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The Manitoba Evidence Act
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This version is current as of September 23, 2016.
It has been in effect since June 16, 2011.

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C.C.S.M. c. E150

The Manitoba Evidence Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"action" includes any civil proceeding, inquiry, arbitration, and a prosecution for an offence committed against a statute of the province or against a by-law or regulation made under the authority of any such statute, and any other prosecution or proceeding authorized or permitted to be tried, heard, had, or taken, by or before a court under the law of the province; (« action »)

"Commonwealth" includes the Republic of Ireland; (« Commonwealth »)

"court" means the court, judge, arbitrator, commissioner, or person, before whom a legal proceeding is held or taken; (« tribunal »)

"Imperial" means of or pertaining to the United Kingdom, as constituted on the coming into force of this Act, or any former kingdom which included England, whether known as the United Kingdom of Great Britain and Ireland or otherwise; (« impérial »)

"legal proceeding" means any civil proceeding, inquiry, or arbitration, in which evidence is or may be given, and includes an action or proceeding for the imposition of punishment by fine, penalty, or imprisonment, to enforce any Act of the Legislature; (« poursuite judiciaire »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act or any Part or provision of this Act in which the word is used. (« ministre »)

S.M. 2002, c. 47, s. 23.

PART I

RESPECTING EVIDENCE GENERALLY APPLICATION OF PART

Application

2           This Part applies to all proceedings and matters respecting which the Legislature has jurisdiction.

DIVISION I

EVIDENCE BY WITNESSES COMPETENCY OF WITNESSES

No incompetency from interest or crime

3           A person is not incompetent to give evidence by reason of interest or crime.

Evidence of parties

4           The parties to any legal proceedings and the person on whose behalf the proceedings are brought, instituted, opposed, or defended are, except as herein otherwise provided, competent and compellable to give evidence on behalf of themselves or of any of the parties, and the spouses of those parties and persons are, except as herein otherwise provided, competent and compellable to give evidence on behalf of any of the parties.

S.M. 2008, c. 42, s. 33.

Evidence as to intercourse

5           Without limiting the generality of section 4, a married person may, in an action, give evidence that he or she did or did not have sexual intercourse with the other party to the marriage at any time, or within any period of time, before or during the marriage.

S.M. 2008, c. 42, s. 33.

Incriminating questions

6(1)        No witness shall be excused from answering any question, or producing any document, upon the ground that the answer thereto or the production thereof may tend to criminate him, or may tend to establish his liability to a legal proceeding at the instance of the Crown or of any person.

Evidence not to be used

6(2)        If, with respect to any question or the production of any document, a witness objects to answer or to produce upon any of the grounds mentioned in subsection (1), and if but for this section or any Act of the Parliament of Canada, the witness would have been excused from answering that question or from producing that document, then although the witness is, by reason of this section or any Act of the Parliament of Canada, compelled to answer or to produce, the answer so given or the document so produced shall not be used or receivable in evidence in any legal proceeding against him thereafter taking place.

"Witness" defined

6(3)        In this section the expression "witness", in addition to the ordinary meaning thereof, includes every person who, in the course of a legal proceeding is examined viva voce on discovery or who is cross-examined upon an affidavit made by him, or who answers any interrogatories or makes an affidavit as to documents.

Evidence as to adultery

7           No witness in any proceeding, whether a party thereto or not, shall be excused from answering any question by reason of it tending to show that he has been guilty of adultery.

Communication during marriage

8           No married person is compellable to disclose any communication made to that person by his or her spouse during their marriage.

S.M. 2008, c. 42, s. 33.

Definitions

9(1)        The following definitions apply in this section and in section 10.

"committee" means

(a) a critical incident review committee established under Part 4.1 of The Regional Health Authorities Act;

(b) a standards committee appointed under section 24 of The Hospitals Act;

(c) a medical staff committee established for the purpose of studying or evaluating medical practice in a hospital;

(d) a research committee of a hospital; and

(e) a medical research committee designated in a regulation made by the Minister of Health for the purpose of sections 9 and 10. (« comité »)

"committee proceeding" means a proceeding of, or an investigation, study, evaluation, analysis, program or research carried out by, a committee. (« travaux de comité »)

"critical incident" has the same meaning as in The Regional Health Authorities Act. (« incident critique »)

"facility" has the same meaning as in The Regional Health Authorities Act. (« établissement »)

"health care provider" has the same meaning as in The Regional Health Authorities Act. (« fournisseur de soins de santé »)

"health services" has the same meaning as in The Regional Health Authorities Act. (« services de santé »)

"hospital" has the same meaning as in The Hospitals Act. (« hôpital »)

"legal proceeding", in addition to having the meaning set out in section 1, includes

(a) an action or proceeding for the imposition of punishment by fine, penalty or imprisonment to enforce any regulation made under an Act of the Legislature; and

(b) a proceeding before a tribunal, board or commission. (« poursuite judiciaire »)

"record" means a record of information in any form, and includes any information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means. (« document »)

"witness" in addition to its ordinary meaning, includes a person who, in the course of a legal proceeding,

(a) is examined for discovery;

(b)  is cross-examined on an affidavit made by him or her;

(c)  answers interrogatories;

(d)  makes an affidavit as to documents; or

(e) is called upon to answer any question or produce any record, whether under oath or not. (« témoin »)

Privilege re committee proceedings

9(2)        Subject to subsection (4), a witness in a legal proceeding, whether a party to it or not,

(a) is not liable to be asked and is not permitted to answer any question or to make any statement with respect to a committee proceeding; and

(b) is not liable to be asked to produce, and is not permitted to produce,

(i) any record or information — including, without limitation, an opinion or advice — that is prepared solely for the use of, or collected, compiled or prepared by, a committee for the purpose of carrying out its duties,

(ii) any record or information — including, without limitation, an opinion or advice — that is used solely in the course of, or arising out of, a committee proceeding, or

(iii) a notice, report or other record or information respecting a critical incident that is required to be provided by a health corporation, prescribed health care organization or regional health authority under section 53.3 or 53.4 of The Regional Health Authorities Act (patient safety).

Records not admissible

9(3)        Subject to subsection (4), a record and information referred to in clause (2)(b) are not admissible as evidence in a legal proceeding.

Exception

9(4)        The privileges in subsections (2) and (3) do not apply

(a) to information in a record created or maintained for the purpose of providing health services, including health care or treatment, to an individual;

(b) to the facts of what actually occurred with respect to a critical incident that are contained in a record, unless those facts are also fully recorded in a record described in clause (a), or another record, that is available to the individual affected by the critical incident; or

(c) to information in a record required by law to be created or maintained by the owner, operator or person in charge of a facility or by a health care provider.

Members of committees, etc. not excused generally

9(5)        Except as provided in subsection (2), a witness in a legal proceeding who

(a) is or has been a member of, or has participated in the activities of, a committee; or

(b) has provided a record or information to a committee;

is not excused from answering any question or producing any record that the witness is otherwise required to answer or produce.

S.M. 2005, c. 24, s. 5.

Protection from liability

10(1)       The disclosure of

(a) a record or information to a committee for use in committee proceedings; or

(b) a record or information that arises out of committee proceedings;

does not raise or create any liability on the part of the person making the disclosure, unless the person was acting in bad faith.

Committee member's protection from liability

10(2)       No action lies against a member of a committee for actions taken, or for disclosing or providing any record or information — including a report of findings or recommendations — in the course of a committee proceeding, unless the member was acting in bad faith.

S.M. 2005, c. 24, s. 5.

DISCLOSURE OF INFORMATION

Definition of "legal proceeding"

10.1(1)     In this section, "legal proceeding" means an action or proceeding in the Provincial Court of Manitoba for the imposition of punishment by fine, penalty, or imprisonment to enforce an Act of the Legislature or to enforce a regulation made under an Act of the Legislature.

Appeal from an order for the disclosure of information

10.1(2)     In any legal proceeding, an appeal lies at the instance of the Attorney General of Manitoba to the Court of Queen's Bench from an order for the disclosure of information.

Application of subsection (2)

10.1(3)     An order for the disclosure of information referred to in subsection (2) includes

(a) an order for the disclosure or production of documents; and

(b) an order for the preparation of an inventory of documents.

Limitation period

10.1(4)     An appeal under subsection (2) must be brought within 10 days after the date of the order appealed from, or within such further time as the Court of Queen's Bench considers appropriate in the circumstances.

Appeal

10.1(5)     An appeal lies to the Court of Appeal from an order of the Court of Queen's Bench under this section.

Limitation period for appeal

10.1(6)     An appeal under subsection (5) must be brought within 10 days after the date of the order appealed from or within such further time as the Court of Appeal considers appropriate in the circumstances.

Date of appeal may be expedited

10.1(7)     When an appeal is brought under subsection (2) or (5), the Court of Queen's Bench or the Court of Appeal, as the case may be, may order that the date of the appeal be expedited.

S.M. 1997, c. 45, s. 2.

Definitions

10.2(1)     In this section,

"official" means a person who

(a) holds an office or appointment under the government of Manitoba or Canada, or

(b) is appointed to discharge a public duty; (« fonctionnaire »)

"protected public interest" means a public interest relating to

(a) the defence or security of Canada or Manitoba or its people, or

(b) the health of Manitobans or other Canadians. (« raisons d'intérêt public protégées »)

Objection to disclosure of information

10.2(2)     A minister of the Crown in right of Manitoba or Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by

(a) certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a protected public interest; and

(b) specifying the nature of the protected public interest.

Obligation of court, person or body

10.2(3)     If an objection is made under subsection (2), the court, person or body shall ensure that the information is not disclosed other than in accordance with this section.

Objection in Provincial Court or Queen's Bench

10.2(4)      If an objection to the disclosure of information is made before The Provincial Court or the Court of Queen's Bench, that court may determine the objection.

Objection before other body

10.2(5)      If an objection to the disclosure of information is made before a person or body other than The Provincial Court or the Court of Queen's Bench, the objection may be determined, on application, by the Court of Queen's Bench.

Limitation period

10.2(6)      An application under subsection (5) must be made within 10 days after the objection is made or within any further time that the court considers appropriate in the circumstances.

