CHAPTER 145.

An Act respecting Witnesses and Evidence.

SHORT TITLE.

1. This Act may be cited as the Canada Evidence Act. 56 Short title. V., c. 31, s. 1.

PART I.

APPLICATION.

all matters

2. This Part shall apply to all criminal proceedings, and to Applies to all civil proceedings and other matters whatsoever respecting within legiswhich the Parliament of Canada has jurisdiction in this behalf. lative juris56 V., c. 31, s. 2.

WITNESSES.

diction of Canada.

3. A person shall not be incompetent to give evidence by No incomreason of interest or crime. 56 V., c. 31, s. 3.

petency from interest or crime.

husband

4. Every person charged with an offence, and, except as in Accused and this section otherwise provided, the wife or husband, as the wife or case may be, of the person so charged, shall be a competent competent witness for the defence, whether the person so charged is witnesses charged solely or jointly with any other person.

two

for defence.

band competent and compellable

witnesses for prosecution.

2. The wife or husband of a person charged with an offence Wife or husagainst any of the sections two hundred and two to two hundred and six inclusive, two hundred and eleven to hundred and nineteen inclusive, two hundred and thirty-eight, two hundred and thirty-nine, two hundred and forty-four, two hundred and forty-five, two hundred and ninety-eight to three hundred and two inclusive, three hundred and seven to three hundred and eleven inclusive, three hundred and thirteen to three hundred and sixteen inclusive of the Criminal Code, shall be a competent and compellable witness for the prosecution without the consent of the person charged.

3. No husband shall be compellable to disclose any com- Disclosure of munication made to him by his wife during their marriage, communica and no wife shall be compellable to disclose any communica- marriage not tion made to her by her husband during their marriage.

compellable.

4. Nothing in this section shall affect a case where the wife Saving. or husband of a person charged with an offence may at com

Failure to

testify not to be commented on.

Incriminating questions.

Answer not receivable against witness.

Evidence of mute.

Expert wit

nesses.

Not more than five without leave.

When leave to be obtained.

Handwriting, comparison.

Adverse witnesses

may be contradicted.

mon law be called as a witness without the consent of that person.

5. The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution. 6 E. VII., c. 10, s. 1.

5. No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

2. If with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence. 61 V., c. 53, s. 1; 1 E. VII.,

c. 36, s. 1.

6. A witness who is unable to speak, may give his evidence in any other manner in which he can make it intelligible. 56 V., c. 31, s. 6.

7. Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called upon either side without the leave of the court or judge or person presiding.

2. Such leave shall be applied for before the examination of any of the experts who may be examined without such leave. 2 E. VII., c. 9, s. 1.

8. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. 55-56 V., c. 29, s. 698.

9. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, such party

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party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular Previous occasion, shall be mentioned to the witness, and he shall be statements. asked whether or not he did make such statement. 55-56 V., c. 29, s. 699.

examina

statements

10. Upon any trial a witness may be cross-examined as to Crossprevious statements made by him in writing, or reduced to writing, relative to the subject-matter of the case, without such previous writing being shown to him: Provided that, if it is intended in writing. to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him; and that the judge, at any time during the trial, may require the production of the writing for his inspection, and thereupon make such use of it for the purposes of the trial as he thinks fit.

criminal in

2. A deposition of the witness, purporting to have been taken Deposition before a justice on the investigation of a criminal charge and of witness in to be signed by the witness and the justice, returned to and vestigation. produced from the custody of the proper officer, shall be presumed prima facie to have been signed by the witness. 55-56 V., c. 29, s. 700.

examination

statements.

11. If a witness upon cross-examination as to a former Crossstatement made by him relative to the subject-matter of the as to precase and inconsistent with his present testimony, does not dis- vious oral tinctly admit that he did make such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make such statement. 55-56 V., c. 29, s. 701.

tion as to

12. A witness may be questioned as to whether he has been Examinaconvicted of any offence, and upon being so questioned, if he previous either denies the fact or refuses to answer, the opposite party conviction. may prove such conviction.

How con

viction

2. The conviction may be proved by producing,(a) a certificate containing the substance and effect only, proved. omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if for an offence punishable upon summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if upon indictment, was 2409

had,

had, or to which the conviction, if summary, was returned; and,

(b) proof of identity. 55-56 V., c. 29, s. 695.

Who may administer oaths.

Affirmation by witness instead of oath.

Effect.

Affirmation

OATHS AND AFFIRMATIONS.

13. Every court and judge, and every person having, by law or consent of parties, authority to hear and receive evidence, shall have power to administer an oath to every witness who is legally called to give evidence before that court, judge or person. 56 V., c. 31, s. 22.

14. If a person called or desiring to give evidence, objects, on grounds of conscientious scruples, to take an oath, or is objected to as incompetent to take an oath, such person may make the following affirmation:

'I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth, and nothing but the truth.'

2. Upon the person making such solemn affirmation, his evidence shall be taken and have the same effect as if taken under oath. 56 V., c. 31, s. 23.

15. If a person required or desiring to make an affidavit or by deponent. deposition in a proceeding or on an occasion whereon or touching a matter respecting which an oath is required or is lawful, whether on the taking of office or otherwise, refuses or is unwilling to be sworn, on grounds of conscientious scruples, the court or judge, or other officer or person qualified to take affidavits or depositions, shall permit such person, instead of being sworn, to make his solemn affirmation in the words following, viz.: 'I, A. B., do solemnly affirm, etc.'; which solemn affirmation shall be of the same force and effect as if such person had taken an oath in the usual form.

Effect.

Evidence of child.

Must be corroborated.

2. Any witness whose evidence is admitted or who makes an affirmation under this or the last preceding section shall be liable to indictment and punishment for perjury in all respects as if he had been sworn. 56 V., c. 31, s. 24.

16. In any legal proceeding where a child of tender years is offered as a witness, and such child does not, in the opinion of the judge, justice or other presiding officer, understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the judge, justice or other presiding officer, as the case may be, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. 2. No case shall be decided upon such evidence alone, and such evidence must be corroborated by some other material evidence. 56 V., c. 31, s. 25.

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JUDICIAI