The Commissioners are:
 

Ms Merrilee Rasmussen, Q.C., Chair

Mr. Kenneth P. R. Hodges, Q.C.

Ms Michaela Keet

Mr. Alan McIntyre

Ms. Susan Amrud, Q.C.

Ms. Bonnie Missens

Ms. Carole Lavallee

Mr. Brian Evans

Mr. Justice R.D. Laing
 

The Commission research office is located at:
 

410 26th St. W.

Saskatoon, Saskatchewan, Canada

S7L 0H9

Telephone (306) 665-6428

Email: mjfinley@shaw.ca
 

The Chair and administrative office are located at:
 

2237 Smith Street

Regina, Saskatchewan

S4P 2P5

Telephone (306) 352-1641

Fax (306) 525-8884

Email: rasmussen@sasktel.net

                            INTRODUCTION

Few text book writers on the law of evidence attempt a complete review of evidence statutes. The reason is not hard to find: Most of the law of evidence was evolved by the courts. In the common law world, evidence statutes usually consist of a miscellaneous collection of provisions that have been thought necessary to deal with specific problems. Provisions based on 19^th century English statutes to deal with now obscure points of law are placed side by side with provisions adopted much more recently to deal with the contemporary evidenciary issues such as those created by computerized business records.
 

Three quarters of The Saskatchewan Evidence Act⁽¹⁾ is identical to the Saskatchewan Evidence Act, 1909.⁽²⁾ The proximate origin of most of the provisions in the 1909 Act was the first Canada Evidence Act, 1893,⁽³⁾ but this Act was itself little more than a compendium of 19^th century English enactments. The drafters of first Canadian evidence Acts did little to ensure consistency in the provisions they copied from English sources. As new provisions were added to the Saskatchewan Act over the next century, problems of conflict and inconsistency were sometimes compounded, and little attention was given to the question of whether the older parts of the Act still retained any practical utility. In the result, many provisions of the Act are now difficult to understand. Text book writers and lawyers seek answers to evidenciary questions in the reported decisions of the court rather than the Act.
 

This state of affairs is perhaps not a pressing problem for practising lawyers. It is, however, a problem for legislative drafters and law reformers. As new principles are introduced into the old Act, a kind of entropy sets in: Without a clear understanding of the Act as it has evolved over time, there is a danger that each new change will add to the disorder.
 

The Commission was asked to review the Act to provide background for translation of it into French. The review of the legislation that follows is intended to serve that purpose. In addition, we believe that an analysis of the Act is a necessary prerequisite to reform of the law of evidence in the province. There have been several evidence law reform projects in Canada in recent years.⁽⁴⁾ But these projects have tended to look at conceptual issues, such as the rule against hearsay or the problems created by electronic evidence, rather than at contents and structure of existing evidence legislation.
 

The review which follows attempts to trace the origin of the provisions of The Saskatchewan Evidence Act, discover the purpose for which each was adopted, and explain both the language and intention of each. The effect of judicial interpretation will be discussed where relevant, and conflicts and inconsistencies identified. It is not the purpose of this review to recommend substantive changes in the Act, but where problems of interpretation and construction could be resolved without changing the substantive law, the solutions have been indicated.
 
 

Sections 3-10 of The Saskatchewan Evidence Act deal with issues that are often not treated as part of the law of evidence by text-book writers: The rules that govern submission to the court of copies of statutes, regulations, and case law. Section 3, under the heading "Statutes and Ordinances", is concerned with statutes and case law, and governs admission of provincial, other Canadian, and English law. The heading was contained in the Saskatchewan Evidence Act, 1909. Subsections (2) and (3) were added later, extending the scope of the section.
 

Sections 4-10 are little changed since 1909. Although they are placed under the heading "Public Documents", most of the content relates to regulations, proclamations, and other quasi-statutory instruments. These sections also generally govern admission of orders in council and other executive orders or instruments. "Public documents" in a broader sense are dealt with in the next part of the Act, under the heading "Official and Court Documents".
 

There are inconsistencies in language and scope in these sections that reflect their origin in a variety of English and Canadian precedents. Perhaps more importantly, the provisions added to these parts after 1909 were not properly integrated with the older provisions, creating problems of construction and interpretation.
 
 
 

Statute and case law: Section 3
 

1. Overview of the section
 

Section 3(1) of the Saskatchewan Evidence Act, 1909 is identical to section 3(1) of the present Act. This was the only provision contained under the heading "Statutes and Ordinances" in the 1909 Act. It provides that an official copy of a "statute of the Imperial Parliament", and any "statute or ordinance" of "Canada", "this province" or any other province or territory "shall be receivable and received in evidence". Although there are some problems in interpretation of the terminology used in the provision, it is internally consistent and comprehensive. Because the common law required the courts to take judicial notice of local law, it was not strictly necessary to include Saskatchewan statutes in the scope of the section. The primary motive for adoption of the provision was simplification of proof of statutes of England and other Canadian jurisdictions. The problem of "foreign law" is complicated in a federal system because the law of Canada and other provinces is treated as "foreign" rather than local. The formula in section 3(1) is based on the English Colonial Laws Validity Act, 1865, which simplified proof of colonial statutes in English courts.
 

Section 3(1) operates as an exception to the best evidence rule, in effect deeming "official" copies of statutes to be equivalent to originals, thus simplifying the common law rules of proof of "foreign" statutes. Sections 3(2) and 3(3), on the other hand, approach the problem of proof by requiring the courts to take judicial notice of statutes. Section 3(3) relates to Saskatchewan statutes, and is little more than a codification of the common law. Section 3(2) extends the common law rule of judicial notice to encompass all English and Canadian law, including case law as well as statutes. There are drafting problems in section 3(2), but like section 3(1) it is intended to be comprehensive.
 

In effect, The Saskatchewan Evidence Act now contains two mechanisms for receiving statute law in evidence. Unfortunately, sections 3(2) and 3(3) were added to the original provision without much attempt to integrate them with section 3(1). The proper construction of section 3 as a whole is thus now uncertain. In addition, section 3(2) may affect the role of sections 4-10 in ways perhaps not fully anticipated by the drafters.
 

In what follows, each subsection will first be discussed on its own terms, identifying the purpose and intent, and commenting on problems of construction and interpretation internal to each provision. This will be followed by a discussion of the larger question of the relationship between the subsections, and construction of the section as a whole.
 
 
 

2. Admission of Statute Law under section 3(1)
 

STATUTES AND ORDINANCES
 

Evidence of statutes, ordinances, etc.
 

3(1) In any proceeding or matter whenever it becomes necessary or expedient to prove or give in evidence a statute of the Imperial Parliament, a statute or ordinance of Canada, of this province or of the late province of Canada or of the North-West Territories or of a province or territory forming part of Canada, whether such statute or ordinance was passed before or after the passing of The British North America Act, 1867, a copy of such statute or ordinance purporting to be printed and published by the Queen's Printer or the Government Printer for Great Britain or Canada, for the North-West Territories or for such province or territory shall be receivable and received in evidence to prove the contents thereof in every court or tribunal having cognizance of such proceedings.
 

(a) Local statutes under section 3(1)
 

Judges are presumed to know the law, but perhaps because statutes were often mis-copied before printed versions were available, it was not until the early 19^th century that judges could take judicial notice of "official" copies of public statutes without requiring formal proof of authenticity.⁽⁵⁾ In England, this rule was extended to private acts by the Interpretation Act, 1889. Note that this extension of the common law rule occurred too late to be received as part of the law of Saskatchewan. Apart from the 1889 provision, no 19^th century English evidence statute dealt with the topic of admission in evidence of local statutes.
 

As noted above, the common law rule admitted local statutes via judicial notice, while

section 3(1) instead gives preferred status to copies from official printers. It thus technically operates as an exception to the best evidence rule,⁽⁶⁾ which generally requires that the original of a document must be tendered in evidence unless it has been destroyed or is inaccessible. This difference in treatment appears to result from the fact that the precedents for section 3 were English statutes dealing with reception of colonial enactments in English courts. The focus in these statutes was appropriately on the authenticity of the copy of the enactment presented to the court.
 

There are some minor problems of interpretation of the terms used in section 3(1).
 

The section applies to any "statute . . . of this province". On its face, this seems broad enough to encompass private as well as public acts. However, since the common rule for admission of local statutes applied only to public acts, there may be room for doubt. In some provincial evidence acts, express provision is made for private acts. The Canada Evidence Act is more explicit, applying its rule to "all Acts of the Parliament of Canada, public or private".⁽⁷⁾ It would still perhaps be useful in any revision to clarify the provisions under discussion to expressly include "public and private acts".
 

The common law rule did not extend beyond statutes to regulations and other quasi-statutory instruments. An ordinance is quasi-statutory, since it is adopted by a subordinate legislative body, such as a Territorial council or assembly. However, it was obviously convenient to treat the Ordinances of the Northwest Territories, which functioned as the defacto statute law prior to the achievement of provincial status, in the same manner as statute law.⁽⁸⁾ No definition of "ordinance" was included in section 3, but the scope of the term appears to extend beyond territorial ordinances, since it applies to any "statute or ordinance" of Saskatchewan or another province. Nevertheless, sections 4-10 are evidence that section 3 was not intended to make a major inroad into the distinction between statute and quasi-statute. A definition of "ordinance", or restriction of the term to "ordinances of a Territory of Canada" would clarify this issue.
 
 
 

(b) Canadian and Imperial Statutes under section 3(1)
 

In 19^th century England, "foreign law", statutory or otherwise, was treated differently than English Law. Foreign law, including the laws of Scotland and colonies with their own legislatures, was received by the courts as matters of fact, and proved, usually through the evidence of a qualified expert. This rule was addressed by the Colonial Laws Validity Act, 1865, which allowed proof of colonial statutes by way of a certified copy, or a copy printed by the colonial government's official printer. Section 3(1) of The Saskatchewan Evidence Act was essentially an adaption of the principle of the Colonial Laws Validity Act to the needs of the Canadian federal system.
 

It was of course necessary in a federal system to adopt a rule that simplified proof of the statutes of other jurisdictions within the federation. When the provision was adopted in 1909, it was still assumed that English statutes were a vital part of the law, since Canada was still part of the Empire. However, it is now uncertain just what part of English statute law the drafters intended to encompass. The problematic term is "statute of the Imperial Parliament". The proximate origin of this term is likely the Canada Evidence Act, which refers to "Acts of the Imperial Parliament".⁽⁹⁾ Unfortunately, these terms do not appear to have been interpreted in any reported decision.
 

It may be that a "statute of the Imperial Parliament" was intended to mean any statute passed by the Parliament at Westminister, before or after the reception date of English law in Saskatchewan. While post-reception English statutes are not generally part of Saskatchewan law, it may have been assumed that they would frequently be examined by our courts, and should therefore be admitted with minimal formalities. At the other extreme, Westminister retained the right to legislate for Canada until the Statute of Westminister, 1921. When the English Parliament did so, it acted as the Imperial Parliament, and such enactments are referred to by the writers on reception of law as "Imperial Statutes".⁽¹⁰⁾ But if a "statute of the Imperial Parliament" has this narrow meaning, it does not include English statutes received in 1870, many of which are still in force. Finally, the term "Imperial Statutes" is often used to refer to both the received law and "Imperial statutes" in the narrow sense.
 

The third interpretation makes most sense in a modern context, and the first would be harmless enough in practice. It would in any event be desirable to replace the uncertain term "statute of the Imperial Parliament" with a phrase that more certainly identifies the intended scope.
 

(c) Simplification of language
 

On its face, section 3(1) is reasonably straightforward, though somewhat prolix. On the assumption that section 3(1) should be kept in something like its present form, its language can be simplified. Note for example that the reference to the British North America Act is unnecessary verbiage. In addition, the specific matters discussed above, (1) extension to public and private acts, (2) definition of ordinance, and (3) clarification of the term "statute of the Imperial Parliament" should be addressed.
 
 
 
 
 

3. Admission of Saskatchewan statute law under section 3(3)
 

3(3) Judicial notice shall be taken of all Acts of the Legislature of Saskatchewan.
 

Section 3(3) appears to provide an alternative method of bringing a Saskatchewan statute before the court. However, it does little more than codify the common law. On its own terms,

section 3(3) is straightforward. The only interpretative question which might be asked of it is whether it includes private as well as public acts in its scope, an issue discussed above in the parallel case of section 3(1).
 

4. Admission of law under section 3(2)
 

3(2) The courts of this province and every judge and officer thereof may take judicial notice of the laws of any province or territory of Canada, of the laws of Great Britain and Ireland, of Great Britain and Northern Ireland, or Northern Ireland or of the Republic of Ireland and for the purpose of ascertaining the same, such court, judge or officer may refer to any books of statutes, reports of cases and works upon legal subjects as it or he may deem authentic, or may require evidence upon oath, declaration or affirmation, oral or written, or by certificate or otherwise, as may seem proper. In all cases, it shall be the function of the court, and not of the jury, to determine such laws when brought in question.
 

Section 3(2) extends the common law rule that allowed judges to take judicial notice of local law to the laws of all Canadian provinces and territories, the law of Great Britain, and the law of the Republic of Ireland. It thus provides an alternative method of bringing statutes before the courts to the method set out in section 3(1), and covers new territory in regard to extra-provincial case law. As noted above, at common law all foreign law was received by the courts as matters of fact, and proved, usually through the evidence of a qualified expert.
 

Under section 3(1), it is necessary to tender an "official" copy of a statute. Under sections 3(2) and (3), judicial notice can be taken of a statute even if an official copy printed by the Queen's Printer is not received by the court. It has been held by the Supreme Court of Canada in R. v. Stream Tanker "Evgenia Chandris" (1976), 27 CCC (2^nd) 241 that where judicial notice of a statute may be taken, the court may take notice of its contents without examining any copy of it at all. This distinction may be of some significance. It makes moot questions about the status of photocopies, office consolidations, and electronic copies. However, 3(2) does not disregard concerns about authenticity. It allows the judge to examine sources of the law he or she "may deem authentic", and allows the judge to require evidence as to the law "upon oath" or otherwise. The result is a flexible regime depending on judicial discretion, rather than production of "official" copies in all cases, to assure authenticity.
 

The policy of section 3(2) is sound and, taken on its own terms, clear enough. However, it suffers from some serious drafting and interpretation problems. The most important of these is the intended scope of the phrase "the laws of any province [etc.]" in the provision. This issue largely determines the relationship between section 3(2) and other provisions relating to proof of law. It will be discussed below.
 

