Canadian Refugee Procedure/170 - Proceedings

IRPA Section 170

The relevant provision of the Immigration and Refugee Protection Act reads:

Proceedings
170 The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
(b) must hold a hearing;
(c) must notify the person who is the subject of the proceeding and the Minister of the hearing;
(d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);
(d.1) may question the witnesses, including the person who is the subject of the proceeding;
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;
(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; and
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

IRPA Section 170(a) - May inquire into any matter that it considers relevant to establishing whether a claim is well-founded

Proceedings
170 The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; ...

Commentary

The pro-active role of RPD members was recognized with the passing of the IRPA which first included this particularly provision specifying the RPD “may inquire into any matter that it considers relevant to establishing whether a claim is well-founded”. See also: Canadian Refugee Procedure/165 - Powers of a Member.

IRPA Section 170(b) - Must hold a hearing

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(b) must hold a hearing;

The Division is required to hold a hearing in any proceeding before it, except where it allows a claim for refugee protection without a hearing in specific circumstances

Section 170(b) of the IRPA states that the Division must hold a hearing in any proceeding before it. This requirement is qualified by section 170(f), which provides that, despite paragraph (b), the Division may allow a claim for refugee protection without a hearing if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene. For more information on this, see the commentary on Rule 23: Canadian Refugee Procedure/Allowing a Claim Without a Hearing.

The requirement to hold a hearing provided for in section 170(b) of the Act is a comparatively strong requirement, which can be contrasted with the equivalent provision for the Immigration Division, which only requires that Division to hold a hearing "where practicable". This requirement stems from the Supreme Court of Canada's Singh decisions, which mandates an oral hearing in every case that went to the IAB, the IRB's predecessor. There were strong policy reasons for this, not only related to fairness so that apparent inconsistencies in the claimant's statement could be clarified, and the claimant's response to adverse evidence could be obtained, but also for reasons of efficiency. As Rabbi Gunther Plaut explained in his report on Refugee determination in Canada commissioned by the Minister of Employment and Immigration, prior to an oral hearing being provided in every case, in order to ensure fairness to the claimant, the Refugee Status Advisory Committee had adopted a procedure whereby the examination would be re-opened to elicit necessary evidence. This resulted in considerable delay and was a cumbersome procedure that became unnecessary with the advent of full oral reasons before the actual decision-maker.

IRPA Section 170(c) - Must notify the person who is the subject of the proceeding and the Minister of the hearing

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(c) must notify the person who is the subject of the proceeding and the Minister of the hearing;

The person who is the subject of the proceeding must be notified, but such individuals are responsible for providing their contact information

The Refugee Protection Division has concludes that "claimants have the right to be notified of their hearing date and to be present at the hearing, but similarly share the responsibility of providing authorities with the information necessary to receive notice." See: Canadian Refugee Procedure/Information and Documents to be Provided#RPD Rule 4 - Claimant's contact information.

Minister must be notified of the hearing regardless of whether they are a party under the rules

As stated in the Board's public commentary to the previous version of the RPD Rules, "The Minister must be notified of the hearing of a claim for refugee protection even if the Minister has not intervened in the claim under...the Rules". For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Notice of the hearing.

IRPA Section 170(d) - Must provide the Minister, on request, with the documents and information referred to in subsection 100(4)

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4);

IRPA Section 170(d.1) - May question the witnesses, including the person who is the subject of the proceeding

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(d.1) may question the witnesses, including the person who is the subject of the proceeding;

IRPA Section 170(e) - Must provide an opportunity to present evidence, question witnesses and make representations

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

The person involved in any proceeding before the RPD must have a reasonable opportunity to present evidence, question witnesses and make representations

For a discussion of how this relates to the right to be heard, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Parties are entitled to the opportunity to attend an oral hearing and Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the Board.

