Uniform Acts Drafting Conventions

EVIDENCE ACT

April 1982

TABLE OF CONTENTS

PART I- INTERPRETATION AND APPLICATION
Interpretation 1
Application 2-6

PART II- RULES OF PROOF
Legal and Evidential Burden 7-14
Presumptions15-16
Formal Admissions 17
Judicial Notice 18-21

PART III- RULES OF ADMISSIBILITY
General Rule22
Character Evidence in Criminal Proceedings23-36
Opinion Evidence and Experts37- 48
Hearsay49-76
General Rule 49
Exceptions Where Declarant Available 50-51
Exceptions Where Declarant or Testimony Unavailable52-59
Exceptions Where Availability of Declarant or Testimony is Immaterial 60-65
Statements of Accused 66-75
Credibility of Declarant76
Previous Court Proceedings77-82
Alibi Evidence83- 88

PART IV- KINDS OF EVIDENCE
Testimony89-129
Competence and Compellability89-94
Oath or Solemn Affirmation95-98
Calling and Questioning Witnesses99-11 3
Previous Statements114-121
Credibility of Witnesses122-125
Interpreters and Translators 126-129
Recorded Evidence 130-159
.Interpretation 130
Best Evidence Rule131-138
Notice139
Authentication140-144
Public Records 145-148
Court Records 149
Other Public Records 150-151
Business and Government Records152-158
Probative Force of Records 159
Real Evidence 160

PART V- STATUTORY PRIVILEGES
Protection Against Use of Previous Testimony161-164
Government Privilege 165-175
Privilege for Psychiatric Assessment176
Privileges Relating to Marriage177-185

PART VI- DECISION MAKING POWERS 186-193

PART VII- EXAMINING WITNESSES FOR OTHER JURISDICTIONS 194-199

PART VIII- TAKING EVIDENCE IN OTHER JURISDICTIONS 200-203

PART IX- REPEAL, TRANSITIONAL AND COMMENCEMENT
Canada Evidence Act204
Criminal Code205-209
Federal Court Act210
Interpretation Act211
Juvenile Delinquents Act212
Pending Proceedings 213
Commencement 214

(Note - This table of contents is inserted for convenience of reference only and does not form part of this Act.)


 

<hrdata-mce-alt="PART I" class="system-pagebreak" title="PART I" />

PART I

INTERPRETATION AND APPLICATION

Interpretation

Interpretation

1. In this Act,

"adduce"

"adduce", in relation to evidence, means to offer or elicit evidence by way of ones own or other witnesses;

"adverse witness"

"adverse witness" has the meaning set out in section 105;

"complainant"

"complainant" means the person against whom it is alleged that an offence was committed;

"court"

"court", except where otherwise provided, means

(a) the Supreme Court of Canada,

(b) the Federal Court of Canada,

(c) the court of appeal of a province,

(d) a superior court, district court or county court of a province or a court of general or quarter sessions of the peace,

(e) the provincial court of a province, family court, juvenile court or court presiding over surrogate, probate or chancery matters,

(f) a judge of any court referred to in paragraphs (a) to (e),

(g) a provincial magistrate, police magistrate, stipendiary magistrate or justice of the peace, and

(h) any other tribunal, body or person that the Governor in Council or Lieutenant Governor in Council may by order designate as a court for the purposes of this Act or any of its provisions;

(Note - For the purposes of a uniform provincial Act, this definition, except for the purposes of sections 77 to 82, would be restricted to courts in a province and the Supreme Court of Canada.)

"criminal proceeding"

"criminal proceeding" means a prosecution for an offence and includes a proceeding to impose punishment for contempt of court;

"hearsay"

"hearsay" means a statement offered in evidence to prove the truth of the matter asserted but made otherwise than in testimony at the proceeding in which it is offered;

"offence"

"offence" means an offence under an enactment of Canada or a province;

"record"

"record" means the whole or any part of any book, writing, other document, card, tape, photograph within the meaning of section 1 30 or other thing on, in or by means of which data or information is written, recorded, stored or reproduced;

"statement"

"statement" means an oral or a recorded assertion and includes conduct that could reasonably be taken to be intended as an assertion.

Application

General rule

2. Subject to section 3, this Act applies to every proceeding and stage of a proceeding within the jurisdiction of the (Parliament of Canada) (Legislature or National Assembly) that is before a court or that is held for the purpose of taking evidence pursuant to a court order.

Application to civil proceedings

3. (1) Parts I to IV and VI to VIII do not apply to the following civil proceedings:

(a) an examination for discovery;

(b) an examination on an affidavit; or

(c) an examination on the pleadings.

Application to criminal proceedings

(2) Parts I to IV and VI to VIII apply only following proceedings to the criminal and appeals in connection with those proceedings:

(a) a preliminary inquiry;

(b) a trial prior to the rendering of a verdict as to guilt;

(c) a proceeding under the Criminal Code in respect of a dangerous offender; and

(d) the taking of evidence on commission for the purposes of any proceeding referred to in paragraphs (a) to (c).

(Note - Paragraphs (2)(a) and (c) and the reference to them in paragraph (2)(d) are for inclusion in the federal Act only.)

Exception for protective jurisdiction

4. A court is not required to apply this Act in a proceeding to determine or protect the best interests of a person who needs the protection of the court by reason of his age or physical or mental condition.

Application of provincial law

5. Except to the extent that they are inconsistent with this Act or any other Act of the Parliament of Canada, the laws of evidence in force in the province where a proceeding is taken apply to the proceeding.

(Note - This provision is for inclusion in the federal Act only.)

Application to crown

6. This Act is binding on Her Majesty in right of (Canada) (Province).

<hrdata-mce-alt="PART II" class="system-pagebreak" title="PART II" />

PART II

RULES OF PROOF

Legal and Evidential Burden

Interpretation

7. In sections 8 to 13,

"evidential burden"

"evidential burden" means the onus to adduce sufficient evidence of a fact in issue to warrant the trier of fact to consider the evidence:

"legal burden"

"legal burden" means the onus to persuade the trier of fact of the existence of a fact in issue.

Evidential burden in civil proceeding

8. The evidential burden in a civil proceeding is discharged if the court, without assessing the credibility of the witnesses, concludes that the trier of fact, properly instructed, reasonably could be satisfied on a balance of probabilities that the lact in issue has been established.

Legal burden in civil proceeding

9. The legal burden in a civil proceeding is on the claimant with respect to every fact essential to the claim and that burden is discharged by proof on a balance of probabilities.

Evidential burden on prosecution in criminal proceeding

10. (1) Where the evidential burden in a criminal proceeding is on the prosecution, it is discharged if the court, without assessing the credibility of the witnesses, concludes that the trier of fact, properly instructed, reasonably could find that the fact in issue has been established beyond a reasonable doubt.

Evidential burden on accused in criminal proceeding

(2) Where the evidential burden in a criminal proceeding is on an accused, it is discharged

(a) where the accused does not have the legal burden, if the court, without assessing the credibility of the witnesses, concludes that the trier of fact, properly instructed, reasonably could find that sufficient evidence has been adduced to raise a reasonable doubt as to the existence of the fact in issue; or

(b) where the accused also has the legal burden, if the court, without assessing the credibility of the witnesses, concludes that the trier of fact, properly instructed, reasonably could be satisfied on a balance of probabilities that the fact in issue has been established.

Legal burden in criminal proceeding

11. (1) The legal burden in a criminal proceeding is on the prosecution with respect to every essential element of the offence charged and that burden is not discharged except by proof beyond a reasonable doubt.

Legal burden respecting insanity

(2) Where the issue of insanity at the time of the act is raised in a criminal proceeding, the legal burden with respect to that issue is on the proponent and that burden is discharged by proof on a balance of probabilities.

Where onus reversed

(3) Where an enactment expressly imposes a legal burden on an accused to prove or establish any fact in issue in a criminal proceeding, that burden is discharged by proof on a balance of probabilities.

Legal burden respecting excuse, exception, etc.

12. (1) The legal burden in a criminal proceeding with respect to any excuse, exception, exemption, proviso or qualification operating in favour of an accused, other than a defence of general application, is on the accused and that burden is discharged by proof on a balance of probabilities.

No burden on prosecution

(2) The prosecution is not required, except by way of rebuttal, to negate the application of anything operating in favour of an accused that is referred to in subsection (1).

Burden as to fitness

13. Where there is a real issue, on the ground of insanity, as to the fitness of an accused to stand his trial, the prosecution has the legal burden of satisfying the court on a balance of probabilities that the accused is fit to stand his trial.

Circumstantial evidence

14. In a criminal proceeding, the court is not required to give the trier of fact any special direction or instruction on the burden of proof in relation to circumstantial evidence.

Presumptions

Interpretation

15. A presumption is an inference of fact that the law requires to be made from facts found or otherwise established.

Effect in criminal proceeding

16. In a criminal proceeding, a presumption that operates against the accused may, subject to subsection 11(2), be rebutted by evidence sufficient to raise a reasonable doubt as to the existence of the presumed fact.

Formal Admissions

Formal admissions

17. (1) A party to a may proceeding admit a fact or matter for the purpose of dispensing with proof thereof, including a fact or matter that involves a question of law or mixed law and fact.

Exception

(2) In a criminal proceeding, no admission shall be received under subsection (1) unless it is accepted by the opposing party.

Adducing evidence respecting admitted fact or matter

(3) Nothing in this section prevents a party to a proceeding from adducing evidence to prove a fact or matter admitted by another party, but in a civil proceeding if the court is of the opinion that such evidence does not materially add to or clarify the fact or matter admitted, it may order the party who adduced the evidence to pay, as costs, an amount the court considers appropriate.

Judicial Notice

Judicial notice of enactments

18. Judicial notice shall be taken of the following without production or proof:

(a) Acts of the Parliament of Canada:

(b) Acts or ordinances of the legislature of any province or colony that forms or formed part of Canada:

(c) Acts of the Parliament of the United Kingdom or any former kingdom of which England formed part that apply in the territorial jurisdiction of the court:

(d) regulations, orders in council, proclamations. municipal by-laws and rules of pleading. practice or procedure published in the Canada Gazette or the official gazette of a province: and

(e) unpublished municipal by-laws relevant to a criminal proceeding, unless the court is satisfied that proof of any of them should be made in the ordinary manner.

(Note - Each jurisdiction may consider whether to include paragraph (e).)

