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RSNL1990 CHAPTER E-16

EVIDENCE ACT

Amended:

1991 c13 s1; 1995 c34; 1997 cB-12 s16; 1998 cP-7.1 s78; 2009 c31 s5; 2010 c30 s4; 2012 c22 s4; 2012 c27 s8

CHAPTER E-16

AN ACT RESPECTING EVIDENCE

Analysis


       
1.   Short title

       
2.   Parties to actions competent

       
3.   Evidence re: non-access and adultery

       
4.   Competency of witnesses

       
5.   Witness not excused

       
6.   Spouses not compellable

       
7.   Rep. by 2012 c22 s4

       
8.   Privilege of clergy

     
8.1   Inadmissible evidence

       
9.   No person to be excluded on account of crime

     
10.   Discrediting a witness

     
11.   Proof of contradictory statements

     
12.   Cross-examination as to previous statements

     
13.   Previous conviction of a witness

     
14.   Examination of persons who refuse to make affidavit

     
15.   Proceedings on order for examination

     
16.   Evidence against estate of deceased person

     
17.   Evidence against person of unsound mind

     
18.   Admissibility of child's evidence

   
18.1   Corroboration not required

     
19.   Courts and others may administer oath

     
20.   Foreign acts of state

     
21.   Documents admissible without proof of seal, etc.

   
21.1   Certification of copy

     
22.   Registers of vessels

     
23.   Examined or certified copies of documents

     
24.   Document not needing to be sworn

     
25.   Comparison of disputed writing

     
26.   Judicial notice

     
27.   Admissibility of photographs

     
28.   Proof of proclamations

     
29.   Entries on government books

     
30.   Statutory declarations

     
31.   Certifying a false document

     
32.   Penalty for forging seal

     
33.   Oaths, etc. administered by commissioned officers

     
34.   Oaths, etc. administered outside province


Short title

        1. This Act may be cited as the Evidence Act.

RSN1970 c115 s1

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Parties to actions competent

        2. (1) In a proceeding in a court or before a person having by law or by consent of parties authority to hear, receive and examine evidence, the parties and the persons in whose behalf the proceeding is being brought or defended, or who may have an interest in the result and the spouses of the parties and of the parties in whose behalf the proceeding may be brought or instituted, or opposed or defended, shall be competent and compellable to give evidence, either orally or by deposition, according to the practice of the court, on behalf of a party to the proceeding.

             (2)  A party called to testify may be cross-examined by the opposite party under the rules applicable to the cross-examination of witnesses.

RSN1970 c115 s2; 2009 c31 s5

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Evidence re: non-access and adultery

        3. (1) The evidence of a spouse shall be admissible to prove that marital intercourse did or did not take place during a period of time before or during the marriage.

             (2)  A witness in a proceeding instituted in consequence of adultery, whether a party to the proceeding or not, shall not be excused from answering a question by reason that it tends to show that he or she has been guilty of adultery.

1971 No48 s2; 1971 No14 s2; 2009 c31 s5

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Competency of witnesses

        4. Nothing in this Act

             (a)  renders a person charged with an offence against a law of the province compellable to give evidence for or against himself or herself or renders the spouse of that person compellable to give evidence for or against that person;

             (b)  affects the laws of the province relating to the estates of mentally incompetent persons or to the execution or attestation of last wills and testaments; or

             (c)  precludes a defendant or the spouse of a defendant from becoming a witness, should he or she think fit, in a proceeding.

1971 No48 s3; 1971 No14 s2; 2009 c31 s5

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Witness not excused

        5. (1) A witness shall not be excused from answering a question upon the ground that the answer may tend to

             (a)  criminate him or her; or

             (b)  establish his or her liability to a civil proceeding at the instance of the Crown or of a person or to a prosecution under an Act.