The Minister must have a reasonable opportunity to present evidence, question witnesses and make representations

Section 170(e) of the IRPA provides that the RPD, in any proceeding before it, must give the Minister a reasonable opportunity to present evidence, question witnesses, and make representations. This was not the case when the Convention Refugee Determination Division was originally created. At that point, the Minister was entitled only to present evidence and could not cross-examine the claimant or make representations, save where exclusion or cessation was at issue. This was considered important at the time in order to ensure the non-adversarial nature of the refugee status determination inquiry. In subsequent years, however, this provision was amended so that it is now worded as above. Furthermore, even under the prior Immigration Act wording the Refugee Division could, if it considered it appropriate to do so, give the Minister a reasonable opportunity to question the claimant and any other witnesses and to make submissions.

The RPD Rules require that the Minister be notified of certain issues, for example where there is a possibility of exclusion. If a panel proceeds without notifying the Minister as required, the Minister's right to be heard has been violated, as discussed in the commentary to Rule 26: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#How much notice must the Division provide where it identifies a possibility of exclusion prior to a hearing?. Similarly, if the Board accepts a claim without holding a hearing, and without providing advance notice to the Minister, then the Minister's right to participate in the hearing process may have been violated: Canadian Refugee Procedure/RPD Rule 23 - Allowing a Claim Without a Hearing#When may a Member decide a claim without having held a hearing?.

IRPA Section 170(f) - May allow a claim without a hearing

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(b) must hold a hearing; ...
(f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene;

Commentary

For commentary on this provision, see RPD Rule 23: Canadian Refugee Procedure/Allowing a Claim Without a Hearing.

IRPA Section 170(g) - Is not bound by any legal or technical rules of evidence

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(g) is not bound by any legal or technical rules of evidence;

The Division may receive evidence that does not comply with the Canada Evidence Act and common law rules of evidence

Section 170(g) of the Act provides that the Refugee Protection Division, in any proceedings before it, is not bound by any legal or technical rules of evidence. As such, the Board is not required to refuse to admit evidence merely because it does not comply with a rule of evidence. For example, a panel of the Board is not required to refuse to admit an affidavit merely because it does not meet the requirements of Part III of the Canada Evidence Act, which governs the taking of affidavits abroad. Similarly, the Board is not enjoined from compelling a party's spouse to testify about communications made to them in the course of their marriage, something that would ordinarily be prohibited by section 4(3) of the Canada Evidence Act which provides that "No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage." The Federal Court has held that the legislative intent behind IRPA section 170(g) is "to avoid the formalities which are attendant upon court hearings in civil or criminal proceedings."

That said, the relaxation of evidentiary rules by the RPD cannot be uniform in all matters; they must respond to the requirements of procedural fairness, and reflect the nature of the particular proceedings, issues involved, and interests at stake. Furthermore, each Canada Evidence Act provision may be examined to determine how it interacts with s. 170(g) of the IRPA. In Brown v. Canada, when commenting on the scope of disclosure required of the Minister necessary for a matter to be procedurally fair, the Federal Court of Appeal made reference to the Canada Evidence Act, as follows: "Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing." They went on to note that "it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence." In this way, despite the Immigration Division in that case not being "bound by any legal or technical rules of evidence" (the language of the relevant IRPA provision which applies to the Immigration Division), this Canada Evidence Act provision nonetheless related to the extent of disclosure necessary for the proceeding to be fair.

The Division must refuse to admit evidence where admitting it would violate a substantive rule of law such as solicitor-client privilege

Section 170(g) of the Act provides that the Refugee Protection Division, in any proceedings before it, is not bound by any legal or technical rules of evidence. This means that provisions of the Canada Evidence Act do not constrain the Board's ability to admit evidence. This principle applies to rules of evidence, such as spousal privilege, but not to rules of substantive law such as solicitor-client privilege. In this way, a panel of the RPD is obliged to respect solicitor-client privilege and must decline to admit information so protected, except where a relevant exception applies.

