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On 14 July 2015, the Supreme Court of B.C. handed down an unprecedented judgment J.P. v. British Columbia (Children and Family Development), 2015 BCSC 1216. This is the first case in Canadian legal history in which child protection workers are found liable for misfeasance in public office, breach of fiduciary duty and breach of the standard of care. Litigations between JP and the MCFD are summarized in JP Aftermath. Our commentary on the Plecas Review Part 1: Decision Time was published on 4 January 2016. On 31 August 2017, the Court of Appeal for B.C. set aside the orders in the civil proceeding against the Director/Province, set aside the finding that Mr. Strickland committed misfeasance in public office, that the Director and her delegates breached their fiduciary duty to the children, and that the Director and her delegates breached the standard of care in the decisions they made with respect to the children while they were in her care.

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Evidence Act

[RSBC 1996] CHAPTER 124

Contents
1 Definitions
2 Application of this Act
3 Competency unaffected by interest or crime
4 Privilege
5 Witness whose capacity is in doubt
6 Person charged and spouse competent
7 Parties to civil causes and their spouses may be witnesses
8 Communications made during marriage need not be disclosed
9 In actions by or against mentally disordered persons
10 Evidence of experts
11 Testimony of experts
12 Section 11 confined to civil proceedings
13 Cross examination of witnesses as to previous statements in writing
14 Proof of prior inconsistent statement made by witness
15 Questioning a witness as to convictions and proving convictions
16 Impeachment and contradiction of witness
17 A witness who is unable to speak
18 Record of Provincial Court
19 Sound recording apparatus and official record
20 Affirmation or oath
21 Validity of oath not affected by absence or difference of religious belief
22 Oath may be administered with uplifted hand
23 Power to administer oaths
24 Judicial notice of statutes
24.1 Judicial notice of treaty first nation laws and Nisga'a Nation laws
25 Proof of state documents
26 Evidence of proceedings in courts in Canada and elsewhere
27 Proof of judge's signature
28 Evidence of documents and proceedings of corporations
29 Evidence of public books and documents
30 No proof of signature or official position
31 Orders signed by Secretary of State
32 Copies in Gazette evidence
33 Evidence of entries in departmental books of governments of Canada and British Columbia
34 Financial institution records
35 Admissibility of photographs taken to keep a permanent record
36 Evidence of notarial acts or instruments made or filed in Province of Quebec
37 Procedure for proving will by production of probate or stamped copy
38 Procedure for proving will by production of probate from court of British possession
39 Certified copies of documents in land title and Supreme Court offices as evidence
40 Certified copies of records of chief gold commissioner or gold commissioner as evidence
41 Production and proof of original documents filed in land title office or County Court
41.1 Definitions
41.2 Application
41.3 Authentication
41.4 Admissibility of electronic court documents
42 Admissibility of business records
43 Proof of commercial paper
44 Proof of attesting witness not required if instrument need not be attested
45 Evidence of disputed writing by comparison with other writing proved to be genuine
46 Impounding documents
47 Filing certified copy as exhibit instead of original
48 Proof of insertion of advertisements in newspapers
49 Leaflet bearing name of printer evidence leaflet printed by that printer
50 Proof of death of member of military
51 Health care evidence
52 Evidence of marriage
53 Power to order examination of witness under commission issued by foreign court
54 Act gives additional powers
55 Affidavit evidence
56 Appointment of commissioners for taking affidavits
57 Fees to be paid by commissioners
58 Commissioner fee exceptions
59 Powers of commissioner
60 Commissioners because of office or employment
60.1 Police forces
61 Social workers
62 Revocation of commissioner appointment
63 Affidavits sworn out of British Columbia for use in British Columbia
64 Commissioned officers empowered to administer oaths
65 Admissibility of documents attesting to affidavits having been sworn
66 Effect given to affidavits
67 Receipt of affidavits despite defects
68 Taking of affidavits required by an insurer
69 Statutory declarations
70 Reports of judge
71 Evidence of previous conviction admissible in subsequent proceeding
72 Testimony outside courtroom or behind screen
73 Witness testifying by closed circuit television or other technology

Evidence of experts

10 (1) In this section and sections 11 and 12, "proceeding" includes a quasi-judicial or administrative hearing but does not include a proceeding in the Court of Appeal, the Supreme Court or the Provincial Court.

