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

Journalistic Sources

Marginal note:Definitions

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

  document

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

  journalist

  journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person. (journaliste)

  journalistic source

  journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source. (source journalistique)

• Marginal note:Objection

  (2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source.

• Marginal note:Former journalist

  (3) For the purposes of subsections (2) and (7), journalist includes an individual who was a journalist when information that identifies or is likely to identify the journalistic source was transmitted to that individual.

• Marginal note:Power of court, person or body

  (4) The court, person or body may raise the application of subsection (2) on their own initiative.

• Marginal note:Objection of court, person or body

  (5) When an objection or the application of subsection (2) is raised, the court, person or body shall ensure that the information or document is not disclosed other than in accordance with this section.

• Marginal note:Observations

  (6) Before determining the question, the court, person or body must give the parties and interested persons a reasonable opportunity to present observations.

• Marginal note:Authorization

  (7) The court, person or body may authorize the disclosure of information or a document only if they consider that

  • (a) the information or document cannot be produced in evidence by any other reasonable means; and

  • (b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,

    • (i) the importance of the information or document to a central issue in the proceeding,

    • (ii) freedom of the press, and

    • (iii) the impact of disclosure on the journalistic source and the journalist.

• Marginal note:Conditions

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

• Marginal note:Burden of proof

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

• Marginal note:Appeal

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

  • (a) to the Federal Court of Appeal from a determination of the Federal Court;

  • (b) to the court of appeal of a province from a determination of a superior court of the province;

  • (c) to the Federal Court from a determination of a court, person or body vested with power to compel production by or under an Act of Parliament if the court, person or body is not established under a law of a province; or

  • (d) to the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.

• Marginal note:Limitation period for appeal

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

• Marginal note:Hearing in summary way

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

Provincial Laws of Evidence

Marginal note:How applicable

40 In all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this Act and other Acts of Parliament, apply to those proceedings.

Statutory Declarations

Marginal note:Solemn declaration

41 Any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the declaration before him, in the following form, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing:

I, , solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

Declared before me at this day of 19

Insurance Proofs

Marginal note:Affidavits, etc.

42 Any affidavit, solemn affirmation or declaration required by any insurance company authorized by law to do business in Canada, in regard to any loss of or injury to person, property or life insured or assured therein, may be taken before any commissioner or other person authorized to take affidavits, before any justice of the peace or before any notary public for any province, and the commissioner, person, justice of the peace or notary public is required to take the affidavit, solemn affirmation or declaration.

Part II

Application

Marginal note:Foreign courts

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

Interpretation

Marginal note:Definitions

44 In this Part,

cause

cause includes a proceeding against a criminal; (cause)

court

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

judge

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

oath

oath includes a solemn affirmation in cases in which, by the law of Canada, or of a province, as the case may be, a solemn affirmation is allowed instead of an oath. (serment)

Marginal note:Construction

45 This Part shall not be so construed as to interfere with the right of legislation of the legislature of any province requisite or desirable for the carrying out of the objects hereof.

Procedure

Marginal note:Order for examination of witness in Canada

• 46 (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.

• Marginal note:Video links, etc.

  (2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.