The Saskatchewan Evidence Act

Transcription

1 1 SASKATCHEWAN EVIDENCE c. S-16 The Saskatchewan Evidence Act Repealed by Chapter L-5.1 of the Statutes of Saskatchewan, 2001 (effective June 25, 2001). Formerly Chapter S-16 of the Revised Statutes of Saskatchewan, 1978 (effective February 26, 1979), as amended by the Statutes of Saskatchewan, , c.92; , c.38 and 47; , c.55; , c.57; , c.f-6.1; 1998, c.c-45.2 and 34; and 2000, c.61. NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation.

2 2 c. S-16 SASKATCHEWAN Table of Contents EVIDENCE 1 Short title SHORT TITLE APPLICATION OF ACT 2 Application STATUTES AND ORDINANCES 3 Evidence of statutes, ordinances, etc. PUBLIC DOCUMENTS 4 Imperial records and documents, how proved 5 Dominion proclamations, orders, etc., how proved 6 Publications in The Saskatchewan Gazette deemed authentic 7 Provincial proclamations, orders, etc., how proved 8 Order signed by Secretary of State 9 Order signed by Provincial Secretary 10 Proclamations and orders judicially noticed OFFICIAL AND COURT DOCUMENTS 11 Notices, advertisements, etc., in official gazettes evidence of originals 12 Certified copies of official documents, etc., are evidence 13 Copy of entry in governmental book supported by affidavit is evidence 14 Certificate by inspecting officer 15 Extract from inspector s record 16 Certificate by weighmaster 17 Extract from weighmaster s record 18 Copies of public books or documents admissible in evidence 19 Proof of notarial acts in Quebec 20 Certified copy of document in provincial court is evidence 21 Sealed and certified copies of judgments, etc., of extra-provincial courts are evidence 22 Certified copy of instrument from Land Titles prima facie evidence 23 Protests of bills or notes prima facie evidence 24 Production of protest is prima facie evidence of making of protest 25 Notarial certificate prima facie evidence of certain facts 26 Method of proving wills 27 Proof of adultery 28 Bankers books 29 Photographic film ELECTRONIC DOCUMENTS 29.1 Interpretation and application 29.2 Authentication of electronic record 29.3 Application of best evidence rule 29.4 Proving the integrity of an electronic records system 29.5 Standards 29.6 Affidavit may be used TELEGRAPH MESSAGES AND MERCANTILE DOCUMENTS 30 Proof of telgraph messages, mercantile papers, etc. 31 Admissibility of business records 32 Reports by medical or chiropractic practitioners PROOF OF HANDWRITING 33 Proof of handwriting, etc., not required WITNESSES 34 No incompetency from crime or interest 35 Parties to actions, etc., competent witnesses 35.1 Evidence before quality assurance committees privileged 36 Communications between husband and wife during the marriage privileged 36.1 Compellability re certain marital communications 37 Incriminating answers 38 Extent to which a party may discredit evidence of his own witness 39 Providing inconsistency of evidence on cross-examination 40 Examination of witness as to previous statement in writing, and production thereof 41 Examination of witness relative to his conviction for crime CAPACITY OF WITNESSES 42 Age or mental capacity 42.1 Testimony outside court room 42.2 Videotaped evidence 42.3 Non-disclosure of witness 42.4 Support person 42.5 Evidence of persons with disabilities 42.6 Identification of individual 43 Corroboration in breach of promise actions GENERAL PROVISIONS 44 Repealed 45 Who may administer an oath 46 Affirmation instead of oath 47 Comparison of disputed writing with genuine 48 Right to call expert witnesses 49 Witnessess not obliged to attend until legal fees are tendered 50 Statutory declarations 51 Oaths, etc., made outside province 52 Military records COMMISSIONS ISSUED ABROAD 53 Examination of witnessess under commissions from courts abroad 54 Construction of Act 55 Rules of Court as to evidence

3 3 SASKATCHEWAN EVIDENCE c. S-16 CHAPTER S-16 An Act respecting Witnesses and Evidence SHORT TITLE Short title 1 This Act may be cited as The Saskatchewan Evidence Act. APPLICATION OF ACT Application 2 This Act applies to all proceedings and matters whatsoever respecting which the Legislature of Saskatchewan has jurisdiction in this behalf. R.S.S. 1965, c.80, s.2; R.S.S. 1978, c.s-16, s.2. 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. (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. (3) Judicial notice shall be taken of all Acts of the Legislature of Saskatchewan. R.S.S. 1965, c.80, s.3; R.S.S. 1978, c.s-16, s.3.