Judicial notice of other matters

19. Judicial notice may be taken of the following without production or proof:

(a) decisional law of federal courts, and of the courts of a province, that would otherwise be required to be proved as a fact:

(b) facts so generally known and accepted that they cannot reasonably be questioned; and

(c) facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Hearing

20. Before taking judicial notice of any matter, the court shall afford the parties an opportunity to be heard on the question whether judicial notice should be taken.

Effect of judicial notice

21. (1) A matter judicially noticed shall be deemed to be conclusively proved, except that the court may change its decision where it is satisfied that the taking of judicial notice was based on an error of fact.

Appeal

(2) The decision to take judicial notice is a question of law that is subject to appeal.

<hrdata-mce-alt="PART III" class="system-pagebreak" title="PART III" />

PART III

RULES OF ADMISSIBILITY

General Rule

General rule

22. (1) Relevant evidence is admissible unless it is excluded pursuant to this Act or any other Act or law, and evidence that is not relevant is not admissible

Exception

(2) The court may exclude evidence the admissibility of which is tenuous, the probative force of which is trifling in relation to the main issue and the admission of which would be gravely prejudicial to a party.

Character Evidence in Criminal Proceedings

General character

23. Evidence as to the general character of an accused is not admissible in a criminal proceeding.

Evidence of accused as to his character traits

24. (1) An accused may adduce evidence of a trait of his character by way of expert opinion as to his disposition or by way of evidence as to his general reputation in the community.

Prior notice required

(2) Evidence of witnesses as to the general reputation of the accused in the community shall not be received under subsection (1) unless the accused, at least seven days prior to the commencement of the trial, has given notice in writing to the court, the prosecutor and any co-accused of his intention to call witnesses for the purpose of adducing that evidence.

Evidence of prosecution as to character traits accused

25. (1) Subject to subsection (2), the prosecution shall not adduce evidence of a trait of an accuseds character for the sole purpose of proving that the accused acted in conformity with that trait.

Scope of evidence

(2) Where an accused has adduced evidence under section 24, the prosecution may, on examination-in-chief, cross-examination of defence witnesses or rebuttal, adduce evidence of any trait of the accuseds character, whether or not the accused has adduced evidence of that trait.

Manner of adducing evidence

(3) The prosecution may adduce evidence under subsection by way (2) of

(a) expert opinion as to the disposition of the accused;

(b) the general reputation of the accused in the community; or

(c) any previous finding of guilt or conviction of the accused of an offence.

Saving

26. Nothing in section 25 prevents the prosecution from adducing evidence of any trait of an accuseds character

(a) for any purpose other than proving that the accused acted in conformity with that trait; or

(b) that is admissible under the rule known as the "similar acts" or "similar facts" rule.

Use of evidence

27. Evidence adduced under section 24, 25, 28 or 29 may be considered not only in relation to the character traits but also in relation to the credibility of an accused or a complainant, as the case may be.

Evidence as to character traits of complainant

28. An accused may adduce evidence of a character trait of the complainant where

(a) the trait was known to the accused at the time the offence is alleged to have been committed; or

(b) the evidence would be admissible, if the complainant were a party, under the rule known as the "similar acts" or "similar facts" rule.

Rebuttal evidence

29. (1) Where an accused adduces evidence under section 28, the prosecution may adduce evidence of the character traits of the complainant by way of rebuttal, including evidence as to the general reputation of the complainant in the community if the complainant is deceased or unfit to testify by reason of his physical or mental condition

Self-defence

(2) For the purposes of subsection (1). evidence adduced by an accused tending to establish self-defence shall be deemed to be evidence of a character trait of the complainant adduced by the accused under section 28.

Application of section 25

30. Where an accused has adduced evidence of a character trait of the complainant, or evidence tending to establish self-defence. the prosecution may, if the court concludes that the accused has thereby put his own character in issue, adduce evidence of any trait of the accused's character in accordance with section 25.

No evidence of sexual conduct of complainant

31. In a criminal proceeding, evidence relating to the sexual conduct of the complainant with a person other than the accused shall not be adduced by or on behalf of the accused.

Exceptions

32. Notwithstanding section 31, the accused may adduce

(a) evidence of specific instances of the complainants sexual conduct tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge, where the court is satisfied that the probative value of the evidence outweighs its prejudicial nature; or

(b) evidence tending to rebut evidence of the complainants sexual conduct or absence of sexual conduct that was previously adduced by the prosecution.

Notice and hearing

33. Evidence referred to in paragraph 32(a) shall not be received unless

(a) reasonable notice has been given to the prosecutor by or on behalf of the accused of his intention to adduce that evidence, together with particulars of the evidence, and a copy of the notice has been filed with the court; and

(b) the court, after holding a hearing in camera in the absence of the jury, if any, is satisfied under that paragraph that the evidence may be adduced.

Complainant not compellable

34. (1) The complainant is not a compellable witness for the purposes of a hearing referred to in section 33.

Prohibition

(2) A notice referred to in section 33 and the evidence taken, the information given and the representations made at a hearing referred to in that section shall not be broadcast or published.

Evidence of possession

35. (1) Where an accused is charged with an offence under section 312 or paragraph 314(l)(b) of the Criminal Code, evidence is admissible to show that property other than the property that is the subject-matter of the proceedings was found in the possession of the accused and was stolen within twelve months before the proceedings were commenced.

Evidence of previous finding of guilt or conviction

(2) Where an accused is charged with an offence under section 312 or paragraph 314(1)(b) of the Criminal Code and evidence 15 adduced that property that is the subject-matter of the proceedings was found in his possession, evidence is admissible to show that the accused, within five years before the proceedings were commenced, was found guilty or convicted of one or more such of fences

Application

(3) Neither subsection (1) nor (2) applies where an accused is charged with an additional count other than a count in respect of theft or in respect of an offence under paragraph 306(1)(b), section 312 or paragraph 314(l)(b) of the Criminal Code.

Notice to accused

36. (1) Evidence shall not be received under section 33 unless the proponent gives notice in writing of the proposed evidence to the accused at least seven days before the commencement of the trial. identifying the property and the person from whom it is alleged to have been stolen or the offence of which the accused was found guilty or convicted, as the case may be

Use of evidence

(2) Evidence received under section 35 may be considered for the purpose of proving that the accused knew that the property that is the subject-matter of the proceedings was unlawfully obtained.

(Note - Sections 31 to 36 are for inclusion in the federal Act only.)

Opinion Evidence and Experts

General rule

37. Subject to this Act, no witness other than an expert may give opinion evidence.

Non-expert opinion evidence

38. A witness who is not testifying as an expert may give opinion evidence where it is based on facts perceived by him, and the evidence would be helpful either to the witness in giving a clear statement or to the trier of fact in determining an Issue.

Handwriting comparison

39. Comparison of a disputed handwriting with another handwriting may be made by witnesses, and such handwritings and the evidence of witnesses with respect to them may be submitted to the trier of fact as proof of the genuineness or otherwise of the handwriting in dispute.

Opinion evidence on an ultimate issue

40. A witness may give opinion evidence that embraces an ultimate issue to be decided by the trier of fact where

(a) the factual basis for the evidence has been established;

(b) more detailed evidence cannot be given by the witness; and

(c) the evidence would be helpful to the trier of fact.

Statement of expert opinion

41. (1) In a civil proceeding, a statement in writing setting out the opinion of an expert is admissible without calling the expert as a witness or proving his signature if it is a full statement of the opinion and the grounds of the opinion and if it includes the experts name, address, qualifications and experience.

Copy of statement to be furnished

(2) Except with leave of the court, neither a written statement of expert opinion nor the experts testimony as to his opinion shall be received by way of a partys evidence in chief in a civil proceeding unless, at least ten days before the commencement of the trial, a copy of the statement has been furnished to every party adverse in interest to the proponent.

Proof of affidavit

(3) The furnishing of a copy of an experts statement may be proved by affidavit.

Attendance of expert

42. (1) Where a written statement of an expert is adduced under section 41, any party may require the expert to be called as a witness.

Costs

(2) Where an expert has been required to give evidence under subsection (1), and the court is of the opinion that it was not reasonable to require the expert to testify, the court may order the party that required the testimony of the expert to pay, as costs, an amount the court considers appropriate.

Maximum number of expert witnesses

43. Except with leave of the court, no more than seven witnesses may be called by a party to give expert opinion evidence in a proceeding.

Court appointed expert

44. (1) On the application of a party or on its own motion, the court at any stage of a civil proceeding may, if it considers it necessary for a proper determination of the issues, by order appoint an expert to inquire into, and submit a report on, any question of fact or opinion relevant to a matter in issue.

Parties to agree

(2) The expert shall, wherever possible, be appointed and instructed in accordance with the agreement of the parties.

Further orders

(3) The court may make any further orders it considers necessary to enable the expert to carry out his instructions, including orders for the examination of any party or property, for the making of experiments and tests and for the making of further or supplementary reports.

Report admissible in evidence

45. The report of an expert appointed under section 44 is admissible in evidence.

Production of report

46. The expert shall file any report he is ordered to make with the court in the manner the court may direct and the appropriate official of the court shall furnish copies of the report to the parties.

Examination of report

47. Any party may cross-examine an expert appointed under section 44 on any report made by him and may call another expert to give evidence as to any question of fact or opinion reported on, but a party shall not call more than one other expert except with leave of the court.

Examination

48. Nothing in section 44 prevents a court from appointing an expert in a criminal proceeding.

Hearsay

General Rule

Hearsay rule

49. (1) Subject to this or any other Act, hearsay is not admissible.

Exception for consent

(2) Hearsay is admissible if the parties agree and the court consents to its admission.

Power of court to create exceptions

(3) A court may create an exception to the rule in subsection (1) or paragraph 59(a) that is not specifically provided for by this Act if the criteria for the exception sufficiently guarantee the trustworthiness of the statement.

Question of law

(4) The question whether the criteria for an exception referred to in subsection (3) sufficiently guarantee the trustworthiness of a statement shall be deemed to be a question of law that is subject to appeal.

Exceptions Where Declarant Available

Previous identification

50. Where a declarant has made a statement containing an eye-witness identification of a person, that statement of identification is admissible for all purposes in any proceeding in which the declarant is called as a witness.

Past recollection recorded

51. (1) A record admissible under section 112 as past recollection recorded is admissible for all purposes.

