PART XXProcedure in Jury Trials and General Provisions (continued)
Evidence on Trial (continued)
Marginal note:Expert testimony
657.3 (1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if
Marginal note:Attendance for examination
(2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report.
Marginal note:Notice for expert testimony
(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by
(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties
(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).
Marginal note:If notices not given
(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,
(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;
(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and
(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.
Marginal note:Additional court orders
(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:
Marginal note:Use of material by prosecution
(6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused.
Marginal note:No further disclosure
(7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.
- 1997, c. 18, s. 80;
- 2002, c. 13, s. 62.
Children and Young Persons
Marginal note:Testimony as to date of birth
Marginal note:Testimony of a parent
(2) In any proceedings to which this Act applies, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person.
Marginal note:Proof of age
(3) In any proceedings to which this Act applies,
(a) a birth or baptismal certificate or a copy of such a certificate purporting to be certified under the hand of the person in whose custody the certificate is held is evidence of the age of that person; and
(b) an entry or record of an incorporated society or its officers who have had the control or care of a child or young person at or about the time the child or young person was brought to Canada is evidence of the age of the child or young person if the entry or record was made before the time when the offence is alleged to have been committed.
Marginal note:Other evidence
(4) In the absence of any certificate, copy, entry or record mentioned in subsection (3), or in corroboration of any such certificate, copy, entry or record, a jury, judge, justice or provincial court judge, as the case may be, may receive and act on any other information relating to age that they consider reliable.
Marginal note:Inference from appearance
(5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, as the case may be, may infer the age of a child or young person from his or her appearance.
- R.S., 1985, c. C-46, s. 658;
- 1994, c. 44, s. 64.
Marginal note:Children’s evidence
659 Any requirement whereby it is mandatory for a court to give the jury a warning about convicting an accused on the evidence of a child is abrogated.
- R.S., 1985, c. C-46, s. 659;
- R.S., 1985, c. 19 (3rd Supp.), s. 15;
- 1993, c. 45, s. 9.
Marginal note:Full offence charged, attempt proved
660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
- R.S., c. C-34, s. 587.
Marginal note:Attempt charged, full offence proved
661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.
Marginal note:Conviction a bar
(2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.
- R.S., c. C-34, s. 588.
Marginal note:Offence charged, part only proved
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted
Marginal note:First degree murder charged
(2) For greater certainty and without limiting the generality of subsection (1), where a count charges first degree murder and the evidence does not prove first degree murder but proves second degree murder or an attempt to commit second degree murder, the jury may find the accused not guilty of first degree murder but guilty of second degree murder or an attempt to commit second degree murder, as the case may be.
Marginal note:Conviction for infanticide or manslaughter on charge of murder
(3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence.
Marginal note:Conviction for concealing body of child where murder or infanticide charged
(4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243.
Marginal note:Conviction for dangerous driving where manslaughter charged
(5) For greater certainty, where a count charges an offence under section 220, 221 or 236 arising out of the operation of a motor vehicle or the navigation or operation of a vessel or aircraft, and the evidence does not prove such offence but does prove an offence under section 249 or subsection 249.1(3), the accused may be convicted of an offence under section 249 or subsection 249.1(3), as the case may be.
Marginal note:Conviction for break and enter with intent
(6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph.
- R.S., 1985, c. C-46, s. 662;
- R.S., 1985, c. 27 (1st Supp.), s. 134;
- 2000, c. 2, s. 3;
- 2008, c. 6, s. 38.
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