Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses

Oral testimony is at the heart of most proceedings before the Refugee Protection Division. The rules herein concern witnesses other than a person who is party to a matter. For a discussion of the principles related to oral testimony before the Board more generally, see: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(e) - Must provide an opportunity to present evidence, question witnesses and make representations.

RPD Rule 44 - Witness notification

The text of the relevant rules reads:

Witnesses
 
Providing witness information
44 (1) If a party wants to call a witness, the party must provide the following witness information in writing to the other party, if any, and to the Division:
(a) the witness’s contact information;
(b) a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given;
(c) the time needed for the witness’s testimony;
(d) the party’s relationship to the witness;
(e) in the case of an expert witness, a description of the expert witness’s qualifications; and
(f) whether the party wants the witness to testify by means of live telecommunication.
 
Proof witness information provided
(2) The witness information provided to the Division must be accompanied by a written statement indicating how and when it was provided to the other party, if any.
 
Time limit
(3) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for the hearing.
 
Failure to provide witness information
(4) If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.
 
Factors
(5) In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including
(a) the relevance and probative value of the proposed testimony; and
(b) the reason why the witness information was not provided.

44(1): This rule applies where a party wants to call a witness but does not apply where a party themselves will testify

Claimants automatically have the right to testify at a hearing and need not provide witness contact information in order to do so. The relevant rule regarding claimants testifying at a hearing is not Rule 44, instead see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The Board must provide the parties with the opportunity to be heard.

44(1): This rule applies where a party wishes to call a witness, not where the Board is requiring the attendance of a witness

Members have the power to call and question witnesses on their own initiative and, on occasion, they may have to proceed in this manner if they are of the opinion that it is necessary to do so to reach a just and proper result in the case. When doing so, they are not bound by this rule. Instead, see: Canadian Refugee Procedure/165 - Powers of a Member.

44(1): If a party wants to call a witness, the party must provide the listed witness information in writing as required by this Rule

RPD Rule 44(1) provides that if a party wants to call a witness, the party must provide the listed witness information in writing as required by the rule above. A failure to do so may justify the RPD refusing to allow the witness to testify. But see: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses#44(4): Division has discretion not to allow a witness to testify where proper notice has not been provided.

44(1)(b): If a party wants to call a witness, the party must provide a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given

In Danaj v. Canada, the Federal Court upheld an Immigration Division decision to decline to hear from witnesses where the party wishing to call the witnesses refused to divulge the purpose and substance of the witness’ testimony, as required by the relevant rule on calling witnesses. In that case, the Applicant’s counsel had stated that he could not divulge the information because it would be prejudicial to his hearing strategy. However, with no idea of the purpose of the testimony, the member rejected the request to call the witnesses. The court concluded that the decision to refuse the witnesses under those circumstances did not amount to a breach of procedural fairness.

44(1)(f): If a party wants to call a witness, the party must provide information on whether the party wants the witness to testify by means of live telecommunication

Rule 44(1)(f) provides that if a party wants to call a witness, the party must provide witness information in writing to the other party, if any, and to the Division and include whether the party wants the witness to testify by means of live telecommunication. The Federal Court has held that the general rule before the RPD is that witnesses should be physically present. In Aslani v Canada, the RPD member required that the proposed overseas witnesses report to the Canadian embassy in the country where they resided to be identified, before she would hear them. On judicial review, the claimant maintained that a non-existent procedural rule was imposed upon him and that this infringed his right to be heard. The court, however, upheld the RPD's refusal to hear from the witnesses on the basis that testimony by telephone can create particular issues around establishing the identity of the witness.

44(4): Division has discretion not to allow a witness to testify where proper notice has not been provided

Pursuant to Rule 44(4), if a party does not provide the witness information required by the rule, their witness must not testify at the hearing unless the Division allows them to testify. In exercising this discretion, the Board must consider any relevant factors, including those specified in Rule 44(5). The courts have granted significant leeway to the RPD in the exercise of this discretion. For example, in Parveen v. Canada, the Board declared that the claimant had abandoned their claim. The claimant indicated during the hearing that she wished to have her landlord provide testimony in her special hearing on abandonment. The RPD declined to allow the testimony because no notice was given that he would be called as a witness, and he had not been excluded from the Applicant’s testimony. The court upheld this decision.

