- (a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable on 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 on indictment, was had, or to which the conviction, if summary, was returned; and
- (b) proof of identity.
- R.S., 1985, c. C-5, s. 12
- 1992, c. 47, s. 66
Oaths and Solemn Affirmations
Marginal note: Who may administer oaths
13 Every court and judge, and every person having, by law or consent of parties, authority to hear and receive evidence, has power to administer an oath to every witness who is legally called to give evidence before that court, judge or person.
- R.S., c. E-10, s. 13
Marginal note: Solemn affirmation by witness instead of oath
- 14 (1) A person may, instead of taking an oath, make the following solemn affirmation: I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.
- Marginal note: Effect (2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath.
- R.S., 1985, c. C-5, s. 14
- 1994, c. 44, s. 87
Marginal note: Solemn affirmation by deponent
- 15 (1) Where a person who is required or who desires to make an affidavit or deposition in a proceeding or on an occasion on which or concerning a matter respecting which an oath is required or is lawful, whether on the taking of office or otherwise, does not wish to take an oath, the court or judge, or other officer or person qualified to take affidavits or depositions, shall permit the person to make a solemn affirmation in the words following, namely, “I, , do solemnly affirm, etc.”, and that solemn affirmation has the same force and effect as if that person had taken an oath.
- Marginal note: Effect (2) Any witness whose evidence is admitted or who makes a solemn affirmation under this section or section 14 is liable to indictment and punishment for perjury in all respects as if he had been sworn.
- R.S., 1985, c. C-5, s. 15
- 1994, c. 44, s. 88
Marginal note: Witness whose capacity is in question
- 16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
- (a) whether the person understands the nature of an oath or a solemn affirmation; and
- (b) whether the person is able to communicate the evidence.
- R.S., 1985, c. C-5, s. 16
- R.S., 1985, c. 19 (3rd Supp.), s. 18
- 1994, c. 44, s. 89
- 2005, c. 32, s. 26
- 2015, c. 13, s. 53
Marginal note: Person under fourteen years of age
- 16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
- Marginal note: No oath or solemn affirmation (2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
- Marginal note: Evidence shall be received (3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
- Marginal note: Burden as to capacity of witness (4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.
- Marginal note: Court inquiry (5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
- Marginal note: Promise to tell truth (6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
- Marginal note: Understanding of promise (7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
- Marginal note: Effect (8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.
- 2005, c. 32, s. 27
Judicial Notice
Marginal note: Imperial Acts, etc.
17 Judicial notice shall be taken of all Acts of the Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of any province or colony that, or some portion of which, now forms or hereafter may form part of Canada, and of all the Acts of the legislature of any such province or colony, whether enacted before or after the passing of the Constitution Act, 1867 .
- R.S., c. E-10, s. 17
Marginal note: Acts of Canada
18 Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.
- R.S., c. E-10, s. 18
Documentary Evidence
Marginal note: Copies by Queen’s Printer
19 Every copy of any Act of Parliament, public or private, published by the Queen’s Printer, is evidence of that Act and of its contents, and every copy purporting to be published by the Queen’s Printer shall be deemed to be so published, unless the contrary is shown.
- R.S., 1985, c. C-5, s. 19
- 2000, c. 5, s. 52
Marginal note: Imperial proclamations, etc.
20 Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other Imperial official records, Acts or documents may be proved
- (a) in the same manner as they may from time to time be provable in any court in England;
- (b) by the production of a copy of the Canada Gazette , or a volume of the Acts of Parliament purporting to contain a copy of the same or a notice thereof; or
- (c) by the production of a copy of them purporting to be published by the Queen’s Printer.
- R.S., 1985, c. C-5, s. 20
- 2000, c. 5, s. 53
Marginal note: Proclamations, etc., of Governor General
21 Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada and evidence of a treaty to which Canada is a party, may be given in all or any of the following ways:
- (a) by the production of a copy of the Canada Gazette , or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
- (b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
- (c) by the production of a copy of the treaty purporting to be published by the Queen’s Printer;
- (d) by the production, in the case of any proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council, of a copy or extract purporting to be certified to be true by the clerk or assistant or acting clerk of the Queen’s Privy Council for Canada; and
- (e) by the production, in the case of any order, regulation or appointment made or issued by or under the authority of any minister or head of a department of the Government of Canada, of a copy or extract purporting to be certified to be true by the minister, by his deputy or acting deputy, or by the secretary or acting secretary of the department over which he presides.
- R.S., 1985, c. C-5, s. 21
- 2000, c. 5, s. 54
Marginal note: Proclamations, etc., of lieutenant governor
- 22 (1) Evidence of any proclamation, order, regulation or appointment made or issued by a lieutenant governor or lieutenant governor in council of any province, or by or under the authority of any member of the executive council, being the head of any department of the government of the province, may be given in all or any of the following ways:
- (a) by the production of a copy of the official gazette for the province purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice thereof;
- (b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be published by the government or Queen’s Printer for the province; and
- (c) by the production of a copy or extract of the proclamation, order, regulation or appointment purporting to be certified to be true by the clerk or assistant or acting clerk of the executive council, by the head of any department of the government of a province, or by his deputy or acting deputy, as the case may be.
