Weighing Evidence - Chapter 11: Other common issues

11. Other common issues

11.1 Self-serving evidence

11.1.1 General principles

The term “self-serving evidence” is used generally to describe evidence that appears to have been created or fabricated for the purpose of the hearing, to bolster the case.^{Footnote 344} In a broader sense, all testimony and documents a party submits in a proceeding are self-serving to the extent that they are created by or for the party and may be beneficial to their case.^{Footnote 345} Often, a finding that the evidence is self-serving is linked to a finding that the witness is not credible.^{Footnote 346}

In Grozdev,^{Footnote 347} a letter from the claimant's father enclosing a purported summons referred to recent events of which the claimant was well aware. The panel found the letter was specifically intended to be read by the panel at his hearing and was self-serving, and thus gave it little weight. The Federal Court held the panel committed no error.

However, in Cardenas,^{Footnote 348} the Federal Court did not uphold the Refugee Division's finding that correspondence from the claimant's family was self-serving. The court agreed with counsel that such correspondence was his only source of corroboration. It was natural that he would request that his family write and that they responded as they did. Although the correspondence postdated the claimant's arrival in Canada, there was no evidence that what was written was not true. The court also did not uphold the panel's adverse credibility findings.

In recent jurisprudence, the Federal Court has repeatedly criticized the rejection of evidence provided by relatives and family members of an applicant solely because such evidence is self-serving. In Cruz Ugalde,^{Footnote 349} the Federal Court acknowledged that it is true that giving evidence little weight due to its “self-serving” nature is an option open to the decision-maker. However, the court, citing the 2010 Supreme Court of Canada decision in Laboucan,^{Footnote 350} said that evidence generally should not be disregarded simply because it comes from individuals associated with the persons concerned.

The self-serving evidence in Cruz Ugalde was provided by the applicant's family members, who had experienced threats and break-ins by persecutors who were searching for the applicants. Justice de Montigny opined that the PRRA officer deciding the matter would likely have preferred letters written by individuals who had no ties to the applicant. However, it is not reasonable to expect that anyone unconnected to the applicant would have been able to furnish the evidence of what had happened to the applicant in Mexico. The applicant's family members were the individuals who observed the alleged persecution, so these family members were the people best suited to give evidence about these events. It was unreasonable for the officer to distrust this evidence simply because it came from individuals connected to the applicant.

In Magonza,^{Footnote 351} the Federal Court observed that in the vast majority of cases, the family and friends of the applicant are the main, if not the only first-hand witnesses of past incidents of persecution. If their evidence is presumed to be unreliable from the outset, many real cases of persecution will be hard, if not impossible, to prove. Justice Grammond stated that decision-makers may take self interest into account when assessing such statements. He affirmed that it is a reviewable error to dismiss entirely such evidence for the sole reason that it is self-interested.

In Murillo Taborda,^{Footnote 352} the RPD gave little weight to letters from the claimant's father and sister because they were self-serving. Although the judicial review was allowed on the bases that the panel erred in finding adequate state protection for the claimant as well as an internal flight alternative, the Federal Court commented at length on the panel's treatment of the letters and found it to be problematic. Justice Kane referred to the fact that the documents were sworn affidavits and stated that the people who could likely attest to the fact that FARC members continued to look for the claimant would be her family members.

In Mahmud,^{Footnote 353} the claimant submitted letters from his uncle and his party president. The Federal Court held the Refugee Division erred in finding them to be self-serving. It stated that the letters must be considered for what they do say, not for what they do not say. They corroborated the claimant's allegations in general terms and did not contradict his evidence.

Great care should be taken in assessing the self-serving nature of such evidence as the Basis of Claim Form which, of necessity,^{Footnote 354} is created by the claimant for the purposes of supporting a claim for refugee protection.

It is important for the decision-maker to state why they reached the conclusion that the evidence is self-serving. In Rendon Ochoa,^{Footnote 355} the RPD's dismissal of sworn statements from the applicant's cousin, sister and former co-worker was found to be unreasonable. The panel did not offer any reason for not according them much weight other than the fact that they came from the applicant's “family and friends” and thus were not “independent in any way.” Justice Zinn held that if the panel gives such evidence little weight, it must set out some basis for doing so in its reasons other than the mere fact that the evidence comes from family and friends.

The decision-maker should also explain the consequences of the finding that the evidence is self-serving, since the IRB is not bound by the rules of evidence and this type of evidence is accepted in certain cases. In general, it may result in a finding that the evidence warrants little or no weight.