Previous statements

(2) A previous statement of a witness that is admissible under section 117 or 118 is admissible for all purposes if it was made under oath or solemn affirmation and the witness was subject to cross-examination when making it.

Exceptions Where Declarant or Testimony Unavailable

Interpretation

52. (1) In a civil proceeding. a declarant or his testimony shall be considered to be unavailable only if the declarant

(a) is deceased or unfit to testify by reason of his physical or mental condition;

(b) cannot with reasonable diligence be identified, found, brought before the court or examined out of the courts jurisdiction;

(c) despite a court order, persists in refusing to take an oath or to make a solemn affirmation as a witness or to testify concerning the subject-matter of his statement; or

(d) is absent from the hearing and the importance of the issue or the added reliability of his testimony does not justify the expense or inconvenience of procuring his attendance or deposition.

Cross-examination of absent declarant

(2) Where paragraph (1)(d) applies, the court, on application, may order the attendance of an absent declarant for cross-examination at the expense of the applicant.

Interpretation

(3) In a criminal proceeding, a declarant or his testimony shall be considered to be unavailable only if the declarant is deceased or unfit to testify by reason of his physical or mental condition.

Civil proceeding

53. In a civil proceeding in which the declarant or his testimony is unavailable, a statement is admissible to prove the truth of the matter asserted if it would have been admissible had the declarant made it while testifying.

Criminal proceeding - statement in expectation of death

54. (1) In a criminal proceeding in which a declarant or his testimony is unavailable, a statement made by him as to the cause and circumstances of his death or injuries is admissible to prove the truth of the matter asserted on a charge for his murder or manslaughter, for criminal negligence resulting in his death or injuries, for an attempt to commit murder or for any other charge arising out of the transaction leading to his death or injuries that is joined with the main charge.

Admissibility

(2) A statement is not admissible under subsection (1) unless the declarant would have been a competent witness if called to testify at the time he made the statement and unless at the time the statement was made the declarant had a settled hopeless expectation of almost immediate death arising from the transaction leading to his death or injuries.

Criminal proceeding - statement in course of duty

55. (1) In a criminal proceeding in which a declarant or his testimony is unavailable, a statement made by him in the course of duty is admissible to prove the truth of the matter asserted or any collateral matter where the declarant had a duty to record or report his acts, the statement was made at or about the time the duty was performed, the declarant made the statement without motive to misrepresent and the statement was not made in anticipation of imminent litigation.

Saving

(2) Notes or other records made by a police officer performing a public duty shall not be excluded under subsection (1) by reason only that they were made in anticipation of imminent litigation.

Criminal proceeding - statement as to family history

56. In a criminal proceeding in which a declarant or his testimony is unavailable, a statement made by him that concerns a question of his family history, including relationship by blood, marriage or adoption, is admissible to prove the truth of the matter asserted where the statement was made before the commencement of any actual or legal controversy involving the matter and, according to evidence from a source other than the declarant himself, the declarant is a member of the family in question.

Criminal proceeding - statement as to testamentary document

57. In a criminal proceeding in which a declarant or his testimony is unavailable, a statement made by him that concerns the contents or proposed contents of a testamentary document made by him is admissible to prove the truth of the matter asserted where the testamentary document has been lost or destroyed.

Criminal proceeding - statement against insterest

58. (1) In a criminal proceeding in which a declarant or his testimony is unavailable, a statement made by him that asserts a matter against his pecuniary, proprietary or penal interest is admissible to prove the truth of the matter asserted and any collateral matter where the statement viewed in its entirety was to the declarants immediate prejudice at the time it was made and the declarant, when making the statement, had personal knowledge of the matter asserted and knew it to be against his interest.

Exclusion

(2) The court may exclude a statement offered in evidence under subsection (1) as a statement against the penal interest of the declarant where there is no other evidence tending to implicate the declarant in the matter asserted or there is evidence tending to establish collusion between an accused and the declarant in the making of the statement.

Condition of admissibility

59. A statement is not admissible under sections 53 to 58 where

(a) it is tendered by a witness other than one who has firsthand knowledge that the declarant made the statement; or

(b) the unavailability of the declarant or his testimony was brought about by the proponent of the statement for the purpose of preventing the declarant from attending or testifying.

Exceptions Where Availability of Declarant or Testimony is Immaterial

Statements made, adopted or authorized

60. A statement is admissible against a party to prove the truth of the matter asserted if he made it in his personal capacity, if he expressly adopted it or it is reasonable to infer that he adopted it, or if it was made by a person he authorized to make a statement concerning the matter.

Statement by co-conspirator

61. (1) A statement made by a co-conspirator of a party in furtherance of a conspiracy is admissible against the party to prove the truth of the matter asserted if it is established by evidence from a source other than the declarant that the party was a party to the conspiracy.

Statement by person engaged in common unlawful purpose

(2) A statement by a person engaged with a party in a common unlawful purpose, made in furtherance of that purpose, is admissible against the party to prove the truth of the matter asserted if it is established by evidence from a source other than the declarant that the party was engaged in that common unlawful purpose.

Statement made in representative capacity

62. In a civil proceeding, a statement made by a trustee, executor or administrator of an estate or any other person in a representative capacity is admissible against the declarant and the party represented to prove the truth of the matter asserted without having to establish that the declarant made the statement as part of the exercise of his representative capacity.

(Note - Each jurisdiction may consider whether to include a next friend, guardian ad litem, tutor or curator in this provision.)

Rule respecting privity abrogated

63. The rule whereby a statement is admissible a party by against if made a person in privity with the party in estate or Interest or by blood relationship is abrogated.

Statement of agent employee

64. (1) Subject to subsection (2), in a civil or criminal proceeding, a statement by an agent or employee of a party, made during the existence and concerning a matter within the scope of the agency or employment is admissible against the party to prove the truth of the matter asserted.

Proceedings by way of indictment

(2) In a criminal proceeding by way of indictment, a statement by an agent or employee of an accused concerning a matter within the scope of the agency or employment is admissible against the accused to prove the truth of the matter asserted if the agent or employee exercised managerial authority at the time the statement was made and it related to a matter within the scope of that authority.

Directing mind of corporation

(3) In a criminal proceeding, where a party is a corporation, a statement by a person who was a directing mind of the corporation at the time the statement was made is admissible against the corporation.

(Note - Subsections (2) and (3) are for inclusion in the federal Act only.)

Other exceptions

65. (1) The following statements are admissible to prove the truth of the matter asserted:

(a) a statement contained in a marriage, baptismal or similar certificate purporting to be made at or about the time of the act certified, by a person authorized by law or custom to perform the act;

(b) a statement contained in a family Bible or similar family record concerning a member of the family;

(c) a statement of reputation as to family history, including reputation as to the age, date of birth, place of birth, legitimacy or relationship of a member of the family;

(d) a statement contained in a formally executed document purporting to be produced from proper custody and executed twenty years or more before the time it is tendered in evidence;

(e) a statement concerning the reputed existence of a public or general right, made before the commencement of any actual or legal controversy over the matter asserted and, in the case of a general right, made by a declarant having competent knowledge of the matter asserted;

(f) a statement as to the physical condition of the declarant at the time the statement was made, including a statement as to the duration but not as to the cause of that condition;

(g) a statement, made prior to the occurrence of a fact in issue, as to the state of mind or emotion of the declarant at the time the statement was made;

(h) a spontaneous statement made in direct reaction to a startling event perceived or apprehended by the declarant;

(i) a statement describing or explaining an event observed or an act performed by the declarant, made spontaneously at the time the event or act occurred;

(j) a statement of reputation that may be adduced under this Act; and

(k) a statement contained in a business record within the meaning of section 152.

Self-serving statements

(2) Where a statement referred to in paragraph (1)(i) is a self-serving statement made by an accused, it shall be received in evidence on behalf of the accused only if he testifies, and he shall not adduce it by way of cross-examination.

Statements of Accused

Interpretation

66. In this section and sections 67 to 73,

"person in authority"

"person in authority" means a person having authority over the accused in relation to a criminal proceeding or a person whom the accused could reasonably have believed had that authority;

"voluntary"

"voluntary", in relation to a statement, means that the statement was not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority.

Statements of accused

67. A statement, other than one to which paragraph 65(1)(f), (g), (h) or (i) applies, that is made by an accused to a person in authority is not admissible at the instance of the prosecution at a trial or preliminary inquiry unless the prosecution, in a voir dire, satisfies the court on a balance of probabilities that the statement was voluntary.

No question as to truth

68. In a voir dire held under section 67, the accused shall not be questioned as to the truth of his statement by the court or any adverse party.

Statutory compulsion irrelevant

69.Statutory compulsion of a statement shall not be considered in the determination of whether the statement was voluntary.

Contents may be considered

70. In determining whether a statement was voluntary, the court may consider the contents of the statement.

Admission that statement was voluntary

71. The accused may make an admission that his statement was voluntary for the purpose of dispensing with a voir dire.

Where statement not receivable

72. (1) A statement otherwise admissible under section 67 shall not be received in evidence where the physical or mental condition of the accused when he made the statement was such that it should not be considered to be his statement.

Burden of proof

(2) The prosecution is not required to establish that a statement referred to in subsection (1) should be considered to be that of the accused unless the accused has discharged an evidential burden within the meaning of section 7 with respect to his physical or mental condition when he made the statement.

Where accused unaware

73. Where an accused in making a statement was unaware that he was dealing with a person in authority, the statement shall be treated as having been made to a person other than a person in authority.

Preliminary inquiry

74. Where a statement is admitted in evidence at a preliminary inquiry, the evidence adduced by the prosecution at the voir dire shall, without further proof, form part of the evidence in the preliminary inquiry.

Confirmation by real evidence

75. A statement ruled inadmissible under section 67 is not rendered admissible in whole or in part by the subsequent finding of confirmatory real evidence within the meaning of section 160, but evidence is admissible to show that the real evidence was found as a result of the statement or that the accused knew of the nature, location or condition of the real evidence.

Credibility of Declarant

Challenging credibility

76. (1) The party against whom hearsay is admitted in evidence may call the declarant as a witness and with leave of the court may examine him as if he were an adverse witness.

Where declarant unavailable

(2) Where the declarant is unavailable, his credibility may be challenged in the same manner as if he were a witness, and it may be supported by any evidence that would have been admissible for that purpose if the declarant had testified as a witness.