             (2)  Where, with respect to a question, a witness objects to answer upon a ground referred to in subsection (1), and where, but for this Act or an Act of the Parliament of Canada, he or she would be excused from answering that question, then, although he or she is by reason of this Act or by reason of an Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in another civil proceeding or in another proceeding under an Act.

1971 No48 s4; 1971 No14 s2

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Spouses not compellable

        6. A person is not compellable to disclose a communication made to him or her by his or her spouse during the marriage.

2009 c31 s5

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Rep. by 2012 c22 s4

        7. [Rep. by 2012 c22 s4]

2012 c22 s4

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Privilege of clergy

        8. A member of the clergy or a priest shall not be compellable to give evidence as to a confession made to him or her in his or her professional capacity.

RSN1970 c115 s6

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Inadmissible evidence

      8.1 (1) In this section

             (a)  "legal proceeding" includes an action, inquiry, arbitration, judicial inquiry or civil proceeding in which evidence may be given and also includes a proceeding before a board, commission or tribunal; and

             (b)  "witness" includes a person who, in a legal proceeding

                      (i)  is examined orally for discovery,

                     (ii)  is cross examined on an affidavit made by that person,

                    (iii)  answers interrogatories,

                    (iv)  makes an affidavit as to documents, or

                     (v)  is called on to answer a question or produce a document, whether under oath or not.

             (2)  This section applies to the following committees:

             (a)  the Provincial Perinatal Committee,

         (a.1)  the Child Death Review Committee under the Fatalities Investigations Act ;

             (b)  a quality assurance committee of a member, as defined under the Hospital and Nursing Home Association Act , and

             (c)  a peer review committee of a member, as defined under the Hospital and Nursing Home Association Act .

             (3)  No report, statement, evaluation, recommendation, memorandum, document or information, of, or made by, for or to, a committee to which this section applies shall be disclosed in or in connection with a legal proceeding.

             (4)  Where a person appears as a witness in a legal proceeding, that person shall not be asked and shall not

             (a)  answer a question in connection with proceedings of a committee set out in subsection (2); or

             (b)  produce a report, evaluation, statement, memorandum, recommendation, document or information of, or made by, for or to, a committee to which this section applies.

             (5)  Subsections (3) and (4) do not apply to original medical or hospital records pertaining to a person.

             (6)  Where a person is a witness in a legal proceeding notwithstanding that he or she

             (a)  is or has been a member of;

             (b)  has participated in the activities of;

             (c)  has made a report, evaluation, statement, memorandum or recommendation to; or

             (d)  has provided information or a document to

a committee set out in subsection (2) that person is not, subject to subsection (4), excused from answering a question or producing a document that he or she is otherwise bound to answer or produce.

1991 c13 s1; 2012 c27 s8

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No person to be excluded on account of crime

        9. (1) A person offered as a witness shall not be excluded by reason of incapacity from crime from giving evidence according to the provisions of this Act or otherwise.

             (2)  A person present in court, or before a judicial officer, may be required to testify in the same manner as if he or she were in attendance upon subpoena issued by that court or officer.

RSN1970 c115 s7

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Discrediting a witness

      10. (1) A party producing a witness shall not be allowed to impeach his or her credit by general evidence of bad character, but he or she may, in case the witness, in the opinion of the judge, proves adverse, contradict him or her by other evidence, or, by leave of the judge, prove that he or she has made at other times a statement inconsistent with his or her present testimony.

             (2)  Before proof under subsection (1) can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and the witness shall be asked whether or not he or she has made that statement.

RSN1970 c115 s8

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Proof of contradictory statements

      11. (1) Where a witness upon cross-examination as to a former statement made by him or her relative to the subject matter of the cause and inconsistent with the witness's present testimony does not distinctly admit that he or she has made that statement, proof may be given that he or she did in fact make it.

             (2)  Before proof under subsection (1) can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and the witness shall be asked whether or not he or she has made that statement.