That said, the panel must consider whether such privilege in fact applies, for example, where a litigant relies on legal advice as an element of his or her claim or defence, the privilege which would otherwise attach to that advice is lost. For example, by raising the conduct of their former counsel as an issue before the RAD, applicants were found to have impliedly waived any right to solicitor-client privilege. Furthermore, the Board can also inquire into the instructions provided by immigration consultants or lawyers as to efforts to obtain corroborating evidence. This is not a privilege issue as it does not pertain to legal advice but instructions to follow the law.

Similarly, a panel of the Board may be required to refuse to admit evidence where doing so is required by the Charter of Rights and Freedoms or specific statutes such as the Privacy Act. For more details, see: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#The Board has jurisdiction to refuse to admit documents for reasons that are broader than the Rule 35 criteria.

The Division must not fetter its discretion by refusing to admit evidence where the evidence does not meet the technical rules of evidence

See: Canadian Refugee Procedure/The right to an independent decision-maker#Members may not fetter their own discretion.

While the Division is not bound by rules of evidence, the Division may still have regard to them

Section 170(g) of the IRPA is clear that the Refugee Protection Division is not bound by any legal or technical rules of evidence. That said, the Division may nonetheless have regard to such rules in a number of ways, including:

• When assigning weight to evidence: Lorne Waldman writes in his text that "in cases where the evidence is not normally admissible in a court of law, the Division must give careful consideration to the weight given to the evidence." For example, the fact that evidence was "based on hearsay that was only corroborated by other hearsay" was an appropriate consideration where the RAD concluded that the evidence tendered was insufficient to establish the appellant's factual claim. The relaxation of evidentiary rules by the RPD cannot be uniform in all matters; they must respond to the requirements of procedural fairness, and reflect the nature of the particular proceedings, issues involved, and interests at stake.
• When exercising residual discretion about whether to admit evidence: Simply because a panel of the Board may accept some evidence does not mean that it must; the panel has a discretion to decline to admit the evidence as part of the broader discretion that it has to control its own process and balance the probative value of evidence with its prejudicial effect, if any, on the hearing process. In the words of the Refugee Appeal Division, “since the RPD is not bound by any legal or technical rules of evidence, it must generally admit all evidence unless it is irrelevant, repetitive or prejudicial”, highlighting this residual discretion to decline to admit certain prejudicial evidence. For example, see decisions regarding the Board's discretion to refuse to allow a lawyer to act as a witness in a matter where they are also acting as counsel: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses#Limitations on the ability of legal counsel to act as a witness in a proceeding.
• When determining whether evidence should properly be considered credible and trustworthy: Section 31.1 of the Canada Evidence Act provides that "Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be." Recourse may be had to this provision when assessing whether a claimant has met their burden to establish that electronic evidence tendered is credible and trustworthy.
• When determining what questions may appropriately be posed to a witness: For example, the Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board specifies that when a minor under the age of 14 testifies they shall not be asked if they understand what promising to tell the truth means. The reference cited for this in the guideline is section 16.1 of the Canada Evidence Act.

IRPA Section 170(h) - May receive and base a decision on evidence considered credible or trustworthy

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances;

History of this provision

The standard that evidence considered credible or trustworthy may be admitted and used for a decision has been a longstanding one in Canadian immigration proceedings. The 1910 Immigration Act articulated the duties and procedures of boards of inquiry to determine admissibility and deportation matters. At that time, a board could base its decision on any evidence it considered credible and trustworthy.

Burden of proof

The burden of proof rests on a claimant to show that they meet the definition of a 'person in need of protection' or Convention Refugee in the Act. For further discussion of this, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#A claimant has an onus to show that they meet the criteria to be recognized as a refugee.

Standard of proof

The standard of proof for assessing evidence as well as credibility in Canadian law is a balance of probabilities, that is, the evidence is more likely than not true. This accords with UNHCR guidance which states that the authorities need to decide if, based on the evidence provided, it is likely that the claim of the applicant is credible.

Where there is a dispute, the Division should explain why evidence was considered credible and trustworthy

Section 170(h) of the Act provides that the Refugee Protection Division, in any proceeding before it, may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. In this way, a Division of the Board is entitled to rely on sources of information that may not be admissible evidence in a court proceeding, provided that the Division explains why the information is credible or trustworthy. The IRB's paper on weighing evidence notes that it is not the Division's normal practice to determine whether evidence is credible or trustworthy prior to admitting it:

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.