The section betrays the era in which it was conceived: Application to "Great Britain and Ireland" and "Great Britain and Northern Ireland" reflects the changing political arrangement in Britain between the World Wars, and extension to the "Republic of Ireland" suggests the drafters believed Ireland would remain much more in the British orbit after independence than it did in fact. It is likely that the real intention was to cover the same jurisdictions (or their successors) as section 3(1). This intention is perhaps best demonstrated by the fact that the drafters worried over the fate of Ireland, but did not apparently consider extending the scope to Scottish law, the Commonwealth, or the United States.⁽¹¹⁾ But if the drafters of section 3(2) intended to cover the same ground as section 3(1), they failed to do so in at least one glaring respect. While the section applies to the laws of Canadian provinces and territories, it does not (at least on its face) apply to the Laws of Canada, including statutes enacted by the Canadian Parliament. This problem, essentially an oversight, could be easily corrected. In addition, it hardly seems necessary to retain a reference to "Great Britain and Ireland", instead of its successor, "Great Britain and Northern Ireland", and it may now not constitute much more than a house-keeping amendment to eliminate the Republic of Ireland from the scope of the provision.
 

4. Construction of section 3 as a whole
 

(a) The problem
 

The more serious problem with section 3(2) is failure to integrate it with section 3(1).

Section 3(2) is concerned with the admission of "law". On its face, it would seem to apply to both statute law and case law. Thus, in regard to statute law, it appears to provide an alternative to section 3(1). Because this alternative is less onerous, section 3(2) may have completely swallowed section 3(1), making the latter redundant and unnecessary. On this construction, the only possible role of section 3(1) would be to deem "official copies" as worthy of admission in all cases, thus supplanting the judicial discretion in section 3(2). But even this function for section 3(1) is likely redundant, since section 6 of The Saskatchewan Evidence Act deems copies of public documents printed by the Queen's Printer "authentic" in any event.
 

Section 3(1) retains a substantive role only if "law" in section 3(2) is interpreted in a restricted manner, excluding statute law. It could be argued that section 3(2) was designed only to relax the common law requirements of proof of authenticity in regard to "foreign" case law; the same having been done (albeit on different terms) in regard to statute law in section 3(1). However, this seems unlikely. The interpretation would leave us with a peculiar state of affairs in which a photocopy of an Irish case could be received by the court as a matter of judicial notice, while a litigant could insist that nothing less than an official copy of a statute from the Alberta Queen's Printer will suffice.
 

Section 3(2) also appears to overlap section 3(3), since the former applies to the "laws of any province", presumably including Saskatchewan. In this case, it is more likely that the intention was to apply section 3(2) to extra-provincial law, and section 3(3) to Saskatchewan statutes. If this is the case, then the treatment of Saskatchewan statutes is different than "foreign law" in that judges must take notice of Saskatchewan statutes (presumably on the ground that they are assumed to know their own law), while they may require production of authentic copies or other evidence before taking notice of "foreign law". This interpretation at least produces a rational result.
 

Finally, there are possible overlaps and conflicts between section 3(2) and sections 4-10, dealing with quasi-statutory instruments. Does "law" in section 3(2) include quasi-statutory instruments? Although the common law was prepared to take judicial notice of local statutes, it continued to insist that regulations required more formal proof.
 

Even today regulations are not as accessible as statutes, and the danger that a copy will prove to be outdated or incomplete is still real. It seems unlikely that the drafters of section 3(2) intended to place all quasi-statutory instruments, even those from other jurisdictions, on the same footing as the statute law. If that was what was intended, most of the content in sections 4-10 is now largely irrelevant. However, it seems much more likely that section 3(2) was not meant to extend to quasi-statutory instruments.
 

(b) Integrating the provisions of section 3
 

It is most likely that section 3(2) was intended to be a relaxation of both the proof requirements in section 3(1) in regard to statutes, and the common law rules relating to proof of foreign case law. As noted above, it substitutes the notion of judicial notice for reliance on official copies of statutes. The result is a more flexible regime depending on judicial discretion to assure authenticity. As a matter of history, the original approach adopted by Saskatchewan legislators was derived from English legislation governing admission of colonial law in English courts, and survives in section 3(1). Section 3(2) was derived from the common law rule applicable to local statutes. This approach was adopted by some other Canadian jurisdictions. Saskatchewan followed their lead, but failed to realize that by keeping section 3(1), it created two conflicting regimes.
 

The closest parallel to section 3(2) in other Canadian legislation is contained in the Manitoba Evidence Act. It differs in scope only in that it applies to all foreign law, not just Canadian and English law:
 

Judicial notice taken of statutes and ordinances
 

29 Judicial notice shall be taken of
 

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

(b) all Royal proclamations and Privy Council orders;
 

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

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

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

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

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

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

Judicial notice of certain laws and statutes
 

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

Determining laws
 

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

While the Manitoba provisions are hardly examples of concise drafting, they avoid the pitfalls of the Saskatchewan legislation. The Manitoba Act contains no parallel to section 3(1) of the Saskatchewan Act: All law comes before the court by way of judicial notice.
 

Although the Canada Evidence Act provides for judicial notice of Canadian and Imperial statutes, but not case law, it is perhaps a better structural model than the Manitoba Act. The basic rules in the Federal Act admit statutes by way of judicial notice:
 

Judicial Notice
 

Imperial Acts, etc.
 

17. Judicial notice shall be taken of all Acts of the Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of any province or colony that, or some portion of which, now forms or hereafter may form part of Canada, and of all the Acts of the legislature of any such province or colony, whether enacted before or after the passing of the Constitution Act, 1867.
 

Acts of Canada
 

18. Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.
 

The Canada Evidence Act does not contain any provision directly analogous to section 3(1) of The Saskatchewan Evidence Act, but it does retain the principle that "official" copies of statutes are authentic.
 

19. Every copy of any Act of Parliament, public or private, published by the Queen's Printer, is evidence of that Act and of its contents, and every copy purporting to be published by the Queen's Printer shall be deemed to be so published, unless the contrary is shown.
 

Section 19 does not conflict with section 18. Presumably, in cases of doubt as to the contents of a statute, the court is to rely on an "official" copy, and could in appropriate cases withhold judicial notice (despite R. v Stream Tanker "Evgenia Chandris" ) until doubt was resolved by consulting the official copy.
 

In the Saskatchewan context, a provision equivalent to section 19 makes even clearer sense. The surviving function (if any) of section 3(1) is to provide a definitive means of authentication in regard to statutes. If section 3(1) were replaced by a provision similar to section 19 of the Federal Act, this function would be retained while avoiding the conundrums produced by the existing statutory formulae. Note, however, that section 3(1) applies to extra-provincial statutes. Thus, if the goal is to preserve the existing law, the Saskatchewan equivalent to section 19 should deem "official" copies from other Canadian jurisdictions and England authentic.
 

Thus it seems possible to remove the uncertainties surrounding section 3 without changing the substance of the section. Section 3(2) should generally govern admission in evidence of both case law and statute law. It should be amended to include a formula that recognizes "official" copies of statutes. Section 3(1) could then be repealed. Section 3(3) could be retained, but if it too were repealed, the practical effect would be small.
 

In addition, section 3(2) should be amended to clarify the internal inconsistencies discussed above. In particular, it should be made clear that (1) its scope extends to all Canadian Jurisdictions and Great Britain, (2) it covers both case law and public and private statutes, but not regulations, and (3) it applies to Saskatchewan as well as "foreign" jurisdictions.
 
 
 

2. Section 3(2) and sections 4-10
 

There remains a further problem with the scope of section 3(2). Does "law" in the section include quasi-statutory instruments? Even after the common law was prepared to take judicial notice of local statutes, it continued to insist that regulations required more formal proof.
 

Even today regulations are not as accessible as statutes, and the danger that a copy will prove to be outdated or incomplete is still real. It seems unlikely that the drafters of section 3(2) intended to place all quasi-statutory instruments, even those from other jurisdictions, on the same footing as the statute law. It seems much more likely that section 3(2) was not meant to extend to

quasi-statutory instruments.
 

But even if section 3(2) does not extend to regulations, it would appear that section 11 now requires the courts to take judicial notice of Saskatchewan and Federal regulations. This section will be discussed below.
 

Admission of quasi-statutory instruments and order in council under sections 4-10
 

Proof of regulations and other orders in council was difficult at common law. The problem was conceived as one of ascertaining the authenticity of documents, and the best evidence rule was applied to regulations and orders. However, the rule was mitigated in a series of 19^th century English enactments, most notably the Documentary Evidence Acts, 1868 and 1882. These Acts applied to a variety of public documents. This may explain why sections 4-10 of The Saskatchewan Evidence Act are primarily concerned with regulations and orders, but appear to incidentally apply to some other public documents, and thus why these provisions are placed under the somewhat misleading heading "Public Documents".
 

In Canada, the problem of admission of quasi-statutory instruments is complicated by the federal system. Legislators combined the subject matter of the English precedents with provisions governing admission of English and other Canadian regulations. The model for this exercise appears to have been the Colonial Laws Validity Act, 1865, though this enactment dealt with statutes, not regulations. The combination of concepts and precedents from the Documentary Evidence Acts and the Colonial Laws Validity Act was first made in the Canada Evidence Act. The Saskatchewan provisions, which appeared in substantially their present form in the Saskatchewan Evidence Act, 1909, were copied from the Federal Act.
 

Both the Documentary Evidence Acts and the Colonial Laws Validity Act modify the common law by admitting "certified" or "official" copies. Combing elements of both presented no conceptual problem. However, because more than one source was used by Canadian drafters, there are inconsistencies in scope and terminology that appear to have little justification.
 

1. Saskatchewan and other Canadian instruments (sections 5-10)
 

Section 5 governs Federal instruments; section 7 makes almost identical provision in regard to both Saskatchewan instruments, and the instruments of other provinces.
 

Several other provisions under this heading merely amplify or clarify sections 5 and 7.

The exceptions are sections 6 and 10, which deal more broadly with public documents, including documents other than executive instruments. Section 6 is partly redundant, but otherwise not problematic. As noted above, section 10, on the other hand, may create a problem of construction in regard to Saskatchewan orders and regulations. It will be discussed separately. In what immediately follows, the effect of section 10 will be temporarily ignored.
 

(a) Sections 5, 7, 8 and 9: Saskatchewan and Canadian Instruments
 

Dominion proclamations, orders, etc., how proved
 

5 Evidence of any proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council or other chief executive officer or administrator for the time being of the Government of Canada, or by or under the authority of a minister or head of a department of the Government of Canada, may be given in all or any of the modes hereinafter mentioned, that is to say:
 

(a) 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 of the proclamation, order, regulation or appointment or a notice thereof;
 
 
 

(b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be printed by the Queen's Printer for Canada; or
 

(c) by the production, in the case of a proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council or other chief executive officer or administrator as aforesaid, of a copy or extract purporting to be certified to be a true copy by the clerk or assistant or acting clerk of the Queen's Privy Council for Canada; and, in the case of an order, regulation or appointment made or issued by or under the authority of a minister or head of a department, by the production of a copy or extract purporting to be certified to be true by the minister or by his deputy or acting deputy or by the secretary or acting secretary of the department over which he presides.

Provincial proclamations, orders, etc., how proved
 

7 Evidence of any proclamation, order, regulation or appointment made or issued by the Lieutenant Governor or Lieutenant Governor in Council of this or any other of the provinces or territories of Canada or by the chief executive officer or administrator for the time being of the Government of the province or territory, or by or under the authority of a member of the Executive Council being the head of a department of the Government of such province or territory, may be given in all or any of the modes hereinafter mentioned, that is to say:
 

(a) by the production of a copy of the official gazette for the province or territory purporting to contain a copy of the proclamation, order, regulation or appointment or a notice thereof;
 

(b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be printed by the Queen's Printer for or by the Queen's or Government Printer for the Province or territory; or
 

(c) by the production of a copy or extract of the proclamation, order, regulation or appointment certified to be a true copy by the Clerk or assistant clerk or acting clerk of the Executive Council, or by the head of any department of the provincial or territorial Government or by his deputy or acting deputy, as the case may be.

Order signed by Secretary of State
 

8 An order in writing signed by the Secretary of State of Canada and purporting to be written by command of the Governor General shall be received in evidence as the order of the Governor General.
 

Order signed by Provincial Secretary
 

9 An order in writing signed by the Provincial Secretary and purporting to be written by command of the Lieutenant Governor shall be received in evidence as the order of the Lieutenant Governor.
 

These provisions betray their origin in the Canada Evidence Act. In the Federal statute, it made some sense to deal first with admission of federal instruments, and then to deal with provincial instruments in a separate section. This ordering of subject matter is obviously less appropriate in a Provincial statute. In any event, sections 5 and 7 are very similar in all but the jurisdictions to which they apply. In particular, both enumerate the same classes of instruments. Both provide for admission of essentially the same types of certified or official copies with only minor (and unnecessary) differences in language.
 

There is no doubt that these provisions are intended to deal primarily with regulations and other quasi-statutory instruments. However, it appears to have been the intention to catch all instruments issuing from the Governor General or Lieutenant Governor in Council, and from Ministers in cases in which they are authorized to make orders etc. Thus the sections apply to any "proclamation" and "appointment" as well as to any "order or regulation".
 

Under sections 5 and 7, instruments issued by the Executive Council or "under the authority of a minister or head of a department" are both expressly included. Nevertheless, section 8 separately allows for admission of orders "signed by the Secretary of State of Canada and purporting to be written by the command of the Governor General ", and section 9 provides similarly for orders signed by the Provincial Secretary. Section 9 presumably only applies only to the Saskatchewan Provincial Secretary, leaving orders made by counterparts in other provinces out of the formula. It is difficult to see why either of these sections is required. The language of sections 5 and 7 would seem to be broad enough to make sections 8 and 9 quite redundant.
 

Note that inclusion of proclamations in the list of instruments was thought necessary because at common law, when the date of proclamation of an Act was at issue, proclamation had to be proved apart from the contents of the statute. However, the Saskatchewan Interpretation Act provides that the proclamation of an Act is part of the Act, revising the common law.
 

The outstanding question about the list of instruments enumerated in sections 5 and 7 is whether it is as comprehensive as intended. Does, for example, "order" include "orders in council", the usual form taken by executive instruments? While it is likely that it does, note that section 4, which governs "Imperial" instruments, lists "orders" and "orders in council" separately. The difference is likely no more than the result of borrowing phrases from different sources, but may affect interpretation of the term "order" in sections 5 and 7.
 

What is important is that sections 5 and 7 encompass all executive instruments. They may fail to do so both as a result of imperfect drafting, or as a result of changes in practice since these provisions were drafted in the 19^th century. In either case, revision to properly reflect the intended scope can likely be regarded as a matter of clarification rather than of substantive change in the law. It would be desirable to replace the list of instruments with a single descriptor. It may, for example, be that it is now sufficient to simply provide that the sections apply to "regulations and orders in council". Note that The Interpretation Act, 1995 defines "regulation" broadly:
 

"regulation" means a regulation, order, rule, rule of court, form, tariff of costs or fees, proclamation, letter patent, bylaw or resolution enacted in the execution of a power conferred by or pursuant to the authority of an Act, but does not include:
 

(a) an order of a court made in the course of an action; or
 

(b) an order made by a public officer or administrative tribunal in a dispute between two or more persons;
 

One item listed in section 4, but not sections 5 and 7, requires further comment: Treaties. When these provisions were drafted, treaty-making power was reserved to the Imperial government. Now that the Federal government may also make treaties, section 5 should include a reference to treaties if specific types of instruments continue to be listed in the section. This is no more than an amendment consequential to the Statute of Westminister.
 