RSN1970 c115 s9

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Cross-examination as to previous statements

      12. (1) A witness may be cross-examined as to previous statements made by him or her in writing, or reduced into writing, relative to the subject matter of the cause, without that writing being shown to the witness, but where it is intended to contradict that witness by the writing, his or her attention shall, before the contradictory proof can be given, be called to those parts of the writing that are to be used for the purpose of contradicting him or her.

             (2)  A judge may, at any time during the trial, require the production of the writing for his or her inspection, and the judge may then make whatever use of it, for the purposes of the trial, that he or she thinks fit.

RSN1970 c115 s10

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Previous conviction of a witness

      13. (1) A witness in a cause may be questioned as to whether he or she has been convicted of a crime, and upon being questioned, where the witness either denies the fact or refuses to answer, the opposite party may prove that conviction.

             (2)  A certificate containing the substance and effect only of the indictment and conviction of the offence, purporting to be signed by the clerk of the court where the offender was convicted, or other proper 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 made it.

RSN1970 c115 s11

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Examination of persons who refuse to make affidavit

      14. (1) A party to a civil action, or other civil proceeding, in the Court of Appeal or the Trial Division, requiring the affidavit of a person who refuses to make an affidavit, may apply for an order for that person to appear and be examined upon oath before a judge or master as to the matters concerning which he or she has refused to make an affidavit.

             (2)  Following an application under subsection (1) the judge may order the attendance of that person, before the person appointed to take that examination, for the purpose of being examined and for the production of writings or documents, and may impose terms, as to the examination and the costs of the examination.

RSN1970 c115 s12; 1986 c42 Sch B

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Proceedings on order for examination

      15. An order for examination shall be proceeded upon in the same manner as an order made under Rule 47.01 of the Rules of Court, under the Judicature Act, and the examination shall be conducted, and the depositions taken down and returned, as nearly as possible in the manner now used on oral examinations.

RSN1970 c115 s13; 1986 c42 Sch B

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Evidence against estate of deceased person

      16. In an action or proceeding by or against the representatives of a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment or decree in the action on his or her own evidence in respect of a matter occurring before the death of the deceased person, unless that evidence is corroborated by some material evidence.

RSN1970 c115 s14

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Evidence against person of unsound mind

      17. In an action or proceeding by or against a person who is of unsound mind, or who is a patient of an institution for mental and nervous diseases, an opposite or interested party shall not obtain a verdict, judgment or decree in that action on his or her own evidence, unless that evidence is corroborated by some other material evidence.

RSN1970 c115 s15

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Admissibility of child's evidence

      18. (1) A child's evidence is admissible if,

             (a)  he or she promises to tell the truth; and

             (b)  the court is of the opinion that the child understands what it means to tell the truth and is able to communicate the evidence.

             (2)  When it is necessary to establish whether a child is competent to give evidence, the court may conduct an inquiry to determine whether, in its opinion, the child understands what it means to tell the truth and is able to communicate the evidence.

             (3)  If a child does not promise to tell the truth, or if the court is of the opinion that the child does not understand what it means to tell the truth, his or her evidence may still be admitted if the court is of the opinion that it is sufficiently reliable.

1972 No3 s2; 1972 No11 s2; 1995 c34 s1

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Corroboration not required

   18.1 (1) Evidence given by a child need not be corroborated.

             (2)  The judge shall not instruct the jury that it is unsafe to rely on the uncorroborated evidence of a child.

             (3)  Subsection (2) does not affect the judge's discretion to comment on the evidence.

1995 c34 s1

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Courts and others may administer oath

      19. A court, judge or other person having by law or by consent of parties authority to hear, receive and examine evidence is empowered to administer an oath to all those witnesses who are legally called before him or her.

RSN1970 c115 s16

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Foreign acts of state

      20. (1) All

             (a)  proclamations, treaties, and other acts of state of a foreign state, or of a British colony;

             (b)  judgments, decrees, orders and other judicial proceedings of a court of justice in a foreign state or in a British colony; and

             (c)  affidavits, pleadings and other legal documents filed or deposited in a court referred to in paragraph (b)

may be proved in a court of justice, or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, either by examined copies or by copies authenticated as mentioned in subsections (2), (3) and (4).