Disclosure order

10.2(7)      Unless the court having jurisdiction to determine an objection made under subsection (2) concludes that the disclosure of the information to which the objection was made would encroach upon a protected public interest, the court may, by order, authorize the disclosure of the information.

Disclosure order where a protected public interest

10.2(8)      If the court concludes that disclosure would encroach upon a protected public interest, but that the public interest in disclosure or the right to a fair trial of a person accused of an offence under a provincial statute outweighs in importance the protected public interest, the court may, by order, authorize the disclosure, after considering

(a) the public interest in disclosure;

(b) the right to a fair trial; and

(c) the form of and conditions to disclosure that are most likely to limit any encroachment upon the protected public interest resulting from disclosure.

The court may then authorize the disclosure of all of the information, a part or summary of the information, or a written admission of facts relating to the information, and may make the disclosure subject to any conditions that the court considers appropriate.

Order prohibiting disclosure

10.2(9)      If the court does not authorize disclosure under subsection (7) or (8), the court shall, by order, prohibit disclosure of the information.

When order takes effect

10.2(10)     An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order, or to appeal a judgment of an appeal court that confirms the order, has expired.

Introducing disclosure material into evidence

10.2(11)     A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (8) but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information may request from the court having jurisdiction under subsection (4) or (5) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (8).

Relevant factors

10.2(12)     For the purpose of subsection (11), the court having jurisdiction under subsection (4) or (5) shall consider all the factors that would be relevant for a determination of admissibility before the court, person or body.

Appeal to Court of Appeal

10.2(13)     An appeal lies from an order made under subsection (7), (8) or (9) to The Court of Appeal.

Limitation period for appeal

10.2(14)     An appeal under subsection (13) must be brought within 10 days after the date of the order appealed from, or within any further time that the court considers appropriate in the circumstances.

Hearing to be private

10.2(15)     A hearing under subsection (4) or (5) or an appeal of an order made under subsection (7), (8) or (9) shall be in private.

Representations at hearing

10.2(16)     The court conducting a hearing under subsection (4) or (5) or the court hearing an appeal of an order made under subsection (7), (8) or (9) may give

(a) any person an opportunity to make representations; and

(b) any person who makes representations under clause (a) the opportunity to make representations ex parte.

S.M. 2002, c. 26, s. 16.

ATTENDANCE OF WITNESSES

Witness disobeying subpoena liable to action

11          A witness who is served in due time with a subpoena issued out of any court or tribunal having power for the purpose in the province, and, where required by law, paid his proper witness fees and conduct money, who makes default in obeying the subpoena, without any lawful and reasonable impediment, shall, in addition to any penalty he incurs for a contempt of court, be liable to an action on the part of the person by whom, or on whose behalf, he has been subpoenaed for any damage which that person sustains or is put to by reason of such default.

OATHS AND AFFIRMATIONS

Who may administer oath

12(1)       Every court may administer an oath or affirmation to every witness who is called to give evidence before it.

Court officer may administer oath

12(2)       Every officer of the court may administer an oath or affirmation to every witness who is called to give evidence before the court.

Who may administer oaths and affirmations

13          Where by an Act or regulation evidence is authorized or required to be taken under oath or on affirmation by a person, or an oath or affirmation is authorized or directed to be made or taken, the oath or affirmation may be administered, and the certificate of its having been made or taken may be given, by the person mentioned in the Act or regulation, or by a person authorized to swear affidavits under this Act, having authority and jurisdiction within the district where the oath or affirmation is administered.

R.S.M. 1987 Supp., c. 4, s. 9.

Mode of administering oath

14          An oath may be administered to any person while that person holds in his hand a copy of the Old or New Testament, without requiring him to kiss it.

Form of oath in giving evidence

15(1)       Where a person is about to give evidence, the oath shall be in the following form:

I/You, A.B., swear that the evidence to be given by me/you shall be the truth, the whole truth and nothing but the truth. So help me/you God.

Alternate form of oath

15(2)       Where a person objects to being sworn in that manner or declares that the oath so administered is not binding upon his conscience, it may be administered in such manner and form, and with such ceremonies, as he declares to be binding.

Affirmation of witness instead of oath

16(1)       A person who is about to give evidence shall be permitted to make a solemn affirmation or declaration instead of taking an oath, and upon the person making such a solemn affirmation or declaration the evidence shall be taken and has the same effect as if taken under oath.

Form of affirmation

16(2)       Where a person is about to give evidence on affirmation or declaration, it shall be in the following form:

I/You, A.B., solemnly affirm (or declare) that the evidence to be given by me/you shall be the truth, the whole truth and nothing but the truth.

R.S.M. 1987 Supp., c. 4, s. 9.

Effect of affirming

17          Any witness, who being permitted to affirm, gives evidence or who makes an affirmation or declaration as permitted by this Act, is liable to be charged and punished for perjury in all respects as if he had been sworn.

Validity of oath, no religious belief

18          Where an oath has been duly administered and taken, the fact that the person to whom it was administered had, at the time of taking the oath, no religious belief does not, for any purpose, affect the validity of the oath, or the liability of that person to be charged and punished for perjury.

EXAMINATION OF WITNESSES

How far a party may discredit his own witness

19          A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may contradict him by other evidence, or if the witness, in the opinion of the court, proves adverse, the party may by leave of the court cross-examine him; but if the party desires to prove that the witness made, at some other time, a statement inconsistent with his present testimony, before the proof is given the circumstances of the proposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness and he shall be asked whether or not he did make the statement.

Proof of contradictory written statements

20          A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the matter in question, without the writing being shown to him; but, if it is intended to contradict him by the writing, his attention shall, before the contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of so contradicting him; and the court, at any time during the trial or proceeding, may require the production of the writing for its inspection, and may thereupon make use thereof for the purposes of the trial or proceeding as it thinks fit.

Proof of contradictory oral statements

21          Where a witness, upon cross-examination as to a former statement made by him relative to the matter in question, and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it; but before the proof is given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

Proof of previous conviction

22(1)       A witness may be asked whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the conviction may be proved by production of a certificate containing the substance and effect only of the conviction, omitting the formal part of the charge and conviction, purporting to be signed by the officer having the custody of the records of the court by which the offender was convicted.

Identity of witness

22(2)       The identity of the witness with the person named in the certificate, if the name is the same, shall, until the contrary is shown, be presumed.

Certificate of conviction

22(3)       For the certificate of conviction a fee of $1. and no more may be demanded or taken.

CAPACITY OF WITNESS

23          Repealed.

R.S.M. 1987 Supp., c. 16, s. 4.

Witness whose capacity is in question

24(1)       Where a proposed witness in a legal proceeding is a person under 14 years of age or a person whose mental capacity to give evidence is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation

24(2)       A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth

24(3)       A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.

Inability to testify

24(4)       A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

Burden as to capacity of witness

24(5)       A party who challenges the mental capacity of a proposed witness of 14 years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

S.M. 1992, c. 15, s. 3.

MISCELLANEOUS PROVISIONS RESPECTING WITNESSES

Limit of number of expert witnesses in action

25          Where it is intended by any party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the court.

Evidence of mutes

26          A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible.

DIVISION II

TAKING OF EVIDENCE

Recording of evidence, etc.

27(1)       Notwithstanding any Act, regulation, or rule of court, a stenographic reporter, shorthand writer, stenographer, or other person, who is authorized to record or transcribe evidence and proceedings in an action or a legal proceeding may record the evidence and proceedings

(a) by any form of shorthand writing; or

(b) by any mechanical device for writing or taking the evidence and proceedings of a type approved by the Minister of Justice; or

(c) by any sound recording device of a type approved by the Minister of Justice.

Authority of Minister of Justice

27(2)       The Minister of Justice may authorize a stenographic reporter, shorthand reporter, stenographer or other person to record or transcribe evidence and proceedings in an action or legal proceeding in any of the ways set out in subsection (1).

Admissibility of transcript

27(3)       Notwithstanding any Act, regulation, or rule of court, a transcript of the whole or part of any evidence that has been, or any proceedings that have been, recorded in accordance with subsection (1) and that has or have been certified as a true transcription of the evidence or proceedings by the person who recorded or transcribed the evidence or proceedings, or by the judge, justice, or other person before whom the action or legal proceeding was taken or heard, or where there is more than one such judge, justice, or other person, by one of them, and that is otherwise admissible by law, is admissible in evidence whether or not the witness or any of the parties to the action or legal proceeding has approved the method used to record the evidence and proceedings and whether or not he has read or signed the transcript.

S.M. 1993, c. 48, s. 63; S.M. 2005, c. 8, s. 11.

Destruction of records after 30 days

28(1)       Subject to subsection (3), where a transcript of the evidence or proceedings recorded in accordance with subsection 27(1) has been made and certified in accordance with subsection 27(3), the stenographic reporter, shorthand writer, stenographer, or other person, who recorded the evidence and proceedings may, after the expiration of 30 days from the day on which the transcript was made and certified, destroy the record or erase any recording thereof.

Destruction of records after period prescribed

28(2)       Subject to subsection (3), where a transcript of any evidence or proceedings recorded in accordance with subsection 27(1) has not been made and certified in accordance with subsection 27(3), the stenographic reporter, shorthand writer, stenographer, or other person, who recorded the evidence and proceedings, shall not destroy the record or erase any recording thereof for such period after it has been made as the Minister of Justice may by regulation prescribe; but after that period has expired, he may destroy the record or erase the recording thereof.

Order for preservation of records

28(3)       An interested person may without notice to any other person apply for an order providing for the preservation of any record made under subsection 27(1) for a specified period

(a) in the case of a record of evidence or proceedings given or taken in a court, to a judge of that court; or

(b) in the case of any record of evidence or proceedings given or taken before any board, commission, or commissioner, to that board, commission, or commissioner; or

(c) in the case of a record of evidence or proceedings given or taken before a board, commission, or commissioner, which or who has ceased to have authority to act in the matter in respect of which the evidence was given or the proceedings were taken, to the Minister of Justice;

and the person to whom the application was made may make such order as he deems proper under the circumstances; and where an order made under this subsection requires a record made under subsection 27(1) to be preserved, the person making the record or having possession thereof shall preserve it for the period specified in the order.