(2) This section and section 11 do not apply to proceedings of a tribunal, commission, board or other similar body that enacts or makes its own rules for the introduction of expert evidence and the testimony of experts, and if there is a conflict between any such rules and this section or section 11, those rules apply.

(3) A statement in writing setting out the opinion of an expert is admissible in evidence in a proceeding without proof of the expert's signature if, at least 30 days before the statement is given in evidence, a copy of the written statement is furnished to every party to the proceeding that is adverse in interest to the party tendering the statement.

(4) The assertion of qualifications as an expert in a written statement is proof of the qualifications.

(5) If the written statement of an expert is given in evidence in a proceeding, any party to the proceeding may require the expert to be called as a witness.

(6) If an expert has been required to give evidence under subsection (5) and the person presiding at the hearing is of the opinion that the evidence obtained does not materially add to the information in the statement furnished under subsection (3), the person presiding may order the party that required the attendance of the expert to pay, as costs, a sum the person presiding considers appropriate.

Proof of state documents

25 (1) In this section:

"British possession" includes every dominion of Her Majesty other than Canada and the United Kingdom of Great Britain and Northern Ireland;

"dominion" includes kingdom, empire, republic, commonwealth, state, province, territory, colony, possession and protectorate and, where parts of a dominion are under both a central and a local legislature, includes all parts under the central legislature and each part under a local legislature;

"federal" means, as applied to state documents, of or pertaining to Canada;

"foreign state" includes every dominion other than the Canada, United Kingdom of Great Britain and Northern Ireland or a British possession;

"imperial" means, as applied to state documents, of or pertaining to the United Kingdom of Great Britain and Northern Ireland, or any former kingdom that included England whether the former kingdom was known as the United Kingdom of Great Britain and Ireland or otherwise;

"legislature" includes any legislative body or authority competent to make laws for a dominion;

"province" has, if used in respect of federal or provincial state documents, a corresponding meaning to "provincial";

"provincial" means, as applied to state documents, of or pertaining to any province, colony or territory which, or some portion of which, forms part of Canada;

"Queen's Printer" includes the government printer or other official printer;

"state document" includes any Act or ordinance enacted or made or purporting to have been enacted or made by a legislature, and any order, regulation, notice, appointment, warrant, licence, certificate, letters patent, official record, rule of court or other instrument issued or made or purporting to have been issued or made under any Act or ordinance so enacted or made or purporting to have been enacted or made, and any official gazette, journal, proclamation, treaty or other public document or act of state issued or made or purporting to have been issued or made.

(2) The definitions in subsection (1) apply to all dominions, kingdoms, empires, republics, commonwealths, states, provinces, territories, colonies, possessions and protectorates that

(a) exist now,

(b) existed at any time before now, or

(c) are constituted any time after now.

(3) The existence and the contents, in whole or in part, of an imperial state document may be proved

(a) in the same manner as they may be provable in a court in England,

(b) by producing a copy of the Canada Gazette or a volume of the Acts of the Parliament of Canada purporting to contain a copy of or an extract from it or a notice of it,

(c) by producing a copy of it or an extract from it purporting to be printed by the Queen's Printer for Canada or for a province of Canada,

(d) by producing a copy of it or an extract from it purporting to be

(i) certified as a true copy or extract by the minister, head, deputy minister or deputy head of a ministry or department of the imperial government, or

(ii) an exemplification of it under the imperial Great Seal, or

(e) by producing a copy of it or an extract from it purporting to be certified as a true copy or extract by the custodian of the original document or of the public records from which the copy or extract purports to be made.