- R.S., 1985, c. C-5, s. 22
- 1993, c. 28, s. 78
- 2000, c. 5, s. 55
- 2002, c. 7, s. 96
- 2014, c. 2, s. 5
Marginal note: Evidence of judicial proceedings, etc.
- 23 (1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, any court in a province, any court in a British colony or possession or any court of record of the United States, of a state of the United States or of any other foreign country, or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.
- Marginal note: Certificate where court has no seal (2) Where any court, justice or coroner or court stenographer referred to in subsection (1) has no seal, or so certifies, the evidence may be given by a copy purporting to be certified under the signature of a judge or presiding provincial court judge or of the justice or coroner or court stenographer, without any proof of the authenticity of the signature or other proof whatever.
- R.S., 1985, c. C-5, s. 23
- R.S., 1985, c. 27 (1st Supp.), s. 203
- 1993, c. 34, s. 15
- 1997, c. 18, s. 117
- 2002, c. 8, s. 118
Marginal note: Certified copies
24 In every case in which the original record could be admitted in evidence,
- (a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or
- (b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof,
is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.
- R.S., c. E-10, s. 24
Marginal note: Books and documents
25 Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.
- R.S., c. E-10, s. 25
Marginal note: Books kept in offices under Government of Canada
- 26 (1) A copy of any entry in any book kept in any office or department of the Government of Canada, or in any commission, board or other branch in the federal public administration, shall be admitted as evidence of that entry, and of the matters, transactions and accounts therein recorded, if it is proved by the oath or affidavit of an officer of the office or department, commission, board or other branch in the federal public administration that the book was, at the time of the making of the entry, one of the ordinary books kept in the office, department, commission, board or other branch in the federal public administration, that the entry was made in the usual and ordinary course of business of the office, department, commission, board or other branch in the federal public administration and that the copy is a true copy thereof.
- Marginal note: Proof of non-issue of licence or document (2) Where by any Act of Parliament or regulation made under an Act of Parliament provision is made for the issue by a department, commission, board or other branch in the federal public administration of a licence requisite to the doing or having of any act or thing or for the issue of any other document, an affidavit of an officer of the department, commission, board or other branch in the federal public administration, sworn before any commissioner or other person authorized to take affidavits, setting out that he or she has charge of the appropriate records and that after careful examination and search of those records he or she has been unable to find in any given case that any such licence or other document has been issued, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that in that case no licence or other document has been issued.
- Marginal note: Proof of mailing departmental matter (3) Where by any Act of Parliament or regulation made under an Act of Parliament provision is made for sending by mail any request for information, notice or demand by a department or other branch in the federal public administration, an affidavit of an officer of the department or other branch in the federal public administration, sworn before any commissioner or other person authorized to take affidavits, setting out that he or she has charge of the appropriate records, that he or she has a knowledge of the facts in the particular case, that the request, notice or demand was sent by registered letter on a named date to the person or firm to whom it was addressed (indicating that address) and that he or she identifies as exhibits attached to the affidavit the post office certificate of registration of the letter and a true copy of the request, notice or demand, shall, on production and proof of the post office receipt for the delivery of the registered letter to the addressee, be admitted in evidence as proof, in the absence of evidence to the contrary, of the sending and of the request, notice or demand.
- Marginal note: Proof of official character (4) Where proof is offered by affidavit pursuant to this section, it is not necessary to prove the official character of the person making the affidavit if that information is set out in the body of the affidavit.
- R.S., 1985, c. C-5, s. 26
- 2003, c. 22, s. 104(E)
Marginal note: Notarial acts in Quebec
27 Any document purporting to be a copy of a notarial act or instrument made, filed or registered in the Province of Quebec, and to be certified by a notary or prothonotary to be a true copy of the original in his possession as such notary or prothonotary, shall be admitted in evidence in the place and stead of the original and has the same force and effect as the original would have if produced and proved, but it may be proved in rebuttal that there is no original, that the copy is not a true copy of the original in some material particular or that the original is not an instrument of such nature as may, by the law of the Province of Quebec, be taken before a notary or be filed, enrolled or registered by a notary in that Province.
- R.S., c. E-10, s. 27
Marginal note: Notice of production of book or document
- 28 (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
- Marginal note: Not less than 7 days (2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
- R.S., c. E-10, s. 28
Marginal note: Copies of entries
- 29 (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded.
- Marginal note: Admission in evidence (2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.
- Marginal note: Cheques, proof of “no account” (3) Where a cheque has been drawn on any financial institution or branch thereof by any person, an affidavit of the manager or accountant of the financial institution or branch, sworn before any commissioner or other person authorized to take affidavits, setting out that he is the manager or accountant, that he has made a careful examination and search of the books and records for the purpose of ascertaining whether or not that person has an account with the financial institution or branch and that he has been unable to find such an account, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that that person has no account in the financial institution or branch.
