Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Use in evidence of statement by accused

657 A statement made by an accused under subsection 541(3) and purporting to be signed by the justice before whom it was made may be given in evidence against the accused at his or her trial without proof of the signature of the justice, unless it is proved that the justice by whom the statement purports to be signed did not sign it.

Marginal note:Proof of ownership and value of property

• 657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2), shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

• Marginal note:Statements to be made

  (2) For the purposes of subsection (1), a person shall state in an affidavit or a solemn declaration

  • (a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;

  • (b) the value of the property;

  • (c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;

  • (c.1) in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and

  • (d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

• Marginal note:Notice of intention to produce affidavit or solemn declaration

  (3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.

• Marginal note:Attendance for examination

  (4) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.

Marginal note:Theft and possession

• 657.2 (1) Where an accused is charged with possession of any property obtained by the commission of an offence, evidence of the conviction or discharge of another person of theft of the property is admissible against the accused, and in the absence of evidence to the contrary is proof that the property was stolen.

• Marginal note:Accessory after the fact

  (2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.

Marginal note:Expert testimony

• 657.3 (1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if

  • (a) the court recognizes that person as an expert; and

  • (b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

• Marginal note:Attendance for examination

  (2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report.

• Marginal note:Notice for expert testimony

  (3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

  • (a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by

    • (i) the name of the proposed witness,

    • (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

    • (iii) a statement of the qualifications of the proposed witness as an expert;

  • (b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties

    • (i) a copy of the report, if any, prepared by the proposed witness for the case, and

    • (ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

  • (c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

• Marginal note:If notices not given

  (4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

  • (a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

  • (b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

  • (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

• Marginal note:Additional court orders

  (5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:

  • (a) adjourn the proceedings;

  • (b) order that further particulars be given of the evidence of the proposed witness; and

  • (c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.

• Marginal note:Use of material by prosecution

  (6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused.

• Marginal note:No further disclosure

  (7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.

Marginal note:Proof of absence of consent — identity information

• 657.4 (1) In any proceedings in relation to an offence under section 402.2 or 403, an affidavit or a solemn declaration of a person whose identity information was used or was obtained or possessed with intent to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of the offence, containing the statements referred to in subsection (2), is admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

• Marginal note:Statements to be made

  (2) For the purposes of subsection (1), a person shall state in an affidavit or a solemn declaration

  • (a) that the person is the person whose identity information was used or intended to be used to commit the offence;

  • (b) the nature of the identity information that was used or intended to be used to commit the offence;

  • (c) that the person did not consent to the use of their identity information by the accused; and

  • (d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (b) and (c).

• Marginal note:Notice of intention to produce affidavit or solemn declaration

  (3) Unless the court orders otherwise, no affidavit or solemn declaration is to be received in evidence under subsection (1) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of their intention to produce it in evidence.

• Marginal note:Attendance for examination

  (4) Despite subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.

• Marginal note:Definition of identity information

  (5) In this section, identity information has the same meaning as in section 402.1.

Children and Young Persons

Marginal note:Testimony as to date of birth

• 658 (1) In any proceedings to which this Act applies, the testimony of a person as to the date of his or her birth is admissible as evidence of that date.

• Marginal note:Testimony of a parent

  (2) In any proceedings to which this Act applies, the testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person.

• Marginal note:Proof of age

  (3) In any proceedings to which this Act applies,

  • (a) a birth or baptismal certificate or a copy of such a certificate purporting to be certified under the hand of the person in whose custody the certificate is held is evidence of the age of that person; and

  • (b) an entry or record of an incorporated society or its officers who have had the control or care of a child or young person at or about the time the child or young person was brought to Canada is evidence of the age of the child or young person if the entry or record was made before the time when the offence is alleged to have been committed.

• Marginal note:Other evidence

  (4) In the absence of any certificate, copy, entry or record mentioned in subsection (3), or in corroboration of any such certificate, copy, entry or record, a jury, judge, justice or provincial court judge, as the case may be, may receive and act on any other information relating to age that they consider reliable.

• Marginal note:Inference from appearance

  (5) In the absence of other evidence, or by way of corroboration of other evidence, a jury, judge, justice or provincial court judge, as the case may be, may infer the age of a child or young person from his or her appearance.

Corroboration

Marginal note:Children’s evidence

659 Any requirement whereby it is mandatory for a court to give the jury a warning about convicting an accused on the evidence of a child is abrogated.

Verdicts

Marginal note:Full offence charged, attempt proved

660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.

Marginal note:Attempt charged, full offence proved

• 661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.

• Marginal note:Conviction a bar

  (2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.

Marginal note:Offence charged, part only proved

• 662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

  • (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or

  • (b) of an attempt to commit an offence so included.

• Marginal note:First degree murder charged

  (2) For greater certainty and without limiting the generality of subsection (1), where a count charges first degree murder and the evidence does not prove first degree murder but proves second degree murder or an attempt to commit second degree murder, the jury may find the accused not guilty of first degree murder but guilty of second degree murder or an attempt to commit second degree murder, as the case may be.

• Marginal note:Conviction for infanticide or manslaughter on charge of murder

  (3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence.

• Marginal note:Conviction for concealing body of child where murder or infanticide charged

  (4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243.

• Marginal note:Conviction for dangerous operation when another offence charged

  (5) For greater certainty, when a count charges an offence under section 220, 221 or 236 arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13, the accused may be convicted of an offence under that section.

• Marginal note:Offence under subsection 263.1(1) charged

  (5.1) For greater certainty, if a count charges an offence under subsection 263.1(1) and the evidence does not prove that offence but proves an included offence, the accused may be found guilty of the offence that is proved.

• Marginal note:Conviction for break and enter with intent

  (6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph.

• Marginal note:Offence under subsection 320.1001(1) charged

  (7) For greater certainty, if a count charges an offence under subsection 320.1001(1) and the evidence does not prove that offence but proves an included offence, the accused may be found guilty of the offence that is proved.