Criminal Code of Canada - section 712(2) - Admitting evidence of witness out of Canada

section 712(2)

INTRODUCTION AND BRIEF DESCRIPTION

Evidence taken by a commissioner under this section can be admitted as evidence in the proceedings.

SECTION WORDING

712(2) Where the evidence of a witness is taken by a commissioner appointed under this section, it may be admitted in evidence in the proceedings.

EXPLANATION

Section 712(2) of the Criminal Code of Canada allows for the appointment of a commissioner to take the evidence of a witness who is unable or unwilling to testify in court. This can occur for a number of reasons, such as the witness living in a different jurisdiction or being too ill to attend court. The commissioner is appointed by a judge and is tasked with taking the witness's testimony in accordance with the rules of evidence. Once the testimony is taken, it can be admitted as evidence in the proceedings. This section of the Criminal Code is designed to ensure that the evidence of witnesses is heard even if they are unable or unwilling to attend court in person. This is important for ensuring that all relevant evidence is presented and considered in a trial. Additionally, the use of a commissioner to take testimony can save time and resources, as witnesses can be interviewed in a location that is more convenient to them. It is important to note that the testimony taken by a commissioner must still meet the requirements of admissibility under the rules of evidence. For example, the evidence must be relevant and must not be hearsay (i.e. second-hand information that is being repeated by the witness). Therefore, the commissioner must follow strict procedures and adhere to proper rules of evidence when taking testimony. Overall, Section 712(2) is an important provision of the Criminal Code of Canada that allows for the taking of witness testimony in a way that is convenient, cost-effective, and adheres to the rules of evidence.

COMMENTARY

Section 712(2) of the Criminal Code of Canada is an important provision that deals with the admissibility of evidence provided by witnesses to court proceedings. This section allows the evidence given by a witness to be admitted in court, despite not physically appearing in person before the court. Instead, the witness may have provided their evidence to a commissioner who is appointed under this section. The appointment of a commissioner is specifically provided for in the Canadian Criminal Code, as there may be situations where a witness is unable or unwilling to appear in person. This individual may be located in another jurisdiction, they may have difficulty traveling, or they may have concerns for their personal safety. In these cases, appointing a commissioner to provide testimony on their behalf is a practical and sometimes necessary avenue. Commissioners appointed by the court are required to be impartial and unbiased and must maintain strict confidentiality about the proceedings. They must also have the necessary expertise or knowledge to carry out their role and conduct the case effectively. Commissioners may also be required to swear an oath or affirmation of their obligations. While the use of a commissioner in court proceedings may seem like an unusual alternative to the traditional presentation of evidence, it has several benefits. Firstly, it allows for the court to access important evidence that may not have been otherwise presented. In cases where a witness is unable or unwilling to attend court, vital information may be lost, which could have considerable consequences for the case's outcome. The provision of evidence through a commissioner allows the court to gather all the evidence necessary for a fair hearing. Secondly, providing evidence through a commissioner may be less traumatic for the witness who is providing the testimony. Testifying in court can be a daunting prospect, and some individuals may find it tremendously challenging. The use of a commissioner can help ease some of the pressure on these individuals and make it possible for them to provide their evidence without compromising their well-being. Finally, the use of a commissioner allows for the streamlining of court proceedings. By providing evidence through a commissioner, there is no need for the witness to travel to the court location, which can sometimes be time-consuming and expensive. This makes the whole process more efficient and lessens the impact on witnesses, particularly those who may be vulnerable or at risk. In conclusion, Section 712(2) of the Criminal Code of Canada provides a practical alternative to the traditional presentation of evidence in court. By enabling the use of a commissioner, the court has the ability to access critical evidence, in a way that is less traumatic and more efficient for witnesses. This provision ensures that court cases can be conducted in a fair and just manner, while also respecting the rights and safety of those who provide testimony.

STRATEGY

Section 712(2) of the Criminal Code of Canada is an important provision that allows the evidence of a witness to be taken by a commissioner appointed under this section and admitted in evidence in the proceeding. This provision is particularly useful in cases where a witness is unable or unwilling to attend court to give evidence, or where the witness resides outside the jurisdiction of the court. However, there are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code. The first consideration is the manner in which the evidence is obtained. The evidence of the witness must be taken by a commissioner appointed under the section in accordance with the prescribed procedure. This means that the commissioner must follow the rules of evidence and conduct a fair and impartial hearing. It is also important to ensure that the witness understands the nature of the evidence they are providing, as well as the consequences of providing false or misleading evidence. Another important consideration is the admissibility of the evidence. The evidence obtained by the commissioner must be admissible under the rules of evidence for it to be admitted in court. This means that the evidence must be relevant, reliable, and trustworthy. It is important to note that the admissibility of the evidence may be challenged by opposing counsel if they believe that it does not meet the criteria for admissibility. A third strategic consideration is the potential impact of the evidence on the case. The evidence obtained through a commissioner may be critical to the outcome of the case, particularly if it is the only evidence available. Therefore, it is important to carefully review the evidence and consider its implications for the case before deciding whether to rely on it. Given these strategic considerations, there are several strategies that could be employed when dealing with Section 712(2) of the Criminal Code. One strategy is to carefully select the commissioner who will take the evidence. It is important to appoint a commissioner who is fair, impartial, and experienced in conducting these types of hearings. Another strategy is to thoroughly prepare the witness before they provide evidence to the commissioner. This can include giving them an opportunity to review relevant documents and providing them with legal advice if necessary. When it comes to challenging the evidence obtained through a commissioner, one strategy is to argue that the evidence is inadmissible on the grounds that it does not meet the criteria for admissibility under the rules of evidence. This may require challenging the credibility or reliability of the witness or the manner in which the evidence was obtained. Overall, Section 712(2) of the Criminal Code is a useful provision that can facilitate the taking of evidence from witnesses who are unable or unwilling to attend court. However, it is important to carefully consider the strategic implications of this section and to employ appropriate strategies when dealing with it.