Compelling Attendance of Witness in Custody
142. The Court may direct the attendance as a witness of a person who is in the custody of any other person including the custodian of any of Her Majesty’s prisons. (Form 142)
EVIDENCE AT HEARING OF AN APPEAL
Evidence of Particular Facts
143. (1) Before or at the hearing, the Court may direct that evidence of a particular fact shall be given in such manner and subject to such conditions as the Court may specify and in particular that the evidence shall be given,
(a) by affidavit,
(b) by statement on oath or affirmation of information and belief,
(c) by the production of documents or of entries in books or of copies thereof,
(d) where a fact is a matter of common knowledge, either generally or in a particular place, by the production of a newspaper which contains a statement of that fact.
(2) A direction made before the hearing under subsection (1) may be set aside or varied by the judge when it appears necessary to do so in the interests of justice.
Evidence by Witnesses
144. (1) Unless these rules provide otherwise, witnesses at a hearing shall be examined orally in Court and the examination may consist of direct examination, cross-examination and re-examination.
(2) The judge shall exercise reasonable control over the mode of interrogation of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be enquired into at the hearing.
(3) The judge may, at any time, direct that a witness be recalled for further examination.
(4) Where a witness appears unwilling or unable to give responsible answers, the judge may permit the party calling the witness to examine him or her by means of leading questions.
145. (1) In this section, “affidavit” includes,
(a) a solemn declaration made under section 41 of the Canada Evidence Act,
(b) a statement in writing signed by the proposed witness and accompanied by a certificate of counsel that counsel is satisfied that it represents evidence that the proposed witness is prepared to give in the matter, or
(c) a statement in writing in any other form authorized by direction of the Court in a particular case and for special reasons.
(2) Unless otherwise directed by the Court, no evidence in chief of an expert witness shall be received at the hearing in respect of an issue unless,
(a) the issue has been defined by the pleadings or by written agreement of the parties stating the issues,
(b) a full statement of the proposed evidence in chief of the witness has been set out in an affidavit, the original of which has been filed and a copy of which has been served on all other parties, not less than thirty days before the commencement of the hearing; and
(c) the witness is available at the hearing for cross-examination.
(3) Unless otherwise directed by the Court, no evidence of an expert witness shall be led in rebuttal of any evidence tendered in writing under paragraph (2)(b) unless the rebuttal evidence has been reduced to writing in accordance with this section and the original filed and a copy served on all the other parties not less that fifteen days before the commencement of the hearing.
(4) Subject to compliance with subsection (2), evidence in chief of an expert witness may be given at the hearing by,
(a) reading the whole or part of the affidavit into evidence by the witness, unless the Court, with the consent of the parties, permits it to be taken as read, and
(b) if the party calling the witness so elects, the verbal testimony of the witness,
(i) explaining or demonstrating what is in the affidavit or the part that has been given in evidence, and
(ii) in respect of other matters by special leave of the Court, upon such terms as may be just.
(5) A witness shall not be cross-examined before the hearing on an affidavit filed under subsection (2) without leave of the Court, and if such leave is granted, the witness shall not be cross-examined at the hearing without leave of the Court but the witness may, with leave of the Court, be produced for re-examination and shall be produced for examination by the Court, if the Court so requires.
(6) An affidavit filed under subsection (2) shall not become part of the evidence at the hearing unless given in evidence under subsection (4).
- SOR/95-113, s. 9.
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