Section 7 allows for admission of three types of copies of instruments: (1) A copy of the official Gazette containing the instrument; (2) A copy printed by the Queen's Printer; or (3) a copy certified by a stipulated official. Section 5 is similar, but also refers to copies contained in "a volume of the Acts of the Parliament of Canada". Note also that the clause relating to certified copies is wordier in section 5 than section 7, but without apparent difference in content. These additions to section 5 are redundant and unnecessary.
 

The types of copies enumerated in section 7 appear to be adequate. However, the following minor points should be noted: (1) It is not even strictly necessary to give separate recognition to gazetted copies, since all copies printed by the Queen's Printer are recognized. (2) What is intended is copies published under the authority of the Queen's Printer, though the section uses the less comprehensive phrase "printed by the Queen's Printer". Compare section 3(1) which refers to statutes "printed and published" by the Queen's Printer.
 

(b) Imperial instruments: Section 4
 

Imperial records and documents, how proved
 

4. Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other imperial official records, Acts or documents may be proved:
 

(a) in the same manner as they are from time to time 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 or a notice thereof
 

(c) by the production of a copy thereof purporting to be printed by the Queen's Printer for Canada or by the Queen's Printer for Saskatchewan;
 

(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 the deputy minister or deputy head, of a department of the Imperial Government or purporting to be an exemplification thereof under the Imperial Great Seal; or
 

(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.
 

Section 4 is analogous to sections 5 and 7, but deals with Imperial instruments. However, it exhibits some differences in scope and language from sections 5 and 7.
 

The most substantive difference is in the classes of instruments listed in section 4. It appears that section 4 extends some distance beyond the executive instruments listed in sections 5 and 7, including in addition to specifically listed instruments, "other imperial official records, Acts or documents". However, it may be that the section is in fact more restricted than it may appear to be on its face. The meaning of "Imperial" has been discussed above. In this context, it may refer, not to all instruments, records, and other documents of the British government, but only to those affecting Canada as part of the British Empire. This would explain why the types of documents listed in section 4 are not more clearly limited to executive instruments. There is also some internal evidence for this interpretation. Note that among the types of copies admissible under section 4 are copies gazetted in Canada, contained in Canadian statute books, or printed by Canadian official printers. No reference is made to copies of "Imperial" documents gazetted in Britain, or printed by the English Queen's Printer.
 

The appropriate scope of a section allowing admission of copies of "Imperial" documents is a matter which no doubt should be re-examined. What was appropriate in the 19^th century may no longer be appropriate. However, this is a matter which goes beyond mere clarification. Thus it is probably best to leave section 4 intact until the policy behind it can be examined.
 
 
 

(c) Public Documents in general: Sections 6 and 10
 

Publications in The Saskatchewan Gazette deemed authentic
 

6 Publications in The Saskatchewan Gazette and all copies of the statutes of the province, the journals of the Legislative Assembly, sessional papers and all other documents printed or purporting to be printed by the Queen's Printer shall be deemed to be authentic and make proof of their contents without other evidence; and all publications and copies of statutes so purporting to be printed shall be taken prima facie to be authentic copies of the originals thereof respectively, and shall in all courts and proceedings be admitted in evidence without proof as the originals might be.
 

Proclamations and orders judicially noticed
 

10 Notwithstanding anything in this Act, every proclamation and every order made or issued by the Governor General or the Governor General in Council or by the Lieutenant Governor or the Lieutenant Governor in Council and every publication thereof in the Canada Gazette and in The Saskatchewan Gazette shall be judicially noticed by all courts, judges, provincial magistrates, justices of the peace and others.
 

Neither of these sections was contained in the Saskatchewan Evidence Act, 1909.
 

Section 6 deems copies of statutes, the journals of the legislative assembly, sessional papers, and "all other documents" printed in the Gazette, the Statute Books, or by the Queen's Printer authentic and admissible in evidence. In so far as this section applies to Saskatchewan statutes and the Saskatchewan instruments referred to in section 7, it is redundant, but no problem of construction arises from this repetition.
 

Section 10 may not be so easily passed over. It provides that every proclamation or order published in the Canada or Saskatchewan Gazette "shall be judicially noticed". The term "order" in section 10 likely includes a "regulation" (see The Interpretation Act, 1995, s. 2), but in any event The Regulations Act, 1995, s.10 provides that "a regulation that is published [in the Gazette] shall be judicially noticed." The Regulations Act, 1995 does not apply, of course, to Federal regulations. The problem created by these sections is analogous to the problem created by section 3(2): In both cases, a regime based on identification of reliable types of copies of documents appears to be made largely redundant by adoption of an alternative regime based on the concept of judicial notice.
 

The last problem has to do with the meaning of "judicial notice" in this context. Section 10 is peculiar in that it seems to combine the concept of judicial notice with the idea that the Gazette contains authentic copies of documents. Was the intention really to achieve much more than section 6 had already done? But whatever the intention of the drafters, since the courts have concluded that when judicial notice can be taken, it can be taken without examining a copy, it would seem then that once a regulation has been gazetted, the court can take notice of its content without actually having a copy of the Gazette before it.⁽¹²⁾ Under sections 5 and 7, on the other hand, the regulation must be "produced". It has been held that "production" means entering the copy in evidence.⁽¹³⁾
 

(d) Rationalizing the Public Documents sections
 

The idea of admitting regulations and other instruments by way of judicial notice is perhaps a logical extension of the judicial notice rule applying to statutes. The traditional objection to such an extension was the relative inaccessibility of regulations. This is less a problem than in the past. The case is strongest in regard to regulations of our own jurisdiction. Section 10 of

The Saskatchewan Evidence Act and section 10 of The Regulations Act, 1995 no doubt reflect the shift toward judicial notice that has occurred in other jurisdictions.
 

At the Federal level, the judicial notice approach to regulations and other instruments has been adopted in the Statutory Instruments Act, which provides that:
 

16.(1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed.
 

(2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument.
 

To some degree, this formula suffers from a construction problem similar to that found in its Saskatchewan counterpart.⁽¹⁴⁾ As noted above, in spite of subsection (2), it has been held that the gazetted copy need not be produced, even to prove the fact of publication in the Gazette.⁽¹⁵⁾ However, subsection (2) remains a useful addition, providing a convenient way to resolve questions about status and content by producing the Gazette.
 

The Federal Statutory Instruments Act was no doubt intended to be a complete code in regard to evidence of federal instruments. It contains, and needs, no further rules. There is no provision in it analogous to section 5 of TheSaskatchewan Evidence Act. Nevertheless, the Canada Evidence Act contains provisions almost identical to sections 5 and 7 of the Saskatchewan Act. These provisions still govern admission of provincial instruments in proceedings governed by Federal law. Application to Federal instruments has been superceded by the Statutory Instruments Act, but failure to rationalize the Canada Evidence Act provision is a less glaring oversight than the failure to rationalize the Saskatchewan provisions.
 

It might be argued that the term "law" in section 3(2) is broad enough to cover all quasi-statutory instruments, and that everything in sections 4-10 relating to any instrument that could be described as "law" is thus redundant. However, as noted above, this was not likely the intention when section 3(2) was drafted. Although both sections 3(2) and 10 apply the judicial notice concept, section 10 qualifies the concept, applying it only to instruments that have been gazetted. In any event, since sections 4-10 apply to more than regulations, much of their substance must be retained.
 

On the assumption that section 3(2) does not apply to the subject matter of sections 4-10, the confusion of approaches and concepts in sections 4-10 can be corrected without substantive change in the law in the following manner:
 

(1) Section 10 should govern evidence of all proclamations and orders published in the Federal or Saskatchewan Gazette. It should be amended to expressly include orders in council and regulations, though these are almost certainly included now. The section would then supply the basic rule for admission of Federal and Saskatchewan instruments. This section would make sections 5 and 7, so far as they relate to Saskatchewan instruments unnecessary. Section 10 of

The Regulations Act, 1995 is likely redundant, but there is no harm in keeping it in place.
 

(2) Sections 5, 8 and 9 should be repealed. They are wholly redundant.
 

(3) Section 7 should be amended to delete the reference to Saskatchewan instruments. It might be clarified as suggested above to clearly identify the instruments to which it applies. This section would govern admission of instruments of other provinces. There is perhaps no good reason why instrument from other provinces should be treated differently than Federal instruments, but to change their treatment would involve more than rationalization and clarification.
 

(4) Section 6 should be retained. It is broader in scope of coverage than section 10. Thus what cannot be judicially noted under section 10, can be admitted by way of production of an "official" copy under section 6. Some changes to properly integrate section 6 should be made. Obviously, the reference to the Gazette in the section is made redundant by section 10. It might also be desirable to state explicitly that section 6 applies "except as otherwise provided", rather than achieving a similar goal by providing that section 10 operates "notwithstanding".
 

(5) For the reasons discussed above, section 4 should be retained in its present form.
 

(6) The order of the sections should be changed. Sections 6 and 10, which have the broadest application, should begin this part. Sections 4 and 7 should follow. Reorganized in this way, this part would provide a complete code in regard to admission of "Executive Instruments".
 
 

This part of the Act, under the heading "Official and Court Documents", is rather misnamed, or at least poorly distinguished from the preceding part, "Public Documents". Only sections 20-21 and 26-27 relate directly to court documents. Sections 11-18 are primarily concerned with admission of copies of "public documents" as the term was understood by the English courts at common law. Several provisions under this heading (sections 23-25 and 28-29) have more to do with the provisions of the Act relating to business records, and will be discussed later in this report. Section 33, placed under the separate heading "Proof of handwriting etc. not required" is clearly concerned with admission in evidence of public documents. It will be discussed here.
 

1. Copies of public documents: Sections 11-20
 

(a) Sections 12, 18 and 33: Official documents, by-laws etc.
 

Certified copies of official documents, etc., are evidence
 

12 In every case in which the original record could be received in evidence, a of a grant, map, plan, report, letter or of any official or public document belonging to or deposited in a department of the Government of Canada, of this province or of any province or territory of Canada, purporting to be certified under the hand of any officer or person in whose custody the grant, map, plan, report, letter or official or public document is placed, or a copy of a document, bylaw, rule, regulation or proceeding or of an entry in a register or other book of a municipal or other corporation created by charter or statute of Canada, or by charter or ordinance of the North-West Territories or by charter or statute of Saskatchewan or of any province or territory of Canada, purporting to be certified under the seal of the corporation and the hand of the presiding officer, clerk or secretary thereof, shall be received in evidence without proof of the seal of the corporation or of the signature or of the official character of the person or persons appearing to have signed the same and without further proof thereof
 

Copies of public books or documents admissible in evidence
 

18 Where a book or document is of so public a nature as to be admissible in evidence on its mere production from the proper custody and no other statute exists which renders its contents provable by means of a copy, a copy thereof or extract therefrom shall be admissible in evidence in any court of justice or before a person having by law or by consent of parties authority to hear, receive and examine evidence, provided it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.
 

Proof of handwriting, etc., not required
 

33 No proof shall be required of the handwriting or official position of a person certifying in pursuance of this Act to the truth of a copy of or extract from any proclamation, order, regulation, appointment, book, grant, map, plan, instrument, computer record or other document, and such copy or extract may be in print or in writing or partly in print and partly in writing.
 

Two issues surround admission of documents in evidence. First, the contents of the document are hearsay unless the maker of the document is called to testify. Second, the authenticity of the document must be determined. Generally, the best evidence rule applies, which requires production of the original if it is available. Both rules were relaxed in the 19^th century in regard to certain types of what can loosely be called "public documents". Section 12 is concerned with these 19^th century exceptions to the hearsay and best evidence rules. Two classes of document are referred to in the section:
 

1. The case law identified certain specific types of documents of a public nature that could be admitted to prove their contents as an exception to the rule against hearsay, including maps, surveys, grants, official certificates and some others.⁽¹⁶⁾ At least as early as Sturla v. Freccia (1880), 5 App. Cas. 623, these various types of documents were subsumed under the head of "public documents". The test set out in that case requires that:
 

It must be a public document, and it must be made by a public officer. I understand public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it.
 

The first part of section 12 is concerned with admission of copies of public documents as defined by the common law. The purpose is to render copies as well as originals admissible. There was no intention to alter the definition of "public document". This part of the section applies only in cases "in which the original record could be received in evidence." The peculiar list of documents in the section (grant, map, plan, report, letter) are merely examples of specific types of public documents that had been discussed in the case law. At this remove from the cases that dealt with these specific matters, the list is now misleading. It is also unnecessary, since it is subsumed by the phrase "or any official or public document . . ."
 

Note that while the types of public documents that were admitted under the rule in Sturla and other case law included entries in public registers, the rule did not extend to entries in government records that are not accessible to the public⁽¹⁷⁾. "Public registers" are probably not explicitly mentioned in section 12 because "entr[ies] in a book kept in a department of the Government" are dealt with more generally in section 13.
 

Admission of copies of public documents required creation of an exception to the best evidence rule. In England, this was achieved in the Evidence Acts, 1845 and 1851, and the Documentary Evidence Act, 1882. The first part of section 12 is indirectly based on these precedents.
 

2. At common law, by-laws of municipal, public, and private corporations could be admitted in evidence only by proving that they had been validly enacted. A series of enactments made exceptions for certain bylaws, but no general statutory rule was adopted in 19^th century England.⁽¹⁸⁾

The second part of section 12 is concerned with admission of copies of bylaws and other "official" documents of municipal and other corporations. Its primary purpose was to make copies admissible in cases in which originals were admissible in English law. However, the admissibility of originals of the documents covered by this part of the section was provided by English statutes adopted after the reception date in most parts of Canada. In addition, section 12 extends to all by-laws, rules, regulations, proceedings or entries, and is thus more comprehensive than its English models. For these reasons, the second part of section 12 lacks the limitation to cases "in which the original record could be received in evidence."
 

The English precedents for section 12 were more piece-meal than its Canadian analogs. The proximate origin of section 12 was in the Canada Evidence Act. The effort to generalize made by Canadian drafters was admirable, but by combining both public and corporate documents in a single section, a model of confusing language was created. The Federal precedent was originally identical to section 12, but it has since been cleaned up somewhat. The Canada Evidence Act,

s. 24 now separates the two parts of the section into separate clauses. In addition, the Federal Act has deleted the miscellaneous list of public documents in the first part of section 12. Thus it is expressed to apply simply to any "official or public document". These simplifications would be appropriate in the Saskatchewan Act.
 