             (2)  Where the document sought to be proved is a proclamation, treaty or other act of state, the authenticated copy, to be admissible in evidence, shall purport to be sealed with the seal of the foreign state or British colony to which the original document belongs.

             (3)  Where the document sought to be proved is a judgment, decree, order or other judicial proceeding of a foreign or British colonial court or an affidavit, pleading or other legal document, filed or deposited in that court, the authenticated copy, to be admissible in evidence, shall purport either to be sealed with the seal of the foreign or British colonial court to which the original document belongs, or in the event of that court having no seal, to be signed by the judge, or where there is more than 1 judge, by 1 of the judges of the court, and that judge shall attach to his or her signature a written statement in the copy that the court of which he or she is judge has no seal.

             (4)  Where the authenticated copies referred to in subsections (2) and (3) purport to be sealed or signed as required in those subsections, they shall be admitted in evidence in every case in which the original document could have been received in evidence, without proof of the seal where a seal is necessary or of the signature or of the truth of the statement attached, where that signature and statement are necessary or of the judicial character of the person appearing to have made that signature and statement.

RSN1970 c115 s17

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Documents admissible without proof of seal, etc.

      21. A document that is admissible in evidence of a matter in a British court of justice without proof of the seal or stamp, or signature authenticating it, or of the judicial or official character of the person appearing to have signed it, shall be admitted in evidence to the same extent and for the same purposes, in a court of justice in this province, or before a person having by law or by consent of parties authority to hear, receive and examine evidence, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character of the person appearing to have signed it.

RSN1970 c115 s18

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Certification of copy

   21.1 A copy of a writing filed or registered under the Assignment of Book Debts Act , the Bills of Sale Act and the Conditional Sales Act may be proved in a court by the production of a copy of it certified by the person in whose office the writing is filed.

1998 cP-7.1 s78

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Registers of vessels

      22. (1) Every register of a vessel kept under an act relating to the registry of British vessels may be proved in a court of justice, or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, either by the production of the original or by an examined copy of the original, or by a copy purporting to be certified by the person having charge of the original.

             (2)  A person who has responsibility for an original under subsection (1) shall furnish a certified copy to a person applying for it.

             (3)  A register and a copy of a register, and also every certificate of a registry granted under an act relating to the registry of British vessels, and purporting to be signed as required by law, shall be received in evidence in a court of justice, or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence as, in the absence of evidence to the contrary, proof of all matters contained in that register, when the register or a copy of the register is produced and of all matters contained in or endorsed on that certificate of registry when the certificate is produced.

RSN1970 c115 s19

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Examined or certified copies of documents

      23. (1) Where a book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no Act exists which permits its contents to be provable by means of a copy, a copy or extract from that book or other document is admissible in evidence in a court of justice, or before a person now or in the future having by law or consent of parties authority to hear, receive and examine evidence.

             (2)  A copy referred to in subsection (1) shall be certified as a copy by the person who has custody of the original.

RSN1970 c115 s20

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Document not needing to be sworn

      24. Where a document that does not need to be sworn to in order to be valid is sworn to, the document may be presented in evidence as if it had not been sworn to.

RSN1970 c115 s21

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Comparison of disputed writing

      25. (1) Comparison of a disputed writing with writing proved to the satisfaction of a judge to be genuine shall be permitted to be made by a witness, and the evidence of the witness may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

             (2)  Where a deed or document has been registered under the laws of the province, and the document is, on the trial of a cause, suit or proceeding, proved to be lost, that registry, or a certified copy by the registrar, shall, without further proof, be admitted in evidence in all cases where the original if produced would be receivable.