Previous Court Proceedings

General rule

77. Subject to this Act and the rules respecting the enforcement of judgments, the finding of another court is not admissible for the purpose of proving a fact in issue.

Interpretation

78. In sections 79 to 82,

"conviction"

"conviction" includes a conviction in respect of which a pardon other than a free pardon was granted by law;

"finding of guilt"

"finding of guilt" includes a finding of guilt of an offence, and a plea of guilty to an offence, made by or before a court that makes an order directing that the accused be discharged for the offence absolutely or on the conditions prescribed in a probation order;

"offence"

"offence" includes a contravention in respect of which a court martial is held pursuant to the National Defence Act.

Application

79. Sections 80 to 82 do not apply to a finding of guilt or conviction or to a finding of adultery while there is a right of appeal from it.

Admissibility in civil proceeding

80. (1) Where a court has found a person guilty or convicted him of an offence, or in a matrimonial proceeding has found him to have committed adultery, and the commission of the offence or adultery is relevant to a matter in issue in a civil proceeding, evidence of the finding or conviction is admissible in the civil proceeding for the purpose of proving that the offence or adultery was committed by that person, whether or not he is a party to the civil proceeding.

Defamation proceeding

(2) In a civil proceeding for libel or slander in which the commission of an offence or adultery is relevant to a fact in issue, proof that a person was found guilty or convicted of the offence or found to have committed adultery is conclusive proof that he committed the offence or adultery.

Theft and possession

81. (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the finding of guilt or conviction of another person of theft of the property is admissible against the accused and in the absence of evidence to the contrary is proof that the property was stolen.

Accessory after the fact

(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the finding of guilt or conviction of another person of the offence is admissible against the accused and in the absence of evidence to the contrary is proof that the offence was committed.

Recorded proof and notice

82. (1) On proof of the identity of a person as the offender and subject to any notice required under section 139, a conviction or a finding of guilt or adultery may be proved by

(a) a memorandum, minute or other record of the conviction or the finding of guilt or adultery; or

(b) a certificate containing the substance and effect only, omitting the formal part, of the charge and the conviction or finding of guilt.

Proof of signature or official character

(2) Where a certificate or record referred to in subsection (1) purports to be signed by the judge or an appropriate clerk or officer of the court, it is proof, in the absence of evidence to the contrary, of the facts it asserts without proof of the signature or official character of the person appearing to have signed it.

Alibi Evidence

Interpretation

83. In sections 84 to 88, "alibi evidence" means evidence tending to establish that an accused is not guilty of an offence with which he is charged on the ground that he was not present at the place where the offence is alleged to have been committed at the time it is alleged to have been committed.

Notice of alibi evidence

84. (1) An accused shall, at the first reasonable opportunity, give notice of alibi evidence in writing to the prosecutor or a law enforcement officer or authority acting in relation to the accused, indicating the whereabouts of the accused at the time the offence is alleged to have been committed and the names and addresses of the witnesses in support of the alibi.

Further notice

(2) Where changes occur in the names or addresses of the witnesses mentioned in a notice under subsection (1) or new witnesses are found, the accused shall, at the first reasonable opportunity, give further notice to any person to whom notice was originally given.

Notice by prosecutor

85. Where the prosecutor receives notice under section 84. he shall provide a copy of the notice to any co-accused and, after the alibi has been investigated, he shall, at the first reasonable opportunity, give notice in writing of the results of the investigation to the accused and any co-accused.

Adverse comment

86. Where a party fails to comply with section 84 or 85, the court and any party adverse in interest may comment on the weight to be given to the evidence of that party in relation to the alibi.

Determining the first reasonable opportunity

87. In determining when the first reasonable opportunity occurred for the purposes of section 84 or 85, the court shall consider all the circumstances and, in particular, with respect to an accused, shall consider when the accused became aware of the time and place of the alleged offence and when he retained or was provided with counsel.

Proceedings by way of indictment

88. (1) In a criminal proceeding by way of indictment in which a inquiry is preliminary held, where the accused has not complied with section 84 and has failed to give notice of alibi evidence within seven days after being committed for trial, alibi evidence is not admissible on his behalf at the trial without the consent of the prosecution unless the court for cause shown orders otherwise and, on committing the accused for trial, the court shall warn him accordingly.

Adverse comment where applicable

(2) Where alibi evidence is received under subsection (1), a comment in respect of that evidence may be made under the conditions and in the manner provided by section 86.

(Note - This section is for inclusion in the federal Act only.)

<hrdata-mce-alt="PART IV" class="system-pagebreak" title="PART IV" />

PART IV

KINDS OF EVIDENCE

Testimony

Competence and Compellability

General rule

89. Subject to this Act and any other law, every person is competent and compellable to testify in a proceeding.

Presiding officer

90. (1) The person presiding at a proceeding is not a competent witness in that proceeding.

Members of jury

(2) A juror sworn and empanelled for a proceeding who is called as a witness in that proceeding, other than on a voir dire to determine whether the jury is properly discharging its duties or whether there has been interference with the jury, cannot continue as a juror in that proceeding.

Accused

91. (1) An accused is not a competent witness for the prosecution in a proceeding against him.

Persons jointly tried

(2) A person who is jointly tried for an offence with any other person is a competent but not a compellable witness for that other person.

Spouse

92. (1) The spouse of an accused is a competent but not a compellable witness for the prosecution.

Spouses of persons jointly tried

(2) Where two or more persons are jointly tried for an offence, the spouse of any one of them is a competent but not a compellable witness for any of the others.

Spose as witness for prosecution

93. The spouse of an accused is a competent and compellable witness against the accused or any co-accused where the offence charged

(a) is high treason or treason punishable by imprisonment for life;

(b) is against the person or property of the spouse;

(c) is against a person under the age of fourteen years; or

(d) is under section 33 or 34 of the Juvenile Delinquents Act or sections 143 to 146, 148 to 157, 166 to 168, 195, 197, 200, 216, 218 to 222, 226, 227, 248 to 250, 255 to 257 or 289 of the Criminal Code or paragraph 423(l)(c), 688(a) or 688(b) of the Criminal Code or is an attempt to commit an offence under section 146 or 155 of the Criminal Code.

(Note - Paragraphs (a) and (d) are for inclusion in the federal Act only.)

Comment on failure to testify

94. The court and the prosecution may comment on the failure of an accused to testify on his own behalf but may not comment on the failure of the spouse of the accused to testify.Oath or Solemn Affirmation

Oath or solemn affirmation

95. Every witness shall be required, before giving evidence, to identify himself and to take an oath or make a solemn affirmation in the form and manner provided by the law that governs the proceeding.

Witness whose capacity is in question

96. (1) Where a proposed witness is a person of seven or more but under fourteen years of age or is a person whose mental capacity is challenged, the court, before permitting that person to give evidence, shall conduct an inquiry to determine whether, in its opinion, that person understands the nature of an oath or a solemn affirmation and is sufficiently intelligent to justify the reception of his evidence.

Burden as to capacity of witness

(2) A party who challenges the mental capacity of a proposed witness of fourteen or more years of age has the burden of satisfying the court that there is a real issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

Where witness does not qualify

97. A person under seven years of age or a person who cannot give evidence under section 96 shall be permitted to give evidence on promising to tell the truth if, in the opinion of the court after it has conducted an inquiry, that person understands that he should tell the truth and is sufficiently intelligent to justify the reception of his evidence.

Evidence to be under oath or solemn affirmation

98. An accused shall not testify or make a statement at a trial or inquiry preliminary without taking an oath, making a solemn affirmation or promising to tell the truth under section 97, as the ease may be.

(Note - The reference to a preliminary inquiry is for inclusion in the federal Act only.)

Calling and Questioning Witnesses

Presenting evidence

99. Subject to the power of the court to exercise reasonable control over a proceeding, to protect witnesses from harassment and to avoid prolixity, the parties to a proceeding shall determine the manner in which they present the evidence and examine witnesses.

Questions by court

100. The court may ask a witness any question it considers useful and for that purpose may recall a witness, and a witness so questioned may be cross-examined by an adverse party and re-examined by the party who called him.

Court's power to call witnesses

101. Subject to section 44 and any other enactment, the court shall not call a witness in a civil proceeding but may do so in a criminal proceeding where it appears to the court to be in the interests of justice, and any witness called by the court may be cross-examined by the parties.

Leading questions on examination-in-chief or re-examination

102. (1) On examination-in-chief or re-examination, a party shall not ask a witness a leading question unless

(a) the question relates to an introductory or undisputed matter; or

(b) the court gives leave to ask the question in order to elicit the testimony of the witness.

Interpretation

(2) A leading question is one that assumes the existence of a fact in issue or that suggests an answer, but a question is not leading by reason only that it directs the attention of the witness to a subject-matter or is in hypothetical form.

Leading questions on cross-examination

103. (1) A party may cross-examine any witness not him called by on all facts in issue and on all matters substantially relevant to the credibility of the witness, and on cross-examination may ask the witness leading questions.

Alleged facts

(2) A party shall not allege or assume facts on cross-examination unless he is in a position to substantiate them.

Directing attention of witness

(3) Where a party cross-examining a witness intends to contradict the witness on a fact in issue, the party shall direct the attention of the witness to that fact.

Power to comment or take other measures

(4) Where a party has adduced evidence in contravention of subsection (2) or (3), the court may comment on the weight to be given to that evidence and may take any other appropriate measure provided by law.

Adverse witness

104. A party calling a witness may contradict him by other evidence but shall not cross-examine him unless the court finds him to be an adverse witness, in which case he may be cross-examined as if he were a witness not called by the party.

Interpretation

105. An adverse witness is a witness hostile or contrary in interest to the party calling him, but a witness is not adverse by reason only that his testimony is unfavourable to the party calling him.

Re-examination

106. A party may re-examine a witness called by him on any new matter elicited on cross-examination of the witness or to explain or clarify any answer given by the witness on cross-examination or any inconsistency between an answer given by the witness on cross-examination and an answer given by him on examination-in-chief.

Exclusion of witness other than a party

107. (1) The court on its own motion may, or at the request of a party shall, by order exclude from the courtroom any witness who has not yet testified, other than a party to the proceeding, in order to prevent the witness from hearing the evidence of other witnesses.

Exception

(2) Where the court is satisfied that the presence of a witness would materially assist in the presentation of the evidence, it may, notwithstanding subsection (1), permit the witness to remain in the courtroom, subject to any conditions it considers appropriate.

