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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2021-11-17 and last amended on 2021-08-27. Previous Versions

PART XXProcedure in Jury Trials and General Provisions (continued)

Trial (continued)

Marginal note:Remote appearance

 The prosecutor or the counsel designated under section 650.01 may appear before the court by audioconference or videoconference, if the technological means is satisfactory to the court.

Marginal note:Pre-charge conference

 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for the accused and the prosecutor with respect to the matters that should be explained to the jury and with respect to the choice of instructions to the jury.

  • 1997, c. 18, s. 78

Marginal note:Summing up by prosecutor

  •  (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.

  • Marginal note:Summing up by accused

    (2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.

  • Marginal note:Accused’s right of reply

    (3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.

  • Marginal note:Prosecutor’s right of reply where more than one accused

    (4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.

  • R.S., c. C-34, s. 578

Marginal note:View

  •  (1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial.

  • Marginal note:Directions to prevent communication

    (2) Where a view is ordered under subsection (1), the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury, but failure to comply with any directions given under this subsection does not affect the validity of the proceedings.

  • Marginal note:Who shall attend

    (3) Where a view is ordered under subsection (1), the accused and the judge shall attend.

  • R.S., c. C-34, s. 579

Marginal note:Trying of issues of indictment by jury

  •  (1) After the charge to the jury, the jury shall retire to try the issues of the indictment.

  • Marginal note:Reduction of number of jurors to 12

    (2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn.

  • 2011, c. 16, s. 13

Marginal note:Disagreement of jury

  •  (1) Where the judge is satisfied that the jury is unable to agree on its verdict and that further detention of the jury would be useless, he may in his discretion discharge that jury and direct a new jury to be empanelled during the sittings of the court, or may adjourn the trial on such terms as justice may require.

  • Marginal note:Discretion not reviewable

    (2) A discretion that is exercised under subsection (1) by a judge is not reviewable.

  • R.S., c. C-34, s. 580

Marginal note:Mistrial — rulings binding at new trial

 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

  • 2011, c. 16, s. 14

Marginal note:Proceeding on Sunday, etc., not invalid

 The taking of the verdict of a jury and any proceeding incidental thereto is not invalid by reason only that it is done on Sunday or on a holiday.

  • R.S., c. C-34, s. 581

Evidence on Trial

Marginal note:Admissions at trial

 Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof.

  • R.S., c. C-34, s. 582

Marginal note:Presumption — valuable minerals

 In any proceeding in relation to theft or possession of a valuable mineral that is unrefined, partly refined, uncut or otherwise unprocessed by any person actively engaged in or on a mine, if it is established that the person possesses the valuable mineral, the person is presumed, in the absence of evidence raising a reasonable doubt to the contrary, to have stolen or unlawfully possessed the valuable mineral.

  • R.S., 1985, c. C-46, s. 656
  • 1999, c. 5, s. 24

Marginal note:Use in evidence of statement by accused

 A statement made by an accused under subsection 541(3) and purporting to be signed by the justice before whom it was made may be given in evidence against the accused at his or her trial without proof of the signature of the justice, unless it is proved that the justice by whom the statement purports to be signed did not sign it.

  • R.S., 1985, c. C-46, s. 657
  • 1994, c. 44, s. 62

Marginal note:Proof of ownership and value of property

  •  (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2), shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

  • Marginal note:Statements to be made

    (2) For the purposes of subsection (1), a person shall state in an affidavit or a solemn declaration

    • (a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;

    • (b) the value of the property;

    • (c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;

    • (c.1) in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and

    • (d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

  • Marginal note:Notice of intention to produce affidavit or solemn declaration

    (3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.

  • Marginal note:Attendance for examination

    (4) 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.

  • R.S., 1985, c. 23 (4th Supp.), s. 3
  • 1994, c. 44, s. 63
  • 1997, c. 18, s. 79

Marginal note:Theft and possession

  •  (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused, and in the absence of evidence to the contrary is proof that the property was stolen.

  • Marginal note:Accessory after the fact

    (2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.

  • 1997, c. 18, s. 80

Marginal note:Expert testimony

  •  (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

    • (a) the court recognizes that person as an expert; and

    • (b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

  • 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

      • (i) the name of the proposed witness,

      • (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

      • (iii) a statement of the qualifications of the proposed witness as an expert;

    • (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

      • (i) a copy of the report, if any, prepared by the proposed witness for the case, and

      • (ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

    • (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:

    • (a) adjourn the proceedings;

    • (b) order that further particulars be given of the evidence of the proposed witness; 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.

  • 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

  •  (1) In any proceedings to which this Act applies, the testimony of a person as to the date of his or her birth is admissible as evidence of that date.

  • 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
 
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