Evidence by Commission

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General Principles

See also: Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Order appointing commissioner
709. (1) A party to proceedings by way of indictment or summary conviction may apply for an order appointing a commissioner to take the evidence of a witness who

(a) is, by reason of
(i) physical disability arising out of illness, or
(ii) any other good and sufficient cause,

not likely to be able to attend at the time the trial is held; or

(b) is out of Canada.

Idem
(2) A decision under subsection (1) is deemed to have been made at the trial held in relation to the proceedings mentioned in that subsection.
R.S., 1985, c. C-46, s. 709; R.S., 1985, c. 27 (1st Supp.), s. 150; 1994, c. 44, s. 72.
Application where witness is ill
710. (1) An application under paragraph 709(1)(a) shall be made

(a) to a judge of a superior court of the province in which the proceedings are taken;
(b) to a judge of a county or district court in the territorial division in which the proceedings are taken; or
(c) to a provincial court judge, where
(i) at the time the application is made, the accused is before a provincial court judge presiding over a preliminary inquiry under Part XVIII, or
(ii) the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.

Evidence of medical practitioner
(2) An application under subparagraph 709(1)(a)(i) may be granted on the evidence of a registered medical practitioner.
R.S., 1985, c. C-46, s. 710; R.S., 1985, c. 27 (1st Supp.), s. 151; 1994, c. 44, s. 73.
Admitting evidence of witness who is ill
711. Where the evidence of a witness mentioned in paragraph 709(1)(a) is taken by a commissioner appointed under section 710, it may be admitted 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;
(b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken; and
(c) it is proved to the satisfaction of the court that reasonable notice of the time for taking the evidence was given to the other party, and that the accused or his counsel, or the prosecutor or his counsel, as the case may be, had or might have had full opportunity to cross-examine the witness.

R.S., 1985, c. C-46, s. 711; R.S., 1985, c. 27 (1st Supp.), s. 152; 1994, c. 44, s. 74; 1997, c. 18, s. 102.
Application for order when witness out of Canada
712. (1) An application that is made under paragraph 709(1)(b) shall be made

(a) to a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction before which the accused is to be tried; or
(b) to a provincial court judge, where the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.

Admitting evidence of witness out of Canada
(2) Where the evidence of a witness is taken by a commissioner appointed under this section, it may be admitted in evidence in the proceedings.
(3) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 153]
R.S., 1985, c. C-46, s. 712; R.S., 1985, c. 27 (1st Supp.), s. 153; 1994, c. 44, s. 75; 1997, c. 18, s. 103.
Providing for presence of accused counsel
713. (1) A judge or provincial court judge who appoints a commissioner may make provision in the order to enable an accused to be present or represented by counsel when the evidence is taken, but failure of the accused to be present or to be represented by counsel in accordance with the order does not prevent the admission of the evidence in the proceedings if the evidence has otherwise been taken in accordance with the order and with this Part.
Return of evidence
(2) An order for the taking of evidence by commission shall indicate the officer of the court to whom the evidence that is taken under the order shall be returned.
R.S., 1985, c. C-46, s. 713; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 104.
Evidence not excluded
713.1 Evidence taken by a commissioner appointed under section 712 shall not be excluded by reason only that it would have been taken differently in Canada, provided that the process used to take the evidence is consistent with the law of the country where it was taken and that the process used to take the evidence was not contrary to the principles of fundamental justice.
1994, c. 44, s. 76.
Rules and practice same as in civil cases
714. Except where otherwise provided by this Part or by rules of court, the practice and procedure in connection with the appointment of commissioners under this Part, the taking of evidence by commissioners, the certifying and return thereof and the use of the evidence in the proceedings shall, as far as possible, be the same as those that govern like matters in civil proceedings in the superior court of the province in which the proceedings are taken.
R.S., c. C-34, s. 642.


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