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 relevantFootnote 57 and subject to a few exceptions, testimony is 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 58 Jurisprudence suggests that a panel may properly prefer documentary evidence over the sworn testimony of a witness provided that the panel states clearly and unmistakably why it prefers the former.Footnote 59
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. Unless allowed to do so by the Division, a person must not communicate to a witness excluded from the hearing room any evidence given while the witness was excluded or until the witness has finished testifying.Footnote 60
In
Benzina,Footnote 61 the Federal Court concluded that it was not reasonable for the IAD to draw a negative inference as to the credibility of witnesses based on exchanges during the break between the applicant and her husband, a witness in the appeal. The court considered the fact that the IAD had not issued an order excluding witnesses and that rule 41 of the
IAD Rules specifies that the prohibition on communicating applies to witnesses excluded from the hearing room. In the absence of such an order, the applicant therefore was not prohibited from communicating with her husband. The court also considered the fact that the IAD did not inform the applicant and her husband that they were prohibited from communicating the substance of their testimony during breaks. Lastly, the court considered the fact that the IAD did not ask the applicant for an explanation concerning this communication.
In general, the fact that a witness 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. Accordingly, counsel should be encouraged to lead the evidence of the claimant, appellant, or person concerned before that of the other witnesses.Footnote 62
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 63
In
Wysozki,Footnote 64 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.
Faced with conflicting versions of the events in dispute, it is for the decision-maker to assess the reliability and credibility of witnesses by looking at the evidence as a whole.Footnote 65
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 66 This principle is essentially that the evidence of witnesses should not be prejudged, and in that sense it applies to all 4 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 67 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. If there is a reasonable explanation for the failure to testify, an adverse inference should not be made.Footnote 68
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 69
Drawing an adverse inference is permissive, not mandatory.Footnote 70 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 71
The Court, however, stated that it was an error to give sworn statements less weight because their authors were not called to testify, noting that refugee law does not require evidence to be presented viva voce, and that the RPD is not bound by any legal or technical rules of evidence.Footnote 72
In
Okwe,Footnote 73 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 74 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.
In
Amani,Footnote 75 the RPD rejected the applicant’s refugee protection claim based on her sexual orientation for lack of credibility. The RAD confirmed the determination. The RPD and the RAD had both drawn an adverse inference from the failure of the applicant’s girlfriend to testify at the hearing. The Federal Court determined that the RAD’s reasons regarding the failure of the applicant’s girlfriend to appear as a witness were reasonable. They took into consideration
Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics and were rooted in the evidence.
The IRB cannot draw an unfavourable conclusion from the fact that an accused individual did not testify at their criminal trial.Footnote 76
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 the credibility of their claim or to the claim being abandoned. Furthermore,
paragraph 170(d.1) of the
IRPA sets out that the RPD, in any proceeding before it, may question the witnesses, including the person who is the subject of the proceeding.
In the ID context, there is no equivalent to paragraph 170(d.1). In
Hemond,Footnote 77 the Federal Court determined that immigration detainees at a detention review are protected by the principle of non-compellability under section 7 of the Charter. For the Court, this means that detainees cannot be compelled to testify, and no adverse inference can be drawn from their choice not to testify. However, if detainees elect to testify in this context, they may be required to answer questions from the member or the Minister’s representative. The Court also specifies that it will only be in highly exceptional circumstances that public interests can justifiably override this protection. Finally, the Court states that its conclusions in that case do not apply to other proceedings before the IRB or under the IRPA, when liberty is not directly at stake.
In
Zhang,Footnote 78 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 refusal to testify 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 79
In a case involving an application to vacate filed by the Minister under
section 109 of the
IRPA, the RPD rejected the argument of counsel for the respondent that the respondent was not a compellable witness.Footnote 80 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 81 Thus, even though a witness may be compelled to testify before the IRB,Footnote 82 the witness may still be extended certain protections under
section 13 of the
Canadian Charter of Rights and FreedomsFootnote 83 and
section 5 of the
Canada Evidence Act,Footnote 84 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 gives the 4 divisions of the IRB the discretion to hold a hearing “… by a means of live telecommunication with, the person who is the subject of the proceedings.”