44(5): In deciding whether to allow a witness to testify, the Division must consider any relevant factors

In deciding whether to allow a witness to testify in a circumstance where witness information was not provided as required by RPD Rule 44, the Division must consider any relevant factors. Relevant factors include, but are not limited to, the two factors enumerated under Rule 44(5):

• (a) the relevance and probative value of the proposed testimony
  • Was the witness excluded from hearing other testimony? A relevant factor when assessing the probative value of the testimony that could be offered is whether the witness was excluded from hearing other testimony in the case. RPD Rule 48 sets out a process for excluding a witness from hearing testimony during a hearing. In some cases, an observer will be present throughout a hearing and then a claimant will offer them as a witness. The fact that they were able to observe the other testimony that had been provided has been found relevant by the Division when determining the probative value (or lack thereof) of the anticipated testimony.
  • Does the proposed witness have first-hand knowledge of the matter of which they would testify?
  • Would the proposed witness be expressing an opinion, and if so, what is their expertise to do so?
• (b) the reason why the witness information was not provided
  • Did the party exercise due diligence in preparing for the hearing? In cases where a party requests an adjournment in order to provide witness testimony, the court has commented that "If the POE notes contain errors, the applicant has adequate time before the hearing to marshal evidence for the purpose of explaining and correcting the errors. The applicant cannot ignore alleged mistakes in the POE notes, and then when confronted with them at the hearing, expect the Board to adjourn the hearing so that the applicant can obtain allegedly missing but available evidence. The Board hears approximately 25,000 cases a year, and has a tremendous backlog. The applicant must be ready with his evidence on the day scheduled for the hearing."

In assessing the probative value of testimony, the panel must not pre-judge the credibility of the testimony. In Ayele v. Canada, the court states that the essence of adjudication is the ability to keep an open mind until all the evidence has been heard. The reliability of evidence is to be determined in light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence. It is, at the least, suggestive of an impermissibly closed mind to state “there’s no point calling the witness".

Recourse may also be had to the consideration of Rule 36, regarding undisclosed documents, as such decisions may apply mutatis mutandis to witnesses: Canadian Refugee Procedure/Documents#RPD Rule 36 - Use of undisclosed documents.

Witnesses have a right to testify in the official language of their choice

The IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French provides that "All persons in the hearing room are free to speak the official language of their choice, including counsel for the subject of the proceeding. At the request of any party to the proceeding, the IRB will make arrangements to provide interpretation from one official language to the other, taking into consideration third language interpretation may also be required for the case." The policy emphasizes that both the Official Languages Act and the Canadian Charter of Rights and Freedoms establish official languages rights for parties as well as for individuals who are otherwise involved in IRB proceedings, such as witnesses and counsel.

Limitations on the ability of legal counsel to act as a witness in a proceeding

The Refugee Appeal Division has found that testimony from a claimant's counsel inadmissible before the tribunal, writing "I find counsel’s statutory declaration is inadmissible as evidence in this appeal." In reaching this conclusion, the RAD referred to the Code of Conduct of the Law Society of Alberta which provides that:

The Lawyer as Witness
4.02(1) A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permitted to do so by law, the tribunal, the Rules of Court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.

The Board also noted that the Commentary set out in the Alberta Code also states:

A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own credibility at issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the applicant’s right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status.

The RAD concluded that "I find that his statutory declaration improperly provides evidence and is, therefore, not admissible." The ability of a lawyer to provide evidence in this way may thus depend on the jurisdiction and the rules of the Law Society in question. However, such provisions are common. For example, Article 76 of the Québec Code de déontologie des avocats indicates that a “lawyer must not personally act in a dispute if he knows or should know that he will be called upon as a witness.”

Such restrictions on a lawyer acting as a witness have been interpreted to extend to affidavits from other members of the same firm, although it is clear that this depends on the circumstances and is not an absolute bar.

See also the following discussion of how the Board is not bound by technical rules of evidence: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(g) - Is not bound by any legal or technical rules of evidence. As "the Division is not bound by any legal or technical rules of evidence" it is not bound to reject evidence provided by counsel, but it nonetheless has the residual discretion to do so 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.

See also the process for former counsel to respond to allegations of incompetent representation: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#3) The representative must be given notice and a reasonable opportunity to respond.

RPD Rule 45(1) - Requesting summons

Requesting summons
45 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

The authority of the Division to issue a summons for a person or documents

The term "summons" refers to a document delivered to a witness requiring the witness to attend and testify at a hearing and to bring all relevant documents in the witness's possession. The term "summons" is often used interchangeably with the term "subpoena" (which means, literally, "under penalty").