However, it is clear that before relying on evidence, the Board must first assess the reliability of the evidence. See a discussion of this in Pascal v Canada, which, while a decision relating to the Board's Immigration Division, applies mutatis mutandis to the Refugee Protection Division. See also Fong v Canada, a decision concerning the Board's Immigration Appeal Division, in which the IAD accepted police reports into evidence concerning a crime that Mr. Fong had been acquitted of. The Federal Court held that the IAD had erred in doing so because it had failed to determine that the police reports were either credible or trustworthy, as required by the Act:

in light of the acquittal of the applicant on the charges to which they related, [the police reports] were prima facie neither credible nor trustworthy as they set out the factual foundation for charges laid that were subsequently not proven. The police reports should not have been admitted into evidence in these circumstances.

This relates to James Hathaway's statement that it is not the case that "every piece of paper tendered [should] be received, even with the stipulation that differential weight will be accorded to less relevant materials" as the statutory reference to the admission only of evidence which is trustworthy or credible requires that evidence not logically probative of a legally material fact be excluded. See also: Canadian Refugee Procedure/Documents#Rule 35 - Documents relevant and not duplicate.

How should the Division determine whether evidence should be considered credible or trustworthy?

The Refugee Protection Division, in any proceeding before it, may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. The Federal Court of Appeal has stated that it finds "no linguistic warrant for distinguishing the words 'credible' and 'trustworthy'" and has treated them as synonymous. At other times, the terms have been distinguished, with "credible" evidence being considered that which is believable and "trustworthy" evidence is that which falls into the broader category of reliable evidence. A full discussion of these principles is beyond the scope of this text. Credibility and reliability are different. Credibility has to do with a witness’s veracity, while reliability relates to the accuracy of testimony, which engages consideration of the witness’s ability to accurately observe, recall and recount events in issue. In general, it is observed that credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’”.

There are a number of tools utilized by refugee status determination bodies to this end, for example, UNHCR registration officers deploy tools such as checking the consistency of stories told to them by re-interviewing applicants. Government security services will seek to corroborate the information they receive. When it comes to assessing the credibility and reliability of documents that have been submitted, the Federal Court has endorsed applying the five criteria used in library and information science to determine the reliability of information—authority, accuracy, objectivity, currency, and coverage—as a framework. Decision-makers may also consider whether a party has failed to provide corroborative evidence and this relates to credibility in 2 cases: (1) where there are other valid reasons to doubt a claimant’s credibility; and (2) where such evidence would be reasonably expected to be available and filed, and the decision maker does not accept the claimant’s explanation for failing to produce it. The law also recognizes the inherent unreliability of certain types of evidence, such as hearsay evidence. There is no presumption of truth for hearsay and it can be accepted, but only on grounds of reliability and necessity – the burden to establish those conditions resting on the party introducing the evidence.

Determining whether evidence should be excluded on the basis that there are reasonable grounds to believe it was obtained through torture or cruel inhumane or degrading treatment [CIDT] requires the application of a two-part test. First, the party advocating for the exclusion of the evidence is required to show a plausible connection between the evidence and the use of torture or CIDT. Where the plausible connection threshold has been met, the burden shifts to the party seeking to rely on the evidence, the Minister, to demonstrate there are no reasonable grounds to believe the evidence was obtained by torture, or put differently, that there is an absence of a real risk the evidence was obtained by torture.

See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#Inferences about credibility that may be made where a claimant does not supply documents.

IRPA Section 170(i) - May take notice of facts

Proceedings
170 The Refugee Protection Division, in any proceeding before it, ...
may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

RPD Rule 22 on Specialized Knowledge relates to this provision of the Act

For a discussion of the interpretation of this provision, see the commentary to RPD Rule 22: Canadian Refugee Procedure/Specialized Knowledge.