S.M. 1993, c. 48, s. 63.

DIVISION III

JUDICIAL NOTICE

Judicial notice taken of statutes and ordinances

29          Judicial notice shall be taken of

(a) all Acts of the Imperial Parliament and all rules, regulations, forms, and schedules, made under the authority of any such Act;

(b) all Royal proclamations and Privy Council orders;

(c) all Acts of the Parliament of Canada and all rules, regulations, forms, and schedules, made under the authority of any such Act;

(d) all ordinances and Privy Council orders made by the Governor in Council of Canada;

(e) all proclamations of the Governor General of Canada;

(f) all Acts and ordinances of the legislature of, or other legislative body or authority competent to make laws for, any province, colony, or territory which, or some portion of which, on, before, or after, the coming into force of this Act, formed or forms part of Canada, and all rules, regulations, forms, and schedules, made under the authority of any such Act or ordinance;

(g) all ordinances and orders in council made by the Governor in Council, Lieutenant Governor in Council, or Commissioner in Council, of any province, colony, or territory which, or some portion of which, on, before, or after, the coming into force of this Act, formed or forms part of Canada, and all proclamations of any such Governor, Lieutenant Governor or Commissioner;

(h) all Acts and ordinances of the legislature of, or other legislative body or authority competent to make laws for, any other part of the Commonwealth.

Judicial notice of certain laws and statutes

30(1)       Every court shall take judicial notice of the laws of any part of the Commonwealth, or of the United States, or any state, territory, possession, or protectorate thereof, but foreign law shall nevertheless be pleaded where any rule or law so requires.

Determining laws

30(2)       In all cases it is the function of the court, and not of a jury, to determine such laws when brought in question.

Judicial notice to be taken of signatures of judges, etc.

31(1)       All courts and officers acting judicially shall take judicial notice of the signature of any of the judges of any court in Canada, in the province, and in every other province and territory in Canada, where such a signature is appended or attached to any judicial or official document.

Who to be deemed judges

31(2)       The members of The Canadian Transport Commission and of The Municipal Board and of The Public Utilities Board shall be deemed judges for the purposes of the section.

Proof of handwriting, when not required

32          No proof shall be required of the handwriting or official position of, nor as to the authenticity of any seal used by, any person or court certifying to the truth of any copy of or extract from any writing, or to any matter or thing as to which he or it is by law authorized or required to certify.

DIVISION IV

EVIDENCE BY DOCUMENTS CONSTRUCTION

Construction of this Division

33          The provisions of this Division shall be deemed to be in addition to, and not in derogation of, any powers of proving documents given by any existing statute, or existing at law.

PROOF OF STATE DOCUMENTS

Definitions

34(1)       In this section,

"federal", as applied to state documents, means of or pertaining to Canada; (« fédéral »)

"provincial", as applied to state documents, means of or pertaining to any province, colony, or territory which, or some portion of which, on, before, or after, the coming into force of this Act, formed or forms part of Canada; (« provincial »)

"state document" includes

(a) any Act or ordinance enacted or made, or purporting to have been enacted or made, whether before or after the coming into force of this Act, by a legislative body;

(b) any order, regulation, notice, appointment, warrant, licence, certificate, letters patent, official record, rule of court, or other instrument issued or made, or purporting to have been issued or made, whether before or after the coming into force of this Act under the authority of any such Act or ordinance, or in the exercise of any executive power or authority vested, or purporting to be vested, in any government, department of government, or officer of state; and

(c) any official gazette, journal, proclamation treaty, or other public document or act of state, issued or made, or purporting to have been issued or made, whether before or after the coming into force of this Act. (« document d'État »)

Proof of Imperial state document

34(2)       The existence and the whole or any part of the contents of any Imperial state document may be proved in any of the following modes

(a) in the same manner as it may, from time to time, be provable in any court in England;

(b) by the production of a copy of The Canada Gazette or a volume of the Acts of the Parliament of Canada purporting to contain a copy thereof or an extract therefrom, or a notice thereof;

(c) by the production of a copy thereof or an extract therefrom purporting to be printed by, or for, or by authority of, the Queen's Printer for Canada or for any province of Canada;

(d) by the production of a copy thereof or an extract therefrom purporting to be certified as a true copy or extract by the minister or head, or by the deputy minister or deputy head, of any department of the Imperial Government, or purporting to be a copy of an exemplification thereof under the Imperial great seal;

(e) by the production of a copy thereof or an extract therefrom purporting to be certified as a true copy or extract by the custodian of the original document or the public records from which the copy or extract purports to be made.

Proof of federal or provincial state document

34(3)       The existence and the whole or any part of the contents of any federal or provincial state document may be proved in any of the following modes

(a) by the production of a copy of The Canada Gazette or of the official gazette for any province, or of a volume of the Acts of the Parliament of Canada or of the legislature of any province purporting to contain a copy of the state document or an extract therefrom or a notice thereof;

(b) by the production of a copy thereof or an extract therefrom purporting to be printed by, or for, or by authority of, the Queen's Printer for Canada or for any province;

(c) by the production of a copy thereof or an extract therefrom, whether printed or not, purporting to be certified as a true copy or extract by the minister or head, or the deputy minister or deputy head, of any department of the Government of Canada or of any province, or by the custodian of the original document or the public records from which the copy or extract purports to be made, or purporting to be a copy or an exemplification of the state document under the Great Seal of Canada or of any province.

Proof of state document of Commonwealth or foreign state

34(4)       The existence and the whole or any part of the contents of any state document of any other part of the Commonwealth or foreign state, respectively, may be proved in any of the following modes

(a) by the production of a copy thereof or an extract therefrom purporting to be printed by, or for, or by the authority of, the legislature, government, Queen's Printer, government printer, or other official printer, of that part of the Commonwealth or of the foreign state;

(b) by the production of a copy thereof or an extract therefrom, whether printed or not, purporting to be certified as a true copy or extract by the minister or head, or the deputy minister or deputy head, of any department of the government of that part of the Commonwealth of the foreign state, or by the custodian of the original document or the public records from which the copy or extract purports to be made, or purporting to be a copy or an exemplification of the state document under the great seal or other state seal of that part of the Commonwealth or of the foreign state.

Proof of signature or office unnecessary

34(5)       It is not necessary to prove that the original document or the public records from which the copy or extract purports to be made were deposited or kept in the custody of the person so certifying; and where a copy or extract which is tendered in evidence under this section purports to be printed by, or for, or under the authority of, a legislature or government, or of a Queen's Printer, government printer, or other official printer, it shall not be necessary to prove the authority, status, or official position, of the legislature or government, or of the Queen's Printer, government printer, or other official printer.

OFFICIAL DOCUMENTS

Copies of records and books of government departments as evidence

35          Copies of any record, document, plan, book, or paper belonging to, or deposited with,

(a) any department of the Government of Canada or of the government of any province of Canada; or

(b) any commission, board, or branch, of the public service of the Government of Canada or of the government of any province of Canada;

and certified

(c) in a case to which clause (a) applies, by the head, the deputy head, or chief clerk, of the department, or by any other officer authorized for the purpose; and

(d) in a case to which clause (b) applies, by the commissioner, chairman, director, agent, or secretary, of the commission, board, or branch, or by any other officer in charge of any office of the commission, board, or branch;

are admissible in evidence as proof of the original record, document, plan, book, or paper, and of its possession by, or deposit with, that department, commission, board, or branch.

Entries in books in government offices

36          A copy of any entry, or a statement of the absence thereof, in any book, record, document, or writing, kept in any department of the Government of Canada or of the province, or of any other province of Canada, or in the office of any commission, board, or other branch, of the public service of Canada or of the province, or of any other province of Canada, shall be received as evidence of that entry and of the matters, transactions, and accounts therein recorded, or of the absence thereof, respectively, if it is proved by the oath, affirmation, or affidavit, of an officer of that department, commission, board, or branch, that

(a) the book, record, document, or writing was, at the time of the making of the entry, or during the time covered by the statement, one of the ordinary books, records, documents, or writings, kept in the department or office;

(b) the entry was made, or in case of its absence, would have been made, in the usual and ordinary course of business of the department, office, commission, board, or branch; and

(c) the copy is a true copy thereof, or the statement of absence a true statement.

Copies of public books or documents

37(1)       Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, a copy thereof or extract therefrom is admissible in evidence if it is proved that it is an examined copy or extract, or if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original has been entrusted.

Copies to be delivered if required

37(2)       That officer shall furnish the certified copy or extract to any person applying therefor at a reasonable time, upon his paying therefor a sum not exceeding ten cents for every folio of one hundred words.

JUDICIAL PROCEEDINGS

Evidence of judicial proceedings

38(1)       Evidence of any proceedings in or before, or of any record of,

(a) any court within or outside the province, that has a seal; or

(b) any court without a seal, or person authorized to take evidence in any part of the Commonwealth or in the United States, or any state, territory or possession thereof;

may be made in any legal proceeding by an exemplification or certified copy thereof.

Identity of person presumed

38(2)       The identity of any person charged in, or a party to, any such proceeding with the person named in the exemplification or certified copy, if the name is the same, shall until the contrary is shown, be presumed.

Authentication of certificate

38(3)       The exemplification or certified copy is sufficiently authenticated if it purports to be

(a) under the seal of the court, where the court has a seal; or

(b) where the court has no seal, under the hand of the judge of the court or the officer of the court having custody of the records of the court; or

(c) signed by any other person who made it, where that person is authorized to take evidence.

CORPORATION DOCUMENTS

Proof of official or public documents

39          A copy of any entry, or statement of the absence of any entry, in any register or other book of any corporation, created by charter or statute of Canada or of the province, or of any other province of Canada, purporting to be certified under the hand of the presiding officer, clerk, or secretary thereof, is receivable as evidence of the entry or the absence thereof and, where the corporation has a seal, under the seal of the corporation.