The legislative authority for enforcing a summons is found under s. 5 of the Inquiries Act. This provision allows the Division to either summon an individual or to compel the production of evidence. For a discussion of this provision, see Canadian Refugee Procedure/165 - Powers of a Member. A second basis for the Board's authority to summon a witness is s. 127(c) of the IRPA, which reads:

Misrepresentation

127 No person shall knowingly
(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or
(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

Rule 45 does not have extraterritorial effect and only allows the Board to summon a person within Canada

When interpreting its identical rule, the IAD commented that it does not have extraterritorial effect: "The request for a summons or subpoena is denied for reasons that the IAD has no jurisdiction to issue a summons for persons outside Canada where the IAD has no extraterritorial power to enforce the summons. The jurisdiction of the IAD with respect to the issuance of summons under Rule 38 of the IAD Rules does not extend beyond Canada." It would appear that this interpretation is a persuasive one when interpreting the scope of the equivalent RPD rule.

RPD Rule 45(2) - Factors the Division must consider in deciding whether to issue a summons

Factors
45(2) In deciding whether to issue a summons, the Division must consider any relevant factors, including
(a) the necessity of the testimony to a full and proper hearing;
(b) the person’s ability to give that testimony; and
(c) whether the person has agreed to be summoned as a witness.

Factors the Division is to consider when deciding whether to issue a summons

Members are not required to grant every request for a summons. Rule 45(2) provides that in deciding whether to issue a summons, the Division must consider any relevant factors, including:

• (a) the necessity of the testimony to a full and proper hearing.
  • Is the testimony duplicative of evidence that will already be provided? Where other witnesses have given or will be giving testimony in the same area and the testimony of the witness in question would be repetitious and would only serve to prolong the hearing unnecessarily, members may well use their discretion not to issue a summons. In interpreting its identical rule, the Immigration Appeal Division considered this factor in Lama v. Canada when rejecting an application for a summons by noting that the testimony that the applicant sought to adduce from the persons who would be summoned was duplicated by, and less probative than, persons who were already going to be witnesses: "The appellant’s counsel submits the evidence of family members and the close relatives who witnessed the marriage ceremony is highly relevant to the proceeding. The wedding celebration is one of the many factors which will be considered by the Panel. The appellant’s and applicant’s testimonies are the more relevant pertaining to the genuineness of their marriage. For these reasons, I don’t find the testimony of the appellant’s sister and “big mommy” necessary for the full and proper hearing."
  • Can the evidence be obtained in other ways? In Ahmadpour v. Canada, the Board rejected a request for a summons on the basis that the evidence in question could be obtained in alternative ways, such as by the claimant's counsel and family members obtaining documents. If it appears that a summons naming a high profile person is requested simply for the purpose of publicity or for any other motive unrelated to the proper conduct of Refugee Division proceedings, the request may be denied.
  • May the testimony of the witness lead to other potentially relevant witnesses? In Akram v. Canada the Federal Court held that the RPD had been wrong to deny a request to summon a CBSA officer on the basis that even if the officer was unlikely to provide direct testimony that was relevant to the issue being considered, "the Officer had the ability to provide information about other individuals involved in the investigation" and that it was important to consider this purpose for summoning the officer.
• (b) the person’s ability to give that testimony. Members may choose not to issue a summons where they are satisfied that the proposed witness does not have any relevant testimony to give. For example, if the person in question has provided information that they have no knowledge of the matter in question, this is a relevant consideration. In one case where a protected person sought to summon a CBSA officer who had been involved in his claim, the panel of the RPD stated that she "considered the factors laid out in the Rules and denied the application to summon the officer at the pre-hearing conference. The officer has already explained in writing the limited scope of his role in the investigation and his inability to give further testimony about any timeline. This was the basis for not agreeing to be summoned as a witness, which I find to be reasonable." This was on the basis that the officer in question had had a limited role in the claim about a decade prior and that the officer "took no further action, has no further knowledge about applications brought against the respondent, the related background, circumstances or the timeline."
• (c) whether the person has agreed to be summoned as a witness.
  • Is the person not agreeing to be a witness? In one decision considering this factor in its identical rules, the Immigration Appeal Division weighed a respondent's disinclination to testify as follows: "the appellant provides in the June 8, 2017 submissions that he not wish to be a witness for the Minister. Having considered the respondent’s wishes, I find that the interests of justice, including the public interest that tribunals render full and fair decisions, outweigh any prejudice to the respondent and mandate the provision of his testimony at this appeal."
  • Is information about the person's (dis)agreement simply not before the Board? The reasoning of the IAD has been similar in cases where information about whether the person has agreed to be summoned is simply not before the tribunal, e.g. in Liu v. Canada the Board commented as follows: "As to whether Mr. Reid has agreed to be summoned as a witness, it is not clear that he has. However, I find that the interests of justice outweigh any inconvenience or prejudice to Mr. Reid. Therefore, I require the provision of his testimony at this appeal."
  • Has the person agreed to be a witness but wants a simmons nonetheless? A summons is not issued only to reluctant witnesses. A witness may want to receive a summons even though the witness is eager to give testimony. For example, a witness who has to miss work in order to testify may need to show an employer that he or she was required by law to attend the hearing. Production of the summons should provide the witness with a valid excuse for missing work.
  • Is the person exempt from being compelled to give evidence as a result of diplomatic immunity? Certain persons cannot be compelled to give evidence as witnesses in civil proceedings, including diplomatic agents, consular officers, and embassy administrative and technical staff. Unless such persons agree to waive diplomatic immunity, they made not be summoned as a witness.

