as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. E150
The Manitoba Evidence Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
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")
"bank" means any bank to which The Bank Act (Canada) applies, and includes any branch, agency, or office, of a bank; ("banque" )
"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")
RESPECTING EVIDENCE GENERALLY
APPLICATION OF PART
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.
A person is not incompetent to give evidence by reason of interest or crime.
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 husbands and wives of those parties and persons are, except as herein otherwise provided, competent and compellable to give evidence on behalf of any of the parties.
Without limiting the generality of section 4, a husband or wife 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.
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.
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.
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.
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 made during marriage.
No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
Evidence as to proceedings of hospital committee, etc., not compellable.
A witness in any legal proceeding, whether a party thereto or not, is excused from answering any question as to any proceedings before, or producing any report, statement, memorandum, recommendation, document, or information of, or made by , a committee to which this subsection applies and that is used in the course of, or arising out of, any study, research, or program carried on by a hospital or any such committee for the purpose of medical education or improvement in medical or hospital care or practice.
Subsection (1) applies to all of the committees hereinafter mentioned; namely:
(a) a standards committee appointed under section 26 of The Hospitals Act;
(b) a research committee of a hospital;
(c) a medical staff committee established for the purpose of studying or evaluating medical practice in a hospital; and
(d) a medical research committee recognized by the Minister of Health and approved for the purpose of this section by a regulation made by him.
Application of The Regulations Act.
The Regulations Act applies to a regulation made under clause (2)(d).
Subsection (1) does not apply to original medical and hospital records pertaining to a patient.
Members of committee, etc., not excused generally.
Notwithstanding that a witness in any legal proceeding is or has been a member of, or has participated in the activities of, or has made a report, statement, memorandum, or recommendation to, or has provided information to, a committee to which subsection (1) applies, he is not, subject to subsection (1), excused from answering any question or producing any document that he is otherwise bound to answer or produce.
In this section
"legal proceeding" in addition to having the meaning given to that expression under section 1, includes 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 any proceeding before any tribunal, board, or commission; ("poursuite judiciaire" )
"witness" in addition to the ordinary meaning thereof, includes every person who, in the course of a legal proceeding, is examined viva voce for discovery or is cross-examined upon an affidavit made by him, or answers any interrogatories or makes an affidavit as to documents, or is called upon to answer any question or produce any document, whether under oath or not. ("témoin")
(a) the disclosure of any information or of any document or anything therein, or the submission of any report, statement, memorandum, or recommendation, to any committee to which subsection 9(1) applies, for the purpose of its being used in the course of any study, research, or program carried on by a hospital or any such committee for the purpose of medical education or improvement in medical or hospital care or practice;
(b) the disclosure of any information, or of any document or anything therein, that arises out of any such study, research, or program;
raises or creates any liability on the part of the person making the disclosure or submission.
ATTENDANCE OF WITNESSES
Witness disobeying subpoena liable to action.
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
Every court may administer an oath or affirmation to every witness who is called to give evidence before it.
Court officer may administer oath.
Every officer of the court may administer an oath or affirmation to every witness who is called to give evidence before the court.
Where by an Act or regulation evidence is authorized or required to be taken under oath by a person, or an oath is authorized or directed to be made or taken, the oath 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 is administered.
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.
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.
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.
Where a person objects to being sworn and states as the ground of his objection, either that he has no religious belief or that the taking of an oath is contrary to his religious belief, or if a person is objected to as incompetent to take an oath, he shall be permitted to make his solemn affirmation or declaration instead of taking an oath, and upon the person making such a solemn affirmation or declaration his evidence shall be taken and has the same effect as if taken under oath.
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.
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.
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.
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.
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.
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.
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.
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.
For the certificate of conviction a fee of $1. and no more may be demanded or taken.
Breach of promise of marriage.
The plaintiff in an action for breach of promise of marriage shall not recover unless his or her testimony is corroborated by some other material evidence in support of the promise.
May be received though not on oath.