- Marginal note: Proof of official character (4) Where evidence is offered by affidavit pursuant to this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.
- Marginal note: Compulsion of production or appearance (5) A financial institution or officer of a financial institution is not in any legal proceedings to which the financial institution is not a party compellable to produce any book or record, the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of the court made for special cause.
- Marginal note: Order to inspect and copy (6) On the application of any party to a legal proceeding, the court may order that that party be at liberty to inspect and take copies of any entries in the books or records of a financial institution for the purposes of the legal proceeding, and the person whose account is to be inspected shall be notified of the application at least two clear days before the hearing thereof, and if it is shown to the satisfaction of the court that he cannot be notified personally, the notice may be given by addressing it to the financial institution.
- Marginal note: Warrants to search (7) Nothing in this section shall be construed as prohibiting any search of the premises of a financial institution under the authority of a warrant to search issued under any other Act of Parliament, but unless the warrant is expressly endorsed by the person under whose hand it is issued as not being limited by this section, the authority conferred by any such warrant to search the premises of a financial institution and to seize and take away anything in it shall, with respect to the books or records of the institution, be construed as limited to the searching of those premises for the purpose of inspecting and taking copies of entries in those books or records, and section 490 of the Criminal Code does not apply in respect of the copies of those books or records obtained under a warrant referred to in this section.
- Marginal note: Computation of time (8) Holidays shall be excluded from the computation of time under this section.
- Marginal note: Definitions (9) In this section, means the court, judge, arbitrator or person before whom a legal proceeding is held or taken; ( tribunal ) means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions; ( institution financière ) means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration. ( procédure judiciaire )
- R.S., 1985, c. C-5, s. 29
- 1994, c. 44, s. 90
- 1995, c. 28, s. 47
- 1999, c. 28, s. 149
Marginal note: Business records to be admitted in evidence
- 30 (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
- Marginal note: Inference where information not in business record (2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.
- Marginal note: Copy of records (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is
- (a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or
- (b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.
- (a) an affidavit of that person sworn before a commissioner or other person authorized to take affidavits; or
- (b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.
- (a) such part of any record as is proved to be
- (i) a record made in the course of an investigation or inquiry,
- (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
- (iii) a record in respect of the production of which any privilege exists and is claimed, or
- (iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;
- (a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or
- (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.
- R.S., 1985, c. C-5, s. 30
- 1994, c. 44, s. 91
Marginal note: Definitions
- 31 (1) In this section, means any bank, including the Bank of Canada and the Business Development Bank of Canada, any authorized foreign bank within the meaning of section 2 of the Bank Act and each of the following carrying on business in Canada, namely, every railway, express, telegraph and telephone company (except a street railway and tramway company), insurance company or society, trust company and loan company; ( personne morale ) means the government of Canada or of any province and includes any department, commission, board or branch of any such government; ( gouvernement ) includes any photographic plate, microphotographic film and photostatic negative. ( pellicule photographique )
- Marginal note: When print admissible in evidence (2) A print, whether enlarged or not, from any photographic film of
- (a) an entry in any book or record kept by any government or corporation and destroyed, lost or delivered to a customer after the film was taken,
- (b) any bill of exchange, promissory note, cheque, receipt, instrument or document held by any government or corporation and destroyed, lost or delivered to a customer after the film was taken, or
- (c) any record, document, plan, book or paper belonging to or deposited with any government or corporation,
is admissible in evidence in all cases in which and for all purposes for which the object photographed would have been admitted on proof that
- (d) while the book, record, bill of exchange, promissory note, cheque, receipt, instrument or document, plan, book or paper was in the custody or control of the government or corporation, the photographic film was taken thereof in order to keep a permanent record thereof, and
- (e) the object photographed was subsequently destroyed by or in the presence of one or more of the employees of the government or corporation, or was lost or was delivered to a customer.
- R.S., 1985, c. C-5, s. 31
- 1992, c. 1, s. 142
- 1995, c. 28, s. 47
- 1999, c. 28, s. 150
Marginal note: Authentication of electronic documents
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
- 2000, c. 5, s. 56
Marginal note: Application of best evidence rule — electronic documents
- 31.2 (1) The best evidence rule in respect of an electronic document is satisfied
- (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or
- (b) if an evidentiary presumption established under section 31.4 applies.
- 2000, c. 5, s. 56
Marginal note: Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven
- (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;
- (b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or
- (c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.
- 2000, c. 5, s. 56
Marginal note: Presumptions regarding secure electronic signatures
31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting
- (a) the association of secure electronic signatures with persons; and
- (b) the integrity of information contained in electronic documents signed with secure electronic signatures.
- 2000, c. 5, s. 56
Marginal note: Standards may be considered
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
- 2000, c. 5, s. 56
Marginal note: Proof by affidavit
- 31.6 (1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit.