RSN1970 c115 ss22&23; 1975-76 No26 s1

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Judicial notice

      26. (1) Judicial notice shall be taken of all Acts of the Parliament of the United Kingdom, of all ordinances made by the Governor General in Council or the Lieutenant-Governor in Council of another province or territory that, or some portion of which, now forms part of Canada, and of all acts of the legislature of another province of Canada enacted before or after the coming into force of the Constitution Act, 1867.

             (2)  Judicial notice shall be taken of all Acts of the Parliament of Canada, public or private, without being specially pleaded.

1975-76 No26 s1

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Admissibility of photographs

      27. (1) In this section

             (a)  person" includes

                      (i)  the Government of Canada and of a province of Canada and a department, commission, board or branch of that government,

                     (ii)  a corporation, its successors and assigns, 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" has a corresponding meaning.

             (2)  Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan or a record or book or entry in a plan or record or book kept or held by a 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; and

             (b)  is destroyed by or in the presence of the person or of 1 or more of his or her employees or delivered to another person in the ordinary course of business or lost,

a print from the photographic film is admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.

             (3)  Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement or other executed or signed document was destroyed before the expiration of 6 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 a 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 file of the object.

             (4)  Where the photographic print is tendered by the Government of Canada or of another province of Canada or a department, commission, board or branch of that government or of the Bank of Canada, subsection (3) does not apply.

             (5)  Proof of compliance with the conditions prescribed by this section may be given by a 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 that affidavit shall be admissible in evidence instead of the original affidavit.

RSN1970 c115 s24

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Proof of proclamations

      28. Evidence of a proclamation, order or appointment, made or issued by the Lieutenant-Governor, or by the Lieutenant-Governor in Council or by or under the authority of a minister or head of a department of the government, may be given

             (a)  by the production of a copy of the Gazette , purporting to contain a copy of the proclamation, order or appointment, or a notice of it;

             (b)  by the production of a copy of the proclamation, order or appointment, purporting to be printed by the Queen's Printer;

             (c)  by the production, in the case of a proclamation, order or appointment made or issued by the Lieutenant-Governor in Council, of a copy or extract of it purporting to be certified to be true by the clerk or deputy clerk of the Executive Council; and

             (d)  in the case of an order 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 of the proclamation, order, regulation or appointment purporting to be certified to be true by the minister or by his or her deputy.

2010 c30 s4

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Entries on government books

      29. A certified copy of an electronically filed document recorded in a department of the government shall be received as evidence of that document and of the matters, transactions and accounts recorded, where it is proved by the oath or affidavit of an officer of that department that the document was, at the time of the filing of the document, one of the ordinary documents stored electronically in that department, that the entry was made in the usual and ordinary course of business of that department and that the copy is a true copy.

             (2)  A computer generated record of any transaction stored in electronic format in a department of the government shall be received as evidence of that record and of the matters, transactions and accounts recorded where it is proved by the oath or affidavit of an officer of that department that the record was, at the time of filing of the record, one of the ordinary records stored electronically in that department, that the entry was made in the usual and ordinary course of business of that department and that the copy is a true copy.

1997 cB-12 s16

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Statutory declarations

      30. A judge, notary public, justice of the peace, Provincial Court judge, commissioner of affidavits, or other person authorized by law to administer an oath in a matter, may receive the solemn declaration of a person voluntarily making it before him or her in the following form in attestation of the execution of a writing, deed or instrument, or of the truth of a fact, or of an account rendered in writing:

           I, A.B., solemnly declare that ____________ (state the fact or facts declared to) ____________, and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

           Declared before me, at ___________ this _____ day of ______________ 19___,

and where a declaration so made is false and untrue in a material particular, the person wilfully making that false declaration is considered guilty of an offence.

RSN1970 c115 s27; 1979 c38 s7

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Certifying a false document

      31. Where an officer or other person authorized or required by this Act to furnish certified copies or extracts wilfully certifies a document as being a true copy or extract, knowing that it is not a true copy or extract, he or she is guilty of an offence, and liable, upon summary conviction, to imprisonment for a term not exceeding 18 months.