NOTARIAL DOCUMENTS

Copies of notarial acts in Quebec admissible

40          A copy of a notarial act or instrument in writing made, filed, enrolled, or enregistered, in Quebec, certified by a notary or prothonotary to be a true copy of the original in his possession as such notary or prothonotary, is receivable in evidence in the place and stead of the original, and has the same force and effect as the original would have if produced and proved.

How impeached

41          The proof by such a certified copy may be rebutted or set aside by proof that there is no such original, or that the copy is not a true copy of the original in some material particular, or that the original is not an instrument of such nature as may, by the law of Quebec, be taken before a notary, or be filed, enrolled, or enregistered, by a notary.

Effect of protest as evidence

42          A protest of a bill of exchange or promissory note purporting to be under the hand of a notary public, wherever made, shall be received as evidence of the allegations and facts therein stated.

Effect of certain certificates of notaries

43          A note, memorandum, or certificate, purporting to be made by a notary public in any part of the Commonwealth or the United States, in his own handwriting, or to be signed by him at the foot of, or embodied in, any protest or in a regular register of official acts purporting to be kept by him, is evidence of the fact of notice of non-acceptance or non-payment of a bill of exchange or promissory note having been sent or delivered, at the time and in the manner stated in the note, certificate, or memorandum.

CERTIFICATES UNDER THE CANADA GRAIN ACT

Certificate of inspecting officer under The Canada Grain Act

44          A document purporting to be a certificate or duplicate certificate, issued and signed by an inspecting officer under the authority of The Canada Grain Act, specifying the grade of any grain that has been inspected by that officer, is evidence of the grade of that grain.

Extract from inspector's record

45          A document purporting to be an extract from the record kept by the chief grain inspector or by any inspector of grain in pursuance of The Canada Grain Act, and to be certified by the chief inspector, inspector, or any person in the office of either of them, is evidence of the facts set forth in the extract.

Certificate by weighmaster

46          A document purporting to be a certificate or duplicate certificate issued and signed by a weighmaster or his assistant, under the authority of The Canada Grain Act, showing the amount of each weighing, the number of each car or cargo weighed, the initial of the car, the place where weighed, the date of weighing, and the contents of the car or cargo, shall be evidence of the facts therein stated,

Extract from weighmaster's record

47          A certificate or extract from a record used by a weighmaster or grain inspecting officer under The Canada Grain Act, signed as provided by that Act, shall be evidence of the facts stated therein.

BANK BOOKS

Copy of bank books, etc., as evidence

48(1)       Subject to this section, a copy of any entry in a book or record kept in a financial institution shall, in all legal proceedings, be received in evidence as prima facie proof of the entry and of the matters, transactions, and accounts, therein recorded.

Proof

48(2)       A copy of an entry in a book or record kept in a financial institution shall not be received in evidence under this section unless it is first proved that

(a) the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution;

(b) the entry was made in the usual and ordinary course of business;

(c) the book or record is in the custody or control of the financial institution; and

(d) the copy is a true copy of the entry.

Method of proof

48(3)       The proof required under subsection (2) may be given by the manager or accountant of the financial institution and may be given orally or by affidavit.

Bank and officers when bank not party

48(4)       A financial institution or officer of a financial institution is not, in any legal proceeding to which the financial institution is not a party, compellable to produce any book or record, the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions, and accounts, therein recorded unless by order of the court made for special cause.

Order for inspection

48(5)       Upon the application of any party to a legal proceeding, the court may order that the party be at liberty to inspect and take copies of any entries in the books or records of a financial institution for the purposes of the proceeding.

Notice of inspection

48(6)       The person whose account is to be inspected shall be notified of the application at least two clear days before the hearing thereof; and, if it is shown to the satisfaction of the court that the person cannot be notified personally, the notice may be given by addressing it to the financial institution.

Costs

48(7)       The costs of an application to a court under, or for the purposes of, this section, and the costs of anything done or to be done under an order of a court made under, or for the purposes of, this section, are in the discretion of the court, which may order them, or any part thereof, to be paid to any party by the financial institution, where they have been occasioned by any default or delay on the part of the financial institution.

Enforcement of order

48(8)       An order against a financial institution made under subsection (7) may be enforced as if the financial institution were a party to the proceeding.

Holidays

48(9)       Holidays shall be excluded from the computation of time under this section.

Definition of "financial institution"

48(10)      In this section "financial institution" means the Bank of Canada, the Federal Business Development Bank and any other institution incorporated in Canada that accepts deposits of money from its members or from the public, and includes a branch, agency or office of such Banks or institutions.

Definitions

49(1)       In this section

"business" includes every kind of business, profession, occupation, calling, operation, or activity, whether carried on for profit or otherwise, and whether carried on by or as part of the operation of government; (« affaire »)

"record" includes any information that is recorded or stored by means of any device. (« document »)

Where business records admissible

49(2)       Any writing or record made of an act, transaction, occurrence or event is admissible as evidence of the act, transaction, occurrence or event if

(a) it is made in the usual and ordinary course of any business; and

(b) it was in the usual and ordinary course of business to make the writing or record at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

Notice of intention to produce

49(3)       Unless the court orders otherwise, no writing or record shall be received in evidence under this section unless the party producing the writing or record has, at least seven days before its production, given notice of his intention to produce it to each other party to the action and has, within five days after receiving any notice in that behalf given by any other party, produced it for inspection by that other party.

Surrounding circumstances

49(4)       The circumstances of the making of any writing or record to which reference is made in subsection (2), including lack of personal knowledge by the maker, may be shown to affect its weight, but the circumstances do not affect its admissibility.

Previous rules as to admissibility, etc.

49(5)       Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged.

Medical reports

50(1)       Any medical report obtained by or prepared for a party to an action and signed by a duly qualified medical practitioner licensed to practise in any part of Canada is admissible in evidence in any action if a copy of the report is furnished to each of the other parties to the action at least fourteen days before the trial.

Report required

50(2)       Except by leave of the judge presiding at the trial, a duly qualified medical practitioner who has medically examined any party to the action shall not give evidence at the trial touching upon that examination unless a copy of the report thereof has been given to each of the other parties in accordance with subsection (1).

Right to cross-examine

50(3)       Where a party to an action submits a medical report in evidence in the action, any other party to the action may require the duly qualified medical practitioner who signed the report to be called as a witness and may cross-examine him on the report.

Where a doctor called unnecessarily

50(4)       Where a duly qualified medical practitioner has been required to give evidence viva voce in an action on examination in chief or on cross-examination and, the court is of opinion that the evidence so obtained does not materially add to the information in a report required under subsection (2), it may order the party that required the attendance of the medical practitioner to pay, as costs therefor, such sum as it deems appropriate.

Definitions

51(1)       In this section,

"person" includes,

(a) the Government of Canada and the government of any province of Canada and any department, commission, board, or branch, of any such government;

(b) the heirs, executors, administrators, or other legal representatives of a person; and

(c) a person in charge of, or having custody of, the records of any court; (« personne ») and

"photographic film" includes any photographic plate, microphotographic film, and photostatic negative, and "photograph" has a corresponding meaning. (« pellicule photographique »)

Admissibility in evidence of photographic print

51(2)       Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan, or record or book or entry therein, kept or held by any person,

(a) is photographed in the course of an established practice of that person of photographing objects of the same or a similar class in order to keep a permanent record thereof; and

(b) is destroyed by, or in the presence of, the person or of one or more of his employees, or delivered to another person in the ordinary course of business, or lost;

a print from the photographic film is admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.

Refusal to admit by court

51(3)       Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, or other executed or signed document, was so destroyed before the expiration of six years from,

(a) the date when in the ordinary course of business either the object or the matter to which it related ceased to be treated as current by the person having custody or control of the object; or

(b) the date of receipt by the person having custody or control of the object of notice in writing of any claim in respect of the object or matter prior to the destruction of the object;

whichever is the later date, the court may refuse to admit in evidence under this section a print from a photographic film of the object.

Where subsec. (3) not applicable

51(4)       Where the photographic print is tendered by a government or the Bank of Canada, or a person in charge of, or having custody of, the records of any court, subsection (3) does not apply.

Manner of proof

51(5)       Proof of compliance with the conditions prescribed by this section may be given by any person having knowledge of the facts, either orally or by affidavit sworn before a notary public; and, unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.

Definitions

51.1        In this section and sections 51.2 to 51.7,

"computer system" means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other data, and

(b) pursuant to computer programs, performs logic and control, and may perform any other function; (« système informatique »)

"data" means representations of information or of concepts, in any form; (« données »)

"electronic document" means data that

(a) is recorded or stored on any medium in or by a computer system or other similar device, and

(b) can be read or perceived by a person or by a computer system or other similar device,

and includes a display, printout or other output of that data; (« document électronique »)

"electronic documents system" includes a computer system or other similar device by or in which data is recorded or stored, and any procedures related to the recording or storage of electronic documents; (« système de documents électroniques »)

"electronic signature" means an electronic signature as defined in section 1 of The Electronic Commerce and Information Act. (« signature électronique »)

S.M. 2000, c. 32, s. 38.

Authentication of electronic documents

51.2        Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

S.M. 2000, c. 32, s. 38.

Application of best evidence rule to electronic documents

51.3(1)     The best evidence rule in respect of an electronic document is satisfied

(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or

(b)  if an evidentiary presumption established under section 51.5 applies.

Printouts

51.3(2)     Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.

S.M. 2000, c. 32, s. 38.

Presumption of integrity

51.4        For the purposes of subsection 51.3(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or

(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

S.M. 2000, c. 32, s. 38.

Presumptions regarding electronic signatures

51.5        The Lieutenant Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with electronic signatures, including regulations respecting

(a) the association of electronic signatures with persons; and

(b) the integrity of information contained in electronic documents signed with electronic signatures.

S.M. 2000, c. 32, s. 38.

Standards may be considered

51.6        For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

S.M. 2000, c. 32, s. 38.

Proof by affidavit

51.7(1)     The matters referred to in subsection 51.3(2) and sections 51.4 and 51.6 and in regulations made under section 51.5 may be established by an affidavit given to the best of the deponent's knowledge and belief.

