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Section 175 of the 1999 Constitution: an Antagonist of Judicial Powers

Section 175 of the 1999 Constitution and Judicial Powers

This article is particular to Nigeria!

The bedrock of the governance of every society ready to live a long throw from the arms of a dictator is the doctrine of separation of powers. Simply put, separation of powers is a constitutional division of the powers of the government of a state among ‘three’ distinct arms of government. Since power corrupts, this splitting of power help to diffuse the powers of a state over separate institutions. Recognisably, the term ‘Separation of Powers’ was coined by Baron de Montesquieu, an 18th century political philosopher. And the heartbeat of this doctrine is the principle of Checks and Balances.

Checks and balances works at its best in a strictly monitored milieu of separation of powers. Thus, clearly spelt out obligations of each arm of government is needed for an efficient dispensation of their constitutional duties. An iota drop in the independence of one arm of government as regards the exercise of its constitutional powers would be simply repugnant to the principle of checks and balances and kill the rationale for separation of powers. Aside from the arguably overstretched doctrine of immunity, interference of the executive in the appointment of Judges, and others, one noticeable downtrend in the administration of separation of powers is the doctrine of ‘Prerogative of mercy’.

Prerogative of Mercy

Prerogative of mercy refers to the power of a president (or governor) to grant pardons, whether conditional or total, to persons who have been convicted of crimes. In other words, the executive is inferably granted the power to upset the judgment of the judiciary – or the execution of it, irrespective of how well the judgment was reached or the gravity of the crime committed. From jail terms to the capital punishment, none is left an exception to the pardoning powers of the president or the governor.

Historically, the royal prerogative of mercy was one of the prerogatives of the British monarch, which meant the Crown had the power to grant royal pardons to convicted persons. As old as the 17th century, the monarch could withdraw a capital punishment and give alternatives. In 1717, King George I proclaimed, promising to generally pardon pirates who surrendered to the authorities, in a bid suppress piracy.

Flowing from historical perspective and contemporary realities, the practice of the granting of pardon to convicted persons is not out of place in the development of an honourable and considerate legal system. The reconsideration and possible justification of certain offenders, whom might have immensely contributed to the development of the state, and whose pardon would not put the society at unrest is quite understandable and should be encouraged. However, the administration of the prerogative of mercy must be channeled through the right routes of justice in consonance with the spirit of the law and fundamental principles of the republican democratic society.

Separation of Powers in Nigeria

The Constitution of the Federal Republic of Nigeria, 1999 as amended, clearly enshrines the doctrine of separation of powers in the Nigerian legal system, by sharing the governmental powers that exist in the state among the three arms of government, i.e. the executive, the legislature, and the judiciary. Section 4, 5, and 6 of the Constitution provides for the powers of the legislature, executive and judiciary, respectively.

Specifically, section 5 (1) (b) and (2) (b) vests the power for the execution and maintenance of the Constitution, as well as other laws made by the legislature, in the president and governor respectively, as holders of the executive power of the federation and the state. While section 6 (6) (a) vests all powers of a court of law in the judiciary, notwithstanding anything to the contrary in the constitution. It explicitly provides thus:

The judicial powers vested in accordance with the foregoing provisions of this section-

(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law.”

Without casting any shadow of doubt, the constitution is clear in its separation of powers among the three arms of government. The legislature to make the laws, to be executed and maintained by the executive, and interpreted and administered by the judiciary. Any break in this transition would amount to an arm leaving its duty post to spy or take into its hands the affairs of another. Moreover, the confidence of the citizenry is always firm in the commitment to an independent and conclusive judicial system facilitated by law courts, administering free and fair trails. Whether in criminal or civil proceedings, the court has the exclusive constitutional right to determine conviction and give appropriate sentences.

Nevertheless, Section 175 of the Constitution provides for the presidents’ power to pardon offenders convicted of laws prohibited by federal laws, alleviating or withdrawing in part or in whole their sentences. Notably, this is similar to the provision of Section 212, which confers on a governor the same right to be exercised within the spheres of a state. The granting of presidential pardon shall be exercised upon consultation with the Council of State.

