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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2022-09-11 and last amended on 2022-06-23. Previous Versions

PART XXIIProcuring Attendance (continued)

Video and Audio Evidence

Marginal note:Audioconference and videoconference — witness in Canada

 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

  • (a) the location and personal circumstances of the witness;

  • (b) the costs that would be incurred if the witness were to appear personally;

  • (c) the nature of the witness’ anticipated evidence;

  • (d) the suitability of the location from where the witness will give evidence;

  • (e) the accused’s right to a fair and public hearing;

  • (f) the nature and seriousness of the offence; and

  • (g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

Marginal note:Videoconference — witness outside Canada

  •  (1) A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

  • Marginal note:Notice

    (2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than 10 days before the witness is scheduled to testify.

Marginal note:Audioconference — witness outside Canada

 The court may receive evidence given by a witness outside Canada by audioconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including those set out in paragraphs 714.1(a) to (g).

Marginal note:Reasons

 If the court does not make an order under section 714.1 or does not receive evidence under section 714.2 or 714.3, it shall include in the record a statement of the reasons for not doing so.

Marginal note:Cessation

 The court may, at any time, cease the use of the technological means referred to in section 714.1, 714.2 or 714.3 and take any measure that the court considers appropriate in the circumstances to have the witness give evidence.

Marginal note:Oath or affirmation

 The evidence referred to in section 714.2 or 714.3, that is given by a witness who is outside of Canada, shall be given

  • (a) under oath or affirmation in accordance with Canadian law;

  • (b) under oath or affirmation in accordance with the law in the place where the witness is physically present; or

  • (c) in any other manner that demonstrates that the witness understands that they must tell the truth.

Marginal note:Other laws about witnesses to apply

 When a witness who is outside Canada gives evidence under section 714.2 or 714.3, the evidence is deemed to be given in Canada, and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

Marginal note:Costs of technology

 Unless the court orders otherwise, a party who calls a witness to give evidence by means of the technology referred to in section 714.1, 714.2 or 714.3 shall pay any costs associated with the use of the technology.

Marginal note:Consent

 Nothing in sections 714.1 to 714.7 is to be construed as preventing a court from receiving evidence by audioconference or videoconference, if the parties so consent.

Evidence Previously Taken

Marginal note:Evidence at preliminary inquiry may be read at trial in certain cases

  •  (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

    • (a) is dead,

    • (b) has since become and is insane,

    • (c) is so ill that he is unable to travel or testify, or

    • (d) is absent from Canada,

    and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

  • Marginal note:Admission of evidence

    (2) Evidence that has been taken on the preliminary inquiry or other investigation of a charge against an accused may be admitted as evidence in the prosecution of the accused for any other offence on the same proof and in the same manner in all respects, as it might, according to law, be admitted as evidence in the prosecution of the offence with which the accused was charged when the evidence was taken.

  • Marginal note:Admission of evidence

    (2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1).

  • Marginal note:Absconding accused deemed present

    (3) For the purposes of this section, where evidence was taken at a previous trial or preliminary hearing or other proceeding in respect of an accused in the absence of the accused, who was absent by reason of having absconded, the accused is deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness.

  • Marginal note:Exception

    (4) Subsections (1) to (3) do not apply in respect of evidence received under subsection 540(7).

  • R.S., 1985, c. C-46, s. 715
  • 1994, c. 44, s. 77
  • 1997, c. 18, s. 105
  • 2002, c. 13, s. 72
  • 2008, c. 18, s. 34

Marginal note:Transcript of evidence

  •  (1) Despite section 715, the transcript of testimony given by a police officer, as defined in section 183, in the presence of an accused during a voir dire or preliminary inquiry held in relation to the accused’s trial may be received in evidence at that trial.

  • Marginal note:Notice of intention to produce evidence

    (2) No transcript is to be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the transcript.

  • Marginal note:Attendance of police officer

    (3) The court may require the attendance of the police officer for the purposes of examination or cross-examination, as the case may be.

  • Marginal note:Admission of evidence

    (4) Despite subsection (1), evidence that has been taken at a preliminary inquiry in the absence of an accused may be received in evidence for the purposes referred to in that subsection if the accused’s absence was authorized by a justice under paragraph 537(1)(j.1).

  • Marginal note:Absconding accused deemed present

    (5) For the purposes of this section, if evidence was taken during a voir dire or preliminary inquiry in the absence of an accused, who was absent by reason of having absconded, the accused is deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness.

  • Marginal note:Exception

    (6) This section does not apply to any evidence received under subsection 540(7).

Video-recorded Evidence

Marginal note:Evidence of victim or witness under 18

  •  (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

  • Marginal note:Order prohibiting use

    (2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

  • R.S., 1985, c. 19 (3rd Supp.), s. 16
  • 1997, c. 16, s. 7
  • 2005, c. 32, s. 23

Marginal note:Evidence of victim or witness who has a disability

  •  (1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

  • Marginal note:Order prohibiting use

    (2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

  • 1998, c. 9, s. 8
  • 2005, c. 32, s. 23

PART XXII.01Remote Attendance by Certain Persons

Principles

Marginal note:Attendance

 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

Marginal note:Provisions providing for audioconference or videoconference

 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

Accused

Marginal note:Appearance by audioconference or videoconference

  •  (1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

    • (a) the location and personal circumstances of the accused;

    • (b) the costs that would be incurred if the accused were to appear personally;

    • (c) the suitability of the location from where the accused will appear;

    • (d) the accused’s right to a fair and public hearing; and

    • (e) the nature and seriousness of the offence.

  • Marginal note:Reasons

    (2) If the court does not make an order under subsection (1) it shall include in the record a statement of the reasons for not doing so.

  • Marginal note:Cessation

    (3) The court may, at any time, cease the use of the technological means referred to in subsection (1) and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding.

Marginal note:Accused in prison

 Despite anything in this Act, if an accused who is in prison does not have access to legal advice during the proceedings, the court shall, before permitting the accused to appear by videoconference, be satisfied that the accused will be able to understand the proceedings and that any decisions made by the accused during the proceedings will be voluntary.

Participants

Marginal note:Definition of participant

  •  (1) In this section, participant means any person, other than an accused, a witness, a juror, a judge or a justice, who may participate in a proceeding.

  • Marginal note:Participation by audioconference or videoconference

    (2) Except as otherwise provided in this Act, the court may order a participant to participate in a proceeding by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

    • (a) the location and personal circumstances of the participant;

    • (b) the costs that would be incurred if the participant were to participate personally;

    • (c) the nature of the participation;

    • (d) the suitability of the location from where the participant will participate;

    • (e) the accused’s right to a fair and public hearing; and

    • (f) the nature and seriousness of the offence.

  • Marginal note:Reasons

    (3) If the court does not make an order under subsection (2) it shall include in the record a statement of the reasons for not doing so.

  • Marginal note:Cessation

    (4) The court may, at any time, cease the use of the technological means referred to in subsection (2) and take any measure that the court considers appropriate in the circumstances to have the participant participate in the proceeding.

  • Marginal note:Costs

    (5) Unless the court orders otherwise, a party who has a participant participate by audioconference or videoconference shall pay any costs associated with the use of that technology.

 
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