Where a child of tender years is tendered as a witness in any legal proceeding, and the child does not, in the opinion of the court, understand the nature of an oath, the evidence of the child may be received, though not given upon oath, if, in the opinion of the court, the child is possessed of sufficient intelligence to justify the reception of the evidence and understand the duty of speaking the truth.
No case shall be decided upon such evidence alone; but it shall be corroborated by some other material evidence.
MISCELLANEOUS PROVISIONS RESPECTING WITNESSES
Limit of number of expert witnesses in action.
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.
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
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 Attorney-General; or
(c) by any sound recording device of a type approved by the Attorney-General.
Authority of Attorney-General.
The Attorney-General 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).
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.
Destruction of records after 30 days.
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 by A. G.
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 Attorney-General 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.
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 Attorney-General;
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.
Judicial notice taken of statutes and ordinances.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Copies of records and books of government departments as evidence.
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;
(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.
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.
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.
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.
Evidence of judicial proceedings.
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.
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.
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.
Proof of official or public documents.
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.
Copies of notarial acts in Quebec admissible.
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.
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.
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.
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.
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.
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.
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.
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.
Copy of bank books, etc., as evidence.
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.
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.
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.
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.
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.
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.
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.
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 shall be excluded from the computation of time under this section.
Definition of "financial institution".
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
In this section,
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
It is not necessary to prove, by the attesting witness, an instrument to the validity of which attestation is not requisite.
The instrument may be proved by admission or otherwise as if there had been no attesting witness thereto.
Comparison of disputed writing with genuine.
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.
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.
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.
The condition set out in clause (l)(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 subsec. (1) not required.
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.
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.
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
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.
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.
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.
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")
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.
EVIDENCE BY AFFIDAVIT
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.
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 or magistrate 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 secretarytreasurer 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.
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.
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.
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.
Oaths, etc., administered outside province.
An oath, affidavit, affirmation, or statutory declaration administered, sworn, affirmed, or made outside Manitoba before,
(a) a judge;
(b) a magistrate or a justice of the peace;
(c) an officer of a court of justice;
(d) a commissioner authorized to administer oaths for use in any court of justice in the United Kingdom, the Channel Islands, or the Isle of Man;
(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.
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.
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 (l)(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 (l)(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.
ADMINISTRATION OF OATHS
Mode of taking affidavits, affirmations, and declarations.
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.
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.
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.
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 inacapable 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.
Penalty for improper use of affidavits, etc.
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. and not than $500. for each offence.
Formal defects, when not to vitiate.
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.
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.
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.
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.
RESPECTING COMMISSIONERS FOR OATHS APPOINTMENT
Minister may appoint persons to take affidavits.
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.
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.
Every commissioner shall be deemed to be an officer of the Court of Queen's Bench.
POWERS OF COMMISSIONER
Extent of commissioner's authority.
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.
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.
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.
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.
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.
RESPECTING NOTARIES PUBLIC APPOINTMENT
Minister may appoint notaries.
The minister may, by commission, appoint notaries public for the province.
Fee payable for appointment of Notary.
For every commission issued to a Notary Public there shall be paid to the government a fee prescribed by the Lieutenant Governor in Council.
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.
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.
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.
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.
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.
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
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.
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 an acknowledgment by a spouse under section 8 of The Dower Act is made before him, it is not necessary to their validity that he affix his seal thereto.
RESPECTING COMMISSIONS ISSUED ABROAD
Examination of witnesses under commissions from courts abroad.
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.
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.
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.
RESPECTING COMMISSIONERS APPOINTED FOR PUBLIC INQUIRIES
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.
The Lieutenant Governor in Council may revoke, modify, or enlarge, the scope of any commission.
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 where a petition has been presented under The Controverted 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.
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.
Death or retirement of commissioner.
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 of office.
Every commissioner appointed under this Part shall, before entering upon the duties of his office, take the following oath 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 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.
Notice of appointment of commission.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 for Court of Appeal.
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.
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.
Pending the decision of the stated case no further proceedings shall be taken by the commission.
Action or injunction not to lie against commissioner.
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
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.
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).
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
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.)