- Marginal note: Cross-examination (2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence
- (a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and
- (b) with leave of the court, in the case of any other deponent.
- 2000, c. 5, s. 56
Marginal note: Application
31.7 Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence.
- 2000, c. 5, s. 56
Marginal note: Definitions
31.8 The definitions in this section apply in sections 31.1 to 31.6.
means a device that, or a group of interconnected or related devices one or more of which,
- (a) contains computer programs or other data; and
- (b) pursuant to computer programs, performs logic and control, and may perform any other function. ( système informatique )
means representations of information or of concepts, in any form. ( données )
means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data. ( document électronique )
includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents. ( système d’archivage électronique )
means a secure electronic signature as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act . ( signature électronique sécurisée )
- 2000, c. 5, s. 56
Marginal note: Order signed by Secretary of State
- 32 (1) An order signed by the Secretary of State of Canada and purporting to be written by command of the Governor General shall be admitted in evidence as the order of the Governor General.
- Marginal note: Copies published in Canada Gazette (2) All copies of official and other notices, advertisements and documents published in the Canada Gazette are admissible in evidence as proof, in the absence of evidence to the contrary, of the originals and of their contents.
- R.S., 1985, c. C-5, s. 32
- 2000, c. 5, s. 57
Marginal note: Proof of handwriting of person certifying
- 33 (1) No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, regulation, appointment, book or other document.
- Marginal note: Printed or written (2) Any copy or extract referred to in subsection (1) may be in print or in writing, or partly in print and partly in writing.
- R.S., c. E-10, s. 33
Marginal note: Attesting witness
- 34 (1) It is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite.
- Marginal note: Instrument, how proved (2) Any instrument referred to in subsection (1) may be proved by admission or otherwise as if there had been no attesting witness thereto.
- R.S., c. E-10, s. 34
Marginal note: Impounding of forged instrument
35 Where any instrument that has been forged or fraudulently altered is admitted in evidence, the court or the judge or person who admits the instrument may, at the request of any person against whom it is admitted in evidence, direct that the instrument shall be impounded and be kept in the custody of an officer of the court or other proper person for such period and subject to such conditions as to the court, judge or person admitting the instrument seem meet.
- R.S., c. E-10, s. 35
Marginal note: Construction
36 This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act or existing at law.
- R.S., c. E-10, s. 36
Interpretation
36.1 In sections 37 to 38.16, has the same meaning as in section 118 of the Criminal Code .
- 2001, c. 41, s. 43
Specified Public Interest
Marginal note: Objection to disclosure of information
- 37 (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
- Marginal note: Obligation of court, person or body (1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.
- Marginal note: Objection made to superior court (2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.
- Marginal note: Objection not made to superior court (3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by
- (a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or
- (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.
- R.S., 1985, c. C-5, s. 37
- 2001, c. 41, ss. 43, 140
- 2002, c. 8, s. 183
- 2013, c. 9, s. 17(E)
Marginal note: Appeal to court of appeal
- 37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6)
- (a) to the Federal Court of Appeal from a determination of the Federal Court; or
- (b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.
- 2001, c. 41, ss. 43, 141
Marginal note: Limitation periods for appeals to Supreme Court of Canada
37.2 Notwithstanding any other Act of Parliament,
- (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and
- (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the court that grants leave.
- 2001, c. 41, s. 43
37.21 [Repealed, 2004, c. 12, s. 18]
Marginal note: Protection of right to a fair trial
- 37.3 (1) A judge presiding at a criminal trial or other criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.
- Marginal note: Potential orders (2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:
- (a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;
- (b) an order effecting a stay of the proceedings; and
- (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
- 2001, c. 41, s. 43
- 2015, c. 3, s. 14(F)
International Relations and National Defence and National Security
Marginal note: Definitions
38 The following definitions apply in this section and in sections 38.01 to 38.15.
means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04. ( juge )
means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. ( participant )
means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. ( renseignements potentiellement préjudiciables )
means a proceeding before a court, person or body with jurisdiction to compel the production of information. ( instance )
means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding. ( poursuivant )
means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. ( renseignements sensibles )
- R.S., 1985, c. C-5, s. 38
- 2001, c. 41, ss. 43, 141
- 2013, c. 9, s. 18(F)
Marginal note: Notice to Attorney General of Canada
- 38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
- Marginal note: During a proceeding (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
- Marginal note: Notice of disclosure from official (3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
- Marginal note: During a proceeding (4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
- Marginal note: Military proceedings (5) In the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.
- Marginal note: Exception (6) This section does not apply when
- (a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding;
- (b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under section 38, this section and sections 38.02 to 38.13, 38.15 and 38.16;
- (c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received; or
- (d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule.
- 2001, c. 41, s. 43
- 2019, c. 15, s. 48
Marginal note: Disclosure prohibited
- 38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding
- (a) information about which notice is given under any of subsections 38.01(1) to (4);
- (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5);
- (c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or
- (d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6).