4 4 c. S-16 SASKATCHEWAN EVIDENCE PUBLIC DOCUMENTS Imperial records and documents, how proved 4 Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other imperial official records, Acts or documents may be proved: (a) in the same manner as they are from time to time provable in any court in England; (b) by the production of a copy of The Canada Gazette or a volume of the Acts of the Parliament of Canada purporting to contain a copy or a notice thereof; (c) by the production of a copy thereof purporting to be printed by the Queen s Printer for Canada or by the Queen s Printer for Saskatchewan; (d) by the production of a copy thereof or an extract therefrom purporting to be certified as a true copy or extract by the minister or head, or the deputy minister or deputy head, of a department of the Imperial Government or purporting to be an exemplification thereof under the Imperial Great Seal; or (e) by the production of a copy thereof or an extract therefrom purporting to be certified as a true copy or extract by the custodian of the original document or the public records from which the copy or extract purports to be made. R.S.S. 1965, c.80, s.4; R.S.S. 1978, c.s-16, s.4. Dominion proclamations, orders, etc., how proved 5 Evidence of any proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council or other chief executive officer or administrator for the time being of the Government of Canada, or by or under the authority of a minister or head of a department of the Government of Canada, may be given in all or any of the modes hereinafter mentioned, that is to say: (a) by the production of a copy of The Canada Gazette or a volume of the Acts of the Parliament of Canada purporting to contain a copy of the proclamation, order, regulation or appointment or a notice thereof; (b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be printed by the Queen s Printer for Canada; or (c) by the production, in the case of a proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council or other chief executive officer or administrator as aforesaid, of a copy or extract purporting to be certified to be a true copy by the clerk or assistant or acting clerk of the Queen s Privy Council for Canada; and, in the case of an order, regulation or appointment made or issued by or under the authority of a minister or head of a department, by the production of a copy or extract purporting to be certified to be true by the minister or by his deputy or acting deputy or by the secretary or acting secretary of the department over which he presides. R.S.S. 1965, c.80, s.5; R.S.S. 1978, c.s-16, s.5.

5 5 SASKATCHEWAN EVIDENCE c. S-16 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. R.S.S. 1965, c.80, s.6; R.S.S. 1978, c.s-16, s.6. 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 Saskatchewan 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. R.S.S. 1965, c.80, s.7; R.S.S. 1978, c.s-16, s.7. 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. R.S.S. 1965, c.80, s.8; R.S.S. 1978, c.s-16, s.8. 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. R.S.S. 1965, c.80, s.9; R.S.S. 1978, c.s-16, s.9.

6 6 c. S-16 SASKATCHEWAN EVIDENCE 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. R.S.S. 1965, c.80, s.10; R.S.S. 1978, c.s-16, s.10. OFFICIAL AND COURT DOCUMENTS Notices, advertisements, etc., in official gazettes evidence of originals 11 Copies of official and other notices, advertisements and documents printed in The Canada Gazette or in The Saskatchewan Gazette, or in the official gazette of any other province or territory of Canada shall be prima facie evidence of the originals and of the contents thereof. R.S.S. 1965, c.80, s.11; R.S.S. 1978, c.s-16, s.11. Certified copies of official documents, etc., are evidence 12 In every case in which the original record could be received in evidence, a copy 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. R.S.S. 1965, c.80, s.12; R.S.S. 1978, c.s-16, s.12. Copy of entry in governmental 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.

7 7 SASKATCHEWAN EVIDENCE c. S-16 (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. R.S.S. 1965, c.80, s.13; R.S.S. 1978, c.s-16, s.13. 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. R.S.S. 1965, c.80, s.14; R.S.S. 1978, c.s-16, s.14. 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. R.S.S. 1965, c.80, s.15; R.S.S. 1978, c.s-16, s.15. 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. R.S.S. 1965, c.80, s.16; R.S.S. 1978, c.s-16, s.16. 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. R.S.S. 1965, c.80, s.17; R.S.S. 1978, c.s-16, s.17.

8 8 c. S-16 SASKATCHEWAN EVIDENCE 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. R.S.S. 1965, c.80, s.18; R.S.S. 1978, c.s-16, s.18. 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. R.S.S. 1965, c.80, s.19; R.S.S. 1978, c.s-16, s.19. 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. R.S.S. 1965, c.80, s.20; R.S.S. 1978, c.s-16, s.20. 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. R.S.S. 1965, c.80, s.21; R.S.S. 1978, c.s-16, s.21.

