Canadian Refugee Procedure/IRPA Section 170 - Proceedings

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IRPA Section 170[edit| edit source]

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[edit| edit source]

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; ...

IRPA Section 170(b) - Must hold a hearing[edit| edit source]

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[edit| edit source]

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. A question can arise about whether, in other circumstances, the Division may dispose of a matter without holding a hearing, for example if a party concerned is not contesting the matter. 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".[1]

IRPA Section 170(c) - Must notify the person who is the subject of the proceeding and the Minister of the hearing[edit| edit source]

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;

Minister must be notified of the hearing regardless of whether they are a party under the rules[edit| edit source]

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".[2]

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

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[edit| edit source]

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[edit| edit source]

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[edit| edit source]

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.

The Minister must have a reasonable opportunity to present evidence, question witnesses and make representations[edit| edit source]

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 was at issue.[3] 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.

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/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Can a panel of the Board decline to provide such notice so long as it does not accept the claim?. 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/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[edit| edit source]

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[edit| edit source]

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[edit| edit source]

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[edit| edit source]

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.[4] 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."[5] The Federal Court has held that the legislative intent behind this provision is "to avoid the formalities which are attendant upon court hearings in civil or criminal proceedings."[6]

That said, each Canada Evidence Act provision should 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."[7] 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"[8] (the language of the relevant IRPA provision which applies to the Immigration Division), this Canada Evidence Act provision nonetheless applied as a result of the specific wording of the relevant provision of the CEA.

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

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.[9] 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.

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/Documents#The Board has jurisdiction to refuse to admit documents for reasons that are broader than the Rule 35 criteria.

While the Division is not bound by any rules of evidence, the Division may still have regard to them[edit| edit source]

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."[10]
  • When exercising residual discretion about whether to admit the evidence. Simply because a panel of the Board may accept 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”,[11] 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/Witnesses#Limitations on the ability of legal counsel to act as a witness in a proceeding.

IRPA Section 170(h) - May receive evidence considered credible or trustworthy[edit| edit source]

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[edit| edit source]

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.[12]

Burden of proof[edit| edit source]

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[edit| edit source]

UNHCR guidance states that the authorities need to decide if, based on the evidence provided, it is likely that the claim of the applicant is credible.[13]

Where there is a dispute, the Division should explain why evidence was considered credible and trustworthy[edit| edit source]

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. 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.[14] 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.[15] 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.[16]

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.[17] 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?[edit| edit source]

A full discussion of this is beyond the scope of this section of this text. 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.[18]

IRPA Section 170(i) - May take notice of facts[edit| edit source]

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[edit| edit source]

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

References[edit| edit source]

  1. Immigration and Refugee Protection Act, SC 2001, c 27, s 173, <https://canlii.ca/t/7vwq#sec173>, retrieved on 2021-07-14.
  2. Immigration and Refugee Board of Canada, Commentaries to the Refugee Protection Division Rules, Date Modified: 2009-05-22 <https://web.archive.org/web/20100704062357/http://www.irb-cisr.gc.ca/eng/brdcom/references/aclo/pages/rpdcomment.aspx> (Accessed January 28, 2020).
  3. David Vinokur, 30 Years of Changes at the Immigration and Refugee Board of Canada, CIHS Bulletin, Issue #88, March 2019, <https://senate-gro.ca/wp-content/uploads/2019/03/Bulletin-88-Final.pdf> (Accessed May 13, 2021), page 7.
  4. Dhesi, Bhupinder Kaur v. M.E.I. (F.C.A., no. 84-A-342), Mahoney, Ryan, Hugessen, November 30, 1984.
  5. Muheka v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 98239 (CA IRB), par. 28, <http://canlii.ca/t/hqr82#28>, retrieved on 2020-02-05.
  6. Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461 (CanLII), [2007] 1 FCR 107, par. 64, <https://canlii.ca/t/1n3nx#par64>, retrieved on 2021-07-17.
  7. Brown et al. v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness, 2020 FCA 130, <https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do>, para. 145.
  8. Immigration and Refugee Protection Act, SC 2001, c 27, s 173 <http://canlii.ca/t/53z6t#sec173> retrieved on 2020-08-08.
  9. R. v. Oland, 2015 NBQB 247, affirmed by the New Brunswick Court of Appeal in Oland v. R.,  2016 CanLII 101484 (NBCA).
  10. Waldman, Lorne, Canadian Immigration & Refugee Law Practice, Markham, Ont.: LexisNexis Butterworths, 2018, ISBN 9780433478928, ISSN 1912-0311, <https://search.library.utoronto.ca/details?5022478> (Accessed April 1, 2020) at page 1718 of the PDF.
  11. X (Re), 2017 CanLII 56261 (CA IRB), par. 55, <http://canlii.ca/t/h5p78#par55>, retrieved on 2020-08-09.
  12. Ninette Kelley and Michael J. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 140.
  13. Note on Burden and Standard of Proof in Refugee Claims, UNHCR, Geneva, 16 December 1998, para. 8.
  14. Pascal, Adrian Edmond v. M.C.I. (F.C., no. IMM-3379-19), McHaffie, July 9, 2020; 2020 FC 751.
  15. As discussed in Sharryn Aiken, et al, Immigration and Refugee Law: Cases, Materials, and Commentary (Third Edition), Jan. 1 2020, Emond, ISBN: 1772556319, at page 193.
  16. Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, at para. 13.
  17. Hathaway, James C., Rebuilding trust: A Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada, Refugee Studies Centre, Publisher: Osgoode Hall Law School, York University, December 1993, page 23.
  18. Riva, S., Hoffstaedter, G. The aporia of refugee rights in a time of crises: the role of brokers in accessing refugee protection in transit and at the border. CMS 9, 1 (2021). https://doi.org/10.1186/s40878-020-00212-2.