Where witness not excluded

(3) In a proceeding before a jury, where a witness has not complied with an exclusion order under subsection (1) or testifies after being permitted to attend under subsection (2), the court may comment as to the weight to be given to his testimony.

Where accused confirms earlier evidence

108. An accused may call witnesses in any order he wishes, but where he testifies after calling a witness and by his testimony confirms the evidence of the witness, the court may comment as to the weight to be given to his confirmatory testimony.

Order not to discuss evidence

109. The court may order any person not to discuss evidence given in a proceeding with any witness who is to testify in the proceeding.

Refreshing memory

110. (1) Where a witness is unable to recall fully a matter on which he is being examined, a party may ask him any question or require him to examine or consider any writing or object for the purpose of refreshing his memory, but the court may require the party, before doing so, to establish that the question, writing or object will tend to refresh the memory of the witness rather than lead him into mistake or falsehood.

Rights of adverse party

(2) Where any writing or object is used for the purpose of refreshing the memory of a witness

(a) in court, an adverse party is entitled to have it produced. to inspect it and to cross-examine the witness on it; or

(b) out of court, the court may order it to be produced for inspection and use in cross-examination by an adverse party.

Admissibility

111. Any writing used solely for the purpose of refreshing the memory of a witness is admissible only to challenge or support his credibility.

Past recollection recorded

112. Where a witness is unable to recall a recorded matter of which he once had knowledge, the record is admissible for all purposes, in the same manner as his testimony would be, if

(a) he made or verified the record while the matter was fresh in his mind; or

(b) it is a transcript of testimony given by him on a prior occasion under oath or solemn affirmation when he was subject to cross-examination.

Examination by court and production

113. (1) After examining any record used for the purpose of refreshing the memory of a witness or admissible under section 11 2, the court shall excise any portion that is unrelated to the matters in issue or privileged or otherwise not subject to production, order production of the remainder and order the preservation of the unproduced portions for the purposes of any appeal.

Introduction of record

(2) A record admitted in evidence under subsection (1) shall be introduced as an exhibit and is evidence of the facts stated in It.

Previous Statements

Cross-examination on a revious inconsistent statement

114. Where the party calling a witness alleges that the witness previously made a statement that is inconsistent with his present testimony and where, in the opinion of the court, the inconsistency is relevant to a matter in issue, the party may cross-examine the witness on the previous statement without proof that the witness is adverse.

Requirements before cross-examination

115. (1) A party intending to cross-examine a witness on a previous inconsistent statement shall, prior to the cross-examination,

(a) furnish the witness with sufficient information to enable him reasonably to recall the form of the statement and the occasion on which it was made and ask him whether he made the statement; and

(b) where the witness was called by that party and is not an adverse witness, attempt to refresh his memory if the court so requires.

Attention to relevant parts of statement

(2) If it is intended to contradict a witness by reason of a previous inconsistent statement, his attention shall be drawn to those parts of the statement that are to be used for that purpose.

Statement to person in authority

116. (1) The prosecution may cross-examine an accused on a previous inconsistent statement made to a person in authority within the meaning of section 66 if it first establishes that the statement was voluntary within the meaning of that section.

Determining voluntariness

(2) The question whether a statement referred to in subsection (1) was voluntary may be determined in a voir dire held during cross-examination of the accused.

Proof of statement

117. If, after being questioned, the witness denies or does not distinctly admit that he made a previous inconsistent statement and it is relevant to a matter in issue, the proponent may prove the statement.

Previous consistent statement

118. Subject to section 120, a statement made previously by a witness that is consistent with his present testimony is not admissible unless his credibility has been challenged by means of an express or implied allegation of recent fabrication or by means of a previous inconsistent statement.

Production of statement

119. The court may require the production of the whole or any part of a written or recorded statement used in cross-examining a witness or admitted under section 118.

Rule respecting recent complaint abrogated

120. (1) Subject to subsection (2), the rule that permits a previous consistent statement of a complainant to be admitted in evidence as a recent complaint is abrogated.

Evidence of a complaint

(2) In a proceeding for an offence in which lack of consent is an essential element, the complainant may give evidence of the making of a complaint concerning the conduct of the accused, but no evidence may be given of the particulars of the complaint unless the accused has challenged the credibility of the complainant on the basis of recent fabrication or previous inconsistent statement relating to the conduct of the accused.

Direction not required

(3) The court in a proceeding referred to in subsection (2) is not required to give the trier of fact any direction respecting the absence of a complaint concerning the conduct of the accused.

(Note - Section 120 and the reference to it in section 118 are for inclusion in the federal Act only.)

Use of statement

121. Where a previous statement of a witness is received in evidence, it may be used only for the purpose of challenging or supporting the credibility of the witness, except in the following cases where it may be used for all purposes:

(a) where it is adopted by the witness; (b) where it was made under oath or solemn affirmation and the witness was subject to cross-examination; or

(c) where it is a previous inconsistent statement of a party, other than one adduced by the prosecution under subsection 116(1).

Credibility of Witnesses

Reputation evidence

122. Subject to section 27, evidence of reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of a witness.

Examination as to character and mode of life

123. Subject to section 1 24, an accused shall not be cross-examined, solely for the purpose of challenging his credibility, as to his character, antecedents, associations, mode of life or participation in crimes, except where it is directly relevant to proving the falsity of the accuseds evidence.

No cross-examination on previous record

124. (1) An accused shall not be questioned by the court or any adverse party as to whether he has been found guilty or convicted of an offence other than an offence with which he is charged unless

(a) the evidence to be adduced by means of the question is otherwise admissible to show that the accused is guilty of the offence with which he is charged; or

(b) the accused has given evidence against a co-accused.

Exception

(2) Notwithstanding subsection (1), the accused may be cross-examined as to whether he has been found guilty or convicted of perjury or giving contradictory evidence in a judicial proceeding or as to whether, at any time within seven years prior to the date of the present charge against him, he has been found guilty or convicted of an offence involving an element of fraud.

No corroboration or warning

125. (1) Subject to subsection (2), no corroboration of evidence is required and no warning concerning the danger of acting on uncorroborated evidence shall be given in any proceeding.

Caution required

(2) The court shall instruct the trier of fact on the special need for caution in any case in which it considers that an instruction is necessary, and shall in every case give the instruction with respect to

(a) the evidence of a witness who has testified without taking an oath or making a solemn affirmation;

(b) the evidence of a witness who, in the opinion of the court, would be an accomplice of the accused if the accused were guilty of the offence charged;

(c) the evidence of a witness who has been convicted of perjury; or

(d) a charge of treason, high treason or perjury where the incriminating evidence is that of only one witness.

(Note - Paragraph (d) is for inclusion in the federal Act only.)

Interpreters and Translators

Evidence of mute

126. A witness who is unable to speak may give his evidence in any manner in which he can make it intelligible.

Provision of interpreter or translator

127. (1) Where it appears to the court speak that a witness does not understand or the language in which a proceeding is conducted or does not understand the language of any document to be used in the proceeding, an interpreter or a translator shall be provided.

Oath or solemn affirmation

(2) Where the court is satisfied as to the qualifications of a person who is to serve as an interpreter or a translator in a proceeding, that person shall take an oath or make a solemn affirmation to give a true interpretation or translation of the evidence.

Verifying translation prepared out of court

128. (1) Except where the parties agree otherwise, a translation prepared out of court shall not be received in evidence without calling the translator as a witness unless it is accompanied by the document translated and an affidavit or a statutory declaration of the translator setting out his qualifications as a translator and verifying that the translation is a true translation.

Copy to be provided

(2) Except with leave of the court, no translation shall be received in evidence under subsection (1) unless the proponent has provided each party adverse in interest with a copy of the translation, in a civil proceeding at least ten days, or in a criminal proceeding at least seven days, before the commencement of the hearing in which the translation is to be used.

Attendance of translator

129. (1) Where a party tenders in evidence a translation verified by affidavit or statutory declaration of the translator, any other party may require the attendance of the translator for the purposes of cross-examination.

Where translator not made available

(2) Where the translator is not made available for cross-examination, the court may refuse to admit the translation if it is satisfied that in the circumstances it would be practicable for the translator to attend.

Costs

(3) In a civil proceeding, where a translator has been required to give evidence under subsection (1) and the court is of the opinion that the evidence does not materially add to the information in the affidavit or statutory declaration of the translator or materially clarify the translation, the court may order the party who required the attendance of the translator to pay, as costs, an amount the court considers appropriate.

Recorded Evidence

.Interpretation

Interpretation

130. In this section and sections 131 to 159,

"duplicate"

"duplicate" means a reproduction of the original from the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction or by other equivalent technique that accurately reproduces the original;

"original"

"original" means

(a) in relation to a record, the record itself or any facsimile intended by the author of the record to have the same effect,

(b) in relation to a photograph, the negative and any print made from it, and

(c) in relation to stored or processed data or information, any printout or intelligible output shown to reflect accurately the data or information;

"photograph"

"photograph" includes a still photograph, photographic film or plate, microphotographic film, photostatic negative, x-ray film and a motion picture.

Best Evidence Rule

Best evidence rule

131. Subject to this Act, the original is required in order to prove the contents of a record.

Admissibility of duplicates

132. A duplicate is admissible to the same extent as an original unless the court is satisfied that there is reason to doubt the authenticity of the original or the accuracy of the duplicate.

Admissibility of copies

133. Where an admissible duplicate cannot be produced by the exercise of reasonable diligence, a copy is admissible in order to prove the contents of a record in the following cases:

(a) the original has been lost or destroyed; (b) it is impossible, illegal or impracticable to produce the original;

(c) the original is in the possession or control of an adverse party who has neglected or refused to produce it or is in the possession or control of a third person who cannot be compelled to produce it;

(d) the original is a public record or is recorded or filed as required by law;

(e) the original is not closely related to a controlling issue; or

(f) the copy qualifies as a business record within the meaning of section 152.

Other evidence

134. Where an admissible copy cannot be produced by the exercise of reasonable diligence, other evidence may be given of the contents of a record.

Voluminous records

135. (1) The contents of a voluminous record that cannot conveniently be examined in court may be presented in the form of a chart, summary or other form that, to the satisfaction of the court, is a fair and accurate presentation of the contents.

Examination and copies

(2) The court may order the original or a duplicate of any record referred to in subsection (1) to be produced in court or made available for examination and copying by other parties at a reasonable time and place.

