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53. Objections to witnesses.]—Any objection in respect of misnomer or misdescription of any person named in the indictment, or of any witness in the list of witnesses, must be stated before a jury has been sworn to try the case against a person accused, and no such objection shall be admitted. as ground for postponing any trial or for excluding any witness, unless the accused person shall, at least four clear days before the second diet, give notice to the Procurator Fiscal of the district of the second diet where notice of trial is given for the Sheriff Court, or to the Crown agent where notice of trial is given for the High Court of Justiciary, of his inability to discover who such person named in the indictment is, or to find such witness, and shall show that notwithstanding such intimation to the prosecutor he has not been furnished with such additional information as might enable him to ascertain who such person is, or to find such witness in sufficient time to precognosce him before the trial, and where either of these things shall be shown the Court shall give such remedy by postponement, adjournment, or otherwise, as shall seem just.
67. Proving and recording previous convictions.]-Previous convictions against a person accused shall not be laid before the jury, nor shall reference be made thereto in presence of the jury before the verdict is returned; but nothing herein contained shall prevent the public prosecutor from laying before the jury evidence of such previous convictions where, by the existing law, it is competent to lead evidence of such previous convictions as evidence in causa in support of the substantive charge, or where the person accused shall lead evidence to prove previous good character, and it shall no longer be necessary for the jury to return a verdict finding whether previous convictions against the person accused have been proved or not, but where any such conviction is admitted in evidence by the Court, either after a plea of guilty or after a verdict of guilty to any charge to which such previous conviction constitutes an aggravation, the Court shall have power to take such previous conviction into consideration in awarding punish
ment, and where any person is convicted of any crime, and also of any aggravation by previous conviction, the clerk of the Court in which sentence is pronounced, shall enter in the record of the trial a statement of the contents of any extract conviction that is put in evidence, setting forth the date, the place of trial, the Court, the nature of the crime, the aggravations accompanying it, if any, and the sentence pronounced; and where such person is again accused of any offence, in regard to which such conviction may be competently used as an aggravation, a duly certified extract of the conviction setting forth the particulars of previous conviction as above, shall be admissible and sufficient as evidence to prove against him all the previous convictions and aggravations therein set forth.1
1 See now the Criminal Evidence Act, 1898, s. 1 (ƒ), ante, pp. 1415, and notes 6, 7, and 8 thereto, ante, pp. 29–33.
69. Declarations.]-The declaration of the person accused, the formal parts of which may be written or printed, or partly written and partly printed, duly authenticated by the magistrate examiner as having been emitted before him according to the existing law and practice, shall be received in evidence without being sworn to by witnesses, and it shall not be necessary to insert the names of any witnesses to the declaration in any list of witnesses, either for the prosecution or for the person accused, but it shall be competent for the person accused, before such declaration is read to the jury, to adduce as witnesses the persons who were present when the declaration was emitted, and to examine them upon any matters regarding such declaration on which it would be competent to examine them according to the existing law and practice, and to move the Court to refuse to allow the declaration to be read on grounds appearing on the face of the declaration itself, or on the ground of what is disclosed in such evidence or on both of these grounds, and where a person accused objects to the declaration, the prosecutor shall be entitled to examine any witnesses in regard thereto, whom the person accused may be entitled to examine as aforesaid.
74. Repeal.]-All statutes, laws, regulations, and usages inconsistent or at variance with the provisions of this Act shall be, and the same are hereby repealed: Provided always, that the same shall continue in force in all other respects whatsoever.
75. Act not to apply to treason.]—Nothing in this Act contained shall apply to the crimes of treason or rebellion against the sovereign, or shall affect the procedure in any prosecution or trial for treason, or for rebellion against the sovereign, but all procedure in the prosecution and trial of such crimes shall be conducted according to the existing law and practice.
THE CANADA EVIDENCE ACT, 1893.
56 VICT. c. 31.
Passed 1st April, 1893.
Came into operation 1st July, 1893: s. 29.
2. Application of Act.]-This Act shall apply to all criminal proceedings, and to all civil proceedings and other matters whatsoever respecting which the Parliament of Canada has jurisdiction in this behalf.
4. Competency of accused and of wife and husband.]— Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness, whether the person so charged is charged solely or jointly with any other person.
Proviso as to communications during marriage.]-Provided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage.
(2.) The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the Judge, or by counsel for the prosecution in addressing the jury.1
1 See ante, p. 18.
5. Incriminating answers.]-No person shall be excused from answering any question upon the ground that the
answer to such 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 other person: Provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him other than a prosecution for perjury in giving such evidence.
6. Evidence of mute.]-A witness who is unable to speak, may give his evidence in any other manner in which he can make it intelligible.