Cross examination

51.7(2)     A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

(a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and

(b) with leave of the court, in the case of any other deponent.

S.M. 2000, c. 32, s. 38.

Application

51.8        Sections 51.2 to 51.5 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence.

S.M. 2000, c. 32, s. 38.

WILLS

Method of proving wills

52(1)       The probate of a will or a copy thereof, certified under the hand of the clerk of the court in which probate was granted, or proved to be a true copy of the original will shall, when the will has been entered in the records of the court, be received as evidence of the original will; but the court may, upon due cause shown upon affidavit, order the original will to be produced in evidence, or may direct such other proof of the original will as, under the circumstances, appears necessary or reasonable for testing the authenticity of the alleged original will and its unaltered condition and the correctness of the prepared copy.

Saving

52(2)       This section applies to wills and the probate and copies of wills proved elsewhere than in the province, provided that the original wills have been deposited, and the probate and copies granted, in courts having jurisdiction over the proof of wills and administration of the estates of intestates or the custody of wills.

Proof of death of members of Canadian Forces

53(1)       The production of a certificate purporting to be signed by an authority authorized in that behalf under the National Defence Act (Canada) or under regulations made thereunder, stating that the person named in the certificate died, or was deemed to have died, on a date set forth therein, is admissible in evidence as prima facie proof for any purpose to which the authority of the Legislature extends, that the person so named died on that date, and also of the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.

Proof of service of members of Canadian Forces

53(2)       The production of a certificate purporting to be signed by the officer in charge of records of the naval, military or air forces of Her Majesty raised by Canada, stating that the person named in the certificate was a member of any of those forces and was serving on active service during the period between the dates set forth therein, is admissible in evidence as prima facie proof, for any purpose to which the authority of the Legislature extends, that the person so named was on active service during that period, and also of the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.

MERCANTILE DOCUMENTS

Proof of certain documents

54(1)       A party intending to prove the original of a telegram, letter, shipping bill, bill of lading, delivery order, receipt, account, or other written instrument used in business or other transactions, may give notice to the opposite party, ten days at least before the trial or other proceeding in which the proof is intended to be adduced, that he intends to give in evidence, as proof of the contents thereof, a writing purporting to be a copy of such an instrument, and in the notice shall name some convenient time and place for the inspection thereof.

Inspection

54(2)       The copy may then be inspected by the opposite party, and, without further proof, is sufficient evidence of the contents of the original document, and shall be accepted and taken in lieu of the original, unless the party receiving the notice, within four days after the time mentioned for the inspection, gives notice that he intends to

dispute the correctness or genuineness of the copy at the trial or proceeding, and to require proof of the original; and the costs attending any production or proof of the original instrument are in the discretion of the court.

MISCELLANEOUS PROVISIONS RESPECTING DOCUMENTS

Where no attestation required

55(1)       It is not necessary to prove, by the attesting witness, an instrument to the validity of which attestation is not requisite.

How proved

55(2)       The instrument may be proved by admission or otherwise as if there had been no attesting witness thereto.

Comparison of disputed writing with genuine

56          Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by a witness; and the writings and the evidence of witnesses respecting them may be submitted to the court or jury as evidence of the genuineness or otherwise of the writing in dispute.

Where instruments offered in evidence may be impounded

57          Where a document is received in evidence, the court admitting it may direct that it be impounded and kept in such custody for such period, and subject to such conditions, as seem proper, or until the further order of the court.

ADMISSIBILITY OF CERTAIN DOCUMENTARY EVIDENCE

Admissibility of documentary evidence as to facts in issue

58(1)       In any legal proceedings where direct oral evidence as to a fact would be admissible, any statement made by a person in a document and tending to establish that fact is, on production of the original document, admissible as evidence of that fact,

(a) if the maker of the statement either

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is, or forms part of, a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) subject to subsection (2), if the maker of the statement is called as a witness in the proceedings.

Exception

58(2)       The condition set out in clause (1)(b) that the maker of the statement shall be called as a witness need not be satisfied if he is dead or unfit by reason of his bodily or mental condition to attend as a witness, or if he is without the province and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.

Where full compliance with subsection (1) not required

58(3)       In any legal proceedings the court may, at any stage of the proceedings, if, having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence, or may, without any such order having been made, admit such a statement in evidence,

(a) notwithstanding that the maker of the statement is available but is not called as a witness; and

(b) notwithstanding that the original document is not produced if, in lieu thereof, there is produced a copy of the original document or of the material part thereof, certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

Statement must be prior to proceedings

58(4)       Nothing in this section renders admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact that the statement might tend to establish.

Statement must be authenticated by maker

58(5)       For the purposes of this section a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made, or produced, by him with his own hand, or was signed or initialled by him, or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

Discretion of court respecting admissibility of statement

58(6)       For the purpose of deciding whether or not a statement is admissible as evidence by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and it may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a duly qualified medical practitioner; and where the legal proceedings are with a jury, the court may, in its discretion, reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

Weight to be attached to evidence

59(1)       In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 58, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question of whether or not the maker of the statement had any incentive to conceal or misrepresent facts.

Document not to corroborate evidence of maker

59(2)       For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by section 58 shall not be treated as corroboration of evidence given by the maker of the statement.

Interpretation

60(1)       In sections 58 and 59,

"document" includes books, maps, plans, drawings, and photographs; (« document »)

"statement" includes any representation of fact whether made in words or otherwise. (« déclaration »)

Saving

60(2)       Nothing in section 58 or 59

(a) prejudices the admissibility of any evidence that would, apart from those sections, be admissible; or

(b) enables documentary evidence to be given as to any declaration relating to a matter of pedigree, if that declaration would not have been admissible as evidence if those sections had not been enacted.

DIVISION V

EVIDENCE BY AFFIDAVIT OR DECLARATION

STATUTORY DECLARATIONS

Statutory declarations

61          Any person authorized to take affidavits may receive the solemn declaration of any person voluntarily making it before him, 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, in the following form:

I, A.B., do solemnly declare that (state the fact or facts declared to), and 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  .

AFFIDAVITS, AFFIRMATIONS AND DECLARATIONS

Affidavit, etc., to be taken within province

62(1)       Any oath, affidavit, affirmation, or statutory declaration, for use in the province may be administered, sworn, affirmed, made, or declared, within the province before any of the following persons:

(a) A commissioner for oaths.

(b) The Lieutenant Governor.

(c) The Clerk of the Executive Council of the province.

(d) A justice of the peace in the province.

(e) The judge of any court in the province.

(f) The master, referee, Registrar or deputy registrar of the Court of Queen's Bench, or the deputy of any of them.

(g) A district registrar, deputy district registrar, or a deputy of a district registrar, of any land titles office in the province, or the Registrar-General under The Real Property Act.

(h) A barrister-at-law or attorney-at-law duly admitted and entitled to practise as such in the province.

(i) A notary public appointed for the province.

(j) The mayor, reeve, or clerk of any municipality, the resident administrator of any local government district, or the secretary-treasurer of any school district or school division, established under The Public Schools Act.

(k) The postmaster of any post office in the province who is appointed under the Canada Post Corporation Act (Canada).

(l) The chief sheriff or any sheriff in the province of the deputy of any of them.

(m) A member of the Royal Canadian Mounted Police Force.

(n) A surveyor authorized to practise under The Land Surveyors Act.

Designation of office

62(2)       Every such officer shall designate his office below his signature to the jurat on any affidavit or statutory declaration sworn, affirmed, or declared, before him.

Oaths, etc., administered by commissioned officers

62(3)       An oath, affidavit, affirmation, or statutory declaration administered, sworn, affirmed, made, or declared within or outside Manitoba before a person who holds a commission as an officer in the Canadian Forces and is on full-time service is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed, or made within Manitoba before a commissioner for oaths appointed under Part II.

Admissibility

62(4)       A document that purports to be signed by a person mentioned in subsection (3) in testimony of an oath, affidavit, affirmation, or statutory declaration having been administered, sworn, affirmed, or made before him and on which his rank and unit are shown below his signature, is admissible in evidence without proof of his signature or of his rank or unit or that he is on full-time service.

S.M. 2005, c. 8, s. 11.

Oaths, etc., administered outside province

63(1)       An oath, affidavit, affirmation, or statutory declaration administered, sworn, affirmed, or made outside Manitoba before,

(a) a judge;

(b) a justice of the peace;

(c) an officer of a court of justice;

(d) a commissioner for taking affidavits, or other competent authority of a similar nature;

(e) a notary public;

(f) the head of a city, town, village, township, or other municipality;

(g) an officer of any of Her Majesty's diplomatic or consular services, including an ambassador, envoy, minister, charge d'affaires, counsellor, secretary, attache, consul-general, consul, vice-consul, pro-consul, consular agent, acting consul-general, acting consul, acting vice-consul and acting consular agent;

(h) an officer of the Canadian diplomatic, consular, or representative services, including, in addition to the diplomatic and consular officers mentioned in clause (g), a high commissioner, permanent delegate, acting high commissioner, acting permanent delegate, counsellor, and secretary; or

(i) a Canadian Government Trade Commissioner or an Assistant Canadian Government Trade Commissioner; or

(j) a commissioner authorized by the laws of Manitoba to take affidavits outside Manitoba;

exercising his functions or having jurisdiction or authority as such in the place in which it is administered, sworn, affirmed, or made, is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed, or made within Manitoba before a commissioner for oaths appointed under Part II.

Oaths, etc., administered outside Manitoba by Manitoba officers

63(2)       An oath, affidavit, affirmation, or statutory declaration administered, sworn, affirmed, or made outside Manitoba before any person before whom an oath, affidavit, affirmation, or statutory declaration may be administered, sworn, affirmed, or made within the province is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed, or made within Manitoba before a commissioner for oaths appointed under Part II.

