PART XXIIProcuring Attendance (continued)
Evidence on Commission (continued)
Marginal note: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.
Marginal note: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
Marginal note: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
Marginal note: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
Video and Audio Evidence
Marginal note:Audioconference and videoconference — witness in Canada
714.1 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
714.2 (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.
(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
714.3 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).
714.4 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.
714.41 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
714.5 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
714.6 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
714.7 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.
714.8 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
715 (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.
(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
- Date modified: