Weighing Evidence - Chapter 6: Documentary evidence

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6. Documentary evidence

Documentary evidence includes a broad range of materials, such as extracts from newspapers, books, websites, social media, and magazines; photographs; video recordings; passports and other travel documents; records of voice and text conversations; statutory declarations and affidavits; business records (e.g., bank and credit card records); birth, school, and marriage certificates; driver's licences; records from judicial proceedings (e.g., transcripts, warrants, and judgments); records of landing; letters; police reports; medical and psychological reports; reports from probation officers; and application forms. It includes both originals and copies of documents.

6.1 General lack of credibility and documentary evidence

Under certain circumstances, the IRB may make a general finding of a lack of credibility on the part of a claimant or appellant.Footnote 93 In some circumstances, such a finding can extend to affect the weight placed on all documentary evidence the claimant or appellant has submitted to corroborate their version of the facts.Footnote 94

Even where a general finding of a lack of credibility is reached without error, the panel may be required to separately assess certain documentary evidence on the record. As the Federal Court of Appeal held in Sellan,Footnote 95 “where the Board makes a general finding that the claimant lacks credibility, that determination is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.”

One type of independent documentary evidence that may require assessment under Sellan,even in the face of a general negative credibility finding, is country documentation speaking to the risk of certain profile characteristics that are not in dispute. For instance, in Pathmanathan,Footnote 96 the RPD had accepted the applicant was a 38-year-old, unmarried Tamil male with significant scarring. The Federal Court found the RPD was required to assess objective documentary evidence addressing the risk associated with returning to Sri Lanka with such a profile, even if it disbelieved the claimant's narrative of past persecution.

6.2 Authenticity concerns

When assessing the weight to be given to documentary evidence, an issue may arise as to the authenticity of the document. Unreliable documents may be genuine, but contain alterations; alternatively, they may be fraudulent or they may be copies of documents that have been altered. It may also be alleged that a genuine document was issued illegally by corrupt officials (evidence would be required to support such an allegation).

The Federal Court has held that if a panel is not convinced of the authenticity of a document, then this should be stated clearly and the document should be given no weight.Footnote 97 Where panels have instead attributed “little weight” or “little probative value” to documents with questionable authenticity, the Federal Court has found them to be “hedg[ing] their bets” and held they erred in law.Footnote 98

6.3 Obligation to consider all the evidence

In deciding on any particular issue before it, such as identity,Footnote 99 state protection,Footnote 100 or the genuineness of a marriage,Footnote 101 the IRB must consider all the relevant evidence. Because refugee determination requires a forward-looking assessment of risk, the RPD and the RAD are to consider the most recent country documentation.Footnote 102

6.4 No obligation to refer to all the evidence

The IRB is not obliged to explicitly mention every piece of evidence in the record,Footnote 103 and failure to mention a particular piece of evidence does not necessarily mean it has been ignored or discounted.Footnote 104 Rather, the panel is presumed on judicial review to have weighed and considered all of the evidence before it, unless the contrary is established.Footnote 105

6.5 Obligation to refer to critical contradictory evidence

The presumption a panel has considered all the evidence before it may be rebutted when its reasons are silent on evidence squarely contradicting its findings of fact. In such instances, the court may intervene and infer that the panel overlooked the contradictory evidence when making the decision.Footnote 106 As the Federal Court stated in Cepeda-Gutierrez:Footnote 107

The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency.

The failure to mention a particular piece of evidence must be assessed in context, and may result in the decision being reversed only where the evidence was “critical and contradicts the decision maker's conclusion, and where the reviewing court determines that its omission means that the tribunal disregarded the material before it.”Footnote 108 The importance of any given item of non-mentioned evidence is often discussed along a sliding scale, and the panel's “burden of explanation” will be seen to increase with the relevance of the evidence in question to the disputed facts.Footnote 109