11.1.2 Factors to consider relating to the weight of self-serving evidence

The following is a non-exhaustive list of factors that may be considered when assessing the weight to be given to self-serving evidence:

• the reasons for which the evidence was prepared;
• the date of the evidence;
• the relationship of the author to the party producing the evidence;
• whether the author has any interest in the outcome of the hearing;
• the content of the evidence;
• any apparent bias or contrived appearance;
• whether the evidence is corroborated by and consistent with other credible evidence;
• whether the author is available for cross-examination, if required; and
• the credibility of the party producing the evidence.

11.2 Hearsay evidence

11.2.1 General principles

Courts may refuse to admit into the record evidence that is considered hearsay. Hearsay is evidence which is not based on the first-hand observations or knowledge of the witness.^{Footnote 356} The reasons for not admitting such evidence relate to its reliability. Since none of the four Divisions of the IRB is bound by the rules of evidence, they routinely accept hearsay evidence (e.g., newspaper articles).

The IRB errs in law if it rejects evidence simply because it is hearsay.^{Footnote 357} However, the fact that it is hearsay may be taken into consideration in determining the weight to be given to the evidence. Panels should normally refer to the rationale behind the rule in assessing the weight of the evidence. For example, evidence which is second- or third-hand information may be given less weight or no weight because it is less likely to be accurate, given the circumstances under which it was communicated.

If evidence is rejected because it is hearsay, the panel must explain why it did not find it to be credible or trustworthy.^{Footnote 358}

The Federal Court of Appeal held that it was not improper for the Convention Refugee Determination Division (CRDD) to admit into evidence highly prejudicial hearsay evidence if there is other evidence to support the panel's findings. It is up to the panel to determine the weight to be given to such evidence.^{Footnote 359} This same principle applies to the four current Divisions of the IRB, as they also are not bound by the rules of evidence.

The IAD did not err in receiving and relying upon the evidence of a police officer which was based on the evidence of undisclosed informants. The officer testified as an expert in Asian gang activity in the Vancouver area and in the identification of individual gang members. Even if parts of that evidence were “double hearsay”, the panel could still rely on it, as long as it found the evidence to be credible, trustworthy and relevant.^{Footnote 360}

In similar circumstances, the Federal Court of Appeal determined that the CRDD had not breached natural justice by admitting evidence of an expert witness that was unsworn and contained information from unknown sources. The court noted that pursuant to section 68(3) of the former Immigration Act (which contained similar language to subsection 170(e) of the IRPA), the panel was entitled to admit the statement if it was considered credible and trustworthy in the circumstances. As for the expert witness not having been made available for cross-examination, the court found that this was not a case where the credibility of the witness was at issue and that consequently, an opportunity for cross-examination was not essential to the fairness of the hearing. Furthermore, it found that it was not unfair for the CRDD to admit this evidence as the claimant was given every opportunity to raise objections beforehand, request cross-examination before the hearing, call rebuttal evidence, and make submissions regarding weight.^{Footnote 361}

In Elezi,^{Footnote 362} the applicant, a citizen of Albania, feared persecution by the mafia because of his employment with a commission dealing with land claims and because his father, a former chairman of the local electoral commission, refused to favour a Socialist Party candidate in a past election. On the issue of state protection, the applicant submitted letters from government officials which indicated that Albania could not protect him. The PRRA officer deciding the application gave them little weight because in the officer's view, the letters were hearsay. The court found that the declarations were made by government actors, a local mayor, and a member of Parliament, and thus the ability of the state to protect the applicant was within their personal knowledge and could not properly be characterized as hearsay evidence. These individuals were part of the state apparatus, and as such, were presumed to have knowledge of its protection capabilities.

It is an error to assign little weight to a psychological or medical report on the mere basis that it contains hearsay evidence. In Kanthasamy,^{Footnote 363} the Supreme Court of Canada clearly commented on the inappropriateness of rejecting professionals' evidence (or similarly reducing its probative value) on the sole basis of hearsay:

And while the officer did not “dispute the psychological report presented” she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant.” This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.^{Footnote 364}

11.2.2 Factors to consider relating to the weight of hearsay

The following factors may be considered when determining the amount of weight to attribute to hearsay:

• the source of the original information;^{Footnote 365}
• the number of times the information has changed hands;
• the credibility and objectivity of the persons through whom the information has passed;
• the credibility of the witness;
• the availability for cross-examination of any of the persons through whom the information was passed, if required; and
• the consistency of the information with other reliable evidence.^{Footnote 366}