(4) The existence and the contents, in whole or in part, of a federal or provincial state document may be proved by producing

(a) a copy of

(i) the Canada Gazette,

(ii) the official gazette for a province,

(iii) a volume of the Acts of the Parliament of Canada, or

(iv) a volume of the Acts of the legislature of a province,

purporting to contain a copy of the state document or an extract from it or a notice of it,

(b) a copy of it or an extract from it purporting to be printed by the Queen's Printer for Canada or for a province,

(c) a copy of it or an extract from it, whether printed or not, purporting to be

(i) certified as a true copy or extract by

(A) the minister, head, deputy minister or deputy head of a ministry or department of the government of Canada or of a province, or

(B) the custodian of the original document or of the public records from which the copy or extract purports to be made, or

(ii) an exemplification of the state document under the Great Seal of Canada or of a province,

and the federal or provincial state document proved must be judicially noticed.

(5) The existence and the contents, in whole or in part, of a state document of a British possession or foreign state may be proved by producing a copy of it or an extract from it,

(a) purporting to be printed by the legislature, government, Queen's Printer, government printer or other official printer of the British possession or of the foreign state,

(b) whether printed or not, purporting to be certified as a true copy or extract by

(i) the minister, head, deputy minister or deputy head of a department of government of the British possession or of the foreign state, or

(ii) the custodian of the original document or the public records from which the copy or extract purports to be made, or

(c) purporting to be an exemplification of the state document under the Great Seal or other state seal of the British possession or of the foreign state.

(6) It is not necessary to prove

(a) the signature or official position of the person by whom the copy or extract, tendered in evidence under this section, purports to be certified, or

(b) that the original document or the public records from which the copy or extract purports to be made were deposited or kept in the custody of the person certifying.

(7) If a copy or extract, tendered in evidence under this section, purports to be printed by a legislature, government, Queen's Printer, government printer or other official printer, it is not necessary to prove the authority, status or official position of the legislature, government, Queen's Printer, government printer or other official printer.

Financial institution records

34 (1) In this section:

"court" means the court, judge, arbitrator, person or persons before whom a legal proceeding is held or taken;

"financial institution" means the Bank of Canada, the Business Development Bank of Canada, a ministry, department or agency of British Columbia or of Canada or an institution incorporated in Canada that accepts deposits of money from its members or the public, and includes a branch, agency or office of that bank, ministry, department, agency or institution;

"legal proceeding" means a civil proceeding or inquiry in which evidence is or may be given, and includes an arbitration.

(2) Subject to this section, a copy of an entry in a book or record kept in a financial institution, in a legal proceeding to which the financial institution is not a party, must be admitted as evidence of the entry and of the matters, transactions and accounts recorded in it.

(3) A copy of an entry in the book or record referred to in subsection (2) must not be admitted in evidence under this section unless it is first proved that

(a) the book or record was, at the time the entry was made, one of the ordinary books or records of the financial institution,

(b) the entry was made in the usual and ordinary course of business,

(c) the book or record is in the custody or control of the financial institution or its successor, and

(d) the copy is a true copy.

(4) For the purposes of subsection (3), the proof may be given by the manager, accountant, former manager or former accountant of the financial institution or its successor, and may be given orally or by affidavit.

(5) Unless by order of the court made for special cause, a financial institution or officer of a financial institution, in legal proceedings to which the financial institution is not a party, is not compellable

(a) to produce a book or record, the contents of which can be proved under this section, or

(b) to appear as a witness to prove the matters, transactions and accounts recorded in the book or record.

(6) On the application of a party to a legal proceeding, the court may order that the party be at liberty to inspect and take copies of entries in the books or records of a financial institution for the purposes of the proceeding.

(7) The person whose account is to be inspected under subsection (6) must be notified personally of the application at least 2 clear days before the hearing of the application, but if the court is satisfied that the person cannot be notified personally, the notice may be given by addressing the notice to the financial institution.

(8) The costs of an application to a court under this section and the costs of anything done or to be done under an order of a court made under this section are in the discretion of the court, which may order them or part of them to be paid to any party by the financial institution if those costs have been occasioned by default or delay on the part of the financial institution.

(9) An order against a financial institution under subsection (8) may be enforced as if the financial institution were a party to the legal proceeding.