RSN1970 c115 s28

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Penalty for forging seal

      32. (1) Where a person forges the seal, stamp or signature of a document mentioned or referred to in this Act or tenders in evidence a document with a false or counterfeit seal, stamp or signature on it, knowing it to be false or counterfeit, he or she is guilty of an offence, and upon summary conviction is liable to imprisonment for a term not exceeding 3 years.

             (2)  Where a document referred to in subsection (1) has been admitted in evidence by virtue of this Act, the court or the person who has admitted it may, at the request of a party against whom the document is admitted in evidence, direct that it be impounded and kept in the custody of an officer of the court, or other proper person, for a period and subject to the conditions that the court or other proper person considers appropriate.

RSN1970 c115 s29

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Oaths, etc. administered by commissioned officers

      33. (1) An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made within or outside the province before a person who holds a commission as an officer in the Canadian armed forces and is on full-time service is as valid and effectual to all intents and purposes as if it had been administered, sworn, affirmed or made within the province before a person before whom it could have been lawfully administered, sworn, affirmed or made within the province.

             (2)  A document that purports to be signed by a person mentioned in subsection (1) in testimony of an oath, affidavit, affirmation or statutory declaration having been administered, sworn, affirmed or made before him or her and on which his or her rank and unit are shown below his or her signature is admissible in evidence without proof of his or her signature or of his or her rank or unit or that he or she is on full-time service.

RSN1970 c115 s30

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Oaths, etc. administered outside province

      34. (1) An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside the province before

             (a)  a judge;

             (b)  a Provincial Court judge;

             (c)  an officer of a court of justice;

             (d)  a commissioner for taking affidavits or other similar competent authority;

             (e)  a notary public;

             (f)  the head of a city, town, village, township or other municipality;

             (g)  an officer of the Crown's diplomatic or consular services, including an ambassador, envoy, minister, charge d'affaires, counsellor, secretary, attache, consul-general, consul, vice-consul, pro-consul, consular agent, acting consul-general, acting consul, acting vice-consul and acting consular agent;

             (h)  an officer of the Canadian diplomatic, consular or representative services, including, in addition to the diplomatic and consular officers mentioned in paragraph (g), a high commissioner, permanent delegate, acting high commissioner, acting permanent delegate, counsellor and secretary; or

              (i)  a Canadian government trade commissioner or an assistant Canadian government trade commissioner,

exercising his or her functions or having jurisdiction or authority in the place in which it is administered, sworn, affirmed or made is as valid and effective to all intents and purposes as if it had been administered, sworn, affirmed or made within the province before a person before whom it could have been lawfully administered, sworn, affirmed or made.

             (2)  An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside the province before a notary public appointed for the province or before a person before whom it could have been lawfully administered, sworn, affirmed or made within the province is as valid and effectual to all intents and purposes as if it had been administered, sworn, affirmed or made within the province before such a person.

             (3)  A document that purports to be signed by a person mentioned in subsection (1) or (2) in testimony of an oath, affidavit, affirmation or statutory declaration having been administered, sworn, affirmed or made before him or her, and on which his or her office is shown below his or her signature, and

             (a)  in the case of a notary public, that purports to have impressed upon or attached to the document his or her official seal;

             (b)  in the case of a person mentioned in paragraph (1)(f), that purports to have impressed upon or attached to the document the seal of the municipality;

             (c)  in the case of a person mentioned in paragraph (1)(g), (h) or (i), that purports to have impressed upon or attached to the document his or her seal or the seal or stamp of his or her office or of the office to which he or she is attached,

is admissible in evidence without proof of his or her signature, or of his or her office or official character or of the seal or stamp and without proof that he or she was exercising his or her functions or had jurisdiction or authority in the place in which the oath, affidavit, affirmation or statutory declaration was administered, sworn, affirmed or made.

RSN1970 c115 s31; 1979 c38 s7