11.3 Evidence of children

11.3.1 General principles

Subsection 167(2) of the IRPA requires each Division of the IRB to appoint a designated representative for a person appearing before the Division who is under 18 years of age. The rules of each Division contain parallel, though not identical, provisions regarding the duty of counsel to notify the Division of the need for a designated representative and the requirement for being so designated.^{Footnote 367} In addition, the Chairperson has issued a guideline (Guideline 3)that applies to procedural and evidentiary issues arising in claims before the RPD that involve children.^{Footnote 368}

Care should be taken in designating a representative to ensure that they will consider the best interests of the child in assisting the child with the presentation of their case, and that there will not be a conflict between the interests of the designated representative and those of the child.^{Footnote 369} Where the designated representative is not also counsel, the designated representative will instruct counsel on behalf of the person represented.

The designation of a representative is to apply to the entirety of the proceedings in respect of a refugee claim.^{Footnote 370} In Duale,^{Footnote 371} the claimant had turned 18 nine days before his RPD hearing. He was 16 years of age when he arrived in Canada and when he completed his Personal Information Form (PIF). The RPD found Mr. Duale's story not to be credible and rejected his claim. On judicial review, the Federal Court found that Mr. Duale went through each stage of the proceeding except for the actual hearing without the evidence a designated representative was intended to provide. In particular, he did not have the benefit of any assistance from a designated representative in gathering evidence to support his claim. This was contrary to the intent and scheme of the IRPA and the RPD Rules and contrary to Guideline 3.

Justice Dawson allowed the application for judicial review on the basis that she was unable to safely conclude that the failure to appoint a designated representative could not have had an adverse effect on the outcome of the claim. A designated representative would have been responsible for assisting Mr. Duale to obtain evidence. The evidence before the court supported an inference that the evidence gathering process was not what it could have been. The court also commented on the fact that the reasons of the RPD did not expressly refer to the applicant's age, despite a particularly minute examination of his PIF. The failure to expressly acknowledge his age and the impact that age may have had on the completion of his PIF, his testimony, and the assessment of his testimony did not enhance the RPD's credibility findings.

A minor may seek to provide oral testimony. In certain circumstances, and where a minor claimant is close to the age of majority, the RPD may err if it fails to make inquiries as to whether the minor claimant should be present in the hearing and should testify on his or her own behalf. This was the case in Andrade,^{Footnote 372} where the minor respondent in an application for cessation of refugee protection pursuant to subsection 108(1)(a) of the IRPA had been 17 years of age. The court found that the respondent had acquired the capacity to form and express an opinion as to his intention to avail himself of the protection of the country of his nationality. The court noted that the consequences of losing refugee protection were significant for the respondent, particularly because he had been personally targeted by the FARC. In these circumstances, the member should not have simply agreed to the request of respondent's counsel to exclude the minor respondent from the hearing room.

Pursuant to section 16 of the Canada Evidence Act, it is presumed that a child under 14 years of age has the capacity to testify. The statute further provides that a child under 14 shall not take an oath or make a solemn affirmation, and that their evidence shall be received if they are able to understand and respond to questions. While a witness under 14 must promise to tell the truth prior to giving evidence, they cannot be asked any questions regarding their understanding of the nature of that promise for the purpose of determining whether the evidence is admissible. If received by a court, evidence of a witness under 14 has the same effect as if it were taken under oath.^{Footnote 373}

In hearing and weighing the evidence of children, the panel needs to exercise sensitivity, always taking into consideration the limitations under which a child may be testifying. The CRDD has written:

… A refugee claimant who is a child may have some difficulty recounting the events which have led him or her to flee their country. Often the child claimant's parents will not have shared distressing events with the claimant, with the intention of protecting their child. As a result, the child claimant, in testifying at his or her refugee hearing, may appear to be vague and uninformed about important events which have led up to acts of persecution. Before a trier of fact concludes that a child claimant is not credible, the child's sources of knowledge, his or her maturity, and intelligence must be assessed. The severity of the persecution alleged must be considered and whether past events have traumatized the child and hindered his or her ability to recount details.^{Footnote 374}

In Uthayakumar,^{Footnote 375} the Federal Court – Trial Division wrote:

Counsel for the applicants reminded the panel that we are dealing with minor children in the instant matter and that under these circumstances, close attention must be paid to the Immigration and Refugee Board's guidelines on procedural and evidentiary issues for minor children … The panel clearly did not take into consideration the fact that the applicants were ten and twelve years of age when they travelled to Canada and that these two children clearly did not have to keep a log throughout their travels. Furthermore, it was quite possible, and perhaps even likely realistic, that both of the applicants could not precisely remember all of the circumstances of the journey, which must certainly have been very stressful under the circumstances.

