THE SASKATCHEWAN EVIDENCE ACT:
Law Reform Commission of Saskatchewan
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
410 26th St. W.
Saskatoon, Saskatchewan, Canada
Telephone (306) 665-6428
The Chair and administrative office
are located at:
2237 Smith Street
Telephone (306) 352-1641
Fax (306) 525-8884
THE SASKATCHEWAN EVIDENCE ACT: A REVIEW
TABLE OF CONTENTS
ADMISSION OF LAW AND STATUTES ..............................................................2
OFFICIAL AND COURT DOCUMENTS ............................................................ 22
BUSINESS RECORDS AND OTHER DOCUMENTARY EVIDENCE ........... 33
WITNESSES ............................................................................................................ 46
CAPACITY OF WITNESSES ................................................................................ 62
GENERAL PROVISIONS ...................................................................................... 67
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 19th
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
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 19th 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.
ADMISSION OF LAW AND STATUTES
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
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 19th 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 19th
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
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 19th 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
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) Judicial notice shall be taken of all Acts of the Legislature of
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
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 (2nd)
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.
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:
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
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
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
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 19th
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
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
(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;
(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
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
19th 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
(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
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 19th 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
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
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
(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
(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".
OFFICIAL AND COURT DOCUMENTS
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
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 19th
century in regard to certain types of what can loosely be called "public
documents". Section 12 is concerned with these 19th 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
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 19th 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
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
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
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
Most provinces have changed the rule only in respect to the Commonwealth
and United States. The original model appears to have been a 19th
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) 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;
(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
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.
BUSINESS RECORDS AND OTHER DOCUMENTARY EVIDENCE
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 19th 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
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
(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,
 2 All E.R. 881, which admitted routine manufacturers'
records, and the Supreme Court of Canada decision in Ares v. Venner,
 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
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
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
(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
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.
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
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
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
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
(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
(d) Bank records: Section 28
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
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 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:
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
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
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 19th 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
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
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
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 19th 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 19th 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,
 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 19th
century legislators to this issue. This language now has no determinable
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 19th 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
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
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
(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;
(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;
(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:
(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:
(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;
(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
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
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
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
19th 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
(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
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
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
(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
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.,  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.,
 SCR 481) or discharge ( R. v. Tan (1974), 22 CCC ( 2nd)
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 (3rd) 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,  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
CAPACITY OF WITNESSES
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
(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;
(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
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
(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.
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
(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;
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).
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
(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
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
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 (1st), p. 524.
21. Law Reform Commission of Canada, Report on Evidence.
22. 13 Halsbury's Laws of England (1st), 548ff.
23. 13 Halsbury's Laws of England (1st), 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 (1st), 478.
33. R. v. McMillan (1978), 42 CCC (2nd) 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,  4 WWR 131 (Sask. Q.B.).
46. See ULCC, Report on Evidence, p. 434.
47. See also McWilliams, Canadian Criminal Evidence (2nd). 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  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 (2nd) 122 (Ont. C.A.).
50. McWilliams, Canadian Criminal Evidence
(2nd), 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 (1st), p. 569.
54. 13 Halsbury's Laws of England (1st), 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,  4 DLR 63 (Man. C.A.).
56. 13 Halsbury's Laws of England (1st), p. 481.
57. R. v. Higgins (1979), 28 NBR (2nd) 20, leave to appeal to the SCC refused, 29 NBR (2nd) 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.