Significantly, Section 36 (10) of the Constitution provides that no person who shows that he has been pardoned for a criminal offence shall again be tried for that offence. In other words, a pardoned person is totally free from the grips of any court sentence and cannot be retried for the same offence.

Without much ado, it is evidently clear that the prerogative of mercy is an obstruction in the wheel of holistic judicial processes and SHOULD be administered with a nonadjustable involvement of the judiciary itself. But this power is currently vested in the head of the executive arm in consultation with the Council of State.

The composition of the Council of State is provided under Part I (5) of the Third Schedule to the constitution. It states that the Council of State shall comprise of the President, Vice-President, all former Presidents and Heads of the Government of the Federation, former Chief Justices of Nigeria, the President of the Senate, Speaker of the House of Representative, all Governors and the Attorney-general of the federation.

Critically, Section 175 leaves the power to pardon convicted offenders in the hands of the President without any procedural approval or process by the judiciary. This ipso facto has created an antagonism to the ‘exclusive’ judicial powers of interpreting the law and punishing offenders.

Presidential Pardon in Nigeria

Statistically, about 301 convicted offenders in Nigeria have been pardoned by the federal government since the begin of the forth republic, with the highest number of 208 pardoned in the incumbent (President Buhari’s) administration. These statistics were gathered and published by Dataphte on May 6, 2022.

Flowing from the foregoing, it is legally nauseating to account that an ‘independent’ arm of government is exclusively granted power to administer a function, and another is granted an eraser to abolish its ruling. Prima facie, Section 175 of the 1999 Constitution is antagonistic to powers conferred on the judiciary by Section 6 of the same constitution.

Recommendation

In furtherance of the granting of prerogative of mercy, as it may be deemed necessary in certain instances, this author recommends that jurisdiction be granted to the Federal High Court to receive the recommendation of the President for the granting of presidential pardon and decide, although not adversarially, the fate of convicted offenders. This way, the power to pardon convicted persons is initiated by the President, but decided by the Judiciary. Similarly, a Magistrate Court should exercise such jurisdiction in a state.

Canada Evidence Act 1985 (full text)

Canada Evidence Act

Canada Evidence Act was first passed in 1893. It is a Federal Act of the Parliament of Canada regulating the rules of evidence in court proceedings. The act is not exhaustive, as rules of evidence are largely set by common law. The Act has 54 sections and a schedule.

See also: Constitution Act 1982 (and other Canadian Laws)

Short Title

1. Short title

Part I – Canada Evidence Act

Application

2. Application

Witnesses

3. Interest or crime

4. Accused and spouse

5. Incriminating questions

6. Evidence of person with physical disability

6.1 Identification of accused

7. Expert witnesses

8. Handwriting comparison

9. Adverse witnesses

10. Cross-examination as to previous statements

11. Cross-examination as to previous oral statements

12. Examination as to previous convictions

Oaths and Solemn Affirmations

13. Who may administer oaths

14. Solemn affirmation by witness instead of oath

15. Solemn affirmation by deponent

16. Witness whose capacity is in question

16.1 Person under fourteen years of age

Judicial Notice

17. Imperial Acts, etc.

18. Acts of Canada

Documentary Evidence

19. Copies by Queen’s Printer

20. Imperial proclamations, etc.

21. Proclamations, etc., of Governor General

22. Proclamations, etc., of lieutenant governor

23. Evidence of judicial proceedings, etc.

24. Certified copies

25. Books and documents

26. Books kept in offices under Government of Canada

27. Notarial acts in Quebec

28. Notice of production of book or document

29. Copies of entries

30. Business records to be admitted in evidence

31. Definitions

31.1 Authentication of electronic documents

31.2 Application of best evidence rule — electronic documents

31.3 Presumption of integrity

31.4 Presumptions regarding secure electronic signatures

31.5 Standards may be considered

31.6 Proof by affidavit

31.7 Application

31.8 Definitions

32. Order signed by Secretary of State

33. Proof of handwriting of person certifying

34. Attesting witness

35. Impounding of forged instrument

36. Construction

36.1 Definition of official

Specified Public Interest

37. Objection to disclosure of information

37.1 Appeal to court of appeal

37.2 Limitation periods for appeals to Supreme Court of Canada

37.21  [Repealed, 2004, c. 12, s. 18]