11.3.2 Factors to consider relating to the weight of evidence provided by children

The following is a non-exhaustive list of factors that can be considered when assessing the weight to be given to children's evidence:

• whether the child would be more comfortable testifying in special circumstances (e.g., with the help of a trusted friend, relative or counsellor, or through the use of a video camera or behind a screen);
• the child's age at the time of the events;
• the time that has elapsed since the events;
• the child's level of education;
• the child's ability to understand and relate the events;
• the child's understanding of the requirement to tell the truth;
• the child's capacity to recall the events;
• the child's capacity to communicate intelligibly or in a form capable of being rendered intelligible; and
• whether the child witness was intimidated by the hearing room setting.

11.4 Evidence of persons suffering from mental or emotional disorders

11.4.1 General principles

Section 167(2) of the IRPA gives members of each Division the power to appoint a designated representative for a person before the Division who is “unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings.”^{Footnote 376} The rules of each Division contain parallel, though not identical, provisions regarding the duty of counsel to notify the Division of the need for a designated representative and the requirement for being so designated.^{Footnote 377} Care should be taken in designating a representative to ensure that they will consider the best interests of the person in assisting them with the presentation of their case, and that there will not be a conflict between the interests of the designated representative and those of the person represented. Where the designated representative is not also counsel, the designated representative will instruct counsel on behalf of the person represented.

The mere existence of a mental disorder does not necessarily mean that the person is unable to appreciate the nature of the proceedings.^{Footnote 378} An assessment should be made in each case by questioning the person, where appropriate, and examining any medical reports produced.^{Footnote 379}

While the person may not be able to appreciate the nature of the proceedings, they may still be called upon to give oral testimony. Care must be taken in assessing that testimony, as well as the testimony of individuals suffering from mental or emotional disorders which do not prevent the person from understanding the nature of the proceedings.

In a case before the CRDD, a claimant who had witnessed a violent murder when he was fourteen years old suffered from post-traumatic stress disorder. Eleven years later, he claimed the murderers recognized him and he feared they would track him down anywhere in India. The panel found the claimant's evidence to be implausible. It was more likely that the fearfulness and extreme anxiety resulting from the disorder coloured the claimant's perception of reality.^{Footnote 380}

In Yaha,^{Footnote 381} the Federal Court found that the RPD failed to take into consideration the impact that the applicant's mental illness had on his ability to provide detailed evidence. In assessing the evidence, the panel was dealing with a man who was illiterate and had recently suffered an acute psychotic episode requiring hospitalization for months. He was on medication when he testified. The panel chose to rely on the absence of any explicit reference to memory problems in the Centre for Addiction and Mental Health letter to support its finding that the applicant was not credible. The letter was written to confirm the applicant's ongoing treatment regime and was not intended to provide a complete list of symptoms associated with his schizophrenia diagnosis. Mindful of Chairperson Guideline 8,^{Footnote 382} the court held that it was reasonable to expect the panel to inform itself as to how the diagnosis might affect the applicant's memory.

In another case, the CRDD found that the claimant suffered from an organic brain syndrome which impaired his memory, but that he still understood the purpose of the proceedings. The panel placed no weight on the claimant's evidence, nor did it draw any adverse inferences from the contradictions and inconsistencies in it, and instead relied on the evidence of his adult children.^{Footnote 383}

11.4.2 Factors to consider relating to the weight of evidence provided by persons suffering from mental or emotional disorders

The following is a non-exhaustive list of factors that can be considered when assessing the weight to be given to the evidence of persons suffering from mental or emotional disorders:

• any expert medical or psychological evidence;^{Footnote 384}
• the nature of the particular condition from which the witness suffers;
• whether the witness would be better able to testify if given an opportunity to stabilize their condition through medication (i.e. a short adjournment);
• whether the witness would be more comfortable testifying in special circumstances (e.g., with the help of a trusted friend, relative, or counsellor, or through the use of a video camera, or behind a screen);
• the effect of the condition on the witness's ability to recall past events;
• the effect of the condition on the witness's ability to understand the questions asked;
• to the extent it can be determined, whether the witness was lucid at times, while not so at other times; and
• whether other sources of objective evidence are available to support the witness's testimony.

