Weighing Evidence - Appendix A: The Rules of Evidence and the Canada Evidence Act


A.1.  The Rules of Evidence

The Rules of Evidence set out rules to ensure the reliability of evidence. The Rules of Evidence are derived from caselaw. The relevant rules are the hearsay rule, the best evidence rule, the opinion evidence rule and the self-serving evidence rule. The Canada Evidence Act provides, among other things, for exceptions to those rules in particular cases, and specifies methods of proof in certain cases.

 

A.2.  The Hearsay Rule

A.2.1.  The Rule

"Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein."Note 1

A.2.1.1.  Rationale

Hearsay evidence is thought to be generally untrustworthy. Some of the reasons that have been given for finding hearsay to be a poor type of evidence are:

  • The author of the statement is not under oath and is not subject to cross-examination;
  • There is no opportunity to observe the demeanour of the declarant;
  • Accuracy tends to deteriorate with each repetition of the statement;
  • The admission of such evidence lends itself to the perpetration of fraud;
  • Hearsay evidence results in a decision based upon secondary and therefore, weaker evidence rather than the best evidence available;
  • The introduction of such evidence will lengthen trials.Note 2
A.2.1.2.  Exceptions to the Rule:

Hearsay evidence may be admitted where its admission is necessary to prove a fact in issue and the evidence is reliable.Note 3

"The criterion of "reliability" -- or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness -- is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established."Note 4

A.3.  The Best Evidence Rule

A.3.1.  The Rule

"The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce."Note 5

A.3.2.  Application of the Rule

While this rule originally applied to all evidence, it has been restricted in its application to documentary evidence: if the original document is available, it must be produced. Otherwise, all relevant evidence is admitted into evidence, and whether it is the best evidence available, simply goes to weight.

A.3.2.1.  Secondary evidence is admissible where
  • the original document has been lost or destroyed;
  • the original document is in the possession of another party who refuses to produce it; or
  • the original document is of an official or public nature, and great inconvenience or risk would result from its removal from its place of storage.

A.4.  Opinion Evidence

A.4.1.  The Original Rule

A witness may only testify as to what she has actually observed, and not to the inferences she draws from those observations.

A.4.2.  Rationale

It is the jurisdiction of the trier of fact to draw inferences from the facts that are established.

However, this rule was found to be unworkable because the distinction between facts and inferences is not always clear.

A.4.3.  Exceptions to the Rule

Exceptions allowed lay witnesses to testify as to the identity of persons and places; the identification of handwriting; and mental capacity and state of mind.

A.4.4.  The Current Rule

Now a witness may give testimony about the inferences to be drawn from observed facts, where it would be helpful to the court.Note 6

The issue then becomes the weight to be given to such evidence once it is admitted.

Expert evidence is a form of opinion evidence. "The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury..."Note 7

A.5.  Self-Serving Evidence

A.5.1.  The Rule

Self-serving evidence was originally not admissible to support the credibility of a witness unless her/his credibility has first been put in issue. However, the Supreme Court of Canada amended the rule. Now such evidence is admissible as substantive evidence of its contents, if it is evidence of a witness other than the accused, and the evidence is reliable and necessary.Note 8

The rule is generally used to exclude prior consistent statements made by the witness, but also extends to any out-of-court evidence which is entirely self-serving.

A.5.2.  Rationale

Reasons for this rule include the risk of fabrication of evidence, repetitions do not make the evidence more reliable, and court time would be wasted in dealing with such evidence if credibility is not in issue.

A.5.3.  Application of the Rule

Self-serving evidence may be introduced, when credibility is in issue, only to bolster credibility, and not as evidence of the truth of the statement.

Prior consistent statements may only be admittedNote 9:

  1. to rebut allegations of recent fabrication;
  2. to establish eye-witness prior identification of the accused;
  3. to prove recent complaint by a sexual assault victim;
  4. to establish that a statement was made that forms part of the res gestaeNote 10 or to prove the physical, mental or emotional state of the accused;
  5. to prove that a statement was made on arrest;
  6. to prove that a statement was made on the recovery of incriminating articles."

A.5.4.  Exceptions to the Rule

Such evidence is admissible as substantive evidence of its contents:Note 11

  • if it is evidence of a witness other than the accused; and
  • the evidence is reliable and necessary.Note 12

A.6.  The Canada Evidence Act

The Canada Evidence Act deals with a number of evidentiary matters that may come up before the IRB.

A.6.1.  Business Records

Section 30 of the Canada Evidence Act provides that "records made during the usual and ordinary course of business" may be admitted into evidence. Subsection 30(6) indicates some of the factors that may be taken into consideration in determining the weight of such evidence: "...the circumstances in which the information contained in the record was written, recorded, stored or reproduced...."

A.6.2.  Affidavits and Oaths Taken Abroad

Sections 52 and 53 of the Canada Evidence Act indicate who may take oaths and affidavits abroad.

Oaths taken abroad by persons other than those named in sections 52 and 53, may be given less weight. In addition the circumstances of the taking of the oath should be examined to determine the weight.