Admissibility

63(3)       A document that purports to be signed by a person mentioned in subsection (1) or (2) in testimony of an oath, affidavit, affirmation, or statutory declaration having been administered, sworn, affirmed, or made before him outside Manitoba and on which his office is shown below his signature, and

(a) in the case of a notary public, that purports to have impressed thereon or attached thereto his official seal;

(b) in the case of a person mentioned in clause (1)(f), that purports to have impressed thereon or attached thereto the seal of the municipality; and

(c) in the case of a person mentioned in clause (1)(g), (h) or (i), that purports to have impressed thereon or attached thereto his seal or the seal or stamp of his office or of the office to which he is attached

is admissible in evidence without proof of his signature or of his office or official character or of the seal or stamp, and without proof that he was exercising his functions or had jurisdiction or authority in the place in which the oath, affidavit, affirmation, or statutory declaration was administered, sworn, affirmed, or made.

S.M. 2004, c. 42, s. 28; S.M. 2005, c. 8, s. 11.

ADMINISTRATION OF OATHS

Mode of taking affidavits, affirmations, and declarations

64(1)       Every oath, affirmation, and statutory declaration, shall be taken by the deponent or declarant in the presence of the commissioner or other officer or person administering it, who shall satisfy himself of the genuineness of the signature of the deponent or declarant, and shall administer the oath, affirmation, or declaration, in the manner required by law before he signs the jurat or attestation.

Form of oath, etc.

64(2)       Where a person is about to swear or affirm an affidavit he may do so in the following form or to the same effect:

In the case of an affidavit sworn,

I/you, A.B., swear that the contents of this affidavit made and subscribed by me/you are true. So help me/you God.

and in the case of an affidavit affirmed,

I/you, A.B., do solemnly and sincerely affirm that the contents of this affidavit made and subscribed by me/you are true.

Jurat to state time and place

64(3)       Every commissioner or other person before whom any affidavit or declaration is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the affidavit or declaration is taken or made.

Special forms of jurat

64(4)       Where a person who has sworn or affirmed an affidavit or made a statutory declaration is incapable of reading the affidavit or declaration or is incapable of writing his or her name, or swore or affirmed the affidavit or made the declaration through an interpreter, or where an affidavit or declaration is severally sworn, affirmed, or made, by two or more deponents or declarants, the person before whom the affidavit or declaration was sworn, affirmed, or made, may make use of that one of the forms of jurat hereinafter set out that is relevant to the case:

FORM OF JURAT — INCAPABLE OF READING AFFIDAVIT OR DECLARATION

Sworn (affirmed or declared) before me at the            of           , in the            of            , this       day of            , 19  , having first been read over and explained by me to the deponent (or declarant) who, being incapable of reading the contents of the affidavit or declaration, appeared to understand the same and (choose one)

(a) signed his/her signature in my presence; or

(b) made his/her mark in my presence; or

(c) verbally indicated his/her understanding of same.

A Commissioner for Oaths, Notary Public, etc.

FORM OF JURAT — TWO OR MORE DEPONENTS OR DECLARANTS

Severally sworn (affirmed or declared) before me at the            of           , in the            of           , this       day of           , 19  .

A Commissioner for Oaths, Notary Public, etc.

FORM OF JURAT — PERSON INCAPABLE OF WRITING NAME

Severally sworn (affirmed or declared) before me at the            of           , in the            of           , this       day of           , 19   by the deponent (or declarant) who, being incapable of writing his/her name (choose one)

(a) made his/her mark in my presence; or

(b) verbally indicated his/her understanding of the affidavit or declaration.

A Commissioner for Oaths, Notary Public, etc.

FORM OF JURAT — INTERPRETER USED

Sworn (affirmed or declared) before me at the            of           , in the            of           , this       day of           , 19  , through the interpretation of           , of the            of           , in the            of           , the said            having been first sworn truly and faithfully to interpret the contents of this affidavit (affirmation or declaration) to the deponent (or declarant), and truly and faithfully to interpret the oath about to be administered to him (or declaration about to be taken by him).

A Commissioner for Oaths, Notary Public, etc.

S.M. 2000, c. 35, s. 7; S.M. 2011, c. 35, s. 14.

Penalty for improper use of affidavits, etc.

65          Every person administering an oath, affirmation, or statutory declaration, who signs a jurat or attestation without the due administration of the oath, affirmation, or declaration, or who, in a proceeding in or out of court or for the purpose of making or maintaining any claim, makes, files, or uses, any affidavit or statutory declaration, knowing it has not been taken or made in conformity with this Act, is guilty of an offence and is liable, on summary conviction, to a fine of not less than $25. but not more than $500. for each offence.

S.M. 2011, c. 35, s. 14

Formal defects, when not to vitiate

66          No informality in the heading or other formal requisites to any affidavit or declaration, made or taken before a commissioner or other person authorized to take affidavits under this or any Act, is an objection to its reception in evidence, if the court or officer before whom it is tendered thinks proper to receive it.

AFFIDAVIT OF SERVICE AS EVIDENCE

Affidavits of service to be prima facie evidence

67          In any action or proceeding in any court in the province, every affidavit of service of a notice or document, which affidavit has been registered, filed, or deposited, in any land titles office or registry office in the province, is evidence of the service of the notice or document and of the truth of any other statement relating to the service set forth in the affidavit.

Where acknowledgment before notary sufficient

68(1)       Where, under any Act of the Legislature, the execution at a place outside Canada of any instrument or document including, without restricting the generality of the foregoing, any of the following instruments, that is to say,

(a) a transfer, grant, deed, lease, or other conveyance of land or of any interest therein; or

(b) any agreement to sell land or any mortgage of land or discharge of such a mortgage;

by any party thereto is required to be proved by the affidavit, affirmation, or statutory declaration of a witness to the execution thereof, that requirement is satisfied if the party thereto acknowledges, at a place outside Canada, the execution of the instrument and his signature thereto before a notary public, who thereupon executes and attaches thereto a certificate under his seal in Form A in the Schedule.

Alternate acknowledgement

68(2)       Where, under any Act of the Legislature, any person is required or authorized to swear or affirm, or to declare, any affidavit or statutory declaration that relates to, is intended to be attached or annexed to, any instrument or document to which subsection (1) applies, it is sufficient compliance with the requirements or authorization if,

(a) that person, in lieu of making such an affidavit or statutory declaration, appears before a notary public at a place outside Canada and to him certifies or declares that the matters otherwise required to be set out in such an affidavit or statutory declaration are true; and

(b) the notary public executes and attaches to the instrument a certificate under his seal in Form B in the Schedule.

DIVISION VI

CRIMINAL ORGANIZATIONS

Definitions

68.1        The following definitions apply in this Division.

"criminal organization" means a criminal organization as defined in section 2 of the Criminal Code (Canada). (« organisation criminelle »)

"department" means the department of government over which the minister presides. (« ministère »)

"director" means the director appointed under section 68.13. (« directeur »)

"entity" means a group or organization, however structured, and includes a partnership, a corporation or an unincorporated association. (« entité »)

"law enforcement agency" means

(a) the Royal Canadian Mounted Police;

(b) a municipal police service; or

(c) an agency or organization designated by regulation. (« organisme d'application de la loi »)

"review panel" means the panel appointed under section 68.14. (« comité d'examen »)

"schedule" means the schedule of criminal organizations contained in a regulation made under section 68.2. (« liste »)

S.M. 2010, c. 23, s. 2.

Schedule of criminal organizations

68.2(1)     The Lieutenant Governor in Council may, by regulation, establish a schedule of criminal organizations.

Entry on schedule of criminal organizations

68.2(2)     The Lieutenant Governor in Council may place an entity on the schedule if, on the recommendation of the minister, the Lieutenant Governor in Council is satisfied that there are reasonable grounds to believe that the entity is a criminal organization.

Recommendation process

68.2(3)     The minister may make a recommendation to the Lieutenant Governor in Council to add an entity to the schedule only in accordance with the process set out in sections 68.4 to 68.9.

S.M. 2010, c. 23, s. 2.

Scheduled entity deemed to be criminal organization

68.3(1)     When an entity is on the schedule it is deemed to be conclusive proof in an action or other legal proceeding that the entity is a criminal organization.

Clarification

68.3(2)     Subsection (1) does not affect the requirement to prove that a person is a member of a criminal organization.

No inference if entity not on schedule

68.3(3)     No inference is to be drawn from the fact that an entity is not on the schedule in an action or other legal proceeding where a person seeks to prove that an entity is a criminal organization.

S.M. 2010, c. 23, s. 2.

Application

68.4(1)     The director may apply to have an entity added to the schedule if he or she has determined that the entity is a criminal organization.

Contents of application

68.4(2)     The application must

(a) be made in writing to the minister;

(b) identify the entity that is the subject of the application; and

(c) provide detailed information setting out the basis on which the director has determined that the entity is a criminal organization, including one or both of the following:

(i) information obtained by the director respecting the entity and its members,

(ii) a decision, order or finding of a federal, provincial or territorial court that the entity is a criminal organization.

Identifying entity

68.4(3)     The application may identify the entity by specifying the name of the entity, the names by which the entity is commonly known or by providing other particulars of the entity.

S.M. 2010, c. 23, s. 2.

Notice of application

68.5(1)     The director must give public notice of the application in accordance with this section.

Contents of notice

68.5(2)     The notice of the application must include the following information:

(a) the entity that is the subject of the application;

(b) a statement that a member of the entity who objects to the application and wishes to make a submission to the review panel must file written notice of his or her objection at an address set out in the notice;

(c) the deadline for an objection to be filed, which must be at least 30 days after public notice of the application was first given;

(d) any other information prescribed by regulation.

Publication of notice

68.5(3)     The director must arrange for public notice of the application to be given

(a) by publishing notice of the application on at least two occasions in a newspaper with general circulation throughout the province;

(b) by posting notice of the application on the department's website; and

(c) in any other manner that the director considers appropriate.

S.M. 2010, c. 23, s. 2.

Objection process

68.6(1)     If a member of an entity files an objection by the deadline set out in the notice of application, the director must give the objector a reasonable opportunity to review — at a location selected by the director — a statement that summarizes the information that led to the director's determination that the entity is a criminal organization.

Contents of summary statement

68.6(2)     The summary statement must be prepared by the director and must enable the objector to be reasonably informed of the basis on which the director determined that the entity is a criminal organization.