9 9 SASKATCHEWAN EVIDENCE c. S-16 Certified copy of instrument from Land Titles prima facie evidence 22(1) A copy of an instrument, as the term instrument is defined in The Land Titles Act, filed or registered in any land registration district of the province shall, when certified to be a true copy by the registrar in charge of the land titles office in which the original is filed or registered, be received as prima facie evidence for all purposes as if the original instrument were produced and also as prima facie evidence of the execution of the original instrument according to the purport of the copy, and the day, hour and minute stamped upon the original, as shown by the copy, shall be prima facie evidence of the day, hour and minute when the original was filed or registered. Duly sealed and certified abstracts and certificates as evidence (2) An abstract of title to land and a certificate touching an instrument entered in the general register, execution register, power of attorney book, or seed grain register, affecting the registered owner of land, shall, when certified by the registrar of the land registration district in which the land lies, be admitted as prima facie proof of the state of the title. R.S.S. 1965, c.80, s.22; R.S.S. 1978, c.s-16, s.22. 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. R.S.S. 1965, c.80, s.23; R.S.S. 1978, c.s-16, s.23. Production of protest is prima facie evidence of making of protest 24 The production of a protest of a bill of exchange or promissory note purporting to be under the hand and seal of a notary public shall be prima facie evidence of the making of the protest without proof of the seal and signature being the seal and signature of the person whose seal and signature the same purports to be or of the official character of that person. R.S.S. 1965, c.80, s.24; R.S.S. 1978, c.s-16, s.24. 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. R.S.S. 1965, c.80, s.25; R.S.S. 1978, c.s-16, s.25. 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 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.

10 10 c. S-16 SASKATCHEWAN EVIDENCE (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. R.S.S. 1965, c.80, s.26; R.S.S. 1978, c.s-16, s.26; , c.92, s.86. Proof of adultery 27 In an action for dissolution of marriage, alimony or judicial separation, a certificate: (a) setting out with reasonable particularity the conviction of a spouse after the marriage for any offence against the Criminal Code, as amended from time to time, for which proof of sexual intercourse is required; and (b) purporting to be signed by the person who made the conviction or by the local registrar or other officer having custody of the records of the court in which the spouse was convicted or by the deputy of that local registrar or officer; is, on proof of the identity of the spouse, admissible in evidence as prima facie proof of adultery by the spouse without proof of the signature or official character of the person by whom the certificate purports to be signed , c.38, s.35. Bankers books 28(1) In this section: (a) bank means a bank to which the Bank Act (Canada) applies or a credit union or caisse populaire incorporated under The Credit Union Act, 1998 or any former Credit Union Act, and includes a branch, agency or office of a bank, credit union or caisse populaire; (b) court means the court, judge, arbitrator, person or persons before whom a legal proceeding is held or taken; (c) legal proceeding means any civil proceeding or inquiry in which evidence is or may be given, and includes an arbitration. (2) Subject to the provisions of this section, a copy of an entry in a book or record kept in a bank shall in all legal proceedings be received as prima facie evidence of the entry, and of the matters, transactions and accounts therein recorded. (3) A copy of an entry in such book or record shall not be received in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the bank, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the bank or its successor, and that the copy is a true copy. Such proof may be given by the manager or accountant of the bank and may be given orally or by affidavit sworn before any commissioner for oaths or other person appointed to administer oaths and to take and receive affidavits, declarations and affirmations within Saskatchewan.

11 11 SASKATCHEWAN EVIDENCE c. S-16 (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. R.S.S. 1965, c.80, s.28; R.S.S. 1978, c.s-16, s.28; 1998, c.c-45.2, s.476. Photographic film 29(1) In this section: (a) person includes: (i) the Government of Canada and of any province of Canada and any department, commission, board or branch of any such government; (ii) a corporation; and (iii) the heirs, executors, administrators or other legal representatives of a person; and (b) photographic film includes a photographic plate, microphotographic film and photostatic negative and photograph shall have a corresponding meaning. (2) Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan or a record or book or entry therein kept or held by any person: (a) is photographed in the course of an established practice of that person of photographing objects of the same or a similar class in order to keep a permanent record thereof; and (b) is destroyed by or in the presence of the person or of one or more of his employees or delivered to another person in the ordinary course of business or lost; a print from the photographic film shall be admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.