Under section 12, a copy of a public document can be admitted if it is "certified under the hand of any officer or person" who has "custody" of the document. A corporate document is admissible if it is "certified under the seal of the corporation and the hand of the presiding officer, clerk or secretary thereof." The latter is clear enough, but no means of certification is specified in regard to public documents. In general, certification is not a term of art.⁽¹⁹⁾ In the English Evidence Acts, certification required that the copy be signed and sealed by the appropriate officer. When this was done, the copy was admissible without proof of the seal, official status of the person making the certification, or of the signature⁽²⁰⁾. Note that section 33 of the Saskatchewan Act similarly dispenses with proof of handwriting, but the English provisions relating to sealing were not incorporated in Canadian legislation. It appears that in practise, sealing is not usually required in Canada. This practice is given recognition in the Uniform Evidence Act provision analogous to section 12 (see Uniform Evidence Act, s. 150 (3)).
 

Section 33 applies to certification of a copy "from any proclamation, order, regulation, appointment, book, grant, map, plan, instrument, computer record or other document." It thus governs procedure under sections 4, 5, 7, 12, 29, 21, 26 and 27, all of which refer to certification of copies. It also likely applies to sections 14-17, though the certificates made admissible in those sections are not stated to be copies. The specific examples listed in section 33 add nothing; the purpose and scope would be clearer without the specific examples.
 

On its face, section 22 does not apply in cases in which no certificate is required, or an affidavit is required instead of a certificate. Note in particular that affidavits are the procedure for formal authentication under sections 29.1-29.6, which govern "electronic documents". Since these sections are a code for admission of such documents, there appears to be no function for the reference to "computer record" in section 33.
 

Section 18 of the Saskatchewan Act was also taken from the Canada Evidence Act (see now section 25). It is interesting to note that in the Federal Act, this provision follows directly after the analog to section 12. This is reasonable, since both deal with "public documents" as defined by the common law. However, it is difficult to guess why the drafters thought two sections relating to this topic were necessary. It is likely a result of borrowing from more than one English statute, though exact parallels are not found in the English statutes. Section 18 applies to any "document [that] is of so public a nature as to be admissible in evidence on its mere production." But it is exactly these documents that could, in the words of section 12, "be received in evidence" at common law. Both sections allow admission of certified copies instead of originals. Thus section 18 appears wholly redundant.
 
 

(b) Departmental records and documents: Section 13
 

Copy of entry in government book supported by affidavit is evidence
 

13(1) A copy of an entry in a book kept in a department of the Government of Canada or of Saskatchewan, or of any other province or territory of Canada, shall be received as evidence of the entry and of the matters, transactions and accounts therein recorded if it is proved, by the oath or affidavit of an officer of that department, that the book was at the time of the making of the entry one of the ordinary books kept in such department, that the entry was made in the usual and ordinary course of business of the department and that the copy is a true copy thereof.
 

(2) Where by any Act or regulation thereunder provision is made for the issue, by a department, commission, board or other branch of the public service, of a licence requisite to the doing or having of any act or thing or for the issue of any other document, an affidavit of an officer of the department, commission, board or other branch of the public service, sworn before any commissioner or other person authorized to take affidavits, that he has charge of the appropriate records and that after careful examination and search of these records he has been unable to find in any given case that any licence or other document has been issued, shall be received as prima facie evidence that in such case no licence or other document has been issued.
 

On its face, section 13 makes copies of entries in government books and copies of licenses used by departments of government admissible. However, the section does more than it appears, since it goes well beyond the English precedents. When this section and its Canadian analogs were adopted, English law did not generally provide for admission of entries in government books as an exception to the hearsay rule, and thus the issue of admission of copies as an exception to the best evidence rule did not arise. It is likely because this section, unlike section 12, does not trace back to the English Documentary Evidence Act, that it was included in the Evidence Act as a separate section. This also likely explains why section 13 provides more explicit instruction as to the mode of authentication than section 12. Unfortunately, the methods of authentication appear to be different under sections 12 and 13.
 

Although section 13 was taken from the Canada Evidence Act (see now section 26), the scope of the phrase "entry in a book kept in a department" does not appear to have attracted judicial comment. However, the requirement that "the book was at the time of the making of the entry one of the ordinary books kept in such department, that the entry was made in the usual and ordinary course of business of the department and that the copy is a true copy thereof" is used in other sections of the Federal and Saskatchewan Acts dealing with documentary evidence.
 

(c) Certain gazetted records: Section 11
 

Notices, advertisements, etc., in official gazettes evidence of originals
 

11 Copies of official and other notices, advertisements and documents printed in The Canada Gazette or in The Saskatchewan Gazette, or in the official gazette of any other province or territory of Canada shall be prima facie evidence of the originals and of the contents thereof.
 

This section was contained in the Saskatchewan Evidence Act, 1909. It overlaps with section 6, which appears to apply to all gazetted copies of government documents.
 

(d) Certificates and records pursuant to Canada Grains Act
 

Certificate by inspecting officer
 

14 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 shall be prima facie evidence of the grade of the grain without proof of the authenticity of such signature.
 

Extract from inspector's record
 

15 A document purporting to be an extract from the record kept by the Chief Grain Inspector for Canada or by an inspector of grain in pursuance of the Canada Grain Act and to be certified by the chief grain inspector, inspector or a person in the office of either of them, shall, without proof of the signature of such chief grain inspector, inspector or other officer or any other proof whatsoever, be prima facie evidence of the facts set forth in the extract.
 

Certificate by weighmaster
 

16 A document purporting to be a certificate or duplicate certificate issued and signed by a weighmaster or his assistant under the Canada Grain Act, shall, without proof of the signature of the weighmaster or assistant or any other proof whatsoever, be prima facie evidence of the facts therein stated.
 

Extract from weighmaster's record
 

17 Every certificate or extract from a record used by a weighmaster or grain inspecting officer under the Canada Grain Act, signed and sealed as provided by the said Act, shall, without proof of the seal thereon, or of the signature or official character of the person appearing to have signed the certificate or extract, be prima facie evidence of the facts stated therein.
 

These provisions relate to government records that are likely admissible under section 13, but require no affidavit to prove authenticity. Special treatment of these matters is no doubt a matter of Saskatchewan history. Reexamination of these provisions would be out of place here.
 

(e) Copies of Quebec notarial certificates
 

Proof of notarial acts in Quebec
 

19 A document purporting to be a copy of a notarial act or instrument made, filed or enregistered in the Province of Quebec, and to be certified by a notary or prothonotary to be a true copy of the original in his possession as such notary or prothonotary, shall be received in evidence in the place and stead of the original; and shall have the same force and effect as the original would have if produced and proved but it may be proved in rebuttal 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 the Province of Quebec be taken before a notary or be filed, enrolled or enregistered by a notary in the said province.
 

This section was in the 1909 Saskatchewan Act, and is replicated in most other Canadian evidence statutes. It may be necessary to receive copies of admissible documents prepared according to practice in Quebec. The Uniform Law Conference included a version of the section in somewhat more modern language in the Uniform Evidence Act:
 

151. A record, purporting to be a copy of any notarial act or instrument certified by a Quebec notary as a true copy of an original in his possession, is admissible and has the same effect as the original would have if produced and proved, but that evidence may be rebutted by evidence impugning the accuracy of the copy or the authenticity of the original or its validity as a notarial act under Quebec law.
 

(f) Clarification of the official documents sections
 

Although the language of the provisions discussed above is sometimes prolix, there appear to be no serious conflicts between them. Obviously, a review of the policy of these sections would concern itself with modernization of the list of types of copies that can be admitted in evidence, and would remove inconsistencies such as the lack of uniformity in methods of authentication of copies. Such a project was undertaken by the Law Reform Commission of Canada,⁽²¹⁾ but this involves more than clarification and rationalization.
 

The changes that could be made in the interests of clarity include: (1) Simplification of language, for example by deleting the somewhat misleading examples of types of documents mentioned in sections 12 and 33; (2) Simplification of structure, for example by breaking section 12 into subsections or clauses; (3) repeal of section 18, which is redundant; and (4) reordering the sections and removal from this part of sections that do not belong in it.
 

The Uniform Law Conference has reviewed the official documents provisions in Canadian legislation. Its proposals do not depart far from the current statutory law, and may be of some use in an effort to clarify the language of the Saskatchewan Act (see Uniform Evidence Act,

s. 145-148, 150).
 

2. Court Documents: Sections 20-21, 26-27
 

(a) General rules as to admissibility of court records
 

Certified copy of document in provincial court is evidence
 

20 A copy of any writ, record, pleading or other document, writing or proceeding filed in a court of this province, when certified by the clerk of the court wherein the same is filed, shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the original would be admissable.

Sealed and certified copies of judgments, etc., of extra-provincial courts are evidence
 

21 The evidence of any judgment, decree, regulation, order or other judicial proceeding or record recovered, made, had or taken in the Supreme Court of Judicature or in a court of record in England, Northern Ireland or the Republic of Ireland or in any of the superior courts of law, equity or bankruptcy in Scotland or in a court of record in Canada or in any of the provinces or territories of Canada or in a British dominion, colony or possession or in a court of record of the United States of America or of any of the states thereof or in the Board of Railway Commissioners for Canada or the Board of Transport Commissioners for Canada or the Canadian Transport Commission or in a court of record of a foreign country or before a justice of the peace or coroner in any province in Canada, may be made or given in any action or proceeding by an exemplification or certified copy thereof under the seal of such court or board or under the hand and seal of such justice or coroner, without proof of the authenticity of such seal or of the signature of the justice or coroner or other proof whatever, and, if the court, justice or coroner has no seal or so certifies, then by a copy purporting to be certified under the signature of a judge, commissioner or presiding magistrate of such court or board or of such justice or coroner without proof of the authenticity of such signature or other proof whatsoever.
 

At common law, a copy of a judicial record certified by the clerk of the court (an "office copy") could only be used in the same court in the same cause. In order to make use of the record in another court or cause, an "examined copy" (a copy compared to the original and sworn to by the person who made the comparison), or an "exemplified copy" (issued under the seal of the court; a copy simply signed and sealed by a court official without using the seal of the court was not adequate) was required. These rules were relaxed in England by Rules of Court.⁽²²⁾ Section 20 of the Saskatchewan Act adopted the English practice that allowed "office copies" of provincial judicial records to be used for all purposes. Interestingly, though the provision was contained in the 1909 Act, it is more liberal than analogous provisions in other Canadian legislation. Even the Uniform Evidence Act would require exemplified copies.
 

Foreign judgements were admitted in England only if "exemplified" under the seal of the foreign court, and upon proof of the seal.⁽²³⁾ Translated into Canadian practice, all extra-provincial records are, of course, "foreign". Canadian evidence statutes have modified this rule only to the extent of dispensing with the proof of the seal in some or all cases. Note the phrase "by an exemplification or certified copy thereof under the seal of such court" in section 21. Since "exemplification" is equivalent to "under the seal of the court", the exemplification requirement itself was not changed by the statute. There is now no reason to retain the archaic term "exemplification".
 

Most provinces have changed the rule only in respect to the Commonwealth and United States. The original model appears to have been a 19^th century Ontario statute. When this statute was taken into the Canada Evidence Act, and later into the Saskatchewan Evidence Act, 1909, the scope was extended to apply to records of all foreign courts. However, this was done by adding the phrase "or in a court of record of a foreign country" to the list of jurisdictions in the older legislation. The list has been altered in Saskatchewan since 1909 to include Ireland, but in fact, the list has never had any real function and could be deleted from the section. The Uniform Evidence Act provision relating to court records (section 149) follows the Federal model, but deletes the list.
 

(b) Miscellaneous provisions: Sections 26 and 27
 

Section 26 governs admission of a copy of a will that has been probated:
 

Method of proving wills
 

26(1) The probate of a will or a copy thereof certified under the hand of the registrar of the court in which probate has been granted, or proved to be a true copy of the original will shall, when the will has been duly 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 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.
 

(2) This section shall apply to wills and the probate and copies of wills proved elsewhere than in this 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.

In part, this provision appears to have originated in the English Court of Probate Act, 1857. However, the English statute made a distinction between wills of real and personal property, and in the former case, made a copy of a probated will satisfactory proof of the contents of the will only if the will was proved in solemn form.⁽²⁴⁾ Section 26 avoids distinctions, and makes copies only prima facie evidence of the will.
 

Note that the section has nothing to do with proving a will when it is admitted to probate. It merely provides for admission in evidence of a will that has, by virtue of probate, become a court record. The provision is almost certainly unnecessary, a product of borrowing and adapting from precedents in other jurisdictions without sufficient attention to integration. As judicial records, copies of probate wills are admissible under sections 20 and 21. When admitted under those sections, they are merely proof of the probated will, not unimpeachable evidence of the validity. The Uniform Evidence Act contains no analog to section 26.
 

Section 27 makes conviction for an offence involving sexual intercourse admissible in evidence to prove adultery in certain matrimonial causes:
 

Proof of adultery
 

27 In an action for dissolution of marriage, alimony or judicial separation, a certificate:
 

(a) setting out with reasonable particularity the conviction of a spouse after the marriage for any offence against the Criminal Code, as amended from time to time, for which proof of sexual intercourse is required; and
 

(b) purporting to be signed by the person who made the conviction or by the local registrar or other officer having custody of the records of the court in which the spouse was convicted or by the deputy of that local registrar or officer;
 

is, on proof of the identity of the spouse, admissible in evidence as prima facie proof of adultery by the spouse without proof of the signature or official character of the person by whom the certificate purports to be signed.
 

The provision was required to create an exception to the rule in Hollongton v. Hewthorn, which generally makes a conviction for a criminal offence inadmissible in a civil proceeding. However, dissolution of marriage is in Federal jurisdiction, while actions for alimony and judicial separation are now extinct in Saskatchewan, having been replaced by maintenance applications under The Family Maintenance Act. Adultery is not a ground for maintenance under the Act. Thus it appears that section 27 no longer has any purpose.
 
 

When business and commercial records are presented as evidence, issues involving both the rule against hearsay and the best evidence rule arise. Courts and legislators were more reluctant to relax these rules in regard to commercial documents than in regard to public documents. A few exceptions, most of them with 19^th century English precedents, found their way into the Saskatchewan Evidence Act, 1909. A provision relating to copies of telegrams and some other commercial documents was placed under its own heading, "Telegraph Messages and Mercantile Documents" (now section 30). Special provisions governing evidence of protest of bills of exchange and promissory notes were placed, rather incongruously, in the part headed "Official and Court Documents"(now sections 23-25). Section 28 of the present Act was copied from a 1927 amendment to the Canada Evidence Act, and placed, again incongruously, under the "Official and Court Documents" heading. When microfilming came into wide use, a provision governing admission of microfilm copies was added to the same part (section 29). All of these provisions seem to have been motivated primarily by a desire to relax the best evidence rule, but all except the microfilm provision were worded so as to relax the hearsay rule as well.
 