11.5 Speculation

Findings of fact cannot be based “the sheerest conjecture or the merest speculation.”^{Footnote 385} Nor should the decision-maker rely on their own speculation in making their findings.^{Footnote 386}

In Matharu,^{Footnote 387} the panel invited the claimant to speculate why the police had arrested him and his father and had searched their home and business. The claimant indicated the police thought they were involved with militants. The Federal Court held that why the police thought this was so can only be a matter of speculation unless the police disclosed their suspicions. It was unfair to reject the incident because of speculation.

In Khan,^{Footnote 388} the Federal Court – Trial Division stated that the Refugee Division panel expressed a general opinion that in Pakistan, when the government changes, the actions of all the operatives within the apparatus of the state also change. The court held that such an opinion is speculation unless it can be proven. The document used to support the Refugee Division's opinion predated the election by four years. The court held it is also engaging in speculation to transfer information from one period in time to another, and to rely on it to make global assertions about present conditions, without giving precise reasons.

In Ke,^{Footnote 389} the Federal Court – Trial Division considered the paucity of evidence available regarding the proposed bondsperson in a detention review and found the panel's decision was based on speculation. The panel considered the blood relationship that existed and commented that while it was tenuous, it was necessary to be sensitive to cultural differences. He speculated that to dishonor the bondsperson would create pain and disharmony to the detained person's mother and accepted the bond offer.

The difference between pure conjecture or speculation and a reasonable inference has been described as follows:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction, it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.^{Footnote 390}

The evidence should be examined to determine whether there is a basis upon which the witness could draw an inference, or whether the statement is purely speculative. Speculation should be given no weight.

In Giron,^{Footnote 391} the RPD had made unreasonable implausibility findings that were based on speculation or misunderstanding of the evidence. The panel found it implausible that the Mara Salvatrucha gang would be able to identify the applicant, who worked at the Judicial Centre in Metapan, El Salvador, as “someone with information to sell.” Justice Kane held that, in suggesting the applicant should have known how the gang identified him, the panel ignored his testimony that he did not know the gang member who approached him and had no previous interactions with the gang. The RPD had also found the applicant's “very presence in Canada” was implausible because, if his allegations were true, the gang would have had ample opportunity to kill him. The court held this was based on speculation as to how the gang operated.

In Soos,^{Footnote 392} the applicant feared her estranged spouse who had abused her in Hungary and Canada. The spouse had been convicted of assaulting the applicant in Canada. The Federal Court allowed the judicial review due to the RPD's speculative findings concerning the well-foundedness of the applicant's fear of persecution. The panel had speculated without evidentiary support that there was a strong possibility the husband would remain in Canada without status if his own refugee claim was rejected. It failed to explain why it was not persuaded by the applicant's testimony, objective evidence from the criminal court, and psychological reports, all of which addressed the real possibility that the spouse would return to Hungary. Moreover, the panel unreasonably inferred, without evidence, that the applicant would be viewed differently in Hungary because she had “legal documents from Canada” concerning the spouse's criminal history. The applicant had sufficient evidence and a non-speculative basis to support her fears of domestic violence: she feared abuse, was abused, and her estranged spouse was convicted of assault. While her inference was reasoned, the panel's inference was speculative and disregarded the pattern of violence in the evidence.

In Dhudwal,^{Footnote 393} a judicial review concerning subsection 4(1) of the Regulations, the IAD had found the applicant's previous marriage was a marriage of convenience. The Federal Court held this was highly speculative, given immigration authorities had investigated the marriage and found there was insufficient evidence to pursue the matter.

In Erhatiemwomon,^{Footnote 394} the issue was whether the applicant qualified as a member of the family class as a dependent son by virtue of his age. The sponsor provided birth dates for the applicant that were two months and five months earlier than the birth date of his younger brother. The Federal Court found the IAD speculated that the age difference could be accounted for by the fact that the sponsor had not kept records or registered her younger son's birth until much later. The court could find no basis for this explanation, which contradicted the sponsor's evidence and was never raised before the panel.

If the witness is drawing inferences from the evidence, the reliability of the evidence upon which the inference is based must also be considered. In Portianko,^{Footnote 395} the Refugee Division accepted the claimant's credibility in those matters of which he had direct personal knowledge, but it did not accept his conclusions based on speculation. The Federal Court held that there is a distinction between facts of which a witness has direct knowledge, such as having received a summons, and speculation relating thereto, such as whether he would be beaten or killed for responding to the summons. The acceptance of the first type of evidence and the rejection of the second is not unreasonable given that the sources of the witness's knowledge of the two are different.

Ultimately, the panel must draw its own inferences from the evidence. The presumption that sworn testimony is true applies to allegations of fact, not to speculative conclusions drawn from those facts.^{Footnote 396}