- (a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or
- (b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available.
- 2001, c. 41, ss. 43, 141
Marginal note: Authorization by Attorney General of Canada
- 38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1).
- Marginal note: Military proceedings (2) In the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.
- Marginal note: Notice (3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information.
- 2001, c. 41, s. 43
- 2019, c. 15, s. 49
Marginal note: Disclosure agreement
- 38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(2)(c), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions.
- Marginal note: No application to Federal Court (2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2).
- 2001, c. 41, ss. 43, 141
Marginal note: Application to Federal Court — Attorney General of Canada
- 38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).
- Marginal note: Application to Federal Court — general (2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, does not authorize the disclosure of the information or authorizes the disclosure of only part of the information or authorizes the disclosure subject to any conditions,
- (a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness;
- (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and
- (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information.
- (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Minister of National Defence, with respect to making the application public;
- (a.1) shall, if he or she decides that the application should be made public, make an order to that effect;
- (a.2) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter;
- (b) shall decide whether it is necessary to hold any hearing of the matter;
- (c) if he or she decides that a hearing should be held, shall
- (i) determine who should be given notice of the hearing,
- (ii) order the Attorney General of Canada to notify those persons, and
- (iii) determine the content and form of the notice; and
- (a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of the information or disclosure of the facts or information subject to conditions; and
- (b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated.
- 2001, c. 41, ss. 43, 141
- 2013, c. 9, s. 19
- 2019, c. 15, s. 50
Marginal note: Report relating to proceedings
38.05 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge.
- 2001, c. 41, s. 43
Marginal note: Disclosure order
- 38.06 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.02(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts.
- Marginal note: Disclosure — conditions (2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.
- Marginal note: Order confirming prohibition (3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure.
- Marginal note: When determination takes effect (3.01) An order of the judge that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal court that confirms the order has expired and no further appeal from a judgment that confirms the order is available.
- Marginal note: Evidence (3.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
- Marginal note: Introduction into evidence (4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).
- Marginal note: Relevant factors (5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding.
- 2001, c. 41, s. 43
- 2013, c. 9, s. 20
Marginal note: Notice of order
38.07 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified.
- 2001, c. 41, s. 43
Marginal note: Automatic review
38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review.
- 2001, c. 41, s. 43
Marginal note: Appeal to Federal Court of Appeal
- 38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.
- Marginal note: Limitation period for appeal (2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances.
- 2001, c. 41, s. 43
Marginal note: Limitation periods for appeals to Supreme Court of Canada
38.1 Notwithstanding any other Act of Parliament,
- (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and
- (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the Supreme Court of Canada.
- 2001, c. 41, s. 43
Marginal note: Special rules — hearing in private
- 38.11 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make an order that the hearing be held, or the appeal or review be heard, in private.
- Marginal note: Special rules — hearing in National Capital Region (1.1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Minister of National Defence, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act .
- Marginal note: Ex parte representations (2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Minister of National Defence, the opportunity to make representations ex parte .
- Marginal note: Ex parte representations — public hearing (3) If a hearing under subsection 38.04(5) is held, or an appeal or review of an order made under any of subsections 38.06(1) to (3) is heard, in public, any ex parte representations made in that hearing, appeal or review shall be made in private.
- 2001, c. 41, s. 43
- 2013, c. 9, s. 21
- 2019, c. 15, s. 51
Marginal note: Protective order
- 38.12 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of any information to which the hearing, appeal or review relates.
- Marginal note: Court records (2) The court records relating to a hearing that is held, or an appeal or review that is heard, in private or to any ex parte representations are confidential. The judge or the court may order that the court records, or any part of them, relating to a private or public hearing, appeal or review be sealed and kept in a location to which the public has no access.
- 2001, c. 41, s. 43
- 2013, c. 9, s. 22
Marginal note: Certificate of Attorney General of Canada
- 38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.
- Marginal note: Military proceedings (2) In the case of a proceeding under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, the Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.
- Marginal note: Service of certificate (3) The Attorney General of Canada shall cause a copy of the certificate to be served on
- (a) the person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside;
- (b) every party to the proceeding;
- (c) every person who gives notice under section 38.01 in connection with the proceeding;
- (d) every person who, in connection with the proceeding, may disclose, is required to disclose or may cause the disclosure of the information about which the Attorney General of Canada has received notice under section 38.01;
- (e) every party to a hearing under subsection 38.04(5) or to an appeal of an order made under any of subsections 38.06(1) to (3) in relation to the information;
- (f) the judge who conducts a hearing under subsection 38.04(5) and any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3) in relation to the information; and
- (g) any other person who, in the opinion of the Attorney General of Canada, should be served.
- (a) with the person responsible for the records of the proceeding to which the information relates; and
- (b) in the Registry of the Federal Court and the registry of any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3).