More recently, two major innovations in the law have occurred. First, in response to criticism of the rule against hearsay as it applies to records kept in the ordinary course of business,

sections 31 and 32, simplifying admission of business and medical records were enacted between 1969 and 1972, and included under the old heading "Telegraph Messages and Mercantile Documents". These provisions are more or less uniform with similar provisions in the Canada Evidence Act. Unlike their counterparts in some provinces, they are strictly concerned with hearsay issues. Second, sections 29.1- 29.6, governing admission of computer and similar records, were adopted in 2000. These provisions were placed under a new heading, "Electronic Documents", and are based on the ULCC Electronic Evidence Act.
 

Even if nothing else is done to clarify these provisions, it would be desirable to group them together under a single subject heading.
 

(a) Business and Medical records: Sections 31 and 32.
 

Admissibility of business records
 

31(1) In this section:
 

(a) "business" includes every kind of business, profession, occupation, calling, operation, activity or government activity, whether carried on for profit or otherwise;
 

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

(c) "legal proceeding" means any civil proceeding or inquiry, including an arbitration, in which evidence is or may be given;
 

(d) "record" includes any information that is recorded or stored by means of any device, including a computer.
 

(2) Any writing or record made of any act, transaction, occurrence, or event is admissible in any legal proceeding 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 such business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
 

(3) The circumstances of the making of a writing or record mentioned in subsection (2), including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
 

(4) 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.

.

Reports by medical or chiropractic practitioners
 

32(1) Any professional report purporting to be signed by a duly qualified medical or chiropractic practitioner or dental surgeon, licensed to practise in any part of Canada is, with leave of the judge or court, admissible in evidence in any action without proof of his signature or qualifications or of his being licensed.
 

(2) Where a duly qualified medical or chiropractic practitioner or dental surgeon, has been required to give evidence, viva voce, in an action and the judge or court is of opinion that the evidence could have been produced as effectively by way of a professional report in writing, the judge or court may order the party that required the attendance of the medical or chiropractic practitioner or dental surgeon, as the case may be, to pay as costs therefor such sum as he or it deems appropriate.
 

It will be convenient to deal with these sections first because they purport to be comprehensive guides to the admission in evidence of business and medical records (though, importantly, not of copies of them). The justification for relaxing the rule against hearsay in regard to records of this type is the probative value of records made "in the ordinary course", and the belief that the existence of a routine course of conduct in keeping the records reduces the hearsay danger that might otherwise be associated with them. Impetus for reform came primarily from the House of Lords decision in Myers v. DPP, [1965] 2 All E.R. 881, which admitted routine manufacturers' records, and the Supreme Court of Canada decision in Ares v. Venner, [1970] SCR 608, which admitted hospital records.
 

These sections are broadly drawn. The business records provision, like its counterpart in most similar Canadian legislation, admits, without the necessity of calling the maker to allow

cross-examination, almost any business or professional record that meets what has been called a "double-barrel test":
 

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

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

Although recommendations have been made to improve Canadian business records legislation,⁽²⁵⁾ there is no point in discussing these proposals here. Sections 31 and 32 are clear and straightforward. The brief discussion above will, however, be useful for the purpose of discussing the relationship between these sections and other provisions of the Act relating to admission of documents.
 

(b) Electronic evidence: Sections 29.1-29.6
 

ELECTRONIC DOCUMENTS
 

Interpretation and application
 

29.1(1) In this section and sections 29.2 to 29.6:
 

(a) "data" means representations, in any form, of information or concepts;
 

(b) "electronic record" means data that:
 

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

(ii) can be read or perceived by a person or a computer or other similar device;
 

and includes a display, printout or other output of that data, other than a printout mentioned in subsection 29.3(2);
 
 
 

(c) "electronic records system" includes a computer system or other similar device by or in which an electronic record is recorded or stored and includes any procedures related to the recording or storing of an electronic record.
 

(2) This section and sections 29.2 to 29.6 do not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence.
 

(3) A court may consider evidence admitted pursuant to sections 29.2 to 29.6 in applying any common law or statutory rule relating to the admissibility of records.
 

Authentication of electronic record
 

29.2 A person seeking to enter an electronic record must prove its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.
 

Application of best evidence rule
 

29.3(1) Subject to subsection (2), where the best evidence rule applies to an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the electronic record was recorded or stored.
 

(2) An electronic record in the form of a printout that has been manifestly or consistently acted on, relied on or used is the record for the purposes of the best evidence rule.
 

Proving the integrity of an electronic records system
 

29.4 In the absence of evidence to the contrary, the integrity of the electronic records system in or by which an electronic record is recorded or stored is proven for the purposes of subsection 29.3(1):
 

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

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

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

Standards
 

29.5 For the purposes of determining under any rule of law whether an electronic record is admissible, evidence may be presented respecting any standard, procedure usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record.
 

Affidavit may be used
 

29.6(1) An affidavit may be used respecting the matters mentioned in subsection 29.3(2) and sections 29.4 and 29.5 given to the best of the deponent's knowledge or belief.
 

(2) A deponent of an affidavit mentioned in subsection (1) that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced.
 

(3) Any party to the proceedings may, with leave of the court, cross-examine a person mentioned in clause 29.4(c).
 
 
 

The "Electronic Documents" provisions adopted in 2000 are the result of lengthy discussions and research that led to adoption of the Uniform Law Conference of Canada Electronic Evidence Act. They represent an effort to deal comprehensively with issues of authenticity created by computerized documents.
 

The commentary to the Uniform Act states that "the definition of data ensures that the Act applies to any form of information in an electronic record, whether figures, facts, or ideas". Note, however, that the data to which the provisions apply must be a "record" that is, stored electronically. The provisions do "not apply to regular digital telephone conversations, since the information is not recorded. It would apply to voice mail, since the information has been recorded in or by a device similar to a computer. Likewise video records are not covered, though when the video is transferred to a Web site it would be.....".⁽²⁶⁾ But it is important to note that the provisions are only concerned with authenticity, thus with the application of the best evidence rule. Thus The Saskatchewan Evidence Act provides that:
 

29.3(1) Subject to subsection (2) [relating to print-outs], where the best evidence rule applies to an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the electronic record was recorded or stored.⁽²⁷⁾
 

At common law, an electronic record presumably did not infringe the best evidence rule if it could be characterized as an "original", but it was not generally admissible if it was a "copy". The new provisions finesse this issue by providing a method of authentication of the record without characterizing it as an "original" or "copy". The legislation does not render a document admissible if there are other bars to admission. The commentary to the Uniform Act states that:
 

The admission of a record may depend on hearsay rules such as the business records rule or the bank records rule, in some jurisdictions. This Act does not change those rules. Likewise recorded evidence may be subject to many other rules, about privilege, about competence, about notice, about documents found in the possession of an accused person, that are not modified by this Act.⁽²⁸⁾
 

It is not the intention here to review the electronic documents sections in detail. Rather, attention will be focussed on the relationship between these provisions and other provisions relating to admission of documents.
 

It would appear that the electronic documents provisions are appropriately integrated with

section 31, the "business records" provision. As noted above, section 31 is concerned only with hearsay dangers. The section expressly defines "record" to include a computerized record. Thus it would appear that a computerized business record can be admitted if it is made "in the ordinary course of such business" as required by section 31, and can be authenticated under sections

29.1-29.6. Although the medical records provision (section 32) does not explicitly define "record" to include a computerized record, similar logic would seem to apply.
 

The issue may not be as clear in regard to other provisions relating to admission of documents. Consider again section 12, under which a copy of a public document can be admitted if it is "certified under the hand of any officer or person" who has "custody" of the document. Unlike sections 30 and 31, this section relates to "copies", and mitigates both the hearsay and best evidence rules. It thus overlaps the electronic document sections. Some confusion may be created by the fact that the electronic documents provisions avoid characterizing records as "originals" and "copies". However, this is unlikely to be a practical problem. To admit an electronic public record without hearsay or best evidence problems, it is likely necessary and sufficient to certify it under section 12, and meet the authenticity requirements under

sections 29.1-29.6.⁽²⁹⁾
 

Possible problems are also mitigated by section 29.3(2), which makes it possible to treat

print-outs as "originals" for purposes of the best evidence rule is some cases. The commentary to the Uniform Act states that "printouts that are used only as paper records, and whose computer origin is never again called on [such as a letter produced with a word processing program], are treated as paper records".⁽³⁰⁾
 

(c) Microfilm copies: Section 29
 

Photographic film
 

29(1) In this section:
 

(a) "person" includes:
 

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

(ii) a corporation; and
 

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

(b) "photographic film" includes a photographic plate, microphotographic film and photostatic negative and "photograph" shall have a corresponding meaning.
 

(2) Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan or a 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 shall be admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.
 

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

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

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

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

(4) Where the photographic print is tendered by a government or the Bank of Canada, subsection (3) does not apply.
 

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

This provision is based on a similar provision in the Canada Evidence Act (section 31). Both provisions betray the fact that they were enacted at a time when microfilm record-keeping was novel. Its purpose was essentially to recognize that a microfilmed record is a "copy", and thus reflected doubts that anything but a record on paper could be regarded as a document. In the electronic era, this concern now seems merely quaint. The section does not mitigate the best evidence rule, since it allows microfilm copies to be admitted only if the original has been destroyed. The qualifications and limitations in the section now seem excessive. The Uniform Law Conference has recommended repeal of the Federal microfilm section and its analogs. There are now national standards governing microfilming. The ULCC suggested that in the absence of a specific microfilm provision, "counsel will use it as a basis for presenting or attacking evidence by way of microfilm".⁽³¹⁾
 

If section 29 was repealed, the courts would almost certainly now recognize microfilmed records as copies, and continue to admit them under the best evidence rule in cases in which the original has been destroyed, upon satisfactory evidence of authenticity of the copy. However, a better approach would be to adopt, as the ULCC recommends, a comprehensive definition of "duplicate" that would include microfilmed records. Under the best evidence rule, true duplicates, as opposed to copies, are admissible as originals. If either repeal or repeal and adoption of a definition of "duplicates" is regarded as more than clarification and deletion of a provision that is no longer useful, the best option would likely be to leave section 29 as it is until a more comprehensive review of the law governing documentary evidence is undertaken.
 

(d) Bank records: Section 28
 

Bankers' books
 

28(1) In this section:
 

(a) "bank" means a bank to which the Bank Act (Canada) applies or a credit union or caisse populaire incorporated under The Credit Union Act, 1998 or any former Credit Union Act, and includes a branch, agency or office of a bank, credit union or caisse populaire;
 

(b) "court" means the court, judge, arbitrator, person or persons before whom a legal proceeding is held or taken;
 

(c) "legal proceeding" means any civil proceeding or inquiry in which evidence is or may be given, and includes an arbitration.
 

(2) Subject to the provisions of this section, a copy of an entry in a book or record kept in a bank shall in all legal proceedings be received as prima facie evidence of the entry, and of the matters, transactions and accounts therein recorded.
 

(3) A copy of an entry in such book or record shall not be received in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the bank, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the bank or its successor, and that the copy is a true copy. Such proof may be given by the manager or accountant of the bank and may be given orally or by affidavit sworn before any commissioner for oaths or other person appointed to administer oaths and to take and receive affidavits, declarations and affirmations within Saskatchewan.
 

(4) A bank or officer of a bank shall not, in a legal proceeding to which the bank is not a party, be compellable to produce a 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 or a judge made for special cause.
 

(5) On the application of any party to a legal proceeding, the court or a judge may order that such party be at liberty to inspect and take copies of any entries in the books or records of the bank for the purposes of any such 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 or judge that such person cannot be notified personally, the notice may be given by addressing it to the bank.
 

(6) The costs of an application to a court or judge under or for the purposes of this section, and the costs of anything done or to be done under an order of a court or judge made under or for the purposes of this section, shall be in the discretion of the court or judge.
 

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

Section 28 was adopted from the English Bankers' Books Evidence Act, 1879, and first found its way into Canadian law in the Canada Evidence Act in 1927. It was perhaps the first large-scale effort by legislators to deal with the problem of business records as evidence, and anticipated the more recent business records provisions in Canadian evidence statutes.
 

At common law, a bank could not be compelled to produce records of accounts except as admissions against the bank.⁽³²⁾ The 1879 legislation made records available to litigants but, apparently for the convenience of banks, required only production of copies, verified to be true copies by a bank official "orally or by affidavit". The original was required only under court order "for special cause". Thus, though it may not have been the primary purpose of the legislation, the Act relaxed the best evidence rule by admitting copies.
 

The legislation also relaxes the rule against hearsay. Note a bank record "shall in all legal proceedings be received as prima facie evidence of the entry, and of the matters, transactions and accounts therein recorded." Thus the contents of the record are admitted in spite of the hearsay rule. It has been held that the legislation reflects "faith in the reliability of financial institutions".⁽³³⁾ It therefore reflects the same rationale as the justification for more recent business records legislation, and incorporates a similar double-barrel "ordinary course of business" test. A bank record may be admitted if:
 

it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the bank, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the bank or its successor, and that the copy is a true copy.
 

The test appears to differ, if at all, from the test in section 31 in that it only requires that the books containing the record were "at the time of the making of the entry" an ordinary bank book, rather than explicitly requiring that the record be made "at the time of the act, transaction, occurrence or event or within a reasonable time thereafter". However, it may be that section 31 intends to imply that the record must be made at the time of the transaction.
 

Section 28 also includes some other matters that are not addressed in later business records legislation. Most importantly, litigants are given a right to inspect bank records, presumably to determine whether there is useful evidence in them, but in such a case, the account holder must be given notice that his or her account will be inspected.
 

Two other unusual features are less important. Provision for costs in the statute is not necessary. Nor, of course, is it necessary to include a rule for computation of time, since that is now governed by The Interpretation Act, 1995.
 

The Uniform Law Conference recommended that bank records provisions should be merged with general business records provisions, while retaining the special features of the bank records provisions.⁽³⁴⁾ It is certainly necessary to keep the bank records provisions in some form in Saskatchewan. Most particularly, our general business records section makes no provision for admission of copies of records. Its singular focus on hearsay issues is a weakness, but one that could only be corrected by formulating a policy in regard to admission of copies. Until that question has been considered, the Saskatchewan Act must retain the various special provisions for admission of copies it presently contains.
 

It would, however, certainly be possible to modernize the language of the section, and it may be possible to combine it with section 31. Note that the "double-barrel" test for admission is probably close enough in sections 28 and 31 to apply a single version to both sections. Section 28 might be reduced to a special rule for admission of authenticated copies of bank records under section 31.

(e) Telegrams and other mercantile documents: Section 30
 

Proof of telegraph messages, mercantile papers, etc.
 

