Acts and Regulations

P-22.1 - Provincial Offences Procedure Act

Section 38
Disposition versions

Full text
Evidence taken by Commissioner
38(1)Upon the application of the defendant or the prosecutor with notice to the other, a judge may by order in prescribed form appoint a commissioner to take the evidence of a witness who is out of the Province or is likely to be unable to attend the trial by reason of illness or physical disability or for some other good and sufficient reason.
38(2)Evidence taken by a commissioner appointed under subsection (1) may be adduced in evidence in the proceedings if
(a) it is proved to the satisfaction of the judge that reasonable notice of the time and place for taking the evidence was given to the prosecutor or defendant, as the case may be, and that the prosecutor or defendant had full opportunity to cross-examine the witness, and
(b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken.
38(3)An order under subsection (1) may make provision to enable the defendant to be present or represented by counsel or agent when the evidence is taken, but failure of the defendant to be present or to be represented by counsel or agent in accordance with the order does not prevent the adducing of the evidence in the proceedings.
38(4)Except as otherwise provided by this section or by regulation, the practice and procedure for the taking of evidence under this section shall be the same as if the evidence were being taken before a judge.
38(5)The costs of a commissioner appointed under this section shall be borne by the person who applied for the commissioner to be appointed.
1990, c.18, s.20