events;
• whether the witness's testimony is based on hearsay;
• the witness's ability to recall events accurately;
• the witness's relationship to the parties;
• whether the witness has any interest in the outcome of the hearing;
• whether the witness was present during the testimony of any other witness;
• whether the witness had seen other evidence prior to testifying;
• whether the witness's testimony was elicited through leading questions;
• whether any part of the witness's testimony has been found to be not credible;
• the witness's demeanour;
• whether the witness appears to have a bias;
• the extent to which the witness's testimony is based on opinion and inference;
• whether the facts upon which the witness relied in forming their opinion have been established; and
• any other evidence which supports or contradicts the testimony of the witness.