30(1) In an action, suit or proceeding in the case of telegraphic messages, letters, shipping bills, bills of lading, delivery orders, receipts, accounts and other written instruments used in business and other transactions where, according to the existing rules of law exclusive of the provisions contained in this Act, it would be necessary to produce and prove the original document, the party intending to establish in proof the contents of the original document may give notice to the opposite party, ten days at least before the trial or other proceeding in which the said proof is intended to be adduced, that he intends at the said trial or other proceeding to give in evidence as proof of such contents an instrument purporting to be a copy of such document.
 

(2) Such copy may then be inspected by the opposite party at some convenient time and place; and in every such case the copy shall, without further proof, be sufficient evidence of the contents of the original document and be accepted and taken in lieu of the original unless the party receiving the notice, within four days after the time mentioned therein for 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 court or judge before whom such question is raised may direct by which of the parties the costs that may thereupon attend any production of proof of the original document according to the rules of evidence heretofore existing shall be paid.
 

At common law, when the contents of a telegram were to be proved against the sender, the original message (as handed to the telegraph office ) was the "original", and if the message was to be proved against the recipient, the received copy was the original (R. v. Ryan (1887), 16 Cox C.C., 203). Section 30 simplifies these rules. It allows admission of either copy. Note, however that when the version tendered is not, in context, the original, notice and an opportunity to inspect must be given to the opposite party. In cases in which a copy could be admitted at common law under the best evidence rule (e.g. a lost document), notice and inspection were generally required.
 

Section 30 applies to a variety of other mercantile documents. Note that those listed are examples of "written instruments used in business and other transactions". What is likely intended to be caught are contracts made by telegrams, bills of lading, delivery orders, etc. in which one party sends a copy of the instrument to the other to complete the contract.
 

The limited scope of the section, and its rather archaic approach to the business records issue cast doubt on the utility of section 30. It has no parallel in the Canada Evidence Act or the Uniform Evidence Act. However, none of the other business records provisions in the Saskatchewan Act appear to cover its subject matter. Thus it should be retained until a comprehensive review of admission of copies can be undertaken.
 

(f) Records of protests of bills of exchange and promissory notes: Section 23
 

Protests of bills or notes prima facie evidence
 

23 All protests of bills of exchange and promissory notes shall be received as prima facie evidence of the allegations of facts therein contained.

Production of protest is prima facie evidence of making of protest
 

24 The production of a protest of a bill of exchange or promissory note purporting to be under the hand and seal of a notary public shall be prima facie evidence of the making of the protest without proof of the seal and signature being the seal and signature of the person whose seal and signature the same purports to be or of the official character of that person.
 

Notarial certificate prima facie evidence of certain facts
 

25 A note, memorandum or certificate purporting to be made by a notary public in Canada in his own handwriting, or to be signed by him at the foot of or embodied in a protest, or in a regular register of official acts purporting to be kept by him shall be prima facie 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, memorandum or certificate.
 

These provisions were contained in the Saskatchewan Evidence Act, 1909. The principal provision, section 23, does not establish a rule of admissibility; it is concerned rather with the sufficiency of evidence and is properly part of the law of bills of exchange. This subject matter may not be within provincial jurisdiction. These sections should likely be removed from

The Saskatchewan Evidence Act, but further consideration of this question is more appropriate in another context.
 
 

The subject heading "Witnesses" in The Saskatchewan Evidence Act is the most rationally named heading in the statute. It should be noted that this part is not even a partial codification of the law relating to the calling and examination of witnesses. It is instead a collection of miscellaneous provisions, most from 19^th century English statutory sources, that attempted to clarify or modify specific matters. These provisions have been little changed since the Saskatchewan Evidence Act, 1909. Their proximate origin was the Canada Evidence Act.
 

Although there are no subheadings in this part, the ten sections it contains relate to three classes of subject matter. Sections 34-36.1 are concerned with competence and compellability of witnesses. Section 37 deals with self-incrimination. Sections 38-41 deal with certain aspects of cross-examination and impeachment of witnesses.
 

1. Competency and compellability of witnesses
 

Although all the provisions discussed below are at least indirectly concerned with competence and compellability of witnesses, only sections 34, 35(1) and 35(2) actually state competence and compellability rules.
 

Sections 34 and 35(1) come close to codifying the rules of competence and compellability in civil actions. Section 35(3) does not alter the general rule, and is in fact no more than a gloss now of more historical than practical significance.
 

The rules set out in sections 34 and 35(1) also apply to prosecutions under provincial law, but section 35(2) adds the rule that the accused is not compellable. Section 35(4) is also concerned with prosecutions. It does not alter the general rule that spouses are compellable against one another, but prohibits imprisonment when the spouse of an accused testifies for the prosecution.
 

Sections 36 and 37 establish a spousal privilege to refuse to divulge inter-spousal communications. Strictly, this is not a matter of competence or compellability, but as a matter of history, these sections were adopted as an alternative to the common law rule that made spouses of parties incompetent to testify.
 

Section 35.1 is a more recently-adopted privilege protecting the confidentiality of hospital quality control committees.
 

(a) The general rule in civil actions: Sections 34 and 35(1) and (3)
 

No incompetency from crime or interest
 

34 A person shall not be incompetent to give evidence by reason of interest or crime.
 

Parties to actions, etc., competent witnesses
 

35(1) On the trial of any action, matter or proceeding in any court, the parties thereto and the persons in whose behalf the action, matter or proceeding is brought or instituted or opposed or defended, and the husbands and wives of those parties and persons, shall, save as hereinafter excepted, be competent and compellable to give evidence according to the practice of the court on behalf of either or any of the parties to the action, matter or proceeding.
 

. . .
 

(3) Without limiting the generality of subsection (1), a husband or wife may, in an action, matter or other proceeding in any court, 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.

Sections 34 and 35(1) set out the general rules governing competency and compellability in all civil actions.
 

At common law, many classes of witnesses were not competent to give evidence. Most of these were removed by 19^th century English enactments, including parties (Evidence Act, 1851 and Evidence Amendment Act, 1853), others with some material interest in the outcome of the proceedings (Evidence Act, 1843), "infamous" persons and persons who have been convicted of a crime (Evidence Act, 1843), and spouses of parties (Evidence Amendment Act, 1853 and Evidence Further Amendment Act, 1869). These statutory reforms were part of the English law of 1870 received by Saskatchewan, but were adopted after the reception date applicable to Federal law. They were thus re-enacted in the Canada Evidence Act, which was copied in the Saskatchewan Evidence Act, 1909.
 

These reforms left some grounds of incompetency in place. For example, persons who could not take an oath, the presiding judge, and jurors, remained incompetent. Later changes in the law governing oaths and affirmations have eliminated part of the first category⁽³⁵⁾, but the others remain part of the common law.
 

Sections 34 and 35(1) clearly and directly amalgamate the subject matter of the English reforms set out above. However, at this remove in time from the common law it modified, some further clarification is desirable. There is no reason why section 34 should be separate from section 35. Superficially, section 34 seems to differ from section 35 in that it refers only to competence, while section 35 refers to competence and compellability. This is, however, a mere historical artifact. It has long been settled law in Canada that a witness who is made competent by statute is also compellable unless the statute otherwise provides.⁽³⁶⁾
 

In civil matters, compellability as a separate issue appears to have arisen out of doubts about whether, after the Evidence Amendment Act, 1853, spouses could be required to testify against one another. This issue was ultimately resolved in England by giving spouses a privilege to not answer certain questions, rather than making them incompetent to testify against one another. Section 35 follows this lead, and refers explicitly to compellability to resolve doubts about spouses as witnesses. Since section 35 also applies to parties, the "competent and compellable" formula was incidentally applied to parties as well as spouses. This accounts for the misleading difference in terminology in sections 34 and 35.
 

While it might be expected that section 35(3) might be explained by piece-meal 19^th century changes in competency and compellability rules, it is in fact of more recent origin. On its face, section 35(3) does no more than confirm the competency of spouses to testify against one another in all cases. However, the provision was thought necessary to abrogate a rule laid down by the House of Lords in Russell v. Russell, [1924] A.C. 627, which held that both husband and wife are incompetent to give evidence of non-access during marriage if the effect would be to bastardize a child. Section 35(3) and its counterparts in other provincial evidence legislation copied a 1946 Ontario provision. Note that the provision goes some distance beyond what was required, perhaps making it appear to be of broader application than it really is.
 

But for the peculiar decision in Russell v. Russell, section 35(1) makes spouses both competent and compellable. Russell v. Russell does not appear to have been applied in any reported Canadian decision, and thus cannot be said to have ever been good law in this country. It seems very unlikely that a Canadian court today would adopt the House of Lords' reasoning in

Russell v. Russell if section 35(3) did not exist. The Uniform Law Conference's Report on Evidence simply ignored the provision, apparently content that the general competency rule makes it unnecessary. It seems that section 35(3) could be repealed without any consequences.
 

Some minor clarification of terminology of sections 34 and 35(1) would be useful. Thus, for example, the Ontario Evidence Act, section 7 goes somewhat further than section 34 in explaining the term "interest" by referring to "interest in the matter in question or in the event of the action". Similarly, the qualification as to spousal testimony in section 35(1) that requires spouses to "give evidence according to the practice of the court on behalf of either or any of the parties to the action, matter or proceeding" is an artifact of the initially cautious approach of 19^th century legislators to this issue. This language now has no determinable meaning.
 

In fact, sections 34 and 35(1) can be even more radically simplified. It is no longer necessary to refer to the specific classes of witnesses made competent by the 19^th century enactments referred to above. The Uniform Evidence Act now provides that:
 

89. Subject to this Act and any other law, every person is competent and compellable to testify in a proceeding.
 

This provision could be substituted for sections 34 and 35(1) without changing the substance of the law.
 

(b) Compellability in provincial prosecutions: Section 35(2) and (4)
 

35 (2) Notwithstanding subsection (1), no person is compellable, in a prosecution against him under any Act, to give evidence against himself. . . .

(4) Notwithstanding the provisions of any statute imposing penalties, whenever in any action, matter or proceeding the evidence of the party defendant, or of the husband or wife of that party, is taken at the instance of the adverse party, no sentence of imprisonment except for non-compliance with an order, other than an order for payment of a fine or penalty, shall be pronounced.
 

At common law, neither an accused nor the accused's spouse was competent or compellable in a criminal prosecution. This rule was altered in Canada by the Canada Evidence Act in 1893, which made both the accused and the accused's spouse competent but not compellable (See now Canada Evidence Act, s. 4). Because the Federal provision applied to criminal law matters, it was not copied in the Saskatchewan Evidence Act, 1909. Presumably, then, the general competency rule as to parties and spouses now contained in section 35(1) applied to prosecutions for commission of provincial offences, so that both the accused and his or her spouse were competent and compellable. The law has now been changed in Saskatchewan and all but four provinces. Section 35(2) makes the accused incompetent for the prosecution. Treatment of the spouse of the accused differs in those provinces that have made the accused incompetent. Thus, Alberta makes the spouse compellable⁽³⁷⁾, while in Nova Scotia,⁽³⁸⁾ the spouse is not compellable for the prosecution. The Saskatchewan policy, set out in section 35(4) is a compromise: It preserves the general rule that the spouse of the accused is compellable, but limits the penalty to a fine rather than imprisonment if the accused's spouse testifies for the prosecution. The Uniform Law Conference has recommended that the same rule apply to both criminal prosecutions and prosecutions for regulatory offences.⁽³⁹⁾ However, the Saskatchewan compromise may not be without merit in the context of provincial offences.
 

It hardly needs to be noted that the language of section 35(4) could be improved. Although it can have no application in civil cases, it is worded in such a way that this fact is not immediately obvious. The function of the provision is further obscured by the fact that it does not follow immediately after section 35(2), the other provision in the Act dealing with compellability in prosecutions.
 

(c) Spousal privilege: Sections 36 and 36.1
 

Communications between husband and wife during the marriage privileged
 

36 Nothing in this Act shall make a husband compellable to disclose a communication made to him by his wife during the marriage or a wife compellable to disclose a communication made to her by her husband during the marriage.
 

Compellability re certain marital communications
 

36.1 Notwithstanding any law, any other provision of this Act or any provision of any other Act, when an action is brought in tort by a husband against his wife or by a wife against her husband, the husband or wife, as the case may be, is compellable to disclose a communication made to the other during the marriage.
 

Section 36 was contained in the Saskatchewan Evidence Act, 1909, and was copied, via the Canada Evidence Act, from the English Evidence Amendment Act, 1853, which first made spouses of parties competent and compellable. Although the section uses the term "compellable", it is, properly construed, not an exception to the general rule that spouses are compellable witnesses but rather makes any "communication made to the other during the marriage" privileged. Thus one spouse can be compelled to testify against the other, but may refuse to answer questions that would disclose a "communication" between the spouses.⁽⁴⁰⁾
 

The Uniform Law Conference has recommended that provisions similar to section 36 should be recast to make it clear that they relate to matters of privilege. The Uniform Act thus provides:
 

178. In a proceeding before a court, tribunal, body or person having power to compel the production of evidence, a person is entitled to claim a privilege against production or disclosure by himself or his spouse of a statement made in confidence by him to his spouse.⁽⁴¹⁾
 

The spousal privilege has been criticized. For example, the Ontario Law Reform Commission recommended abolishing it.⁽⁴²⁾ However, the most troublesome effect of the privilege has been removed in Saskatchewan by section 36.1, which was adopted in 1986. This section prevents a spouse from hiding behind the privilege in an action between the spouses in a tort action.⁽⁴³⁾
 

(d) Privileged proceedings before hospital quality assurance committees
 

Evidence before quality assurance committees privileged
 

35.1(1) In this section:
 

(a) "board of governors" means the:
 

(i) board of directors;
 

(ii) board of management; or
 

(iii) other head;
 

of a hospital that is legally authorized to operate the hospital;
 

(b) "committee" means a committee designated as a quality assurance committee by the board of governors or the bylaws of a hospital to examine and evaluate on an on-going basis the provision of care and services to patients in the hospital for the purpose of:
 

(i) educating persons who provide health care; or
 

(ii) improving the care, practice or services provided to patients by the hospital;
 

(c) "hospital" means:
 

(i) a hospital approved pursuant to subsection 3(1) of The Hospital Standards Act; or
 

(ii) a facility as defined in The Mental Health Services Act;
 

(d) "legal proceeding" means any civil proceeding or inquiry in which evidence is or may be given and includes a proceeding for the imposition of punishment by way of fine, penalty or imprisonment to enforce an Act or regulation made pursuant to an Act.
 

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

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

(b) is not liable to be asked to produce and is not permitted to produce any report, statement, memorandum, recommendation, document, information, data or record that is:
 

(i) prepared exclusively for the use of or made by; or
 

(ii) used exclusively in the course of, or arising out of, any investigation, study or program carried on by;
 

a committee.
 

(3) Subject to subsection (4), no report, statement, memorandum, recommendation, document, information, data or record mentioned in clause 2(b) is admissible as evidence in any legal proceeding.
 