Whether and to what extent the IRB's obligation to address specific contradictory evidence applies to general country documentation remains “somewhat divided.”Footnote 110 On one hand, the Federal Court has held that the RPD's “duty to expressly refer to evidence that contradicts its key findings does not apply where the contrary evidence in question is only general country documentary evidence.”Footnote 111 On the other hand, it has also held that “nothing in Cepeda-Gutierrez supports such a narrow reading so as to constrain its precedent to evidence regarding the Applicant's personal situation.”Footnote 112

In Koppalapillai,Footnote 113 Justice Boswell wrote of the “pragmatic approach” to this issue that had emerged from other cases:

Justice O'Keefe did not subscribe to the notion that unmentioned country documentation can never support an inference that it was overlooked, but he acknowledged that it would often be administratively impractical for the RPD to specifically discuss every conflicting source of information. Consequently, “if the board explains what documentary evidence it relies on and that evidence is reliable and reasonably supports its conclusions, then finding a few contrary quotations that it did not specifically explain away will not make the decision unreasonable” (Vargas Bustos [2014 FC 114] at para 39; see also Hernandez Montoya v Canada (Citizenship and Immigration), 2014 FC 808 at paras 35-36, 50-51, 462 FTR 73). To similar effect, the Court in Kakurova v Canada (Citizenship and Immigration), 2013 FC 929 at para 18, [2013] FCJ No 1026, stated that: “It would be overwhelmingly burdensome for the Board to specifically cite every point in the evidence that runs contrary to its determinations. All it was required to do was to review the evidence and reasonably ground its findings in the materials before it … .

It is worth noting that a number of those Federal Court decisions extending the IRB's “burden of explanation” to apply to general country documentation have involved instances where the court found panels selectively relied upon other parts of the general country documentation (discussed in the following section), in some cases within the very same document.Footnote 114

6.6 Selective reliance (“Picking and choosing”)

Where there is a conflict in the record, the IRB is entitled to choose, within the range of reasonableness, the evidence it prefers, and it is not the role of a reviewing court to re-weigh the evidence.Footnote 115

That being said, a reviewing court may intervene where, as discussed in the preceding section, specific contradictory evidence on an essential point is not addressed.Footnote 116 For example, in Castillo Garcia,Footnote 117 the RAD had “relied heavily” in its IFA analysis on a particular NDP document to establish that the cartel feared by the appellant had lost influence in the Cancun area, and that another cartel was dominant there. Absent from the RAD's discussion, however, was material from the same document indicating that the feared cartel still held national reach and at least some influence in the area in question.

6.7 Non-application of the strict rules of evidence

As discussed in Chapter 2, none of the four Divisions of the IRB is “bound by any legal or technical rules of evidence”,Footnote 118 and each “may receive and base a decision on evidence” adduced in the proceedings and considered “credible or trustworthy in the circumstances.”Footnote 119

As a result, a panel errs in law if it rejects documentary evidence as not having been proven in accordance with the strict rules of evidence, as opposed to finding that, in the circumstances of the case, the evidence was not credible or trustworthy.Footnote 120

For instance, a panel may err where it requires the parties to respect the best evidence rule.Footnote 121 In the courts, if the original document is available, a strict application of the best evidence rule requires that it be produced. The IRB may accept copies of documents as evidence,Footnote 122 although failure to produce the original document when it is readily available may result in the copy being given little or no weight. Decision-makers should request an explanation for the party's failure to produce the original document.Footnote 123 In addition, when the original is readily available, the panel may suggest the party make efforts to produce the original and that otherwise, the copy may be given little weight.

Writing in the context of admissibility proceedings before the ID and IAD, the Federal Court of Appeal has repeatedly held that evidence surrounding withdrawn or dismissed charges is admissible before the IRB, provided that the panel is satisfied that the evidence is credible and trustworthy.Footnote 124

The Federal Court has stressed that a provision specifying that a Division is not bound by the strict rules of evidence does not relieve the Division of complying with its own Rules.Footnote 125

6.8 Opportunity to cross-examine

The IRB is entitled to admit documentary evidence even if the author is not called or is unavailable to testify, as long as the evidence is considered credible or trustworthy in the circumstances.