Written explanation

136. (1) Where a record is in a form that requires explanation, a written explanation by a qualified person accompanied by an affidavit setting forth his qualifications and attesting to the accuracy of the explanation is admissible in the same manner as the original.

Examination of person making explanation

(2) A party, with leave of the court, may examine or cross-examine a person who has given a written explanation under subsection (1) for the purpose of determining the admissibility of the explanation or the weight to be given to it.

Testimony, deposition or written admission

137. The contents of a record may be proved by the testimony, deposition or written admission of the party against whom they are offered without accounting for the non-production of the original or a duplicate or copy.

Condition of admissibility

138. The court shall not receive evidence of the contents of a record other than by way of the original or a duplicate where the unavailability of the original or a duplicate is attributable to the bad faith of the proponent.

Notice

Notice and production

139. (1) No record other than a public record to which section 146 applies and no exemplification or extract of such a record or affidavit relating to such a record shall be received in a partys evidence in chief unless the party, at least seven days before producing it, has given notice of his intention to produce it to each other party and has, within five days after receiving a notice for inspection given by any of those parties, produced it for inspection by the party who gave the notice.

Notice and production in civil proceeding

(2) In a civil proceeding, the provisions of subsection (1) apply only to a business record within the meaning of section 152 or a record to which section 82, 147. 149, 150 or 151 applies.

(Note - Each jurisdiction may consider whether to include reference to sections 147, 149, 150 or 151.)

Authentication

Authentication

140. The proponent of a record has the burden of establishing its authenticity and that burden is discharged by evidence capable of supporting a finding that the record is what its proponent claims it to be.

Self-authentication

141. There is a presumption of authenticity in respect of the following:

(a) a record bearing a signature purporting to be an attestation or execution and bearing a seal purporting to be a seal mentioned in the Seals Act (Canada) or a seal of a province or political subdivision, department, ministry, officer or agency of Canada or a province;

(b) a record purporting to bear the signature in his official capacity of a person who is an officer or employee of any entity described in paragraph (a) that has no seal, if a public officer having a seal and official duties in the same political subdivision certifies under seal that the person has the official capacity claimed and that the signature is genuine;

(c) a copy of an official record or report or entry in it, or of a record authorized by law to be recorded or filed in a public office, including a compilation of data, purporting to be certified as correct by the custodian or other person authorized to make a certification;

(d) a publication purporting to be issued by any person, body or authority empowered to issue the publication by or pursuant to an enactment;

(e) a formally executed document purporting to be produced from proper custody and executed twenty years or more before the time it is tendered in evidence;

(f) any printed material purporting to be a newspaper or periodical;

(g) any inscription, sign, tag, label or other index of origin, ownership or control purporting to have been affixed in the course of business;

(h) a document purporting to be attested or certified under oath, solemn affirmation, affidavit or declaration administered, taken or received in (Canada) (Province) by a person authorized to do so;

(i) a document purporting to be executed in a state other than Canada by a person authorized to do so and purporting to bear the seal of the appropriate minister of that state or his lawful deputy or agent;

(j) a document purporting to be executed or attested in his official capacity by a person authorized to do so by the laws of a state other than Canada, accompanied by a certification under section 143.

Persons authorized to administer oaths, etc.

142. For the purposes of paragraph 141(h),the following persons are authorized to administer, take or receive oaths, solemn affirmations, affidavits or declarations in (Canada) (Province)

(a) a judge or the registrar of the Supreme Court of Canada, Federal Court of Canada or a superior court of the province;

(b) a provincial court judge, provincial magistrate, police magistrate, stipendiary magistrate or justice of the peace;

(c) a commissioner for taking affidavits or notary public in the province; or

(d) a commissioned officer of the Canadian Forces on full-time service.

Certification

143. An official within the meaning of subsection 200(2) may certify the signature and official character of the person who executed or attested any document referred to in paragraph 141(j) or who certified the signature or official character of that person.

Dispensing with certification

144. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of a document described in paragraph 141(j), the court may order that the document be treated as presumptively authentic without certification, or may permit the document to be evidenced by an attested summary with or without certification.

Public Records

Interpretation

145. In sections 146 to 148, "public record" means any Act, ordinance, regulation, order in council, proclamation, official gazette, journal, treaty or other record issued by or under duly constituted legislative or executive authority.

Proof of publication records of Canada or United Kingdom

146. The existence and the whole or any part of the contents of a public record of Canada or a province or a public record of the United Kingdom that is applicable in Canada may be proved by

(a) the production of a copy of the Canada Gazette or official gazette of a province or of any Act of the Parliament of Canada or legislature of a province purporting to contain a copy of the public record, an extract from it or a notice of it, or

(b) the production of a copy of the public record or an extract from it purporting to be

(i) printed by, for or by the authority of the Queens Printer or other official printer for Canada or a province,

(ii) certified as a true copy or extract by the minister or head or deputy minister or deputy head of any department or ministry of the appropriate government,

(iii) certified as a true copy or extract by the custodian of the original record or the public records from which the copy or extract purports to be made, or

(iv) an exemplification of the public record under the Great Seal or other official seal of the appropriate government.

Proof of foreign public records

147. The existence and the whole or any part of the contents of a public record of any state or political division of a state not provided for under section 146 may be proved by the production of a copy of the public record or an extract from it purporting to be

(a) printed by, for or by the authority of the legislature, government, government printer or other official printer of that state or political division;

(b) certified as a true copy or extract by the minister or head or deputy minister or deputy head of any department or ministry of government of that state or political division;

(c) certified as a true copy or extract by the custodian of the original record or the public records from which the copy or extract purports to be made; or

(d) an exemplification of the public record under the Great Seal or other official seal of that state or political division.

Matters not subject to proof

148. Where any copy or extract of a public record is produced under section 146 or 147, it is not necessary to prove the signature or official character of the person by whom it purports to be certified or the authority or status of the legislature, government, printer or custodian by whom it purports to be authorized, made, printed or kept.

Court Records

Evidence of court proceeding or record

149. (1) Evidence of any proceeding or record of, in or before any court in or out of Canada or before any coroner in any province of Canada may be given by the production of an exemplification or a certified copy of the proceeding or record purporting to be under the seal of the court or under the hand and seal of the presiding officer of the court or coroner, as the case may be, without proof of the authenticity of the seal or of the signature or official character of the officer or coroner.

Where no seal

(2) A certified copy of a proceeding or record may be produced under subsection (1) without a seal where the court or person whose seal would otherwise be required certifies that there is no seal.

Other Public Records

By-laws, regulations, rules, etc.

150. (1) Where the original of any by-law, regulation, rule, proceeding or other record referred to in subsection (2) is admissible, a copy or an extract or exemplification of the original, purporting to be certified under the hand of the appropriate presiding officer, clerk or secretary and under the appropriate seal, is admissible without any proof of the authenticity of the seal or of the signature or official character of the person purporting to have made the certification.

Application

(2) Subsection (1) applies in respect of any by-law, regulation, rule, proceeding or other record of

(a) a municipal or other corporation created by charter or by or under an enactment of Canada or a province; or

(b) a tribunal, body or person having power to compel the production of evidence.

Where no seal

(3) A copy or an extract of an original is admissible under subsection (1) without a seal where the tribunal, body or person whose seal would otherwise be required certifies that there is no seal.

Notarial acts in Quebec

151. A record, purporting to be a copy of any notarial act or instrument certified by a Quebec notary as a true copy of an original in his possession, is admissible and has the same effect as the original would have if produced and proved, but that evidence may be rebutted by evidence impugning the accuracy of the copy or the authenticity of the original or its validity as a notarial act under Quebec law.

Business and Government Records

Interpretation

152. In this section and sections 153 to 158,

"business"

"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government or any department, ministry, branch, board, commission or agency of any government or any court or other tribunal or any other body or authority performing a function of government;

"Business record"

"business record" means a record made in the usual and ordinary course of business; "financial institution" means the Bank of Canada, the Federal Business Development Bank and any institution incorporated or established in Canada that accepts deposits of money from its members or the public and includes any branch, agency or office of any such Bank or institution.

Business records

153. (1) A business record is admissible whether or not any statement contained in it is hearsay or a statement of opinion, subject, in the case of opinion, to proof that the opinion was given in the usual and ordinary course of business.

Parts of record

(2) Where part of a business record is produced in a proceeding, the court, after examining the record, may direct that other parts of it be produced.

Inference from absence of information

154. (1) Where a business record does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in the record if the matter occurred or existed, the court may admit the record in evidence for the purpose of establishing the absence of that information and the trier of fact may draw the inference that the matter did not occur or exist.

Financial institutions and governemtn records

(2) In the case of a business record kept by a financial institution or by any government or any department, branch, board, commission or agency of any government under the authority of an enactment of the (Parliament of Canada) (Legislature or National Assembly), an affidavit of the custodian of the record or other qualified witness stating that after a careful search he is unable to locate the information is admissible and, in the absence of evidence to the contrary, is proof that the matter referred to in subsection (1) did not occur or exist.

Examination of record

155. (1) For the purpose of determining whether a business record may be admitted in evidence under this Act, or for the purpose of determining the probative value of a business record admitted in evidence under this Act, the court may examine the business record, receive evidence orally or by affidavit, including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.

Evidence respecting record

(2) Where evidence respecting the authenticity of or accuracy a business record is to be given, the court shall require the evidence of the custodian of the record or other qualified witness to be given orally or by affidavit.

Affidavit evidence

(3) Where evidence under subsection (2) is offered by affidavit, it is not necessary to prove the signature or official character of the affiant if his official character purports to be set out in the body of the affidavit.

Examination on record

156. Any person who has or may reason ably be expected to have knowledge of the making or contents of any business record or duplicate or copy of it produced or received in evidence may, with leave of the court, be examined or cross-examined by any party.

Business records of financial institutions

157. (1) A business record of a financial institution is, in the absence of evidence to the contrary, proof of any matter, transaction or account contained in the record.

Compellability

(2) Unless the court for special cause orders otherwise, a financial institution or its officer is not compellable, in any proceeding to which the institution is not a party, to produce any of its business records or to appear as a witness concerning any matter, transaction or account contained in its business records.

Inspection and copies

158. (1) On application by a party to a proceeding, the court may allow the party to examine and copy any business record of a financial institution for the purposes of the proceeding.