(10) A court must admit in evidence as proof that a person has no account in a financial institution, from which a cheque has been drawn by that person, a sworn affidavit of the manager or accountant of the financial institution setting out that

(a) he or she is the manager or accountant, as the case may be,

(b) he or she has carefully examined and searched the books and records to determine whether or not that person has an account with the financial institution, and

(c) he or she has been unable to find the account.

(11) Holidays must be excluded from the computation of time under this section.

Admissibility of photographs taken to keep a permanent record

35 (1) In this section:

"person" includes

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

(b) a corporation, and

(c) the heirs, executors, administrators or other legal representatives of a person;

"photograph" includes photographic film, prints, electronic images, reductions and enlargements, microphotographic film and photocopies.

(2) Subject to subsection (2.1), a photograph, taken in the course of an established practice in order to keep a permanent record of a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan, record, book or an entry in that book or record that is kept or held by a person, is admissible in evidence in all cases for all purposes that the object photographed would have been admissible.

(2.1) Nothing in subsection (2) requires the government or the court to provide or make available any equipment, facility or technology to allow or facilitate the introduction into evidence of any photograph in any form or format in which the photograph may be tendered as evidence.

(3) A court may, in the interests of justice, refuse to admit a photograph in evidence under this section.

(4) Subsection (3) does not apply to a photograph tendered in evidence by one or more of the following persons:

(a) a government;

(b) the Bank of Canada;

(c) the registrar of a land title office;

(d) a regional district or an improvement district as defined in the Local Government Act;

(e) a municipality;

(f) a board of school trustees constituted under the School Act;

(f.1) a francophone education authority as defined in the School Act;

(g) a regional hospital district as defined in the Hospital District Act.

(5) A person having knowledge of the facts may give, orally or by affidavit, proof of compliance with this section.

Admissibility of business records

42 (1) In this section:

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

"document" includes any device by means of which information is recorded or stored;

"statement" includes any representation of fact, whether made in words or otherwise.

(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if

(a) the document was made or kept in the usual and ordinary course of business, and

(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.

(3) Subject to subsection (4), the circumstances of the making of the statement, including lack of personal knowledge by the person who made the statement, may be shown to affect the statement's weight but not its admissibility.

(4) Nothing in this section makes admissible as evidence a statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to a fact that the statement might tend to establish.

(5) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible by this section must not be treated as corroboration of evidence given by the maker of the statement.

Health care evidence

51 (1) In this section:

"board of management" means a board of management as defined in the Hospital Act;

"committee" means any of the following:

(a) a medical staff committee within the meaning of section 41 of the Hospital Act;

(b) a committee established or approved by the board of management of a hospital, that includes health care professionals employed by or practising in that hospital, and that for the purpose of improving medical or hospital care or practice in the hospital

(i) carries out or is charged with the function of studying, investigating or evaluating the hospital practice of or hospital care provided by health care professionals in the hospital, or

(ii) studies, investigates or carries on medical research or a program;

(c) a group of persons who carry out medical research and are designated by the minister by regulation;

(d) a group of persons who carry out investigations of medical practice in hospitals and who are designated by the minister by regulation;

"health care professional" means

(a) [Repealed 2006-23-1.]

(b) [Repealed 2006-23-1.]

(c) [Repealed 2003-57-43.]

(d) [Repealed 1998-42-7.]

(e) a person registered as a member of a college established or continued under the Health Professions Act, or

(f) [Repealed 2003-77-37.]