As the Division is to consider "any relevant factors", factors other than those listed above may properly be considered by a panel when making a decision, including:

• The timing of the request and whether it may delay proceedings: Where a party has not acted diligently and a request for a summons risks delaying a proceeding, this may appropriately be considered when issuing a summons. For example, when interpreting its identical provision, the IAD commented as follows in Liu v. Canada: "While the relevant factors in this case support the granting of a summons, I note that the Appellant brought this application on April 2, 2019 with a hearing resumption date scheduled for April 24, 2019.  This matter was adjourned following the first sitting on January 29, 2019 and the content of Mr. Reid’s statutory declaration were known to the Appellant at that sitting and prior to the commencement of the hearing of this appeal.  As such, while the application for a summons is granted, the Appellant should be prepared to proceed on April 24, 2019 regardless of whether Mr. Reid appears at the hearing."

RPD Rule 45(3) - How to use a summons

Using summons
(3) If a party wants to use a summons, the party must
(a) provide the summons to the person by hand;
(b) provide a copy of the summons to the Division, together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand; and
(c) pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.

Rule 45(3)(a) Requires Personal Service of the Summons

When interpreting its similar rule, the Immigration Appeal Division commented on the fact that electronic service is not sufficient to meet the requirement that the summons be provided "to the person by hand": "The Appellant shall comply with section 38(3) of the IAD Rules and any other relevant requirements in executing the summons. Section 38(3)(a) of the IAD Rules states that the Appellant must 'provide the summons to the summoned person by hand'. The Appellant has indicated that she will notify Mr. Reid of the summons by electronic means. While the Appellant is free to do so, the use of electronic means does not discharge the obligation of personal service as required in section 38(3)(a) of the IAD Rules."

RPD Rule 46 - Cancelling summons

Cancelling summons
46 (1) If a person who is summoned to appear as a witness wants the summons cancelled, the person must make an application in writing to the Division.
 
Application
(2) The person must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Rule 46(1): Application in writing to cancel a summons

If a witness who has received a summons can show that the summons should not have been issued in the first place or that the summons is no longer proper for any reason, the summons may be cancelled.

RPD Rule 47 - Arrest warrant

Arrest warrant
47 (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division orally at the hearing, or in writing, to issue a warrant for the person’s arrest.
 
Written request
(2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration.
 
Requirements for issue of arrest warrant
(3) The Division must not issue a warrant unless
(a) the person was provided the summons by hand or the person is avoiding being provided the summons;
(b) the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules;
(c) the person did not appear at the hearing as required by the summons; and
(d) the person’s testimony is still needed for a full and proper hearing.
 
Content of warrant
(4) A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.

RPD Rule 48 - Excluded witnesses

Excluded witness
48 If the Division excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the Division or until the witness has finished testifying.

Communicating with an excluded witness may amount to witness tampering

In (Re) Mumtaz Khan, counsel for a claimant provided information to an excluded witness and the Board concluded that this amounted to witness tampering and sanctioned the counsel.