Restriction on summary statement

68.6(3)     The summary statement must not disclose any information that might

(a) reveal the identity of a confidential informant, or otherwise jeopardize the safety of a person; or

(b) negatively affect

(i) an investigation or operation conducted by a law enforcement agency, or

(ii) the utility of investigative or intelligence-gathering techniques used by a law enforcement agency.

Copy of decision or order

68.6(4)     When an application is based on a determination by a federal, provincial or territorial court that the entity is a criminal organization, the director must give the objector a copy of the decision or order in question.

Submissions by objector

68.6(5)     Within 30 days after being given an opportunity to review the summary statement, an objector may provide the director with a written submission that

(a) responds to the information provided by the director in support of the application; and

(b) sets out any additional arguments or evidence in support of the objector's position that the entity in question is not a criminal organization.

S.M. 2010, c. 23, s. 2.

Submission of material

68.7        The director must give the following material to the review panel:

(a) a copy of the application;

(b) all material submitted by the director in support of the application;

(c) any written submissions received from an objector.

S.M. 2010, c. 23, s. 2.

Determination by review panel

68.8(1)     The review panel must review the material provided by the director and advise the minister if there are reasonable grounds to believe that the entity in question is a criminal organization.

Review panel report

68.8(2)     The review panel must provide the minister with

(a) a report that sets out the reasons for the advice provided to the minister by the review panel under subsection (1); and

(b) any written submissions received from an objector.

S.M. 2010, c. 23, s. 2.

Recommendation by minister

68.9        The minister may make a recommendation to the Lieutenant Governor in Council to add an entity to the schedule if

(a) the review panel has advised the minister that there are reasonable grounds to believe that the entity is a criminal organization; and

(b) he or she has reasonable grounds to believe that the entity is a criminal organization, having regard to

(i) the information provided by the director in support of the application,

(ii) any written submissions received from an objector, and

(iii) the report of the review panel.

S.M. 2010, c. 23, s. 2.

Request for removal from schedule

68.10(1)    A member of an entity that is on the schedule may make a written request to the director to have the entity removed from the schedule.

Content of request

68.10(2)    The request must set out the basis on which it is alleged that the entity in question is not a criminal organization.

Director's statement

68.10(3)    Within 90 days after receiving a request, the director must give a written statement to the person making the request that sets out the director's position respecting the request, including any relevant information in support of the director's position.

Response to director's statement

68.10(4)    Within 30 days after receiving the director's statement, the person making a request may give the director a written statement that responds to the position taken in the director's statement.

Referral to review panel

68.10(5)    The director must give the following material to the review panel:

(a) the request to have the entity removed from the schedule;

(b) the director's written statement in response to the request;

(c) the response to the director's written statement, if any.

Decision by review panel

68.10(6)    The review panel must review the material provided by the director and determine whether the entity in question is no longer a criminal organization and advise the minister of the reasons for its decision.

Recommendation

68.10(7)    The minister may recommend to the Lieutenant Governor in Council that an entity be removed from the schedule if he or she is satisfied that the entity is no longer a criminal organization.

Restriction on requests

68.10(8)    A request under this section may not be made if

(a) an objection to the application to place the entity on the schedule was made and less than five years have elapsed since the entity was placed on the schedule; or

(b) a request to have the entity removed from the schedule has been received within the previous five years.

S.M. 2010, c. 23, s. 2.

No appeal or judicial review

68.11       The decision to add an entity to the schedule or deny a request under section 68.10 is final and is not subject to judicial review or appeal.

S.M. 2010, c. 23, s. 2.

Mistaken identity

68.12(1)    An entity claiming not to be an entity on the schedule may apply to the minister for a certificate stating that it is not on the schedule.

Certificate

68.12(2)    The minister may issue a certificate confirming that an entity is not on the schedule if he or she is satisfied that the applicant is not on the schedule and is not affiliated or associated in any way with an entity on the schedule.

S.M. 2010, c. 23, s. 2.

Director

68.13       The minister must appoint a senior official in the department as the director for the purpose of this Division.

S.M. 2010, c. 23, s. 2.

Review panel

68.14(1)    The minister must appoint three or more persons who are not government employees or members of a law enforcement agency to serve on an independent panel that will review applications to have entities added to the schedule and requests to have entities removed from the schedule.

Chair

68.14(2)    The minister must designate a member of the panel to serve as chair.

Panel proceedings confidential

68.14(3)    The proceedings of the review panel are confidential and no member of the panel may disclose any information about its operations without the prior approval of the minister.

S.M. 2010, c. 23, s. 2.

Director and panel not compellable

68.15       The director and members of the review panel cannot be compelled to give evidence in court or in any other proceeding respecting an application under section 68.4 or a request under section 68.10.

S.M. 2010, c. 23, s. 2.

No access under Freedom of Information Act

68.16(1)    Despite Part 2 (Access to Information) of The Freedom of Information and Protection of Privacy Act, no person may obtain access under that Act to any record or information created, obtained or submitted under this Division.

Director may collect information

68.16(2)    The director is authorized to collect information, including personal information, from a law enforcement agency or other source in order to determine whether to make an application under section 68.4 or respond to a request under section 68.10.

Disclosure of information

68.16(3)    A law enforcement agency is authorized to disclose personal information to the director for a purpose set out in subsection (2).

Agreements re disclosure of information

68.16(4)    The minister may enter into an agreement with a law enforcement agency or a federal, provincial or territorial government, or a department or agency of those governments, respecting the disclosure of information to the director for a purpose set out in subsection (2).

Interpretation

68.16(5)    In this section, "personal information" means personal information as defined in The Freedom of Information and Protection of Privacy Act, but does not include personal health information as defined in The Personal Health Information Act.

S.M. 2010, c. 23, s. 2.

Regulations

68.17       The Lieutenant Governor in Council may make regulations

(a) designating agencies or organizations as law enforcement agencies for the purposes of this Division;

(b) prescribing information to be contained in a notice of application under section 68.5;

(c) respecting any matter the Lieutenant Governor in Council considers necessary to carry out the purposes of this Division.

S.M. 2010, c. 23, s. 2.

PART II

RESPECTING COMMISSIONERS FOR OATHS

APPOINTMENT

Minister may appoint persons to take affidavits

69(1)       The minister may, by commission, appoint and empower as many persons as he thinks fit and necessary as commissioners to take and receive oaths, affidavits, or affirmations, either within or outside the province for use therein.

Title of commissioner

69(2)       A commissioner may be styled "A Commissioner for Oaths"; but the want of style or designation, or error or omission therein, does not affect the instrument.

Officer of court

70          Every commissioner shall be deemed to be an officer of the Court of Queen's Bench.

POWERS OF COMMISSIONER

Extent of commissioner's authority

71          Every commissioner may, during pleasure, take any affidavit or statutory declaration in anywise concerning any legal proceeding in the province, or in which he is authorized by any law or statute, although the application or matter is not made or pending in any court.

COMMISSION OF COMMISSIONER

Duration of and fee for commission

72          Every commission issued to a commissioner under this Act expires two years from the date of its issue; and for every such commission there shall be paid to the government a fee prescribed by the Lieutenant Governor in Council.

Fee on renewal

73          The minister may renew a commission on an application to him before or within one year after its expiration, and upon payment to the government of a fee prescribed by the Lieutenant Governor in Council.

Date of expiry to appear on document

74(1)       A commissioner whose commission is one that expires under this Act shall write or stamp on every affidavit, declaration, or certificate, taken or given by him the date on which his commission expires.

Fine for failure

74(2)       A commissioner who fails to comply with this section is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $10. and costs.

PART III

RESPECTING NOTARIES PUBLIC

APPOINTMENT

Minister may appoint notaries

75          The minister may, by commission, appoint notaries public for the province.

Fee payable for appointment of Notary

76          For every commission issued to a Notary Public there shall be paid to the government a fee prescribed by the Lieutenant Governor in Council.

Duration of commission

77(1)       Every commission appointing as a notary public a person who is, or afterwards becomes, a barrister or a solicitor entitled to practise as such in the province, or a district registrar, shall remain in force until it is revoked.

Effect of disbarment, etc.

77(2)       The disbarment of a barrister or the striking off the rolls of a solicitor who holds an appointment as a notary public has the effect of revoking the appointment.

Expiration after 2 years

77(3)       Every commission appointing as a notary public any other person, unless it is sooner revoked or renewed, expires at the expiration of two years from date of its issue.

Renewal fee

78          The minister may renew a commission on application to him before, or within one year after, its expiration and upon payment to the government of a fee prescribed by the Lieutenant Governor in Council.

Date of expiration of commission noted

79(1)       A notary public whose commission under this Act expires, shall write or stamp on every affidavit, declaration, or certificate, taken or given by him, the date on which his commission expires.

Penalty

79(2)       A notary public failing to comply with this section is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $10.

AUTHORITY OF NOTARY

Power of notary

80          Every notary public appointed has, and may use and exercise, the power of administering oaths attested by his signature and seal, the attesting of commercial instruments brought before him for public protestation, and the giving of notarial certificates of his acts, and may demand, receive, and have, all the rights, profits, and emoluments, rightfully appertaining and belonging thereto.

Officer of court and commissioner

81          A notary public shall be deemed to be an officer of the Court of Queen's Bench, and is, ex officio, a commissioner for taking oaths in the province; and where the notary public administers oaths or takes affidavits, affirmations, or declarations, within the province, or where a consent or release under section 9 or 11 of The Homesteads Act is made before the notary public, it is not necessary to the validity of such a document that the notary public affix his or her seal to it.

S.M. 1992, c. 46, s. 55.

PART IV

RESPECTING COMMISSIONS ISSUED ABROAD

Examination of witnesses under commissions from courts abroad

82(1)       Where a court or tribunal of competent jurisdiction in any part of the Commonwealth or in any foreign country, in some proceeding before it, issues or authorizes a commission or order for obtaining the testimony of some person who is within the province or the production of papers therein, the Court of Queen's Bench, if satisfied of the authenticity of the commission or order and the propriety of the examination or production, may, by order, direct the examination of the persons whom it is desired to examine, and the production of papers when required, in the manner prescribed in the commission or order for examination, or in such other manner, and before such person, and with such notice, as the court directs.