- 2001, c. 41, s. 43
- 2013, c. 9, s. 23
- 2019, c. 15, s. 52
Marginal note: Application for review of certificate
- 38.131 (1) A party to the proceeding referred to in section 38.13 may apply to the Federal Court of Appeal for an order varying or cancelling a certificate issued under that section on the grounds referred to in subsection (8) or (9), as the case may be.
- Marginal note: Notice to Attorney General of Canada (2) The applicant shall give notice of the application to the Attorney General of Canada.
- Marginal note: Military proceedings (3) In the case of proceedings under Part III of the National Defence Act , other than a as defined in subsection 2(1) of that Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.
- Marginal note: Single judge (4) Notwithstanding section 16 of the Federal Court Act , for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.
- Marginal note: Admissible information (5) In considering the application, the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base a determination made under any of subsections (8) to (10) on that evidence.
- Marginal note: Special rules and protective order (6) Sections 38.11 and 38.12 apply, with any necessary modifications, to an application made under subsection (1).
- Marginal note: Expedited consideration (7) The judge shall consider the application as soon as reasonably possible, but not later than 10 days after the application is made under subsection (1).
- Marginal note: Varying the certificate (8) If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act , or to national defence or national security, the judge shall make an order varying the certificate accordingly.
- Marginal note: Cancelling the certificate (9) If the judge determines that none of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act , or to national defence or national security, the judge shall make an order cancelling the certificate.
- Marginal note: Confirming the certificate (10) If the judge determines that all of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act , or to national defence or national security, the judge shall make an order confirming the certificate.
- Marginal note: Determination is final (11) Notwithstanding any other Act of Parliament, a determination of a judge under any of subsections (8) to (10) is final and is not subject to review or appeal by any court.
- Marginal note: Publication (12) If a certificate is varied or cancelled under this section, the Attorney General of Canada shall, as soon as possible after the decision of the judge and in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette
- (a) the certificate as varied under subsection (8); or
- (b) a notice of the cancellation of the certificate under subsection (9).
- 2001, c. 41, s. 43
- 2004, c. 12, s. 19(E)
- 2019, c. 15, s. 53
Marginal note: Protection of right to a fair trial
- 38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.
- Marginal note: Potential orders (2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:
- (a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;
- (b) an order effecting a stay of the proceedings; and
- (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
- 2001, c. 41, s. 43
Marginal note: Fiat
- 38.15 (1) If sensitive information or potentially injurious information may be disclosed in connection with a prosecution that is not instituted by the Attorney General of Canada or on his or her behalf, the Attorney General of Canada may issue a fiat and serve the fiat on the prosecutor.
- Marginal note: Effect of fiat (2) When a fiat is served on a prosecutor, the fiat establishes the exclusive authority of the Attorney General of Canada with respect to the conduct of the prosecution described in the fiat or any related process.
- Marginal note: Fiat filed in court (3) If a prosecution described in the fiat or any related process is conducted by or on behalf of the Attorney General of Canada, the fiat or a copy of the fiat shall be filed with the court in which the prosecution or process is conducted.
- Marginal note: Fiat constitutes conclusive proof (4) The fiat or a copy of the fiat
- (a) is conclusive proof that the prosecution described in the fiat or any related process may be conducted by or on behalf of the Attorney General of Canada; and
- (b) is admissible in evidence without proof of the signature or official character of the Attorney General of Canada.
- 2001, c. 41, s. 43
Marginal note: Regulations
38.16 The Governor in Council may make any regulations that the Governor in Council considers necessary to carry into effect the purposes and provisions of sections 38 to 38.15, including regulations respecting the notices, certificates and the fiat.
- 2001, c. 41, s. 43
Marginal note: Annual report
38.17 Each year the Attorney General of Canada shall prepare and cause to be laid before each House of Parliament a report for the previous year on the operation of sections 38.13 and 38.15 that includes the number of certificates and fiats issued under sections 38.13 and 38.15, respectively.
- 2013, c. 9, s. 24
Confidences of the Queen’s Privy Council for Canada
Marginal note: Objection relating to a confidence of the Queen’s Privy Council
- 39 (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
- Marginal note: Definition (2) For the purpose of subsection (1), includes, without restricting the generality thereof, information contained in
- (a) a memorandum the purpose of which is to present proposals or recommendations to Council;
- (b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;
- (c) an agendum of Council or a record recording deliberations or decisions of Council;
- (d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
- (e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and
- (f) draft legislation.
- (a) a confidence of the Queen’s Privy Council for Canada that has been in existence for more than twenty years; or
- (b) a discussion paper described in paragraph (2)(b)
- (i) if the decisions to which the discussion paper relates have been made public, or
- (ii) where the decisions have not been made public, if four years have passed since the decisions were made.
- R.S., 1985, c. C-5, s. 39
- 1992, c.1, s. 144(F)
Journalistic Sources
Marginal note: Definitions
- 39.1 (1) The following definitions apply in this section. has the same meaning as in section 487.011 of the Criminal Code . ( document ) means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person. ( journaliste ) means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source. ( source journalistique )
- Marginal note: Objection (2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source.