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

(a) with respect to medical and hospital records that are:
 

(i) prepared for the purpose of providing care and treatment to a patient in a hospital;
 

(ii) prepared as a result of an incident in a hospital, unless the facts relating to that incident are also fully recorded on a record described in subclause (i); or
 

(iii) required by law to be kept by the board of governors;
 

(b) to legal proceedings founded on:
 

(i) defamation;
 

(ii) inducing breach of contract; or
 

(iii) civil conspiracy;
 

based directly on any proceeding before a committee or any report, statement, memorandum, recommendation, document, information, data or record mentioned in clause (2)(b); or
 

(c) to disciplinary proceedings where the impugned conduct is a disclosure or submission to a committee.
 

(5) When made in good faith:
 

(a) the:
 

(i) disclosure of any information or document or anything in it; or
 

(ii) submission of any report, statement, memorandum, recommendation, document, information, data or record;
 

to a committee for the purpose of its being used in the course of any investigation, research, study or program carried on by the committee; and
 

(b) the disclosure of any information or document or anything in it that arises out of any investigation, research, study or program described in clause (a);
 

does not raise or create any liability on the part of the person making the disclosure or statement.
 

(6) No action lies against the members of a committee for any:
 

(a) disclosure of any information or document or anything in it made in good faith;
 

(b) submission of any report, statement, memorandum, recommendation, document, information, data or record made in good faith; or
 

(c) proceedings taken in good faith;

in the course of any investigation, research, study or program carried on by the committee.
 

Section 35.1, adopted in 1989-90, makes proceedings of hospital "quality assurance committees" privileged, and thus inadmissible in any proceeding to which The Saskatchewan Evidence Act applies. These committees were established "to examine and evaluate on an on-going basis the provision of care and services". To carry out this task, it is necessary that full and frank disclosure of information is made to the committees. The possibility of lawsuits arising out of circumstances reported by the committees would discourage co-operation of health care professionals.
 

Whether such a complicated provision is required to achieve the purpose of section 35.1 is open to question but the section itself is straightforward.
 

2. Self -incrimination: Section 37
 

Incriminating answers
 

37(1) No witness shall be excused from answering a question upon the ground that the answer to the question may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.
 

(2) Where with respect to any question the witness objects to answer upon the ground that his answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person and if, but for this section, the witness would have therefore been excused from answering the question, then, although the witness shall be compelled to answer, yet the answer so given shall not be used or receivable in evidence against him in any other civil proceeding or in any other proceeding under an Act of the Legislature.
 

At common law, a witness could refuse to answer questions if the answers would tend to expose him or her to criminal or certain forms of civil liability. Section 37 replaces the common law rule. It abolished the right not to give self-incriminating answers, but created an immunity against use of the answers as evidence "in any other civil proceeding or in any other proceeding under an Act of the Legislature". In substance, the section originated in the Canada Evidence Act, and was contained in the Saskatchewan Evidence Act, 1909.
 

It clearly seems to be the intention to apply the rule set out in the section to answers tending to disclose liability in any subsequent proceeding except for perjury. But the formula used in the section, which identifies answers that "tend to criminate" or establish "liability to a civil proceeding at the instance of the Crown or of any person", may not fully encompass this goal. The term "tend to criminate" means, at the very least, "tend to disclose commission of a crime". The fact that the province cannot legislate in regard to criminal proceedings is not at present a problem because the Canada Evidence Act explicitly recognizes the immunity conferred by provincial evidence legislation.⁽⁴⁴⁾ However, it is not clear that "tend to criminate" also includes answers that disclose commission of provincial offences⁽⁴⁵⁾. Note that the rest of the formula clearly relates only to civil liability. This problem could be remedied by adopting the wording of the Ontario Evidence Act, s. 9(1), which refers to answers that "may tend to criminate him or may tend to establish his liability under . . . any Act of the legislature".
 

There is, however, a larger problem. The common law originally extended the privilege to questions tending to disclose criminal liability, liability for penalties or forfeitures, or civil liability. However, the Witnesses' Declaratory Act, 1806, abolished the privilege in regard to civil liability. Note that section 37 provides the immunity only if, "but for this section, the witness would have therefore been excused from answering the question". If the law at the time section 37 was adopted did not extend the privilege to answers tending to disclose civil liability, it would appear that the immunity is not available in this respect. Note in addition that since the Saskatchewan reception date was 1870, the Witnesses' Declaratory Act, 1806 likely became part of the law of the province. On the other hand, in provinces with legislation identical to

section 37, but with reception dates earlier than 1806, the law may be different.⁽⁴⁶⁾
 

Despite this problem, it may be possible to argue that it is highly probable that the legislature's purpose in copying the Federal analog to section 37 was to extend the immunity to all answers that tended to expose the witness to any liability in subsequent proceedings. If this is the case, it would be possible to delete the phrase "but for this section, the witness would have therefore been excused from answering the question" as a matter of clarification.
 

3. Cross-examination and impeaching witnesses
 

The provisions discussed below are miscellaneous rules derived from 19^th century English statutes to address specific problems. They do not attempt to set out general rules applicable to cross-examination or impeachment. In fact, cross-examination is not mentioned at all. However, the issues they address arise almost exclusively on cross-examination.
 

Section 38 attempts to clarify the circumstances in which a party may impeach his own witness, by calling other evidence or by cross-examination. Sections 39 and 40 set out rules for

cross-examination when a witness is confronted with a previous inconsistent statement.

Section 41 governs examination of a witness with respect to his or her criminal record.
 

(a) Impeaching a party's own witness: Section 38
 

Extent to which a party may discredit evidence of his own witness
 

38 A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness in the opinion of the judge proves adverse, contradict him by other evidence or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before the last mentioned proof can be 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 made such statement.
 

The common law recognized a general rule against impeaching any witness by "general evidence", a term synonymous with character evidence. The opening clause of section 38 preserves this rule in regard to a party's own witnesses. However, the common law did permit the calling of other evidence to contradict evidence given by one's own witness, and, if the witness admitted making a prior inconsistent statement, he or she could be questioned about it. (Wright v. Beckett (1833), 1 M. & Rob., 414).⁽⁴⁷⁾ When the witness refused to admit to a prior inconsistent statement, the common law appears to have been less certain as to whether he or she could be cross-examined, or evidence introduced to prove the prior statement.
 

It seems to have been to remedy this uncertainty that the Common Law Procedure Act, 1854 adopted the model for section 38. It was introduced into Canada in the Canada Evidence Act, and was contained in the Saskatchewan Evidence Act, 1909. Unfortunately, the drafting of the section proved to be a problem. Note that the right to call evidence to contradict became conditional on leave of court. In Greenbough v. Eccles (1859), 141 ER 315, this abrogation of the common law right was described as a "great blunder" that was "superfluous and useless". The "blunder" has been ignored ever since by the courts. The Uniform Evidence Act simplifies the provision and removes its blunder. Section 122 of the Uniform Act preserves the first clause of section 38, and extends it to encompass the broader common law rule against impeachment by general evidence of character:
 

122. Subject to section 27, evidence of reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of a witness.
 

Section 104 replaces the rest of section 38⁽⁴⁸⁾:
 

104. A party calling a witness may contradict him by other evidence but shall not cross-examine him unless the court finds him to be an adverse witness, in which case he may be cross-examined as if he were a witness not called by the party.
 

(b) Cross examination as to inconsistent statements: Sections 39 and 40
 

Proving inconsistency of evidence on cross-examination
 

39 If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of a cause, action or proceeding and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be 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 made such statement.
 

Examination of witness as to previous statement in writing, and production thereof
 

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

At common law, when cross-examination was allowed, the witness could be questioned about previous statements that were inconsistent with the testimony he or she has given in court. It appears that until Queen Caroline's Case (1820), 129 ER 976, wide latitude was given to counsel to conduct such an examination. In this case, the House of Lords held that a witness cannot be questioned about a previous inconsistent statement that has been "reduced to writing" without first giving the witness an opportunity to review the statement. This rule was regarded as a serious impediment to effective cross-examination. As a result, the Criminal Procedure Act, 1865 modified the rule. This provision was first adopted in Canada in the Canada Evidence Act, and later copied into the Saskatchewan Evidence Act, 1909 and other provincial evidence Acts.
 

Both sections 39 and 40 of The Saskatchewan Evidence Act are based on the English provision of 1865. They must be read and construed together, and should logically be combined in one section. This may not be immediately clear because section 40 refers only to inconsistent statements "in writing or reduced into writing", while section 39 refers generally to inconsistent statements.⁽⁴⁹⁾
 

The prolix language of these sections has been criticized. McWilliams suggests that the procedure mandated by these sections is "not well understood". It may be useful to set out McWilliams summary of the procedure, which draws on judicial comment as well as the sections themselves:⁽⁵⁰⁾
 

(1) A witness may be cross-examined as to a statement in writing or reduced to writing without it being shown to him but such writing must be capable of being produced.
 

(2) A witness may be shown the writing to refresh his memory without it being put in evidence. The nature of the document should not be described. The proper way is for counsel to put the writing to the witness and ask him to read it and say, "Perhaps this will refresh your memory", or, "Look at this piece of paper; do you adhere to your answer?"
 

(3) If a witness upon being shown the writing admits having made it and that it is true, the writing may be put in evidence.
 

(4) If a witness upon being shown the writing admits that he made the prior statement but denies the suggested contradiction, then in order to contradict him counsel must put the writing in evidence that the whole may be read; and then it will appear how far the suggested contradictions exist.
 

(5) If a witness upon being shown the writing, denies that he made such a statement, cross-examine counsel if it is intended to contradict the witness by the writing must call the attention of the witness to those parts of the writing that are to be used for that purpose before contradictory proof may be given.
 

(6) The trial judge may at any time require production of the writing for his inspection.
 

(7) The orthodox opinion is that the phrase "make such use of it for the purposes of the trial as he sees fit" means, in spite of the unfettered discretion it appears to give, only that the trial judge may call attention to other portions to which no reference has been made.
 

(c) Cross-examination in regard to the witness' criminal record
 

Examination of witness relative to his conviction for crime
 

41 A witness in any action, cause or proceeding may be questioned as to whether he has been convicted of any offence; and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove the conviction; and a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction for the offence purporting to be signed by the registrar of the court or other officer having the custody of the records of the court in which the witness was convicted, or by the deputy of such registrar or officer, shall, upon proof of the identity of the person, be sufficient evidence of the conviction without proof of the signature or official character of the person appearing to have signed the certificate.
 

This section was first enacted in England in the Common Law Procedure Act, 1854. It has been reenacted in the Evidence Acts of all common law provinces and territories, and as section 12 of the Canada Evidence Act.
 

At common law, a person convicted of a felony or misdemeanour involving honesty was not a competent witness. After this rule was changed by the Evidence Act, 1843,⁽⁵¹⁾ it became necessary to formulate a rule governing impeachment on cross-examination by proving the prior conviction of a witness.
 

Section 12 of the Canada Evidence Act is almost identical, but breaks the section up, making it easier to follow:
 

12. (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
 

(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.
 

(2) A conviction may be proved by producing
 

(a) a certificate containing the substance and effect only, omitting the formal part, of the indictment and conviction, if it is for an indictable offence, or a copy of the summary conviction, if it is for an offence punishable on summary conviction, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court in which the conviction, if on indictment, was had, or to which the conviction, if summary, was returned; and
 

(b) proof of identity.
 

The section allows a cross-examiner to suggest that the witness' credibility is in doubt because of a prior conviction. Whether the conviction has this effect is a matter for the trier of fact.

(Morris v. R., [1979] 1 SCR 405). Thus there is no limitation in the section on the kind of offence about which questions may be asked. However, it has been held that a "conviction" is "an adjudication of guilt combined with a sentence", so a suspended sentence (Kouflis v. R., [1941] SCR 481) or discharge ( R. v. Tan (1974), 22 CCC ( 2^nd) 184 (BCCA)) is not a conviction for purposes of the section. There seems to be no authority on the effect of a pardon.
 

The usual procedure is to question the witness as to date, place, offence, and sentence

(R. v. Clark (1977), 1 CR (3^rd) 368 (BCCA)). If the witness admits the conviction, it is proved. If the witness denies the conviction or refuses to answer, then the conviction may be proved by producing court records and proving that the records in fact pertain to the witness.
 

The language used in both the Saskatchewan and Canada Acts is less than succinct. What is clearly required is a court document, or certified copy of such a document, that sets out the offence, sentence, date of conviction, and identity of the convicted person. (See R. v. Bat (1926), 46 CCC 151 (Sask. C.A.) re copies and originals of the court documents).
 

The similarity of the name etc. in the certificate of conviction to that of the witness is prima facie proof of identity. (R. v. Fedoruk, [1966] 3 CCC 118(Sask. C.A.)).
 

There appear to be no modernized versions of this section. Commentators and law reformers are critical of the principle in it, so recent evidence legislation and proposals for reform replace it with a substantially different provision.⁽⁵²⁾
 
 

Only one of the sections contained under the heading "Capacity of Witnesses" is concerned with capacity of witnesses in the narrow sense. Section 42 is a partial codification of the law relating to capacity to testify. Sections 42.1- 42.6 make special provision for the reception of the evidence of children and disabled persons, but do not alter the capacity rules. Section 43 is the last surviving provision in Saskatchewan evidence legislation that requires corroboration of testimony.
 

1. Capacity of Witnesses: Section 42
 

Age or mental capacity
 

42(1) Where a proposed witness is a person under 14 years of age or a person whose mental capacity is challenged, the court, before permitting the person to give evidence, shall conduct an inquiry to determine whether the person:
 

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

(b) is able to communicate the evidence.
 

(2) A person mentioned in subsection (1) who:
 

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

(b) is able to communicate the evidence;
 

shall testify under oath or solemn affirmation.
 

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

(4) A person mentioned in subsection (1) who:
 

(a) does not understand the nature of an oath or a solemn affirmation; and
 

(b) is not able to communicate the evidence;
 

shall not testify.
 

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

Affirmation instead of oath
 

46 If a person called or desiring to give evidence objects on grounds of conscientious scruples to take an oath or is objected to as incompetent to take an oath, he may make the following affirmation: "I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth"; and upon the person making such solemn affirmation his evidence shall be taken and have the same effect as if taken under oath.
 

At common law, only persons capable of understanding the meaning of an oath, and willing to take the oath, had capacity to testify. Thus mentally incompetent individuals, children of "tender years", and anyone who did not believe in the religious sanction of the oath lacked capacity.⁽⁵³⁾
 

In England, the Oaths Act, 1888 permitted persons with no religious belief, or who otherwise refused to take an oath on conscientious grounds, to testify after making an affirmation or solemn declaration. This reform was adopted in the Canada Evidence Act, and was contained in the Saskatchewan Evidence Act, 1909. This is now section 46 of The Saskatchewan Evidence Act.
 

