712

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(3) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 153]

Annotations

  • Part XXII

713

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.


Annotations

  • Part XXII

713.1

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.

Annotations

  • Part XXII

714

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.

Annotations

  • Part XXII

714.1

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.

Annotations

  • Part XXII

714.2

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.

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.

Annotations

  • Part XXII

714.3

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).

Annotations

  • Part XXII

714.4

Reasons

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.

Annotations

  • Part XXII

714.41

Cessation

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.

Annotations

  • Part XXII

714.5

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.

Annotations

  • Part XXII

714.6

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.

Annotations

  • Part XXII

714.7

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.

Annotations

  • Part XXII

714.8

Consent

714.8 Nothing in sections 714.1 to 714.7 is to be construed as preventing a court from receiving evidence by means of the technology referred to in sections 714.1 to 714.4 if the parties so consent.

Annotations

  • Part XXII

715

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.

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.

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).

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.

Exception

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

Annotations

  • Part XXII

715.01

Transcript of evidence

715.‍01 (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.

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.

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.

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).

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.

Exception

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

Annotations

  • Part XXII

715.1

Evidence of victim or witness under 18

715.1 (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.

Order prohibiting use

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

Annotations

  • Part XXII

715.2

Evidence of victim or witness who has a disability

715.2 (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.

Order prohibiting use

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

Annotations

  • Part XXII

715.21

Attendance

715.‍21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

Annotations

  • Part XXII

715.22

Provisions providing for audioconference or videoconference

715.‍22 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.

Annotations

  • Part XXII

715.23

Appearance by audioconference or videoconference

715.‍23 (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.

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.

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.

Annotations

  • Part XXII