Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Order where witness arrested under warrant

706 Where a person is brought before a court, judge, justice or provincial court judge under a warrant issued pursuant to subsection 698(2) or section 704 or 705, the court, judge, justice or provincial court judge may order that the person

• (a) be detained in custody, or

• (b) be released on recognizance in Form 32, with or without sureties,

to appear and give evidence when required.

Marginal note:Maximum period for detention of witness

• 707 (1) No person shall be detained in custody under the authority of any provision of this Act, for the purpose only of appearing and giving evidence when required as a witness, for any period exceeding thirty days unless prior to the expiration of those thirty days he has been brought before a judge of a superior court of criminal jurisdiction in the province in which he is being detained.

• Marginal note:Application by witness to judge

  (2) Where at any time prior to the expiration of the thirty days referred to in subsection (1), a witness being detained in custody as described in that subsection applies to be brought before a judge of a court described therein, the judge before whom the application is brought shall fix a time prior to the expiration of those thirty days for the hearing of the application and shall cause notice of the time so fixed to be given to the witness, the person having custody of the witness and such other persons as the judge may specify, and at the time so fixed for the hearing of the application the person having custody of the witness shall cause the witness to be brought before a judge of the court for that purpose.

• Marginal note:Review of detention

  (3) If the judge before whom a witness is brought under this section is not satisfied that the continued detention of the witness is justified, he shall order him to be discharged, or to be released on recognizance in Form 32, with or without sureties, to appear and to give evidence when required, but if the judge is satisfied that the continued detention of the witness is justified, he may order his continued detention until the witness does what is required of him pursuant to section 550 or the trial is concluded, or until the witness appears and gives evidence when required, as the case may be, except that the total period of detention of the witness from the time he was first detained in custody shall not in any case exceed ninety days.

Marginal note:Contempt

• 708 (1) A person who, being required by law to attend or remain in attendance for the purpose of giving evidence, fails, without lawful excuse, to attend or remain in attendance accordingly is guilty of contempt of court.

• Marginal note:Punishment

  (2) A court, judge, justice or provincial court judge may deal summarily with a person who is guilty of contempt of court under this section and that person is liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding ninety days or to both, and may be ordered to pay the costs that are incident to the service of any process under this Part and to his detention, if any.

• Marginal note:Form

  (3) A conviction under this section may be in Form 38 and a warrant of committal in respect of a conviction under this section may be in Form 25.

Electronically Transmitted Copies

Marginal note:Electronically transmitted copies

708.1 A copy of a summons, warrant or subpoena transmitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of this Act.

Evidence on Commission

Marginal note:Order appointing commissioner

• 709 (1) A party to proceedings by way of indictment or summary conviction may apply for an order appointing a commissioner to take the evidence of a witness who

  • (a) is, by reason of

    • (i) physical disability arising out of illness, or

    • (ii) any other good and sufficient cause,

    not likely to be able to attend at the time the trial is held; or

  • (b) is out of Canada.

• Marginal note:Idem

  (2) A decision under subsection (1) is deemed to have been made at the trial held in relation to the proceedings mentioned in that subsection.

Marginal note:Application where witness is ill

• 710 (1) An application under paragraph 709(1)(a) shall be made

  • (a) to a judge of a superior court of the province in which the proceedings are taken;

  • (b) to a judge of a county or district court in the territorial division in which the proceedings are taken; or

  • (c) to a provincial court judge, where

    • (i) at the time the application is made, the accused is before a provincial court judge presiding over a preliminary inquiry under Part XVIII, or

    • (ii) the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.

• Marginal note:Evidence of medical practitioner

  (2) An application under subparagraph 709(1)(a)(i) may be granted on the evidence of a registered medical practitioner.

Marginal note:Admitting evidence of witness who is ill

711 Where the evidence of a witness mentioned in paragraph 709(1)(a) is taken by a commissioner appointed under section 710, it may be admitted in evidence in the proceedings if

• (a) it is proved by oral evidence or by affidavit that the witness is unable to attend by reason of death or physical disability arising out of illness or some other good and sufficient cause;

• (b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken; and

• (c) it is proved to the satisfaction of the court that reasonable notice of the time for taking the evidence was given to the other party, and that the accused or his counsel, or the prosecutor or his counsel, as the case may be, had or might have had full opportunity to cross-examine the witness.

Marginal note:Application for order when witness out of Canada

• 712 (1) An application that is made under paragraph 709(1)(b) shall be made

  • (a) to a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction before which the accused is to be tried; or

  • (b) to a provincial court judge, where the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.

• Marginal note:Admitting evidence of witness out of Canada

  (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.

• (3) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 153]

Marginal note:Providing for presence of accused counsel

• 713 (1) A judge or provincial court judge who appoints a commissioner may make provision in the order to enable an accused to be present or represented by counsel when the evidence is taken, but failure of the accused to be present or to be represented by counsel in accordance with the order does not prevent the admission of the evidence in the proceedings if the evidence has otherwise been taken in accordance with the order and with this Part.

• Marginal note:Return of evidence

  (2) An order for the taking of evidence by commission shall indicate the officer of the court to whom the evidence that is taken under the order shall be returned.

Marginal note:Evidence not excluded

713.1 Evidence taken by a commissioner appointed under section 712 shall not be excluded by reason only that it would have been taken differently in Canada, provided that the process used to take the evidence is consistent with the law of the country where it was taken and that the process used to take the evidence was not contrary to the principles of fundamental justice.