In Le,Footnote 126 the panel admitted into evidence a letter from a Canadian doctor despite an objection based on the fact that she was not available to be cross‑examined on it. In Amaya,Footnote 127 the Federal Court took a similar approach with regard to responses to information requests that were prepared by the IRB's Research Directorate.

In Fajardo,Footnote 128 the Federal Court of Appeal held that the Convention Refugee Determination Division was wrong to discount an affidavit produced by “patently respectable deponents as to facts within their knowledge” because they were not available for cross‑examination, due to the nature of the process. The panel had given little weight to the affidavit of a nun that supported the claimant's testimony because it had been signed at the request of the claimant and the nun was not available for cross‑examination.

In Oria-Arebun,Footnote 129 the RAD had lowered the weight accorded to corroborative letters from the appellant's friends and family because their authors had not been available to testify. The Federal Court found that this was unreasonable, as their attendance was not required. A similar holding by the RAD was found to be unreasonable in Mohamed.Footnote 130

In other cases, the Federal Court has upheld the IRB's reliance in determining a document's weight on the inability to cross-examine its author. In Trako,Footnote 131 the RPD had rejected a letter from a family member provided by the claimant to support his claim regarding an alleged blood feud. In explaining why it preferred the preponderance of remaining evidence to the letter, the RPD observed, among other things, that the author had not been made available for cross-examination, and the Federal Court found that this was reasonable in the circumstances. In AshoftehYazdi,Footnote 132 the RPD had disbelieved the claimants' narrative of persecution in Iran, noting among other things that the author of a corroborating letter had not been made available for cross-examination. The Federal Court found that this was not patently unreasonable.

However, when an affiant is available to strengthen the evidence given in an affidavit, the burden is on the claimant to call the affiant as a witness.Footnote 133 In Pu,Footnote 134 the Federal Court rejected the argument that it was the IAD's onus to summon the authors of a set of support letters before affording them little weight on the grounds that the authors were not presented for questioning. Rather, the court held that, with respect to evidence that would speak to her character in the context of seeking humanitarian and compassionate relief, “it was the Applicant's case to make, not the IAD's.”

In Ali,Footnote 135 as part of its justification for disbelieving the claimant's alleged bisexuality, the RPD had lowered the weight placed on an affidavit from the claimant's partner on the basis that the partner could not be cross-examined. On judicial review, the applicant argued that the RPD could have adjourned the proceedings and requested that the applicant bring his partner to testify. The Federal Court rejected this argument, holding “[w]here the Board establishes that cross-examination is necessary to appreciate an affidavit, it is the responsibility of the Applicant's counsel, not of the Board, to request leave to call the witness for cross-examination.”

6.9 Bias of author

In Rahman,Footnote 136 the Federal Court stated in the context of reviewing a PRRA decision that:

Self-interest is not a binary concept. The importance of an author's potential self-interest or bias as against the credibility and weight to be afforded their evidence will vary with such considerations as: the role the author played in the events recounted - were they a witness or did the applicant merely recount the events in question to the author; the relationship of the author to the applicant - is the author a close family member but, as a witness, nonetheless able to speak independently to the events; the content of the witness statement - does it merely parrot the applicant's evidence or does it have a degree of independence based on the author's own vantage point, and what was that vantage point; any inconsistencies between their statements and other objective evidence in the case, etc.

6.10 POE votes and other minister's informationFootnote 137

In Siete,Footnote 138 the Federal Court rejected the applicant's argument that he was entitled to request the presence of a lawyer upon his arrival at the port of entry, and that his inability to exercise that right violated the rules of fundamental justice. However, statements obtained in violation of the Charter must be excluded if it is established that, having regard to all the circumstances, their admission would constitute a breach of procedural fairness.Footnote 139

6.11 News reports and newspaper articles

The documentary evidence produced before the RPD often includes newspaper and magazine articles. The RPD errs in law if it declines to admit these documents into evidence or take them into consideration for the sole reason that they are press extracts, and consequently, have no evidentiary value. In this regard, the Federal Court of Appeal held as follows in Saddo:Footnote 140

... It is incorrect to state that extracts from newspapers have no evidentiary value; it is also incorrect to assert that a claimant must establish, otherwise than by the production of newspaper articles, that he has a well-founded fear of persecution.