12 12 c. S-16 SASKATCHEWAN EVIDENCE (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. R.S.S. 1965, c.80, s.29; R.S.S. 1978, c.s-16, s.29. ELECTRONIC DOCUMENTS Interpretation and application 29.1(1) In this section and sections 29.2 to 29.6: (a) data means representations, in any form, of information or concepts; (b) electronic record means data that: (i) is recorded or stored on any medium in or by a computer or other similar device; and (ii) can be read or perceived by a person or a computer or other similar device; and includes a display, printout or other output of that data, other than a printout mentioned in subsection 29.3(2); (c) electronic records system includes a computer system or other similar device by or in which an electronic record is recorded or stored and includes any procedures related to the recording or storing of an electronic record. (2) This section and sections 29.2 to 29.6 do not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence. (3) A court may consider evidence admitted pursuant to sections 29.2 to 29.6 in applying any common law or statutory rule relating to the admissibility of records. 2000, c.61, s.2.

13 13 SASKATCHEWAN EVIDENCE c. S-16 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. 2000, c.61, s.2. 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. 2000, c.61, s.2. 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. 2000, c.61, s.2. Standards 29.5 For the purposes of determining under any rule of law whether an electronic record is admissible, evidence may be presented respecting any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. 2000, c.61, s.2.

14 14 c. S-16 SASKATCHEWAN EVIDENCE 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). 2000, c.61, s.2. TELEGRAPH MESSAGES AND MERCANTILE DOCUMENTS Proof of telgraph 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. R.S.S. 1965, c.80, s.30; R.S.S. 1978, c.s-16, s.30. 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;

15 15 SASKATCHEWAN EVIDENCE c. S-16 (c) legal proceeding means any civil proceeding or inquiry, including an arbitration, in which evidence is or may be given; (d) record includes any information that is recorded or stored by means of any device, including a computer. (2) Any writing or record made of any act, transaction, occurrence, or event is admissible in any legal proceeding as evidence of the act, transaction, occurrence or event if: (a) it is made in the usual and ordinary course of any business; and (b) it was in the usual and ordinary course of such business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter. (3) The circumstances of the making of a writing or record mentioned in subsection (2), including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. (4) Nothing in this section affects the admissibility of any evidence that would be admissible apart from this section or makes admissible any writing or record that is privileged. 1969, c.51, s.2; R.S.S. 1978, c.s-16, s.31. 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. 1972, c.108, s.1; , c.97, s.2; R.S.S. 1978, c.s-16, s.32. PROOF OF HANDWRITING Proof of handwriting, etc., not required 33 No proof shall be required of the handwriting or official position of a person certifiying in pursuance of this Act to the truth of a copy of or extract from any proclamation, order, regulation, appointment, book, grant, map, plan, instrument, computer record or other document, and such copy or extract may be in print or in writing or partly in print and partly in writing. R.S.S. 1965, c.80, s.31; 1969, c.51, s.3; R.S.S. 1978, c.s-16, s.33.

16 16 c. S-16 SASKATCHEWAN EVIDENCE WITNESSES No incompetency from crime or interest 34 A person shall not be incompetent to give evidence by reason of interest or crime. R.S.S. 1965, c.80, s.32; R.S.S. 1978, c.s-16, s.34. 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. (2) Notwithstanding subsection (1), no person is compellable, in a prosecution against him under any Act, to give evidence against himself. (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. (4) Notwithstanding the provisions of any statute imposing penalties, whenever in any action, matter or proceeding the evidence of the party defendant, or of the husband or wife of that party, is taken at the instance of the adverse party, no sentence of imprisonment except for non-compliance with an order, other than an order for payment of a fine or penalty, shall be pronounced. R.S.S. 1965, c.80, s.33; , c.97, s.3; R.S.S. 1978, c.s-16, s.35; , c.55, s.28; , c.f-6.1, s.33. Evidence before quality assurance committees privileged 35.1(1) In this section: (a) board of governors means the: (i) board of directors; (ii) board of management; or (iii) other head; of a hospital that is legally authorized to operate the hospital; (b) committee means a committee designated as a quality assurance committee by the board of governors or the bylaws of a hospital to examine and evaluate on an on-going basis the provision of care and services to patients in the hospital for the purpose of: (i) educating persons who provide health care; or (ii) improving the care, practice or services provided to patients by the hospital;