- Marginal note: Former journalist (3) For the purposes of subsections (2) and (7), includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.
- Marginal note: Power of court, person or body (4) The court, person or body may raise the application of subsection (2) on their own initiative.
- Marginal note: Objection of court, person or body (5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section.
- Marginal note: Observations (6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.
- Marginal note: Authorization (7) The court, person or body may authorize the disclosure of information or a document only if they consider that
- (a) the information or document cannot be produced in evidence by any other reasonable means; and
- (b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,
- (i) the importance of the information or document to a central issue in the proceeding,
- (ii) freedom of the press, and
- (iii) the impact of disclosure on the journalistic source and the journalist.
- (a) to the Federal Court of Appeal from a determination of the Federal Court;
- (b) to the court of appeal of a province from a determination of a superior court of the province;
- (c) to the Federal Court from a determination of a court, person or body vested with power to compel production by or under an Act of Parliament if the court, person or body is not established under a law of a province; or
- (d) to the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.
- 2017, c. 22, s. 2
Provincial Laws of Evidence
Marginal note: How applicable
40 In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.
- R.S., c. E-10, s. 37
Statutory Declarations
Marginal note: Solemn declaration
41 Any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the declaration before him, in the following form, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing:
I, , solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.
Declared before me at this day of 19
- R.S., 1985, c. C-5, s. 41
- R.S., 1985, c. 27 (1st Supp.), s. 203
Insurance Proofs
Marginal note: Affidavits, etc.
42 Any affidavit, solemn affirmation or declaration required by any insurance company authorized by law to do business in Canada, in regard to any loss of or injury to person, property or life insured or assured therein, may be taken before any commissioner or other person authorized to take affidavits, before any justice of the peace or before any notary public for any province, and the commissioner, person, justice of the peace or notary public is required to take the affidavit, solemn affirmation or declaration.
- R.S., c. E-10, s. 39
Part II
Application
Marginal note: Foreign courts
43 This Part applies to the taking of evidence relating to proceedings in courts out of Canada.
- R.S., c. E-10, s. 40
Interpretation
Marginal note: Definitions
44 In this Part,
includes a proceeding against a criminal; ( cause )
means any superior court in any province; ( tribunal )
means any judge of any superior court in any province; ( juge )
includes a solemn affirmation in cases in which, by the law of Canada, or of a province, as the case may be, a solemn affirmation is allowed instead of an oath. ( serment )
- R.S., c. E-10, s. 41
- 1984, c. 40, s. 27
Marginal note: Construction
45 This Part shall not be so construed as to interfere with the right of legislation of the legislature of any province requisite or desirable for the carrying out of the objects hereof.
- R.S., c. E-10, s. 42
Procedure
Marginal note: Order for examination of witness in Canada
- 46 (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.
- Marginal note: Video links, etc. (2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.
- R.S., 1985, c. C-5, s. 46
- 1999, c. 18, s. 89
Marginal note: Enforcement of the order
47 On the service on the party or witness of an order referred to in section 46, and of an appointment of a time and place for the examination of the party or witness signed by the person named in the order for taking the examination, or, if more than one person is named, by one of the persons named, and on payment or tender of the like conduct money as is properly payable on attendance at a trial, the order may be enforced in like manner as an order made by the court or judge in a cause pending in that court or before that judge.
- R.S., c. E-10, s. 44
Marginal note: Expenses and conduct money
48 Every person whose attendance is required in the manner described in section 47 is entitled to the like conduct money and payment for expenses and loss of time as on attendance at a trial.
- R.S., c. E-10, s. 45
Marginal note: Administering oath
49 On any examination of parties or witnesses, under the authority of any order made in pursuance of this Part, the oath shall be administered by the person authorized to take the examination, or, if more than one person is authorized, by one of those persons.
- R.S., c. E-10, s. 46
Marginal note: Right of refusal to answer or produce document
- 50 (1) Any person examined under any order made under this Part has the like right to refuse to answer questions tending to criminate himself, or other questions, as a party or witness, as the case may be, would have in any cause pending in the court by which, or by a judge whereof, the order is made.
- Marginal note: Laws about witnesses to apply — video links etc. (1.1) Despite subsection (1), when a party or witness gives evidence under subsection 46(2), the evidence shall be given as though they were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.
- Marginal note: Contempt of court in Canada (1.2) When a party or witness gives evidence under subsection 46(2), the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question or to produce a writing or document referred to in subsection 46(1), as ordered under that subsection by the court or judge.
- Marginal note: Nature of right (2) No person shall be compelled to produce, under any order referred to in subsection (1), any writing or other document that he could not be compelled to produce at a trial of such a cause.
- R.S., 1985, c. C-5, s. 50
- 1999, c. 18, s. 90
Marginal note: Rules of court
- 51 (1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.