(g) a member of another organization that is designated by regulation of the Lieutenant Governor in Council;

"hospital" means a hospital as defined in the Hospital Insurance Act and includes

(a) a hospital as defined in the Hospital Act, and

(b) a Provincial mental health facility as defined in the Mental Health Act;

"legal proceedings" means an inquiry, arbitration, inquest or civil proceeding in which evidence is or may be given, and includes a proceeding before a tribunal, board or commission, but does not include any of the following proceedings:

(a) a proceeding before a board of management;

(b) a proceeding before a board or body connected with an organization of health care professionals, that is a hearing or appeal concerning the conduct or competence of a member of the profession represented by that organization;

(c) a proceeding in a court that is an appeal, review or new hearing of any matter referred to in paragraph (a) or (b);

"organization of health care professionals" means an organization of health care professionals that is designated by regulation of the Lieutenant Governor in Council for the purposes of this section;

"witness" includes any person who, in the course of legal proceedings,

(a) is examined for discovery,

(b) is cross examined on an affidavit made by him or her,

(c) answers any interrogatories,

(d) makes an affidavit as to documents, or

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

(2) A witness in a legal proceeding, whether a party to it or not,

(a) must not be asked nor be permitted to answer, in the course of the legal proceeding, a question concerning a proceeding before a committee, and

(b) must not be asked to produce nor be permitted to produce, in the course of the legal proceeding, a record that was used in the course of or arose out of the study, investigation, evaluation or program carried on by a committee, if the record

(i) was compiled or made by the witness for the purpose of producing or submitting it to a committee,

(ii) was submitted to or compiled or made for the committee at the direction or request of a committee,

(iii) consists of a transcript of proceedings before a committee, or

(iv) consists of a report or summary, whether interim or final, of the findings of a committee.

(3) Subsection (2) does not apply to original or copies of original medical or hospital records concerning a patient.

(4) A person who discloses information or submits a record to a committee for the purpose of the information or record being used in a course of study, an investigation, evaluation or program of that committee is not liable for the disclosure or submission if the disclosure or submission is made in good faith.

(5) A committee or any person on a committee must not disclose or publish information or a record provided to the committee within the scope of this section or any resulting findings or conclusion of the committee except

(a) to a board of management,

(b) in circumstances the committee considers appropriate, to an organization of health care professionals, or

(c) by making a disclosure or publication

(i) for the purpose of advancing medical research or medical education, and

(ii) in a manner that precludes the identification in any manner of the persons whose condition or treatment has been studied, evaluated or investigated.

(6) A board of management or any member of a board of management must not disclose or publish information or a record submitted to it by a committee except in accordance with subsection (5) (c).

(7) Subsections (5) and (6) apply despite any provision of the Freedom of Information and Protection of Privacy Act other than section 44 (1) (b), (2), (2.1) and (3) of that Act.

(8) Subsection (7) does not apply to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for at least 100 years or to other information that has been in existence for at least 50 years.

Power to order examination of witness under commission issued by foreign court

53 (1) If, on application, it is made to appear to the Supreme Court that a court or tribunal of competent jurisdiction in a foreign country has, by commission, order or other process, duly authorized obtaining the testimony of a witness outside of its jurisdiction but within the jurisdiction of the Supreme Court and the testimony relates to an action, suit or proceeding pending in or before the foreign court or tribunal, the Supreme Court may

(a) order the examination of the witness before the person appointed, and in a manner and form directed by the commission, order or other process,

(b) by the same order or a subsequent order, command either or both of the following:

(i) the attendance of the named witness for the purpose of being examined;

(ii) the production of any writing or other documents mentioned in the order, and

(c) give directions regarding

(i) the time, place and manner of the examination, and

(ii) all other matters connected with the examination that appear reasonable and just.

(2) An order made by the Supreme Court under subsection (1) may be enforced, and any disobedience of it punished, in the same manner as an order made by the Supreme Court in a cause pending in the Supreme Court.

(3) A person whose attendance is ordered under this section is entitled to the same conduct money and payment for expenses and loss of time as on attendance at a trial in the Supreme Court.

(4) A person examined under the commission, order or other process referred to in subsection (1)

(a) has the same right to refuse to answer any questions that the witness would be entitled to refuse to answer in a cause pending in the Supreme Court, and

(b) is not compelled to produce at the examination any writing or document that the person would not be compellable to produce at the trial of the cause referred to in paragraph (a).

(5) If the commission directs, or the instructions of the court accompanying it direct, that the person to be examined must be sworn or must affirm before the commissioner or other person, the commissioner or other person has authority to administer an oath or affirmation to the person to be examined.