The common law did not set a minimum age at which a child could testify, but it was prima facie presumed that a child of "tender years" (under the age of 14) was unable to understand an oath, while an older child was presumed to be able to understand an oath. A child under the age of 14 called as a witness was therefore examined by the judge to determine capacity.
 

If a child or person "of unsound mind" could not understand the significance of the oath, he or she might still be allowed to give evidence if the judge found that the witness understood the importance of telling the truth. But in the case of a child giving unsworn evidence, corroboration of the child's testimony was required.⁽⁵⁴⁾ The Canada Evidence Act adopted the corroboration rule, which was also included in the Saskatchewan Evidence Act, 1909.
 

Section 42, adopted in 1989-90, essentially codifies the law set out above, except that the corroboration requirement has been removed.
 
 
 

(b) Evidence of children and disabled persons: Sections 42.1-42.6
 

Testimony outside court room
 

42.1(1) Subject to subsection (2), where:
 

(a) a witness is under 18 years of age or has difficulty communicating evidence because of a mental or physical disability; and
 

(b) in the opinion of the presiding judge, the exclusion of the witness would assist in obtaining a full and candid account from the witness;
 

the presiding judge may order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the parties.
 

(2) A witness shall not testify outside the court room pursuant to subsection (1) unless:
 

(a) arrangements are made for the parties, the judge and the jury, if any, to watch the testimony of the witness by means of:
 

(i) closed-circuit television; or
 

(ii) a means, other than that mentioned in subclause (i), that allows the parties, the judge and the jury, if any, to watch the testimony of the witness; and
 

(b) the parties are permitted to communicate with counsel while watching the testimony of the witness.
 

Videotaped evidence
 

42.2(1) This section applies to a witness who:
 

(a) was under 18 years of age at the time the events occurred about which he or she is testifying;
 

(b) has a disability that may affect his or her memory or ability to recall the events about which the witness is testifying; or
 

(c) has difficulty communicating evidence because of a mental or physical disability.
 

(2) In any proceeding in which a witness described in subsection (1) is testifying, a videotape that is made within a reasonable time after the events occurred and in which the witness describes the events is admissible in evidence if the witness adopts the contents of the videotape while testifying.
 

Non-disclosure of witness
 

42.3(1) The presiding judge:
 

(a) on his or her own motion, may; or
 

(b) on an application made by:
 

(i) a party; or
 

(ii) a witness under 18 years of age;
 

shall;
 

make an order directing that the identity of the witness and any information that could disclose the identity of the witness shall not be published in any document or broadcast in any way.
 

(2) At the first reasonable opportunity, the presiding judge shall inform every witness under 18 years of age of the right to make an application for an order pursuant to subsection (1).
 

Support person
 

42.4(1) This section applies to a witness who:
 

(a) is under 14 years of age; or
 

(b) has difficulty communicating evidence because of a mental or physical disability.
 

(2) In any proceeding in which a witness described in subsection (1) is testifying, the presiding judge may permit a support person chosen by the witness to be present and to be close to the witness while the witness is testifying if the judge is of the opinion that the proper administration of justice requires it.
 

(3) The presiding judge may order a witness and his or her support person not to communicate with each other during the testimony of the witness.
 

Evidence of persons with disabilities
 

42.5(1) If a witness has difficulty communicating evidence because of a mental or physical disability, the presiding judge may permit the witness to testify by any means that enables the evidence to be intelligible.
 

(2) The presiding judge may conduct an inquiry to determine if the means by which a witness may be permitted to testify pursuant to subsection (1) is necessary and reliable.
 

Identification of individual
 

42.6 A witness may testify as to the identity of an individual whom the witness is able to identify, whether the identification is made by visual means or by any other sensory means.
 

The requirement that the unsworn evidence of children must be corroborated was repealed in order to facilitate the testimony of children, particularly in sexual abuse, child protection, and custody cases. Growing sensitivity to the problems of receiving testimony from children, and recognition that disabled persons might also have difficulty testifying in the traditional manner led to adoption of sections 41.1-42.6 in 1998. Here, the important thing to note about these provisions is that they do not alter the capacity rules set out in section 42, and appear to create no problems of conflict with other provisions of The Saskatchewan Evidence Act.
 

(c) Corroboration in breach of promise to marry actions: Section 43
 

Corroboration in breach of promise actions
 

43 No plaintiff in an action for breach of promise of marriage shall recover a verdict unless his or her testimony is corroborated by some other material evidence in support of the promise.
 

This provision is likely included under the heading "Capacity of Witnesses" merely because the other corroboration provision inherited from the 1909 Act, relating to corroboration of the unsworn evidence of children, had a close connection with capacity issues. Section 43 now belongs under the "General Provisions" heading in The Saskatchewan Evidence Act.
 

There are still a few civil matters other than breach of promise to marry that require corroboration,⁽⁵⁵⁾ but breach of promise is the only one that has a statutory foundation. The requirement was created by the Evidence Further Amendment Act, 1869, and copied via the Canada Evidence Act into the Saskatchewan Evidence Act, 1909. While consideration should be given to eliminating this relic, its fate is tied to that of the action for breach of promise to marry.
 
 

Only two other sections under the "General Provisions" heading of the Act have substantive content. Both relate to testimony of expert witnesses, and might sensibly be placed under the heading "Witnesses".
 

1. Expert witnesses: Section 48
 

Right to call expert witnesses
 

48 Where, on the trial of any action, matter or proceeding to which the provisions of this Act extend, it is intended by any of the parties thereto to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called upon either side without the leave of the court or judge presiding, such leave to be applied for before the examination of any of the experts who may be examined without such leave.
 

The common law recognized the right of a party to call an expert witness. The expert is examined to establish his or her qualifications, and once accepted as an expert, may give opinion evidence.⁽⁵⁶⁾ Although section 48 appears to allude to these matters, its purpose is not to codify the common law. It was adopted to establish the rule that, except with leave of the court, no more than five experts may be called by a party.
 

Section 48 first appeared in the Canada Evidence Act, and was contained in the Saskatchewan Evidence Act, 1909. Similar provisions have been enacted by five provinces, though the allowed number of experts varies.
 

There has been conflicting opinion as to whether the limit applies to the whole case, or only to each issue in the case requiring separate expertise. However, the latter view appears to have prevailed.⁽⁵⁷⁾ However, this conclusion, the limitation has been criticized.⁽⁵⁸⁾
 
 
 

2. Disputed handwriting: Section 47
 

Comparison of disputed writing with genuine
 

47 Comparison of a disputed writing with a writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting it may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.
 

This section was contained in the Saskatchewan Evidence Act, 1909, and was copied via the Canada Evidence Act from the English Criminal Procedure Act, 1865.
 

The purpose of this section was explained in R v. Dixon (No. 2) (1897), 3 CCC 220 (N.S.S.C.):
 

Prior to the introduction on England of the Act which permitted witnesses to make comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, the court or jury might compare writings . . . but witnesses were only permitted to compare them with the character of hand-writing impressed on their minds [that is, from familiarity with the alleged writer's hand], but not with other writings of the party in evidence or otherwise. The statute just referred to changed that and enabled witnesses to give evidence by comparison of the disputed writing with any writing, whether in evidence or not, and whether relevant or not, proved to be genuine to the satisfaction of the judge.
 

Note that under the common law, the courts preferred non-experts familiar with the alleged writer's hand writing, while under the statute, reliance is placed on the expertise of witnesses. Although the statute does not explicitly require that experts make the comparison, it was quickly concluded after passage of the statute that a comparison by a non-expert is valueless

(R. v. Harvey (1869), 11 Cox CC 546).
 

3. Other general provisions
 

The other provisions under the heading "General Provisions" in the Act are procedural rather than substantive, and will not be discussed here.
 
 

1. R.S.S. 1978, c. S-16.

2. R.S.S. 1909, c. 60. The version of the Act in the first Revised Statutes of the province was essentially the Act adopted two years earlier (S.S. 1907, c. 12), which was in turn derived in part from the North West Territories Evidence Ordinance. In what follows, however, the history of the legislation in this jurisdiction will not be traced any further back than the 1909 Act.

3. S.C. 1893, c. 31.

4. See for example, the Law Reform Commission of Canada, Report on Evidence, 1975, and the Uniform Law Conference of Canada, Report on Evidence, 1982. The ULCC adopted a draft Uniform Evidence Act based on this report in 1982. More recent projects have focussed on specific areas of the law of evidence. See, for example, the ULCC draft Electronic Evidence Act and commentary, 1998.

5. R v. Sutton (1816), 4 M&S 582.

6. See below for discussion of the rule in regard to other classes of documents.

7. Section 18.

8. See ULCC, Report on Evidence, 200.

9. Section 17.

10. See Law Reform Commission of Saskatchewan, Report on the Status of English Law in Saskatchewan.

11. Manitoba has adopted a similar provision, but allows the court to take judicial notice of any foreign law: Manitoba Evidence Act, s. 30. The policy of the Manitoba Act is worthy of consideration, but is outside the scope of this inquiry.

12. R. v Stream Tanker "Evgenia Chandris" was decided in the context of Federal legislation similar to section 10 (see below). The Supreme Court was quite clear that once a regulation has been gazetted, judicial notice must be taken. It is not even necessary to formally prove publication in the Gazette. Presumably, the courts are deemed to know what has been gazetted. As a practical matter, of course, a wise litigant would have a copy of the regulation available for the court, and be ready to satisfy the court that publication has occurred.

13. R. v Yee Clun (1928), 50 CCC 440 (Sask. K.B.).

14. See discussion in McWilliams, Canadian Criminal Evidence, p. 115ff.

15. In effect, it was held that publication in the Gazette is deemed notice to every person of the contents of the instrument, a proposition made explicit in the Ontario Regulations Act, s.5(4).

16. !3 Halsbury's Law s of England, 472.

17. 13 Halsbury's Laws of England, 478.

18. 13 Halsbury's Laws of England, 526.

19. Thus it has been observed that "The usual meaning of certify does not require anything written; otherwise, why should parties ever expressly stipulate as to certifying in writing?" (Roberts v Watkins, 32 L.J.C.P., 291).

20. 13 Halsbury's Law of England (1^st), p. 524.

21. Law Reform Commission of Canada, Report on Evidence.

22. 13 Halsbury's Laws of England (1^st), 548ff.

23. 13 Halsbury's Laws of England (1^st), 527.

24. 13 Halsbury's Laws of England, 512.

25. See discussion in ULCC, Report on Evidence, p. 389ff.

26. See commentary to section 1 of the Uniform Act.

27. The Uniform Act is more explicit. It provides: 2.(1) This Act does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence.

28. See commentary to section 2 of the Uniform Act.

29. The commentary to be Uniform Act appears to assume that it creates no problem in regard to the bank records provisions contained in most Canadian evidence statutes, which contain requirements similar to section 12 (see below).

30. See commentary to section 4 of the Uniform Act.

31. ULCC, Report on Evidence, p. 399.

32. 13 Halsbury's Laws of England (1^st), 478.

33. R. v. McMillan (1978), 42 CCC (2^nd) 67 (Ont. H.C.).

34. ULCC, Report on Evidence, p. 398.

35. See below.

36. See Gosselin v. The King (1903), 33 SCR 255, holding explicitly that if a witness is made competent by statute, he or she is also compellable.

37. Alberta Evidence Act, s. 5.

38. Nova Scotia Evidence Act, s. 45.

39. ULCC, Report on Evidence, p. 262.

40. See e.g. Gosselin v. R. (1903), 33 SCR 255, in which a spouse was required to disclose that she saw her husband with blood on his hands, but not the contents of the discussion between the spouses that followed.

41. Note, however, that the Uniform Act applies only to confidential communications. Under s.36, the privilege is not limited to confidential communications: MacDonald v. MacDonald (1960), 31 WWR 478 (BCSC).

42. OLRC, Report on the Law of Evidence, p. 141.

43. Note that the Uniform Act extends the rule to all inter-spousal actions (see s. 182).

44. Canada Evidence Act, s. 5(2).

45. See ULCC, Report on Evidence, p. 434. See also R v Popovich, [1977] 4 WWR 131 (Sask. Q.B.).

46. See ULCC, Report on Evidence, p. 434.

47. See also McWilliams, Canadian Criminal Evidence (2^nd). P. 1016ff and ULCC, Report on Evidence, p. 323 ff.

48. There is an additional problem with section 38. The interpretation of "adverse" has been controversial. In Greenbough v Eccles, "adverse" was held to mean "hostile". In some recent decisions, however, "adverse" has been taken to mean merely "unfavourable" (Wawanesa Mutual Insurance v Howe [1963] 1 CCC 176 (Ont.C.A.)). The Uniform Act has adopted the older approach:
 

Section 105. An adverse witness is a witness hostile or contrary in interest to the party calling him, but a witness is not adverse by reason only that his testimony is unfavourable to the party calling him.
 

This is an issue that should be addressed, but only as part of a review of the policy of the Act. Until then, the courts must be left to sort out the meaning of "adverse".

49. Note also that when cross-examination of a party's own witness as to a previous inconsistent statement is allowed under section 38, sections 39 and 40 will apply to the cross-examination (see R. v Antoine (1949), 94 CCC (2^nd) 122 (Ont. C.A.).

50. McWilliams, Canadian Criminal Evidence (2^nd), p. 1045-46. Compare the Uniform Evidence Act, which attempts to simplify the language of the sections:
 

115. (1) A party intending to cross-examine a witness on a previous inconsistent statement shall, prior to the cross-examination,
 

(a) furnish the witness with sufficient information to enable him reasonably to recall the form of the statement and the occasion on which it was made and ask him whether he made the statement; and
 

(b) where the witness was called by that party and is not an adverse witness, attempt to refresh his memory if the court so requires.
 

(2) If it is intended to contradict a witness by reason of a previous inconsistent statement, his attention shall be drawn to those parts of the statement that are to be used for that purpose. . . .
 

117. If, after being questioned, the witness denies or does not distinctly admit that he made a previous inconsistent statement and it is relevant to a matter in issue, the proponent may prove the statement.
 

McWilliams is satisfied that sections 115(2) and 117 accurately state the present law, but suggests that section 115(1) resurrects the problem that section 39 was intended to cure.

51. See discussion of s. 34 above.

52. See ULCC, Report on Evidence, p. 343 ff.

53. 13 Halsbury's Laws of England (1^st), p. 569.

54. 13 Halsbury's Laws of England (1^st), p. 604.

55. E.g. a party to an action for or against an estate cannot obtain judgment on his or her testimony alone. See Weingarden v. Moss, [1955] 4 DLR 63 (Man. C.A.).

56. 13 Halsbury's Laws of England (1^st), p. 481.

57. R. v. Higgins (1979), 28 NBR (2^nd) 20, leave to appeal to the SCC refused, 29 NBR (2^nd) 450n.

58. The ULCC, Report on Evidence, p. 113 recommends applying the limit to the whole case (subject to the right to increase the number with leave of the court), and would increase the limit to 7.