Evidence by Commission

This page was last substantively updated or reviewed January 2016. (Rev. # 78603)

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General Principles

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) [order appointing commissioner] 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.
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Application where witness is ill

710 (1) An application under paragraph 709(1)(a) [order appointing commissioner – witness unavailability] 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 [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)], or

(ii) the accused or defendant is to be tried by a provincial court judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] or XXVII [Pt. XXVII – Summary Convictions (ss. 785 to 840)].

Evidence of medical practitioner

(2) An application under subparagraph 709(1)(a)(i) [order appointing commissioner – witness unavailability – illness] 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.
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Admitting evidence of witness who is ill

711. Where the evidence of a witness mentioned in paragraph 709(1)(a) [order appointing commissioner – witness unavailability] 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.
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Application for order when witness out of Canada

712 (1) An application that is made under paragraph 709(1)(b) [order appointing commissioner – witness out of Canada] 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 [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] or XXVII [Pt. XXVII – Summary Convictions (ss. 785 to 840)].

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.
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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 [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)].

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.
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Evidence not excluded

713.1 Evidence taken by a commissioner appointed under section 712 [application for order when witness out of Canada] 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.
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Rules and practice same as in civil cases

714. Except where otherwise provided by this Part [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] or by rules of court, the practice and procedure in connection with the appointment of commissioners under this Part [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)], 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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Criteria for Acceptance of Commission

Orders to permit taking commission are "exceptional" and should not be routinely given. The order has the effect of depriving the trier of fact the opportunity to hear directly from the witness and assess demeanour.

Consideration of whether to permit the taking of commission by oath include:

1. whether the requested jurisdiction will or is likely to respond favourably to a request for judicial assistance;
2. whether the manner of response, if favourable, is compatible with the manner in which evidence is taken in Canada;
3. whether the circumstances of the witness’ residence out of Canada render return to Canada for trial likely or unlikely, thereby affecting the necessity for the taking of evidence on commission;
4. whether the witness has relevant and material evidence to give receivable in accordance with the rules of evidence applicable in the Canadian proceedings;
5. whether the witness is willing to attend to give evidence on commission and, if not, the means whereby his or her evidence may be compelled or otherwise ensured;
6. whether there will be unfair prejudice to the party opposite by the order of a commission;
7. whether there will be any serious disruption of the trial proceedings by the taking of such evidence;
8. whether the trier of fact will be disadvantaged to the prejudice of the parties or either of them, by being unable to observe the demeanour of the witnesses.
9. whether the applicant for the taking of commission evidence has made meaningful efforts to procure the witness’ attendance to testify in Canada,
10. whether the application is made in good faith in contradistinction to those cases where the application constitutes little more than a manipulative gimmick to avoid a timely trial on the merits.

Timing of Admission

Evidence taken by commission does not become part of the trial unless and until the evidence is adduced at trial.

Open Court Principle

The open court principle means that media are not restricted from publishing any evidence taken by commission under s.

No Need to Prove Exhaustion

Section 709 does not require that the Crown establish that all other avenues have been excluded before a judge can issue an order.

Commission Evidence Considered at Trial

Any defect in the taking of commission evidence are to be considered in the same way as any evidence tendered at trial.

Commissioner for Oaths

When a commissioner of oaths is given an affidavit must do two things:

1. they administer the oath and
2. they fill out and sign the jurat at the end

A jurat is not an oath. It is a certificate that the oath has been administered. The oath is effective before the jurat is signed.