Paragraph 159(1)(f) of the
IRPA sets out that the chairperson (or their delegate) fixes the place, date and time of IRB proceedings.
Subsection 162(2) of the
IRPA states that each division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
Therefore, 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 85 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 86 However, in some situations, hearings by teleconference or videoconference may not be appropriate, for example, for reasons of fairness or natural justice or for other reasons.Footnote 87
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 88
In
Farzam,Footnote 89 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 90 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.Footnote 91
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 92
5.3.2 Factors to consider
The following is a non-exhaustive list of factors that may be considered when determining the weight to assign to testimony obtained via teleconference:
- 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;Footnote 93
- 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 and whether an order excluding witnesses has been issued;Footnote 94
- 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 (also called “virtual hearing”) 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 95 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 and heard, and witnesses can be cross-examined.
At this time, all IRB hearings are scheduled as virtual hearings by default. In-person hearings may be scheduled upon request or at the discretion of the IRB. The IRB will grant requests for in-person hearings upon determining that it is necessary for reasons of fairness and natural justice, or for other compelling reasons, such as where the complexity, duration or other circumstances of the proceedings so warrant.Footnote 96
In
Sui,Footnote 97 the Ontario Superior Court of Justice held that assessments of witness credibility can be made effectively using videoconferencing. In
Fraser,Footnote 98 the Ontario Superior Court of Justice also stated that while a witness’s demeanour may be a factor in assessing credibility, it is generally a minor factor. In addition, in certain circumstances, it may be easier for a judge to observe a witness who can be seen virtually. In
Guajardo,Footnote 99 the Federal Court dismissed the applicants’ argument that technical connection issues experienced during the virtual hearing held before the RPD created an environment that was not conducive to them providing consistent testimony.
In
Kariuki,Footnote 100 the applicant explained that the hesitations in his testimony were the result of the use of videoconference and the poor quality of the sound reproduction and should not have been used to impugn his credibility. The Court concluded that the IRB, as an expert tribunal in hearing testimony, could tell the difference between hesitations in testimony and pauses, interruptions or interference due to the use of videoconference.
In
Kengkarasa,Footnote 101 the Federal Court concluded that no error arose from the RPD's finding that the picture on an identity card was not that of the applicant, even though the hearing was held by videoconference, as the RPD was able to zoom in on the applicant to see his face. In the context of an application to vacate,Footnote 102 however, the Court stated that the panel should have recognized the inherent limitations of observing an individual's facial features during a virtual hearing and considered them in its analysis, especially when the protected person's Internet connection was poor and he had frozen several times during the hearing.
In
Gonzales,Footnote 103 counsel argued that videoconference facilities do not permit accurate assessment of the demeanour of a claimant, particularly when the claimant's culture and language are different. The Court concluded that since counsel failed to present any specific indications of how those general concerns may have adversely affected the hearing, the conduct of the hearing by videoconference did not adversely affect procedural fairness.
The Court also stated, in
KaushalFootnote 104 in particular, that it is up to the judiciary, as its gatekeepers, to ensure that the use of videoconferences is not abused nor seen to undermine our legal system. In
Slimani,Footnote 105 the Federal Court stated that the RPD has sole and exclusive jurisdiction over its proceedings and may request that a witness show their surroundings when the hearing is held by videoconference, such as when it suspects that a claimant is using notes or other documents.
In
Rovi Guides Inc.,Footnote 106 the respondent was opposed to the continuation of the proceedings by videoconference, particularly because it would be unfair to make his witnesses testify far from the hearing location when the applicant's witnesses testified in person before the Court closed due to COVID-19. The Court rejected the respondent's objection, stating that any advantage that the applicant might have had in having his witnesses appear in person had been lost given the time that had passed.
In
Sundaram,Footnote 107 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.
5.4 General factors to consider regarding
viva voce evidence
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 partiesFootnote 108
- 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
- any other evidence which supports or contradicts the testimony of the witness