Payment of expenses of witness

82(2)       A person whose attendance is so ordered is entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in the Court of Queen's Bench.

Right of refusal to answer questions and to produce documents

82(3)       A person examined under such a commission, order, or other process, has the like right to object to answer questions tending to criminate himself, and to refuse to answer any questions that, in an action pending in the court by which, or before the judge by whom, the order for examination was made, the witness would be entitled to object or to refuse to answer; and no person shall be compelled to produce at the examination, any writing, document, or thing, that he would not be compellable to produce at the trial of such an action.

PART V

RESPECTING COMMISSIONERS APPOINTED FOR PUBLIC INQUIRIES

APPOINTMENT

Appointment of commission

83(1)       Where the Lieutenant Governor in Council deems it expedient to cause inquiry to be made into and concerning any matter within the jurisdiction of the Legislature and connected with or affecting

(a) the good government of the province or the conduct of any part of the public business thereof;

(b) the conduct of any provincial institution or of any institution within the province receiving provincial aid;

(c) the administration of justice within the province;

(d) the election of a member to the Legislative Assembly or any alleged attempt to corrupt a candidate at any such election, or a member of the Legislative Assembly after his election, or the payment or contribution for campaign or other political purposes, or for the purpose of obtaining legislation or obtaining influence and support for franchises, charters, or any other rights or privileges, from the Legislature or the Government of Manitoba by any person;

(e) the affairs of any municipality, municipal district, or corporation, existing for any municipal purpose; or

(f) any matter which, in his opinion, is of sufficient public importance to justify an inquiry;

he may, if the inquiry is not otherwise regulated, appoint one or more commissioners to make the inquiry and to report thereon.

Altering commission

83(2)       The Lieutenant Governor in Council may revoke, modify, or enlarge, the scope of any commission.

Inquiry into elections

83(3)       An inquiry relating to the matters referred to in clause (1)(d) may be made, notwithstanding that a person connected therewith is liable to criminal prosecution or that criminal proceedings have been commenced or concluded against him; but shall not be made when an application has been made under Part 15 of The Elections Act with respect to the election until proceedings thereon have terminated, nor shall a commission issue during a session of the Legislature without its assent.

Inquiry into conduct of person preferring charges

83(4)       The commission may, in any case, include an inquiry into and concerning the conduct, character, and motives, of any person by whom a demand for the inquiry was made, or by whom charges were preferred, or the allegations of wrong-doing were made which led up to the inquiry.

S.M. 2006, c. 15, Sched. A, s. 205.

Death or retirement of commissioner

84          Where there is more than one commissioner, if any commissioner dies, resigns, or becomes incapable of acting, the surviving or continuing commissioner or commissioners may act in the inquiry as if he or they had been solely appointed to be the commissioner or commissioners for the purposes of the inquiry; and in case of the death, resignation, or incapacity, of a sole commissioner, a commission under this Act may issue to a new commissioner or to commissioners; and all the provisions of this Act concerning the commissioners appointed to make an inquiry shall be taken to apply to the surviving or continuing or new commissioner or commissioners.

Commissioner's oath or affirmation of office

85          Every commissioner appointed under this Part shall, before entering upon the duties of office, take the following oath or affirmation before the Clerk of the Executive Council or one of the judges of the Court of Queen's Bench, namely:

I, A.B., do swear (or affirm) that I will truly and faithfully execute the powers and trusts vested in me by His (or Her) Honour the Lieutenant Governor, under and pursuant to The Manitoba Evidence Act, according to the best of my knowledge and judgment. So help me God.  (Omit last four words where person affirms.)

R.S.M. 1987 Supp., c. 4, s. 9.

Notice of appointment of commission

86          Notice of the appointment of any commissioners appointed under this Part, of the purpose and scope of the inquiry which they are appointed to make, and of the time and place of holding their first meeting, shall be published in The Manitoba Gazette and in a newspaper published or circulated in the district in which the inquiry is to be held.

Protection of commissioners

87          Every commissioner appointed under this Part has the same protection and privileges, in case of any action brought against him for any act done or omitted to be done in the execution of his duty, as are by law given to the judges of the Court of Queen's Bench.

POWER OF COMMISSIONERS

Powers to summon witnesses

88(1)       The commissioners have the power of summoning any witnesses before them by a subpoena or summons under the hand of any of them, and of requiring those witnesses to give evidence on oath or affirmation, and either orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matter into which they are appointed to inquire.

Witnesses to be examined under oath

88(2)       Unless the commission otherwise provides, witnesses shall be examined under oath or affirmation before the commissioners, who shall reduce their evidence to writing either with or without the assistance of a reporter.

Commissioner may view premises

89          The commissioners may enter upon or into, and view or inspect, any land, building, works, or property, if, in their opinion, a view thereof will assist in the inquiry; and the view may be had, if deemed necessary to the inquiry, at any time by day or by night.

Warrant for non-appearance

90(1)       Where a witness summoned to appear before the commissioners neglects or refuses to appear at the time and place specified in the subpoena or summons, on proof of its service, either personally or by leaving it for him at his last or most usual place of abode, the commissioners may, if the circumstances seem so to justify, issue a warrant signed by the commissioners or any of them to bring and have the witness before them, at the time and place mentioned in the warrant.

Warrant in first instance

90(2)       Where the commissioners are satisfied by evidence upon oath that it is probable that a witness will not attend to give evidence without being compelled to do so, they may, in the first instance, instead of issuing a summons, issue a warrant.

Committal for refusal to testify

91          Where, on the appearance of a witness before the commissioners, either in obedience to a summons or on being brought before them by virtue of a warrant, the witness refuses to be examined upon oath concerning the premises, or refuses to take such an oath, or, having taken the oath, refuses to answer the questions concerning the premises then put to him, without lawful excuse for the refusal, the commissioners may, by warrant signed by the commissioners or any of them, commit the person so refusing to a common gaol, there to remain and be imprisoned for a term not exceeding one month, unless in the meantime he consents to be examined and to answer concerning the premises.

Police to assist commissioners

92          The commissioners, during an inquiry, are entitled to command the service of one or more police officers or constables to maintain order and to put down breaches of the peace, or for the service of any summons or the execution of warrants issued by them, or if none is available, may appoint and swear in special constables for the purpose.

Services of experts

93(1)       The commissioners, if authorized by the Lieutenant Governor in Council or by statute, may engage the services of such accountants, engineers, technical advisers, or other experts, clerks, reporters, and assistants, as they deem necessary or advisable, and also the services of counsel to aid and assist them in the inquiry.

Deputies and officials

93(2)       The commissioners may authorize and depute any such accountants, engineers, technical advisers, or other experts, any other qualified persons, to inquire into any matter within the scope of the commission.

Powers of deputies

93(3)       The persons so deputed, when so authorized, have the same powers that the commissioners have to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence, enter upon and view property, and otherwise conduct the inquiry.

Searches free

94          For the purposes of an inquiry a commissioner may, without fee or charge, search or cause to be searched all instruments, documents, or records, relating to persons or matters within the scope of the inquiry in any public office existing under any Act of the Legislature.

STATED CASE

Stated case for Court of Appeal

95(1)       Where the validity of a commission issued under this Part or the jurisdiction of a commissioner appointed thereby or the validity of any decision, order, direction, or other act, of a commissioner appointed under this Part, is called into question by any person affected, the commissioners, upon the request of that person, shall state a case in writing to The Court of Appeal setting forth the material facts, and the decision of the court thereon is final and binding.

Order directing stated case

95(2)       Where the commissioners refuse to state a case, any person affected may apply to a judge of the court for an order directing the commissioners to do so.

Proceedings stayed until case determined

95(3)       Pending the decision of the stated case no further proceedings shall be taken by the commission.

Action or injunction not to lie against commissioner

95(4)       No action shall be brought or other proceeding taken with respect to anything done, or sought to be done, by a commissioner or to restrain or interfere with, or otherwise direct or affect the conduct of any commissioner.

RULES AND REGULATIONS

Power to make rules

96          The Lieutenant Governor in Council may make provision, either generally in regard to all commissions issued and inquiries held under this Part, or specially in regard to any such commission and inquiry, for

(a) the remuneration of commissioners and persons employed or engaged to assist in the inquiry, including witnesses;

(b) the payment of incidental and necessary expenses; and

(c) all such acts, matters, and things, as are necessary to enable complete effect to be given to every provision of this Part.

SCHEDULE

FORM A

(Section 68(1))

CERTIFICATE AS TO ACKNOWLEDGMENT OF MAKER OF INSTRUMENT

I hereby certify that, on the       day of           , 19  ,            (insert full name of maker of instrument) who is personally known to me, (or whose identity has been satisfactorily proved to me by the evidence of            (name) who is personally known to me), appeared before me and that he acknowledged to me that he is the person mentioned in the annexed instrument as the maker thereof and that he duly executed the instrument and that he is the person whose name is subscribed thereto as a party thereto; and that he knows the contents thereof and that he executed the instrument voluntarily and is of the full age of eighteen years.

In testimony whereof I have hereto set my hand and seal of office at             in                    this       day of           , 19  .

A Notary Public

in and for

(name of jurisdiction in which notary public is authorized to practise as such).

FORM B

(Section 68(2))

CERTIFICATE AS TO DECLARATION OF PARTY TO INSTRUMENT, ETC.

I hereby certify that, on the       day of           , 19  ,            (full name of party declaring the facts) who is personally known to me, (or whose identity has been satisfactorily proved to me by the evidence of            (name) who is personally known to me), appeared before me and certified and declared that the following matters are true:

(Here set out the facts that would otherwise be required to be proved by the affidavit or statutory declaration of the person so certifying and declaring.)

In testimony whereof I have hereto set my hand and seal of office at            in                   this       day of           , 19  .

Notary Public

in and for

(name of jurisdiction in which notary public is authorized to practise as such).

(Note: Strike out each of the words in parentheses as are not required.)