Canada Evidence Act (R.S.C., 1985, c. C-5)

Marginal note:Regulations

38.43 The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of sections 38.2 to 38.42, including regulations respecting the notices and certificates.

Marginal note:Annual report

38.44 The report referred to in section 38.17 must also set out the operation of section 38.41 for the previous year and include the number of certificates issued under that section.

Marginal note:Rules

• 38.45 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special counsel in federal proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

• Marginal note:Composition of committees

  (2) Each committee established is to be composed of the appropriate Chief Justice, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to federal proceedings. Each Chief Justice may also designate additional members of their committee.

• Marginal note:Chief Justice to preside

  (3) Each Chief Justice, or a member designated by them, is to preside over their committee.

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), a confidence of the Queen’s Privy Council for Canada 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.

• Definition of Council

  (3) For the purposes of subsection (2), Council means the Queen’s Privy Council for Canada, committees of the Queen’s Privy Council for Canada, Cabinet and committees of Cabinet.

• Marginal note:Exception

  (4) Subsection (1) does not apply in respect of

  • (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.

Journalistic Sources

Marginal note:Definitions

• 39.1 (1) The following definitions apply in this section.

  document

  document has the same meaning as in section 487.011 of the Criminal Code. (document)

  journalist

  journalist 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)

  journalistic source

  journalistic source 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), journalist 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.

• Marginal note:Conditions

  (8) An authorization under subsection (7) may contain any conditions that the court, person or body considers appropriate to protect the identity of the journalistic source.

• Marginal note:Burden of proof

  (9) A person who requests the disclosure has the burden of proving that the conditions set out in subsection (7) are fulfilled.

• Marginal note:Appeal

  (10) An appeal lies from a determination under subsection (7)

  • (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.

• Marginal note:Limitation period for appeal

  (11) An appeal under subsection (10) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

• Marginal note:Hearing in summary way

  (12) An appeal under subsection (10) shall be heard and determined without delay and in a summary way.

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.

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

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.

Part II

Application

Marginal note:Foreign courts

43 This Part applies to the taking of evidence relating to proceedings in courts out of Canada.

Interpretation

Marginal note:Definitions

44 In this Part,

cause

cause includes a proceeding against a criminal; (cause)

court

court means any superior court in any province; (tribunal)

judge

judge means any judge of any superior court in any province; (juge)

oath

oath 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)

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.

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.

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.

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.

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.

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.