17 17 SASKATCHEWAN EVIDENCE c. S-16 (c) hospital means: (i) a hospital approved pursuant to subsection 3(1) of The Hospital Standards Act; or (ii) a facility as defined in The Mental Health Services Act; (d) legal proceeding means any civil proceeding or inquiry in which evidence is or may be given and includes a proceeding for the imposition of punishment by way of fine, penalty or imprisonment to enforce an Act or regulation made pursuant to an Act. (2) Subject to subsection (4), a witness in any legal proceeding, whether a party to it or not: (a) is not liable to be asked and is not permitted to answer any question or to make any statement with respect to any proceeding before a committee; and (b) is not liable to be asked to produce and is not permitted to produce any report, statement, memorandum, recommendation, document, information, data or record that is: (i) prepared exclusively for the use of or made by; or (ii) used exclusively in the course of, or arising out of, any investigation, study or program carried on by; a committee. (3) Subject to subsection (4), no report, statement, memorandum, recommendation, document, information, data or record mentioned in clause 2(b) is admissible as evidence in any legal proceeding. (4) The privileges in subsections (2) and (3) do not apply: (a) with respect to medical and hospital records that are: (i) prepared for the purpose of providing care and treatment to a patient in a hospital; (ii) prepared as a result of an incident in a hospital, unless the facts relating to that incident are also fully recorded on a record described in subclause (i); or (iii) required by law to be kept by the board of governors; (b) to legal proceedings founded on: (i) defamation; (ii) inducing breach of contract; or (iii) civil conspiracy; based directly on any proceeding before a committee or any report, statement, memorandum, recommendation, document, information, data or record mentioned in clause (2)(b); or

18 18 c. S-16 SASKATCHEWAN EVIDENCE (c) to disciplinary proceedings where the impugned conduct is a disclosure or submission to a committee. (5) When made in good faith: (a) the: (i) disclosure of any information or document or anything in it; or (ii) submission of any report, statement, memorandum, recommendation, document, information, data or record; to a committee for the purpose of its being used in the course of any investigation, research, study or program carried on by the committee; and (b) the disclosure of any information or document or anything in it that arises out of any investigation, research, study or program described in clause (a); does not raise or create any liability on the part of the person making the disclosure or statement. (6) No action lies against the members of a committee for any: (a) disclosure of any information or document or anything in it made in good faith; (b) submission of any report, statement, memorandum, recommendation, document, information, data or record made in good faith; or (c) proceedings taken in good faith; in the course of any investigation, research, study or program carried on by the committee , c.57, s.3. 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. R.S.S. 1965, c.80, s.34; R.S.S. 1978, c.s-16, s.36. 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 , c.47, s.5. Incriminating answers 37(1) No witness shall be excused from answering a question upon the ground that the answer to the question may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.

19 19 SASKATCHEWAN EVIDENCE c. S-16 (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. R.S.S. 1965, c.80, s.35; R.S.S. 1978, c.s-16, s.37. 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. R.S.S. 1965, c.80, s.36; R.S.S. 1978, c.s-16, s.38. 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. R.S.S. 1965, c.80, s.37; R.S.S. 1978, c.s-16, s.39. Examination of witness as to previous statement in writing, and production thereof 40 A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject matter of the cause, action or proceeding, without the writing being shown to him; but, if it is intended to contradict the witness by the writing, his attention shall, before such contradictory proof can be given, be called to those parts of the writing that are to be used for the purpose of so contradicting him. The judge at any time during the trial may require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he thinks fit. R.S.S. 1965, c.80, s.38; R.S.S. 1978, c.s-16, s.40.

20 20 c. S-16 SASKATCHEWAN EVIDENCE 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. R.S.S. 1965, c.80, s.39; R.S.S. 1978, c.s-16, s.41; , c.92, s.86. CAPACITY OF WITNESSES Age or mental capacity 42(1) Where a proposed witness is a person under 14 years of age or a person whose mental capacity is challenged, the court, before permitting the person to give evidence, shall conduct an inquiry to determine whether the person: (a) understands the nature of an oath or a solemn affirmation; and (b) is able to communicate the evidence. (2) A person mentioned in subsection (1) who: (a) understands the nature of an oath or a solemn affirmation; and (b) is able to communicate the evidence; shall testify under oath or solemn affirmation. (3) A person mentioned in subsection (1) who does not understand the nature of an oath or a solemn affirmation but who is able to communicate the evidence shall testify on promising to tell the truth. (4) A person mentioned in subsection (1) who: (a) does not understand the nature of an oath or a solemn affirmation; and (b) is not able to communicate the evidence; shall not testify. (5) A party who challenges the mental capacity of a proposed witness of 14 years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under oath or solemn affirmation , c.57, s.4.