Notice

(2) Notice of an application under subsection (1) shall be given to any person to whom the business record to be examined or copied relates at least two days before the hearing of the application and, where the court is satisfied that personal notice is not possible, the notice may be given by addressing it to the appropriate financial institution.

Probative Force of Records

Where probative force not indicated

159. Where an enactment other than this Act provides that a record is evidence of a fact without anything in the context to indicate the probative force of that evidence, the record is proof of the fact in the absence of evidence to the contrary in any proceeding to which this Act applies.

(Note - Each jurisdiction may consider whether to include this provision.)

Real Evidence

General rule

160. (1) The trier of fact may draw all reasonable inferences from real evidence.

Interpretation

(2) In this section, "real evidence" means evidence that conveys a firsthand sense impression to the trier of fact, such as a physical object or a site, the demeanour or physical condition of a person or a visual or auditory presentation, but does not include testimony, admissible hearsay or a record offered in lieu of testimony.

<hrdata-mce-alt="PART V" class="system-pagebreak" title="PART V" />

PART V

STATUTORY PRIVILEGES

Protection Against Use of Previous Testimony

No right to withhold answer

161. (1) A witness shall not be excused from a question the answering on ground that the answer may tend to criminate him or establish his liability to a civil proceeding at the instance of the Crown or any person.

Protection against use of answer

(2) If at the time a witness is asked a question, he claims protection under this Act or an Act of the (Legislature or National Assembly) (Parliament of Canada) in any proceeding before a court, tribunal, body or person having power to compel his testimony, the answer shall not be receivable in evidence or used against him for any purpose in any subsequent proceeding, other than a subsequent proceeding in the same cause or a prosecution for perjury, or giving contradictory evidence, in that cause or in any other proceeding.

Corporations not protected

162. (1) The protection provided by subsection 161(2) applies only to natural persons and does not prevent the reception or use of evidence against a corporation.

Single claim sufficient

(2) Where a witness claims the protection provided by subsection 161(2) with respect to any answer, that protection applies with respect to all subsequent answers of that witness without the necessity of making a further claim for protection.

Exception for previous inconsistent statement

163. Notwithstanding section 161, a statement made previously by a witness that is relevant to a fact in issue and is inconsistent in a material particular with his present testimony may be received in evidence for the sole purpose of challenging his credibility.

Privilege respecting records abrogated

164. Subject to any other Act, any privilege whereby a witness refuse

to produce a record on grounds that its production would tend to criminate him or establish his liability to a civil proceeding at the instance of the Crown or any person is abrogated.

Government Privilege

Interpretation

165. In this section and sections 166 to 175,

"Attorney General"

"Attorney General", in relation to a claim of government privilege by the Government of Canada. means the Attorney General of Canada. and in relation to a claim of government privilege by the government of a province, means the Attorney General of the province and includes the lawful deputy of either Attorney General if that deputy is expressly authorized to act in respect of that claim of government privilege:

"Cabinet"

"Cabinet" means the members of the Queens Privy Council for Canada or the Privy Council or Executive Council of a province, or the members of a committee of that Council, who are Ministers of the Crown at the material tune:

"confidence of Cabinet"

"confidence of Cabinet" means a Cabinet decision, a discussion in Cabinet, a recommendation to Cabinet by a member of Cabinet and material prepared exclusively for the purpose of discussion in Cabinet:

"court"

"court" means any court, tribunal, body or person having power to compel the production of evidence:

"government privilege"

"government privilege" means the right under this Act of the Government of Canada or the government of a province to refuse production or disclosure of information on grounds of high policy or any other ground of public interest;

"high policy"

"high policy", in relation to a claim of government privilege, means any of the following grounds:

(a) international relations,

(b) national defence or security,

(c) a confidence of Cabinet, or

(d) subject to section 119, a confidential communication, made by or to a law enforcement officer or authority, relating to the investigation or prosecution of an offence.

Notice to attorney General

166. (1) Where a claim of government privilege arises in a proceeding in which the Attorney General is not a party, he shall be given notice as soon as possible by the party seeking to establish the claim or, in default of that notice, by the court.

Notice by court

(2) Where a claim of government privilege has not arisen in a proceeding but there is a real possibility that production or disclosure of information in that proceeding would be contrary to the public interest, the court, in the absence of notice by a party, shall give notice to the appropriate Attorney General in order that he may determine whether to claim government privilege.

Claiming privilege

167. (1) To claim government privilege, the Attorney General shall certify to the court, orally or in writing, that he has personally examined or heard the information in respect of which the privilege is claimed and has concluded that production or disclosure of the information would be contrary to the public interest on grounds of high policy or any other ground of public interest.

Matters to be specified in certification

(2) Where the Attorney General claims government privilege

(a) on grounds of high policy, he shall specify those grounds; or

(b) on grounds other than high policy, he shall specify the public interest that he considers would be harmed by production or disclosure of the information in question and the manner in which that harm would occur.

Decision of court

168. (1) On a claim of government privilege the court, without examining, hearing or inquiring into the information in question, shall grant the claim

(a) where it is based on grounds of high policy, if the Attorney General has complied with section 167; or

(b) where it is based on grounds other than high policy, if the court is satisfied that production or disclosure of the information would be contrary to the public interest.

Opportunity to certify further particulars

(2) Where the court is not satisfied under paragraph (l)(b) that a claim of government privilege should be granted, it shall give the Attorney General a reasonable opportunity to certify further particulars in support of the claim.

Where further particulars not certified

169. (1) Where the Attorney General fails certify further pursuant to subsection 168(2), the court shall order that the information in question be produced or disclosed to it for its consideration in private.

Where further particulars certified

(2) Where the Attorney General certifies further particulars pursuant to subsection 168(2), the court, if satisfied that production or disclosure of the information in question would be contrary to the public interest, shall grant the claim of government privilege, and if not so satisfied shall order that the information be produced or disclosed to it for its consideration in private.

Consideration in private

(3) Where, after consideration in private under subsection (1) or (2), the court concludes that production or disclosure of the information in question would be contrary to the public interest, it shall grant the claim of government privilege and, if it concludes otherwise, it shall reject the claim.

Factors to be considered by court

170. In determining whether the production or disclosure of any information would be contrary to the public interest, the court shall consider the following factors:

(a) the reasons given for not disclosing the information in respect of which the privilege is claimed;

(b) the nature, age and currency of the information;

(c) the nature of the proceeding;

(d) the necessity for and relevance of the information;

(e) the extent to which and persons by whom the information has been circulated within and outside the government concerned; and

(f) the harm to the public interest and to the party seeking production or disclosure of the information.

Orders of court

171. Where the court grants or rejects a claim of government privilege, it shall make an order, subject to any conditions it considers appropriate, prohibiting or requiring production or disclosure of the information in question.

Further or other order

172. Where the court makes an order granting a claim of government privilege and it considers that a party other than the Attorney General who made the claim has been or may be deprived of material evidence by reason of the order, it may make any further or other order it considers to be required in the interests of justice.

No secondary or other evidence

173. Where the court makes an order prohibiting production or disclosure of information in any proceeding on grounds of government privilege, no secondary or other evidence of that information is admissible.

Claims before lower courts

174. Where government privilege is claimed before a court other than a superior court, the Attorney General or any party to the proceeding may, at any time before the claim is determined, require the court to refer the claim for determination in accordance with sections 168 to 173 to

(a) the trial division or trial court of the superior court of the province within which the court before which the claim was first made exercises its jurisdiction: or

(b) the Federal Court - Trial Division. where the court betore which the claim was first made is not a court established by or under an enactment of a province.

(Note - Each jurisdiction may specify the superior courts included for the purposes of this section.)

Appeals

175. (1) An appeal lies from an order under section 171 or 172 to

(a) the court of appeal of a province, from an order of a trial division or trial court of a superior court of a province: or

(b) the Federal Court of Appeal. from an order of the Federal Court - Trial Division.

Time limit for appeals

(2) An appeal under subsection (1) shall be taken within ten days after the date of the order appealed from or within such further time as the court before which the appeal is taken considers appropriate in the circumstances.

Appeals to supreme court of Canada

(3) Notwithstanding any other Act.

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment pursuant to an appeal under subsection (1) shall be made within ten days after the date of the judgment or within such further time as the court to which the application is made considers appropriate in the circumstances: and

(b) where leave to appeal to the Supreme Court of Canada is granted. the appeal shall be taken in the manner set out in subsection 66(1) of the Supreme Court Act but within the time specified by the court that grants leave to appeal.

(Note - Paragraphs 174(b) and 175(1)(b) are for inclusion in the Federal Act only.)

Privilege for Psychiatric Assessment

Psychiatric assessment

176. Any statement communicated by an accused to a qualified medical practitioner during the course of a court-ordered psychiatric observation, examination or assessment is privileged and, unless the accused has first put his mental condition in issue, no evidence of or relating to that statement is admissible against the accused in any proceeding before a court, tribunal, body or person having power to compel the production of evidence, other than a hearing to determine the fitness of the accused to stand trial or conduct his defence.

Privileges Relating to Marriage

Interpretation

177. In sections 178 to 184, "spouse" means spouse at the time a statement was made.

Privilege

178. In a proceeding before a court, tribunal, body or person having power to compel the production of evidence, a person is entitled to claim a privilege against production or disclosure by himself or his spouse of a statement made in confidence by him to his spouse.

Duration

179. The privilege under section 178 subsists for the lifetime of the declarant, notwithstanding any subsequent dissolution of the marriage.

Presumption

180. Unless the court is satisfied otherwise, a statement made by a declarant to his spouse shall be presumed to have been made in confidence.

Who may make claim

181. (1) A claim under section 178 may be made by the declarant or his spouse on his behalf, whether or not the declarant is a party to the proceeding in which the claim is made.

Presumed authority of spouse

(2) Unless the court is satisfied otherwise, the spouse of the declarant shall be presumed to be authorized to make a claim under section 178 on behalf of the declarant.

Exception in civil proceedings

182. (1) No claim under section 178 may be made in a civil proceeding between the declarant and his spouse.

Further exception

(2) A claim under section 178 may be denied in a civil proceeding in which the court is satisfied that the denial is necessary in order to protect the interests of a child.

Exceptions in criminal proceedings

183. No claim under section 178 may be made in a criminal proceeding against the declarant in respect of

(a) an offence set out in section 93, whether the declarants spouse is called as a witness for the prosecution or defence; or

(b) an offence against a third person that is alleged to have been committed by the declarant in the course of committing an offence against his own spouse.