However, the Board should not refuse to receive in evidence 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.Note 13

A.6.3.  Evidence of Foreign Law

Section 23 of the Canada Evidence Act states the method of providing proof of court records or judicial proceedings from a foreign country.

The Board accepted as evidence pursuant to s. 65(2)(c) of the Immigration Act, a photocopy of a judgement of an Indian court although the photocopy would not be accepted as evidence pursuant to s. 23 of the Canada Evidence Act.Note 14 Nevertheless, section 23 has been applied in determining the weight to be afforded to evidence. The majority of the Appeal Division panel gave no weight to a declaratory judgment of adoption from an Indian court which contained discrepancies and had not been presented in accordance with s. 23 of the Canada Evidence Act.Note 15

A.6.4.  Evidence of Minors and Incompetents

Section 16 of the Canada Evidence Act provides a procedure for determining whether a witness should be permitted to testify.

A.6.5.  Judicial Notice

Sections 17 and 18 of the Canada Evidence Act provide that judicial notice may be taken of legislation.

A.6.6.  Authentication of Electronic Documents

Section 31.1 of the Canada Evidence Act allows electronic evidence to be admitted into evidence as long as the person seeking to admit such evidence prove its authenticity. Under section 31.2(a) of the Canada Evidence Act the best evidence rule is satisfied upon proof of the integrity of the electronic documents system by or in which the document was stored or (b) if an evidentiary presumption is established regarding secure electronic signatures (s. 31.4 of the Canada Evidence Act).

A.6.7.  Non Disclosure of Specified Public Interest Information

The Canada Evidence Act (sections 37-38.16) was recently amended pursuant to the enactment of the Anti-Terrorism Act.Note 16 This recent amendment addresses the judicial balancing when disclosing specified public interest or injurious information to international relations, national defence or national security in judicial or other proceedings. Such information may be deemed protected. A notice to the Attorney General of Canada may be made by a participant or an official (other than a participant) who believes that sensitive information or potentially injurious information is about to be disclosed during a proceeding.

Similarly, IRPA (the Act) contains specific provisions relating to the non-disclosure of protected information at section 86 of the Act which apply to the Immigration Division and the Immigration Appeal Division of the IRB.Note 17

Please refer also to section 6.14 of this paper for further discussion on Judicial Notice.

Table of Cases

  1. B.(K.G.): R. v. B.(K.G.), [1993] 1 S.C.R. 740
  2. Brar, Kanwar Singh v. M.E.I. (IAB 89-00084), Goodspeed, Arpin, Vidal (concurring in part), December 29, 1989
  3. Burns: R. v. Burns, [1994] 1 S.C.R. 656
  4. Dhesi, Bhupinder Kaur v. M.E.I. (F.C.A., no. 84-A-342), Mahoney, Ryan, Hugessen, November 30, 1984.
  5. Doe d. Gilbert v. Ross (1840), 7 M. & W. 102, 151 E.R. 696 (Exch.).
  6. Graat: R. v. Graat, [1982] 2 S.C.R. 819, 144 D.L.R. (3d) 267.
  7. Sandhu, Bachhitar Singh v. M.E.I. (IAB V86-10112), Eglington, Goodspeed, Chu, February 4, 1988
  8. Smith: R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590

Notes

Note 1

Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, Butterworths, 1992, at 156.

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Note 2

Sopinka and Lederman, The Law of Evidence in Civil Cases, Butterworths, 1974, at 41; and Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, Butterworths, 1992, at 157.

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Note 3

R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590.

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Note 4

R. v. Smith, supra, footnote 3, at 933.

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Note 5

Doe d. Gilbert v. Ross (1840), 7 M. & W. 102, 151 E.R. 696 (Exch.).

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Note 6

R. v. Graat, [1982] 2 S.C.R. 819, 144 D.L.R. (3d) 267.

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Note 7

R. v. Burns, [1994] 1 S.C.R. 656, at 666. See also, R. v. Abbey, [1982] 2 S.C.R. 24, at 42.

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Note 8

R. v. B. (K.G.), [1993] 1 S.C.R. 740.

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Note 9

Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, Butterworths, 1992, at 309.

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Note 10

That is, a statement made during the course of the transaction, and so closely related in time as to form part of the transaction.

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Note 11

Supra, footnote 8.

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Note 12

For the meaning of " reliable and necessary", also refer to R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590. (see Exceptions to the Hearsay Rule).

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Note 13

Dhesi, Bhupinder Kaur v. M.E.I. (F.C.A., no. 84-A-342), Mahoney, Ryan, Hugessen, November 30, 1984.

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Note 14

Sandhu, Bachhitar Singh v. M.E.I. (IAB T86-10112), Eglington, Goodspeed, Chu, February 4, 1988.

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Note 15

Brar, Kanwar Singh v. M.E.I. (IAB 89-00084), Goodspeed, Arpin, Vidal (concurring in part), December 29, 1989.

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Note 16

Anti-Terrorism Act, (2001, c. 41), part 3.

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Note 17

See section 38.01 of the Canada Evidence Act, there are exceptions to this rule. The Refugee Division may refer to the Canada Evidence Act (s. 38.01) for guidance on the procedures to follow in the event sensitive information is about to be disclosed in a proceeding.

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