37.3 Protection of right to a fair trial

International Relations and National Defence and National Security

38. Definitions

38.01 Notice to Attorney General of Canada

38.02 Disclosure prohibited

38.03 Authorization by Attorney General of Canada

38.031 Disclosure agreement

38.04 Application to Federal Court — Attorney General of Canada

38.05 Report relating to proceedings

38.06 Disclosure order

38.07 Notice of order

38.08 Automatic review

38.09 Appeal to Federal Court of Appeal

38.1 Limitation periods for appeals to Supreme Court of Canada

38.11 Special rules — hearing in private

38.12 Protective order

38.13 Certificate of Attorney General of Canada

38.131 Application for review of certificate

38.14 Protection of right to a fair trial

38.15 Fiat

38.16 Regulations

38.17 Annual report

Confidences of the Queen’s Privy Council for Canada

39. Objection relating to a confidence of the Queen’s Privy Council

Journalistic Sources

39.1 Definitions

Provincial Laws of Evidence

40. How applicable

Statutory Declarations

41. Solemn declaration

Insurance Proofs

42. Affidavits, etc.

Part II – Canada Evidence Act

Application

43. Foreign courts

Interpretation

44. Definitions

45. Construction

Procedure

46. Order for examination of witness in Canada

47. Enforcement of the order

48. Expenses and conduct money

49. Administering oath

50. Right of refusal to answer or produce document

51. Rules of court

Part III – Canada Evidence Act

Application

52. Application of this Part

Oaths and Solemn Affirmations

53. Oaths taken abroad

Documentary Evidence

54. Documents to be admitted in evidence

SCHEDULE – Canada Evidence Act

Designated Entities

Schedule Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Schedule to the Canadian Evidence Act 1985

The Schedule to the Canadian Evidence Act 1985 is about Designated Entities. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Designated Entities

1 A judge of the Federal Court, for the purposes of section 21 of the Canadian Security Intelligence Service Act

2 A judge of the Federal Court, for the purposes of sections 6 and 7 of the Charities Registration (Security Information) Act, except where the hearing is open to the public

3 A judge of the Federal Court, the Federal Court of Appeal or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87.1 of the Immigration and Refugee Protection Act

4 A judge of the Federal Court, for the purposes of section 16 of the Secure Air Travel Act

5 to 8 [Repealed, 2001, c. 41, s. 124]

9 A board of inquiry convened under section 45 of the National Defence Act

10 A court martial or a military judge for the purposes of Part III of the National Defence Act

11 The Federal Public Sector Labour Relations and Employment Board referred to in subsection 4(1) of the Federal Public Sector Labour Relations and Employment Board Act, for the purposes of a grievance process under the Federal Public Sector Labour Relations Act with respect to an employee of the Canadian Security Intelligence Service, with the exception of any information provided to the Board by the employee

12 The Information Commissioner, for the purposes of the Access to Information Act

13 The Privacy Commissioner, for the purposes of the Privacy Act

14 The Privacy Commissioner, for the purposes of the Personal Information Protection and Electronic Documents Act

15 A judge of the Federal Court, for the purposes of section 41 of the Access to Information Act

16 A judge of the Federal Court, for the purpose of sections 41 to 43 of the Privacy Act

17 A judge of the Federal Court, for the purpose of sections 14 to 17 of the Personal Information Protection and Electronic Documents Act

18 The National Security and Intelligence Review Agency, for the purposes of sections 16 to 19 of the National Security and Intelligence Review Agency Act, with the exception of any information provided to the Agency by the complainant or an individual who has been denied a security clearance

19 The Public Sector Integrity Commissioner, for the purposes of sections 26 to 35 of the Public Servants Disclosure Protection Act

20 [Repealed, 2019, c. 13, s. 61]

21 A judge of the Federal Court, for the purposes of sections 4 and 6 of the Prevention of Terrorist Travel Act

22 The Civilian Review and Complaints Commission for the Royal Canadian Mounted Police, for the purposes of the Royal Canadian Mounted Police Act, but only in relation to information that is under the control, or in the possession, of the Royal Canadian Mounted Police or the Central Authority, as the case may be.

