Rule 11 — Applications to Take Evidence on Commission
11.01 This rule applies to applications under section 709 of the Code on behalf of an accused or the prosecutor for an order appointing a commissioner to take the evidence of a witness.
To Whom Application Made
11.02 Applications under rule 11.01 shall be made to a judge sitting in the court centre in which the preliminary inquiry or trial is being held or is to be held, either before or as soon as is reasonably practicable after the date has been fixed for the preliminary inquiry or trial.
Contents of Notice
11.03 A Notice of Application under rule 11.01 shall include a statement of whether the presence of the accused is required on the taking of the evidence and whether the proceedings on commission are to be videotaped.
Service of Notice
11.04 Service of the Notice of Application under rule 11.03 and the supporting materials required by rule 11.05 shall be made on the prosecutor or accused, as the case may be.
Materials for Use on Application
Marginal note:Materials to Be Filed
(a) by an affidavit by or on behalf of the applicant and deposing to the matters described in subrule (2);
(b) if the application is made under subparagraph 709(1)(a)(i) of the Code, by the affidavit of a registered medical practitioner describing the nature and extent of the illness and the disability arising therefrom or, if the prosecutor and accused consent, the report in writing of the practitioner; and
(c) by a draft order that, if the person is to be examined outside Newfoundland and Labrador, provides for the issuing of a Commission in Form 10 authorizing the taking of evidence before a named commissioner and a letter of request directed to the judicial authorities of the jurisdiction in which the witness is to be found, requesting the assistance of any process that is necessary to compel the witness to attend and be examined before the named commissioner.
Marginal note:Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by clause (1)(a) shall contain
(a) particulars of the charge in respect of which the application is made, including a statement of the date on which the preliminary inquiry or trial is scheduled to commence and its anticipated length;
(b) a statement of all material facts relied on to justify the belief that an order should be given including, if applicable, a statement of whether
(i) the requested jurisdiction will or is likely to respond favourably to a request for judicial assistance,
(ii) the manner of response, if favourable, is compatible with the manner in which evidence is taken in criminal proceedings in Canada,
(iii) the circumstances of the witness’ residence outside Canada render return to Canada for the preliminary inquiry or trial likely or unlikely, thereby affecting the necessity for the taking of evidence on commission,
(iv) the witness has relevant and material evidence to give, receivable in accordance with the rules of evidence applicable in the Canadian proceedings,
(v) the witness is willing to attend to give evidence on commission and, if not, the means whereby his or her attendance may be compelled or otherwise ensured,
(vi) there will be unfair prejudice to the party opposite by the order of a commission,
(vii) there will be any serious disruption of the preliminary inquiry or trial by the taking of such evidence, and
(viii) the trier of fact will be disadvantaged, to the prejudice of the parties or either of them, by being unable to observe the demeanour of the witnesses;
(c) if known, a statement of the time and place at which the proposed examination is to be conducted;
(d) if known, a statement of the identity of the proposed commissioner and of his or her consent to act in that capacity;
(e) a description of the manner in which it is proposed to conduct and record the examination, including whether an interpreter will be required and whether it is proposed that the proceedings be videotaped; and
(f) a statement of whether the presence of the accused is sought, permitted or required and, if applicable, what arrangements, if any, are proposed in respect of his or her attendance or detention in custody.
Marginal note:Factum May Be Required
(3) A judge may require that factums complying with rules 6.06 to 6.08 be filed on applications under this rule.
Consent in Writing
11.06 The respondent may consent in writing to the order sought on terms included in a draft order in Form 10 that is filed and a judge, satisfied that the relief sought by the applicant should be granted, may grant the order on those terms without the attendance of counsel.
Order for Examination
Marginal note:Contents of Order
(a) the time and place of the examination;
(b) the minimum notice period required;
(c) the name of the commissioner;
(d) the witness fee, if any, to be paid to the witness whose evidence is to be taken by the commissioner; and
(e) any other matter respecting the holding of the examination, including the presence of the accused and his or her counsel on any commission and payment of those expenses of the commission that are to be borne by the applicant.
Marginal note:Commission and Letter of Request
(2) If the witness is to be examined outside Newfoundland and Labrador, the order under subrule (1) shall be in Form 12 and shall, at the request of the applicant, provide for the issuing of
(a) a commission in Form 10 authorizing the taking of evidence before a named commissioner; and
(b) a letter of request in Form 11, directed to the judicial authorities of the jurisdiction in which the proposed witness is to be found, requesting the issuing of any process that is necessary to compel the witness to attend and be examined before the commissioner.
(3) The commission and letter of request shall be prepared and issued by the clerk.
Marginal note:Duties of Commissioner
(4) A commissioner shall, to the extent that it is possible to do so, conduct the examination in the form of oral questions and answers in accordance with these rule, the law of evidence applicable to criminal trials and the terms of the commission, unless some other form of examination is required by the order or the statutes of the place where the examination is conducted.
(5) As soon as the transcript of the examination is prepared, the commissioner shall
(a) return the commission, together with the original transcript and exhibits, to the clerk who issued it;
(b) keep a copy of the transcript and, when practicable, the exhibits; and
(c) notify the parties who appeared at the examination that the transcript is complete and has been returned to the clerk who issued the commission.
Marginal note:Applicant to Serve Transcript
(6) The clerk shall send the transcript to the counsel of record for the applicant or to the applicant, as the case may be, who shall forthwith serve every other party with the transcript free of charge.
Witness to Be Examined under Oath or on Affirmation
Marginal note:Examination in Newfoundland and Labrador
11.08 (1) Before being examined, the witness shall take an oath or make an affirmation or, if the conditions of subsection 16(3) of the Canada Evidence Act have been met, make a promise to tell the truth, and if the examination is conducted in Newfoundland and Labrador, the oath or affirmation shall be administered by the commissioner or by another person authorized to administer oaths in Newfoundland and Labrador, or if the conditions of subsection 16(3) of the Canada Evidence Act have been met, the promise to tell the truth shall be made to that person.
Marginal note:Examination Outside Newfoundland and Labrador
(2) If the examination is conducted outside Newfoundland and Labrador, the oath or affirmation may be administered by, or the promise to tell the truth made to, the person before whom the examination is conducted, a person authorized to administer oaths in Newfoundland and Labrador or a person authorized to take affidavits or administer oaths or affirmations in the jurisdiction where the examination is conducted.
Marginal note:General Rule
11.09 (1) If the witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is examined, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation and the questions to and answers of the witness.
Marginal note:Supply of Interpreter
(2) If an interpreter is required by subrule (1) for the examination of a witness, unless the interpretation is from English to French or from French to English in which case the interpreter shall be provided by the Attorney General, the applicant shall provide an interpreter satisfactory to the parties.
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