Affidavits sworn out of British Columbia for use in British Columbia

63 Oaths, affidavits, affirmations or statutory declarations administered, sworn, affirmed or made in any other province or any country other than Canada before

(a) a magistrate or an officer of a court of justice, a judge or a commissioner authorized to administer oaths in the courts of justice of that province or country, as the case may be,

(b) the mayor or chief magistrate of any city, borough or town corporate, certified under the seal of the city, borough or town corporate, as the case may be,

(c) an officer of any of Her Majesty's diplomatic or consular services exercising the officer's functions in any country other than Canada, including an ambassador, envoy, minister, chargé d'affaires, counsellor, secretary, attaché, consul general, consul, vice consul, proconsul, consular agent, acting consul general, acting consul, acting vice consul and acting consular agent,

(d) an officer of the Canadian diplomatic and consular service exercising the officer's functions in any country other than Canada, including, in addition to the diplomatic and consular officers under paragraph (c), a high commissioner, permanent delegate, acting high commissioner, acting permanent delegate, counsellor and secretary,

(e) a Canadian government trade commissioner or an assistant Canadian government trade commissioner exercising his or her functions in any country other than Canada,

(f) a notary public acting in the territorial limits of the notary's authority, certified under the notary's hand and official seal, or

(g) a commissioner authorized by the laws of British Columbia to take affidavits,

are as valid and effectual, and have the same force and effect as if the oath, affidavit, affirmation or statutory declaration had been administered, sworn, affirmed or made in British Columbia before a commissioner for taking affidavits or other competent authority of the same nature.

Admissibility of documents attesting to affidavits having been sworn

65 (1) A document purporting to have affixed, impressed or subscribed on it or to it

(a) the signature of

(i) a commissioner for taking affidavits for British Columbia,

(ii) a commissioner for taking affidavits within British Columbia,

(iii) a special commissioner for taking affidavits within British Columbia,

(iv) a commissioner for taking affidavits in and for the courts of British Columbia, or

(v) a person designated in section 63 (a) or section 64, or

(b) a seal designated in section 63 (b) together with the signature of the mayor or chief magistrate of the city, borough or town corporate, or

(c) the seal, if any, and signature of any other person designated in section 63,

in testimony of an oath, affidavit, affirmation or declaration having been administered, sworn, made or affirmed by or before him or her, is as valid and effectual as if effected in British Columbia before a commissioner appointed under section 56, and must be admitted in evidence without proof of the signature or, as the case may be, seal and signature, or of the official position of the person.

(2) Subsection (1) applies even though the person whose signature is subscribed in testimony of an affidavit having been sworn is the solicitor or the partner, associate, agent or clerk of the solicitor for the deponent or for the party on whose behalf the affidavit is to be used, and a provision of a statute, rule or regulation inconsistent with this subsection is inoperative.

Reports of judge

70 (1) In this section:

"court" means the Supreme Court;

"family matter" means a cause of action that is, under an Act, commenced or capable of being commenced in a court and concerns

(a) the custody of, maintenance for, or access to a child by a parent or guardian,

(b) the maintenance of a person by a spouse, or

(c) the division or redistribution of real or personal property between members of a family;

"judge" means a judge of the Provincial Court of British Columbia.

(2) For the purposes of this section and an inquiry, report or recommendation made under this section, "child", "family", "parent" and "spouse" mean a child, family, parent and spouse as defined in the Act under which the family matter is commenced or is capable of being commenced in a court, and if a word is not defined in that Act, the word bears its ordinary legal meaning.

(3) A judge may inquire into and submit to a court a report and recommendations concerning a family matter even though a proceeding concerning a family matter is not commenced in a court at the time of the judge's inquiry.

(4) The Lieutenant Governor in Council may prescribe the form of a report under subsection (3).

(5) A report under subsection (3) signed by a judge, or a copy of a report certified by a judge or clerk of the Provincial Court of British Columbia, is, in any proceeding before a court, evidence of the facts stated and recommendations made in the report, and of the authority of the judge or clerk without proof of his or her appointment, authority or signature, but the evidence may be rebutted by other evidence.