Section 54 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 54 Canadian Evidence Act

Section 54 Canadian Evidence Act 1985 is about Documents to be admitted in evidence. It is under Documentary Evidence of Part III of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Documents to be admitted in evidence

(1) Any document that purports to have affixed, impressed or subscribed on it or to it the signature of any person authorized by any of paragraphs 52(a) to (d) to administer, take or receive oaths, affidavits, solemn affirmations or declarations, together with their seal or with the seal or stamp of their office, or the office to which the person is attached, in testimony of any oath, affidavit, solemn affirmation or declaration being administered, taken or received by the person, shall be admitted in evidence, without proof of the seal or stamp or of the person’s signature or official character.

Status of statements

(2) An affidavit, solemn affirmation, declaration or other similar statement taken or received in a foreign country by an official referred to in paragraph 52(e) shall be admitted in evidence without proof of the signature or official character of the official appearing to have signed the affidavit, solemn affirmation, declaration or other statement.


See also:

Section 53 Canadian Evidence Act (Oaths taken abroad)

Section 52 Canadian Evidence Act (Application of this Part)

Section 53 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 53 Canadian Evidence Act

Section 53 Canadian Evidence Act 1985 is about Oaths taken abroad. It is under Oaths and Solemn Affirmations of Part III of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Oaths taken abroad

Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.


See also:

Section 52 Canadian Evidence Act (Application of this Part)

Section 51 Canadian Evidence Act (Rules of court)

Section 52 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 52 Canadian Evidence Act

Section 52 Canadian Evidence Act 1985 is about Application of this Part. It is under Application of Part III of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Application of this Part

This Part extends to the following classes of persons:

(a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;

(b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;

(c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;

(d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;

(e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and

(f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.


See also:

Section 51 Canadian Evidence Act (Rules of court)

Section 50 Canadian Evidence Act (Right of refusal to answer or produce document)

Section 51 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 51 Canadian Evidence Act

Section 51 Canadian Evidence Act 1985 is about Rules of court. It is under Procedure of Part II of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Rules of court

(1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.

Letters rogatory

(2) In the absence of any order in relation to the evidence to be produced in support of the application referred to in subsection (1), letters rogatory from a court or tribunal outside Canada in which the civil, commercial or criminal matter is pending, are deemed and taken to be sufficient evidence in support of the application.


See also:

Section 50 Canadian Evidence Act (Right of refusal to answer or produce document)

Section 49 Canadian Evidence Act (Administering oath)

Section 50 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 50 Canadian Evidence Act

Section 50 Canadian Evidence Act 1985 is about Right of refusal to answer or produce document. It is under Procedure of Part II of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Right of refusal to answer or produce document

(1) Any person examined under any order made under this Part has the like right to refuse to answer questions tending to criminate himself, or other questions, as a party or witness, as the case may be, would have in any cause pending in the court by which, or by a judge whereof, the order is made.

Laws about witnesses to apply — video links etc.

(1.1) Despite subsection (1), when a party or witness gives evidence under subsection 46(2), the evidence shall be given as though they were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.

Contempt of court in Canada

(1.2) When a party or witness gives evidence under subsection 46(2), the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question or to produce a writing or document referred to in subsection 46(1), as ordered under that subsection by the court or judge.

Nature of right

(2) No person shall be compelled to produce, under any order referred to in subsection (1), any writing or other document that he could not be compelled to produce at a trial of such a cause.


See also:

Section 49 Canadian Evidence Act (Administering oath)

Section 48 Canadian Evidence Act (Expenses and conduct money)

Section 49 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 49 Canadian Evidence Act

Section 49 Canadian Evidence Act 1985 is about Administering oath. It is under Procedure of Part II of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Administering oath

On any examination of parties or witnesses, under the authority of any order made in pursuance of this Part, the oath shall be administered by the person authorized to take the examination, or, if more than one person is authorized, by one of those persons.