Loss of privilege

184. The right to claim a privilege under section 178 is lost if the declarant or anyone with his authority voluntarily produces or discloses or consents to the production or disclosure of any significant part of the privileged statement, unless the production or disclosure is made in circumstances that give rise to a privilege.

Former privileges

185. No privilege bars evidence

(a) tending to show that a person did or did not have sexual intercourse with his spouse at any time before or during their marriage; or

(b) tending to show that a person has or has not committed adultery.

<hrdata-mce-alt="PART VI" class="system-pagebreak" title="PART VI" />

PART VI

DECISION MAKING POWERS

Implied terms in contracts

186. The trier of fact shall determine whether a contract contains an implied term.

Actions for malicious prosecution

187. In an action for malicious prosecution, the trier of fact shall determine whether there was reasonable and probable cause for instituting the prosecution.

Foreign law

188. (1) Foreign law shall be determined by the court as a question of fact.

Expert evidence

(2) In making a determination under subsection (1), the court, except in a civil proceeding where the parties agree otherwise, shall consider only the evidence adduced by qualified expert witnesses, whether legal practitioners or not.

Where foreign law not proved

(3) Where a foreign law is not proved, it shall, in a civil proceeding, be presumed to be identical to the domestic law, but there is no such presumption in a criminal proceeding.

Notice of intention to produce foreign law

189. (1) Except where the court orders otherwise, a party intending to adduce evidence of foreign law shall, at least seven days before the commencement of the trial in a criminal proceeding or ten days before the commencement of the trial in a civil proceeding, give the opposing party a notice of his intention containing a statement of the substance of the evidence.

Where notice not required

(2) A notice is not required under subsection (1) where

(a) evidence of foreign law has been adduced at the preliminary inquiry; or

(b) the proceeding is taken under the

Extradition Act or the Fugitive Offenders Act (Canada).

(Note - This subsection is for inclusion in the federal Act only.)

Meaning of words

190. The court shall determine the meaning of words used in their ordinary sense in an instrument or enactment.

Formal defects

191. In the interests of justice, the court may, subject to any conditions it considers appropriate, admit evidence despite a failure to comply with a required formality or order an adjournment where a required formality has not been complied with.

General power to comment

192. Where any provision of this Act permits, requires or forbids a court to comment or instruct the trier of fact on the weight to be given to any evidence, the general power of the court to comment on the evidence or on the credibility of witnesses is affected only to the extent necessary to give effect to that provision.

Appeal on admission or exclusion of evidence at trial

193. In determining whether an erroneous admission or exclusion of evidence resulted in a substantial error or miscarriage of justice or otherwise justifies an appeal, an appeal court shall consider all the circumstances of the trial, including whether a timely and specific objection to the admission of evidence was made or whether the substance and relevance of the excluded evidence were made known to the trier of fact or were apparent from the context of the questions asked.

<hrdata-mce-alt="PART VII" class="system-pagebreak" title="PART VII" />

PART VII

EXAMINING WITNESSES FOR OTHER JURISDICTIONS

Interpretation

194. In sections 195 to 199,

"court"

"court" means any court, tribunal, body or person having power to compel the production of evidence;

"senior court"

"senior court" means a superior court of a province, the Federal Court of Canada in relation to a matter within its exclusive jurisdiction or a judge of any such court.

(Note - Reference to the Federal Court of Canada is for inclusion in the federal Act only.)

Examination of witness out of the jurisdiction of the court

195. Where a court of competent jurisdiction in or out of Canada, for the purpose of a proceeding pending before it, authorizes the obtaining of the testimony of a witness out of its jurisdiction but within the jurisdiction of a senior court, an application may be made to the senior court for an order under section 196 for the examination of the witness.

Order for examination

196. (1) Where the senior court to which an application is made under section 195 is satisfied that an order should be made, it may order the examination of a witness referred to in that section before the person appointed in the order and in the manner specified in it and may, by the same or a subsequent order, command the attendance of the witness and the production of any record or thing specified in the order that relates to the matter in question.

Appropriate directions and enforcement

(2) An order under subsection (1) may give all directions relating to the examination of the witness as the senior court making the order considers appropriate and the order may be enforced in the same manner as an order of the senior court made in any proceeding before it.

Conduct money and expenses

197. Any person ordered to attend for an examination under section 196 is entitled to conduct money and payment for expenses and loss of time as if he were a witness in a trial before the senior court that made the order.

Right to refuse answer or production

198. (1) Subject to subsection (2), a person examined pursuant to an order under section 196 has the right

(a) to refuse to answer any question on the ground that the answer may tend to criminate him or establish his liability to a civil proceeding at the instance of the Crown or any person; and

(b) to refuse to produce any record on the ground that he could not be compelled to produce it at a trial of the matter in question before the senior court that made the order.

Applicable provincial law

(2) Where an examination is ordered under section 196 for the purpose of a proceeding taking place in another province, the examination shall be conducted in accordance with the law of that other province.

Rules of court

199. An application for an order under section 196 shall be made in accordance with the rules relating to those applications that are made by the senior court applied to, and in the absence of rules to the contrary, a commission or order or letters rogatory for the examination of a witness, issuing from a court of competent jurisdiction in or out of Canada, shall be taken as sufficient evidence in support of the application.

<hrdata-mce-alt="PART VIII" class="system-pagebreak" title="PART VIII" />

PART VIII

TAKING EVIDENCE IN OTHER JURISDICTIONS

Oaths, etc., taken out of the jurisdiction

200. (1) Any oath, solemn affirmation, affidavit or declaration administered, taken or received out of (Canada) (Province) by an official mentioned in subsection (2) has the same effect as if it had been administered, taken or received in (Canada) (Province) by a person authorized to do so.

Interpretation

(2) For the purposes of subsection (1), "official" means any of the following persons exercising functions or having jurisdiction or authority in the place where the oath, solemn affirmation, affidavit or declaration is administered, taken or received:

(a) a judge, magistrate or officer of a court of justice;

(b) a commissioner for taking affidavits, notary public or other competent authority of a similar nature;

(c) the head of a city, town, village, township or other municipality; or

(d) any officer of Her Majesty's or Canada's diplomatic, consular or representative services, including any high commissioner, ambassador, envoy, minister, chargé d'affaires, counsellor, secretary, attaché, consul-general, consul, honorary consul, vice-consul, pro-consul, consular agent, permanent delegate, trade commissioner, assistant trade commissioner and a person acting for any of them.

Oaths, etc., taken out of the jurisdiction by persons authorized in the jurisdiction

201. Any oath, solemn affirmation, affidavit or declaration administered, taken or received out of (Canada) (Province) by a person authorized to do so in (Canada) (Province) and in the manner so authorized has the same effect as if it had been administered, taken or received by that person in (Canada) (Province).

Document admissible in evidence

202. Any document that purports to be signed by a person mentioned in subsection 200(2) or section 201 and sealed with his seal or the seal or stamp of his office, in testimony of any oath, solemn affirmation, affidavit or declaration administered, taken or received by him, is admissible in evidence without proof of his signature or official character or the authenticity of the seal or stamp and without proof that he was exercising his functions or had jurisdiction or authority in the place where the oath, solemn affirmation, affidavit or declaration was administered, taken or received.

Lack of oath or solemn affirmation

203. Evidence taken in a jurisdiction outside Canada shall not be excluded by reason only of the lack of an oath or a solemn affirmation if the evidence was taken in conformity with the law of that jurisdiction.

<hrdata-mce-alt="PART IX" class="system-pagebreak" title="PART IX" />

PART IX

REPEAL, TRANSITIONAL AND COMMENCEMENT

(Note - The following provisional list of amendments affects federal legislation. Each jurisdiction will have its own consequential provisions.)

Canada Evidence Act

R.S., c. E-10

204. The Canada Evidence Act is repealed.

Criminal Code

R.S., c. 34

205. Sections 123, 142, 317, 318, 586 and 593 and subsections 139(1), 195(3) and 256(2) of the Criminal Code are repealed.

206. Section 469 of the said Act is repealed and the following substituted therefor:

Evidence of accused

"469. (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice or other appropriate court official shall ask the accused whether he wishes to give evidence and shall advise the accused that any evidence he gives shall be under oath or solemn affirmation and subject to cross-examination and that such evidence shall be recorded and may be used against him at his trial.

Witnesses for accused

(2) After subsection (1) is complied with and the evidence of the accused, if any, is recorded, the justice shall ask the accused if he wishes to call any witnesses.

Depositions of witnesses

(3) The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for that purpose section 468 applies with such modifications as the circumstances require."

207. Subsection 638(1) of the said Act is amended by striking out the word "or" at the end of paragraph (a) thereof, by adding the word "or" at the end of paragraph (b) thereof and by adding thereto the following paragraph:

"(c) to a provincial court judge where the proceedings are in the provincial court."

208. All that portion of section 639 of the said Act preceding paragraph (b) thereof is repealed and the following substituted therefor:

Reading evidence of witness

"639. Where the evidence of a witness mentioned in paragraph 637(a) is taken by a commissioner appointed under section 638, it may be read in evidence in the proceedings if

(a) it is proved by oral evidence or by affidavit that the witness is unable to attend by reason of death or physical disability arising out of illness or some other good and sufficient cause,

209. Section 643 of the said Act is a mended by striking out the word "or" at the end of paragraph (c) thereof and by adding thereto, immediately after paragraph (d) thereof, the following paragraphs:

"(e) cannot with reasonable diligence be identified or found, or

(f) testifies to a lack of memory of his evidence despite an attempt, where required by the court, to refresh his memory,

Federal Court Act

R.S., c. 10 (2nd Supp.)

210. Section 41 and subsection 53(2) of the Federal Court Act are repealed.

Interpretation Act

R.S., c. 1-23

211. Subsection 24(1) of the Interpretation Act is repealed.

Juvenile Delinquents Act

R.S., c.J-3

212. Section 19 of the Juvenile Delinquents Act is repealed.

Pending Proceedings

Pending proceedings

213. Proceedings commenced before the coming into force of this Act shall be carried on until their final conclusion as if this Act had not come into force unless the parties agree that this Act or any of its provisions applies.

Commencement

Coming into force

214. This Act shall come into force on a day to be fixed by proclamation.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018