(6) Unless a judge otherwise orders, a report under subsection (3) must not be used as evidence in a court unless the person intending to use the report as evidence serves, at least 48 hours before the time the person intends to so use the report, a copy of the report on every party to the proceeding in which the report is to be used.

Evidence of previous conviction admissible in subsequent proceeding

71 (1) In this section:

"conviction" means a conviction

(a) that is not subject to appeal or further appeal, or

(b) for which no appeal is taken;

"finding of guilt" means the plea of guilty made before a court by a defendant to an offence or, as the case may be, the finding by a court that a defendant is guilty of an offence, and the court makes an order directing that the defendant be discharged for the offence either absolutely or on the conditions specified in a probation order, and

(a) the order directing the discharge is not subject to further appeal, or

(b) no appeal is taken in respect of the order directing the discharge,

and 'found guilty' has a corresponding meaning.

(2) Subject to subsection (3), if

(a) a person has been convicted of or is found guilty of an offence anywhere in Canada, and

(b) the commission of that offence is relevant to any issue in an action,

proof of the conviction or the finding of guilt, as the case may be, is admissible in evidence to prove that the person committed the offence, whether or not that person is a party to the action.

(3) If the action in subsection (2) is conducted before a jury, a party has the right to argue at trial, in the jury's absence, that introduction of the evidence referred to in subsection (2) would, in relation to its probative value, unduly influence the jury.

(4) Subsection (3) does not apply to actions for defamation.

(5) A certificate containing the substance and effect of the charge and of the conviction or finding of guilt, as the case may be, purporting to be signed by

(a) the officer having custody of the records of the court in which the offender was convicted or found guilty, or

(b) a person authorized to act for the officer,

is, on proof of the identity of a person named in the certificate as the offender, sufficient evidence of the conviction of that person or the finding of guilt against that person, without proof of the signature or of the official position of the person purporting to have signed the certificate.

(6) If proof of the conviction or finding of guilt of a person is tendered in evidence under subsection (2) in an action for defamation, the conviction or finding of guilt of that person is conclusive proof that that person committed the offence.

(7) If proof of a conviction or a finding of guilt is admitted in evidence under this section, the contents of the information, complaint or indictment relating to the offence for which the person was convicted or found guilty is admissible in evidence.

(8) Subject to subsection (6), the weight to be given to the conviction or finding of guilt must be determined by the judge or jury, as the case may be.

Witness testifying by closed circuit television or other technology

73 (1) In this section:

"court" means the court, judge, justice or other presiding officer before whom a proceeding is held or taken;

"proceeding" means a proceeding in the Court of Appeal, the Supreme Court or the Provincial Court.

(2) A court may allow a witness to testify in a proceeding by means of closed circuit television or any other technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice, or

(b) the technology is not available for the proceeding.

(3) If a party objects to the court receiving evidence in the manner described in subsection (2), the court may consider any of the following circumstances:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present;

(c) the nature of the evidence the witness is expected to give;

(d) any other circumstance the court considers appropriate.

(4) A party intending to call a witness to give evidence in a proceeding by means described in subsection (2) must

(a) give notice of that intention to the court before which the evidence is to be given and to all of the other parties, and

(b) pay all costs associated with the use of the technology unless otherwise ordered by the court.

(5) Notice must be given under subsection (4) (a)

(a) at least 5 days before the witness is scheduled to testify in the proceeding, or

(b) if the court considers it appropriate in the circumstances, within some shorter period specified by the court.

(6) The court must require evidence under subsection (2) to be given

(a) under oath in accordance with the law of British Columbia,

(b) under oath in accordance with the law in the place in which the witness is physically present, or

(c) in another manner that demonstrates that the witness understands that he or she must tell the truth.

(7) When a witness outside of British Columbia gives evidence under subsection (2), the evidence is deemed to be given in British Columbia, and given under oath in accordance with the law of British Columbia, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

(8) Nothing in this section prevents a court from receiving evidence of a witness by means described in subsection (2) if the parties consent.