See also:

Section 48 Canadian Evidence Act (Expenses and conduct money)

Section 47 Canadian Evidence Act (Enforcement of the order)

Section 48 Canadian Evidence Act 1985

OTHER CANADIAN LAWS 1. Short title. 2. Application. 3. Interest or crime. 4. Accused and spouse. 5. Incriminating questions. 6. Evidence of person with physical disability. 6.1 Identification of accused. 7. Expert witnesses. 8. Handwriting comparison. 9. Adverse witnesses. 10. Cross-examination as to previous statements. 11. Cross-examination as to previous oral statements. 12. Examination as to previous convictions. 13. Who may administer oaths. 14. Solemn affirmation by witness instead of oath. 15. Solemn affirmation by deponent. 16. Witness whose capacity is in question. 16.1 Person under fourteen years of age. 17. Imperial Acts, etc. 18. Acts of Canada. 19. Copies by Queen’s Printer. 20. Imperial proclamations, etc. 21. Proclamations, etc., of Governor General. 22. Proclamations, etc., of lieutenant governor. 23. Evidence of judicial proceedings, etc. 24. Certified copies. 25. Books and documents. 26. Books kept in offices under Government of Canada. 27. Notarial acts in Quebec. 28. Notice of production of book or document. 29. Copies of entries. 30. Business records to be admitted in evidence. 31. Definitions. 31.1 Authentication of electronic documents. 31.2 Application of best evidence rule — electronic documents. 31.3 Presumption of integrity. 31.4 Presumptions regarding secure electronic signatures. 31.5 Standards may be considered. 31.6 Proof by affidavit. 31.7 Application. 31.8 Definitions. 32. Order signed by Secretary of State. 33. Proof of handwriting of person certifying. 34. Attesting witness. 35. Impounding of forged instrument. 36. Construction. 36.1 Definition of official. 37. Objection to disclosure of information. 37.1 Appeal to court of appeal. 37.2 Limitation periods for appeals to Supreme Court of Canada. 37.21 [Repealed, 2004, c. 12, s. 18] 37.3 Protection of right to a fair trial. 38. Definitions. 38.01 Notice to Attorney General of Canada. 38.02 Disclosure prohibited. 38.03 Authorization by Attorney General of Canada. 38.031 Disclosure agreement. 38.04 Application to Federal Court — Attorney General of Canada. 38.05 Report relating to proceedings. 38.06 Disclosure order. 38.07 Notice of order. 38.08 Automatic review. 38.09 Appeal to Federal Court of Appeal. 38.1 Limitation periods for appeals to Supreme Court of Canada. 38.11 Special rules — hearing in private. 38.12 Protective order. 38.13 Certificate of Attorney General of Canada. 38.131 Application for review of certificate. 38.14 Protection of right to a fair trial. 38.15 Fiat. 38.16 Regulations. 38.17 Annual report. 39. Objection relating to a confidence of the Queen’s Privy Council. 39.1 Definitions. 40. How applicable. 41. Solemn declaration. 42. Affidavits, etc. 43. Foreign courts. 44. Definitions. 45. Construction. 46. Order for examination of witness in Canada. 47. Enforcement of the order. 48. Expenses and conduct money. 49. Administering oath. 50. Right of refusal to answer or produce document. 51. Rules of court. 52. Application of this Part. 53. Oaths taken abroad. 54. Documents to be admitted in evidence. SCHEDULE – Designated Entities

Section 48 Canadian Evidence Act

Section 48 Canadian Evidence Act 1985 is about Expenses and conduct money. It is under Procedure of Part II of the act. The Evidence Act of Canada is an Act respecting witnesses and evidence.

Expenses and conduct money

Every person whose attendance is required in the manner described in section 47 is entitled to the like conduct money and payment for expenses and loss of time as on attendance at a trial.


See also:

Section 47 Canadian Evidence Act (Enforcement of the order)

Section 46 Canadian Evidence Act (Order for examination of witness in Canada)