Criminal Code of Canada - section 711 - Admitting evidence of witness who is ill

section 711

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions under which the evidence of a witness taken by a commissioner can be admitted in court proceedings.

SECTION WORDING

711 Where the evidence of a witness mentioned in paragraph 709(1)(a) is taken by a commissioner appointed under section 710, it may be admitted in evidence in the proceedings if (a) it is proved by oral evidence or by affidavit that the witness is unable to attend by reason of death or physical disability arising out of illness or some other good and sufficient cause; (b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken; and (c) it is proved to the satisfaction of the court that reasonable notice of the time for taking the evidence was given to the other party, and that the accused or his counsel, or the prosecutor or his counsel, as the case may be, had or might have had full opportunity to cross-examine the witness.

EXPLANATION

Section 711 of the Criminal Code of Canada outlines the requirements for admitting the evidence of a witness who is unable to attend court due to death, physical disability, or other good and sufficient cause. If a commissioner appointed under Section 710 takes the evidence of such a witness, the evidence may be admitted in the proceedings if certain conditions are met. Firstly, it must be proven either orally or through an affidavit that the witness cannot attend due to a legitimate reason. Secondly, the transcript of the evidence must be signed by the commissioner who took it. Lastly, it must be demonstrated that the other party was given reasonable notice of the time for taking the evidence and that both the prosecution and the accused had the opportunity to cross-examine the witness. This section is important because it allows the evidence of a witness who cannot attend court to be presented in proceedings. It ensures that the witness's testimony is admissible only if certain requirements are met to increase the accuracy and fairness of the trial. The section emphasizes the importance of the right to cross-examination and ensures that both the prosecution and the accused have equal opportunities to examine the witness's evidence. Ultimately, this section serves to protect the integrity of the justice system while ensuring that individuals are able to present their evidence even if they are unable to attend court.

COMMENTARY

Section 711 of the Criminal Code of Canada deals with the admissibility of evidence given by a witness who is unable to attend the proceedings. This section provides a mechanism for witnesses to give evidence when they may be unable to attend court due to physical disability arising out of illness or some other good and sufficient cause, or because of their death. In such cases, a commissioner may be appointed under section 710 to take the evidence of the said witness. This evidence can then be admitted in court if it meets certain conditions. These conditions include proving that the witness is unable to attend because of the reasons mentioned above; that the transcript of the evidence is properly signed by the appointed commissioner; and that reasonable notice of the time for taking the evidence was given to the other party, and that the accused or prosecutor had or might have had an opportunity to cross-examine the witness. The purpose of this provision is to ensure that the evidence of witnesses is not lost simply because they are unable to attend the proceedings. It is also meant to ensure fairness and the protection of the rights of both the accused and the prosecutor by allowing for cross-examination of the witness. It is important to note that this provision is not applicable in all cases. The circumstances that warrant the use of this provision are limited to instances where the witness is unable to attend due to specific and valid reasons. While this provision may seem straightforward, the application of section 711 can be complicated and may require court interpretation. For example, what constitutes a good and sufficient cause for a witness not to attend court, or what constitutes reasonable notice, may be subjective and depend on the facts of the case. Additionally, there may be issues of credibility or reliability of the evidence given by the commissioner-appointed witness. Notwithstanding these challenges, the inclusion of section 711 in the Criminal Code of Canada is a necessary provision that ensures the protection of the rights of all parties involved in criminal proceedings. By allowing for the use of evidence given by witnesses who are unable to attend court, the administration of justice is not impeded by the inability of one or more witnesses to attend. This, in turn, promotes the fairness of the trial process and helps ensure that justice is served.

STRATEGY

Section 711 of the Criminal Code of Canada deals with the admissibility of witness testimony taken by a commissioner appointed under section 710. It sets out the conditions that must be met for such evidence to be admitted in court. Although this section provides a useful tool for obtaining evidence in certain circumstances, it also requires careful consideration when used strategically. One of the key strategic considerations when dealing with this section is the timing of the application. Section 711 should be used when there is a genuine need to obtain the witness testimony and when it is unlikely that the witness will be able to attend court in person. Therefore, it may be beneficial to apply for a section 711 hearing early in the proceedings. This will give the witness ample time to provide their testimony, and it will also allow sufficient time for the opposing party to respond and prepare for the hearing. Another strategic consideration is the selection of the commissioner. The commissioner should be someone who is neutral and impartial, and who has experience in conducting examinations. A commissioner who is knowledgeable in the relevant area of law can also be helpful in ensuring that the testimony is properly taken and relevant to the case. It is also important to consider the evidence that will be elicited from the witness. The evidence should be relevant and probative, and should be presented in a clear and concise manner. The party seeking the testimony should prepare a list of questions that are relevant to the case, and should ensure that the witness understands the nature of the questions being asked. Another strategy that could be employed when dealing with section 711 is to offer the opposing party an opportunity to cross-examine the witness remotely. This can be done through videoconferencing or other means of communication. This will give the opposing party an opportunity to ask questions of the witness, and will also help to ensure that the evidence obtained is reliable and credible. In conclusion, section 711 of the Criminal Code of Canada provides a useful tool for obtaining witness testimony in certain circumstances. However, it requires careful consideration and strategic thinking when used. By carefully selecting the commissioner, timing the application appropriately, preparing relevant questions, and offering the opposing party an opportunity to cross-examine remotely, parties can ensure that the evidence they obtain is relevant, reliable, and credible.