In Myle,Footnote 141 the panel had not considered a news article that the applicant had submitted, and implied in its reasons that the source of the information was not reliable and independent. However, other news articles from this source were included in the IRB's country documentation package, and the Federal Court questioned on what basis the panel would impugn the reliability of this source in these circumstances.

In Bruzzese,Footnote 142 the ID had relied upon a Toronto Star newspaper article in making a finding that the applicant was associated with an Italian criminal organization. In addressing the argument that the evidence was unreliable, the Federal Court held that:

It is no doubt true that news articles could not be considered as evidence of specific facts about specific incidents in a court of law, that the author of an article is not available for cross-examination, and that news reports are sometimes inaccurate, unreliable and based on hearsay. That being said, the article of the Toronto Star is well documented and quotes from Italian authorities and Italian decisions. The Applicant has not seen fit to refute the information reported and has not pointed to any factual error save on a tangential point. He was contacted by the journalist for an interview but declined to respond. In those circumstances, the ID members could reliably use this media article to make a finding of association.

6.12 Prior inconsistent statements or information

A narrative filed at a prior hearingFootnote 143 and a transcript of that hearing containing inconsistent testimonyFootnote 144 may be admissible in RPD hearings. The RPD may examine this evidence and base credibility findings on it, as long as it justifies those findings.

Under the IRB's Policy on Court-Ordered Redeterminations,Footnote 145 the contents of a redetermination file are determined in line with the remittal decision. Where the court has provided no specific directions and has made no determination that there was a denial of natural justice in the original hearing, the redetermination case file will contain, among other things, exhibits filed at the previous hearing, any available transcripts of the previous hearings, and any other evidence on the original file.Footnote 146

In Arumuganathan,Footnote 147 the court agreed with the Refugee Division's decision to admit into evidence the Minister's factum regarding the claimant's husband's leave application for judicial review. However, the court set aside the decision on the grounds that the Division erred in failing to indicate what weight it assigned to that evidence, given that the evidence was inflammatory.

6.13 Relevance of documentary evidence in successor state scenarios

In Litevskaia,Footnote 148 documentary evidence concerning anti-Semitism in the former Soviet Union, prior to Latvian independence, was relevant evidence of the climate in the newly-independent Latvia, as much as in Russia. The application was allowed.

In Muzychka,Footnote 149 the Refugee Division found that although a particular document was a valuable indicator of how homosexuals were treated in Russia, it was not convincing on the subject of their treatment in the Ukraine. The court found that it was unreasonable for the Refugee Division to come to this conclusion. In fact, the document showed beyond any doubt that homosexual men and women were persecuted in the Ukraine and that the authorities were abusive toward these citizens.

6.14 Factors to consider relating to the weight of documentary e​vidence

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

  • the date of the evidence;
  • the author's identity;
  • whether the information comes from an anonymous source;
  • the qualifications/expertise of the author;
  • the reputation of the publication/publisher;
  • any bias of the author/publisher;
  • editing;
  • partial quotes;
  • consistency with other reliable evidence;
  • the source of the author's information;
  • other publications by the same author;
  • whether there was an opportunity to cross-examine the author;
  • the author's knowledge of the subject matter;
  • whether the document has an impartial tone;
  • the extent to which the document is based on opinion;
  • the extent to which the document is based on observable facts;
  • the purpose for which the document was prepared;
  • the credibility of a witness who testifies about the manner in which the document was created or obtained;
  • whether the whole document was entered into evidence or made available so that the evidence could be challenged;
  • whether there are any alterations apparent on the face of the document;
  • the results of any forensic examination of the document;
  • any spelling errors on official documents;
  • a comparison of the document to a document that is known to be genuine;
  • whether the truth of a document's contents was sworn or affirmed; and
  • whether the information was obtained in accordance with the rights set out in the Charter.