- Marginal note: Letters rogatory (2) In the absence of any order in relation to the evidence to be produced in support of the application referred to in subsection (1), letters rogatory from a court or tribunal outside Canada in which the civil, commercial or criminal matter is pending, are deemed and taken to be sufficient evidence in support of the application.
- R.S., 1985, c. C-5, s. 51
- 1999, c. 18, s. 91
Part III
Application
Marginal note: Application of this Part
52 This Part extends to the following classes of persons:
- (a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;
- (b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;
- (c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
- (d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
- (e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and
- (f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.
- R.S., 1985, c. C-5, s. 52
- 1994, c. 44, s. 92
- 1997, c. 18, s. 118
Oaths and Solemn Affirmations
Marginal note: Oaths taken abroad
53 Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
- R.S., c. E-10, s. 50
Documentary Evidence
Marginal note: Documents to be admitted in evidence
- 54 (1) Any document that purports to have affixed, impressed or subscribed on it or to it the signature of any person authorized by any of paragraphs 52(a) to (d) to administer, take or receive oaths, affidavits, solemn affirmations or declarations, together with their seal or with the seal or stamp of their office, or the office to which the person is attached, in testimony of any oath, affidavit, solemn affirmation or declaration being administered, taken or received by the person, shall be admitted in evidence, without proof of the seal or stamp or of the person’s signature or official character.
- Marginal note: Status of statements (2) An affidavit, solemn affirmation, declaration or other similar statement taken or received in a foreign country by an official referred to in paragraph 52(e) shall be admitted in evidence without proof of the signature or official character of the official appearing to have signed the affidavit, solemn affirmation, declaration or other statement.
- R.S., 1985, c. C-5, s. 54
- 1994, c. 44, s. 93
SCHEDULE (Paragraph 38.01(6)(d) and subsection 38.01(8)) Designated Entities
- 1 A judge of the Federal Court, for the purposes of section 21 of the Canadian Security Intelligence Service Act
- 2 A judge of the Federal Court, for the purposes of sections 6 and 7 of the Charities Registration (Security Information) Act , except where the hearing is open to the public
- 3 A judge of the Federal Court, the Federal Court of Appeal or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87.1 of the Immigration and Refugee Protection Act
- 4 A judge of the Federal Court, for the purposes of section 16 of the Secure Air Travel Act
- 5 to 8 [Repealed, 2001, c. 41, s. 124]
- 9 A board of inquiry convened under section 45 of the National Defence Act
- 10 A court martial or a military judge for the purposes of Part III of the National Defence Act
- 11 The Federal Public Sector Labour Relations and Employment Board referred to in subsection 4(1) of the Federal Public Sector Labour Relations and Employment Board Act , for the purposes of a grievance process under the Federal Public Sector Labour Relations Act with respect to an employee of the Canadian Security Intelligence Service, with the exception of any information provided to the Board by the employee
- 12 The Information Commissioner, for the purposes of the Access to Information Act
- 13 The Privacy Commissioner, for the purposes of the Privacy Act
- 14 The Privacy Commissioner, for the purposes of the Personal Information Protection and Electronic Documents Act
- 15 A judge of the Federal Court, for the purposes of section 41 of the Access to Information Act
- 16 A judge of the Federal Court, for the purpose of sections 41 to 43 of the Privacy Act
- 17 A judge of the Federal Court, for the purpose of sections 14 to 17 of the Personal Information Protection and Electronic Documents Act
- 18 The National Security and Intelligence Review Agency, for the purposes of sections 16 to 19 of the National Security and Intelligence Review Agency Act , with the exception of any information provided to the Agency by the complainant or an individual who has been denied a security clearance
- 19 The Public Sector Integrity Commissioner, for the purposes of sections 26 to 35 of the Public Servants Disclosure Protection Act
20 [Repealed, 2019, c. 13, s. 61]
- 21 A judge of the Federal Court, for the purposes of sections 4 and 6 of the Prevention of Terrorist Travel Act
- 22 The Civilian Review and Complaints Commission for the Royal Canadian Mounted Police, for the purposes of the Royal Canadian Mounted Police Act , but only in relation to information that is under the control, or in the possession, of the Royal Canadian Mounted Police or the Central Authority, as the case may be.
- 23 The Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, for the purposes of that inquiry, except if the hearing is open to the public
- 2001, c. 41, ss. 44, 124
- 2003, c. 22, s. 105
- SOR/2004-19
- 2005, c. 46, s. 56
- 2006, c. 9, s. 222
- SOR/2006-80, 335
- 2008, c. 3, s. 11
- SOR/2012-220
- 2013, c. 18, ss. 45, 85, c. 40, s. 448
- 2015, c. 20, s. 13, c. 36, s. 43
- 2017, c. 9, s. 41
- 2019, c. 13, s. 20
- 2019, c. 13, s. 61
- 2019, c. 15, s. 54
- 2019, c. 18, s. 60
- SOR/2023-205, s. 1
