sec.104Proceedings upon an examination of witnesses in relation to an indictable offence

### sec.104 Proceedings upon an examination of witnesses in relation to an indictable offence The examination of witnesses in relation to an indictable offence— may be conducted by a single justice; and subject to the provisions of section 40 , shall be conducted in the presence and hearing of the defendant, if the defendant is required to be present, and of the defendant’s lawyer (if any). When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices (or if there be more justices than 1 then present, in the opinion of any 1 of such justices) the evidence is sufficient to put the defendant upon trial for an indictable offence then the justices or 1 of them shall— save, with respect to a particular defendant, in relation to evidence given during the absence of that defendant pursuant to the provisions of section 104A , cause to be read to the defendant the deposition of the witnesses who may have given evidence at the examination in the defendant’s absence; and address to the defendant the following words or words to like effect— ‘You will have an opportunity to give evidence on oath before us and to call witnesses for the defence. But first I am going to ask you whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea; and you have nothing to hope from any promise, and nothing to fear from any threat that may have been held out to induce you to make any admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or enter any plea?’. Whatever the defendant may say in answer to the words addressed to the defendant pursuant to subsection (2) shall be reduced to writing and read to the defendant and shall thereupon be signed by the justices and by the defendant, if the defendant so desires, and shall be kept with the depositions of the witnesses and shall, if the defendant is committed to be tried or for sentence, be transmitted with such depositions in accordance with the provisions of section 126 . If the defendant desires to offer evidence with respect to the charge the subject of the examination the justices shall hear and receive all admissible evidence tendered on behalf of the defendant which tends to show whether or not the defendant is guilty of the offence with which the defendant is charged. Where upon the examination the defendant is committed for trial, the justices shall warn the defendant that the defendant may not be permitted at that trial to give evidence of an alibi or to call witnesses in support of an alibi unless the defendant gives to the director of public prosecutions written notice in the prescribed form of that alibi and of those witnesses within the time prescribed by the Criminal Code , section 590A . s 104 amd 1949 13 Geo 6 No. 30 s 18 sub 1964 No. 32 s 40 amd 1973 No. 22 s 5 ; 1975 No. 27 s 42 ; 1977 No. 33 s 4 ; 1980 No. 32 s 3 ; 2004 No. 11 s 596 sch 1 ; 2010 No. 42 s 120 sch ; 2010 No. 26 s 86 ; 2013 No. 35 s 96 (sec.104-ssec.1) The examination of witnesses in relation to an indictable offence— may be conducted by a single justice; and subject to the provisions of section 40 , shall be conducted in the presence and hearing of the defendant, if the defendant is required to be present, and of the defendant’s lawyer (if any). (sec.104-ssec.2) When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices (or if there be more justices than 1 then present, in the opinion of any 1 of such justices) the evidence is sufficient to put the defendant upon trial for an indictable offence then the justices or 1 of them shall— save, with respect to a particular defendant, in relation to evidence given during the absence of that defendant pursuant to the provisions of section 104A , cause to be read to the defendant the deposition of the witnesses who may have given evidence at the examination in the defendant’s absence; and address to the defendant the following words or words to like effect— ‘You will have an opportunity to give evidence on oath before us and to call witnesses for the defence. But first I am going to ask you whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea; and you have nothing to hope from any promise, and nothing to fear from any threat that may have been held out to induce you to make any admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or enter any plea?’. (sec.104-ssec.3) Whatever the defendant may say in answer to the words addressed to the defendant pursuant to subsection (2) shall be reduced to writing and read to the defendant and shall thereupon be signed by the justices and by the defendant, if the defendant so desires, and shall be kept with the depositions of the witnesses and shall, if the defendant is committed to be tried or for sentence, be transmitted with such depositions in accordance with the provisions of section 126 . (sec.104-ssec.4) If the defendant desires to offer evidence with respect to the charge the subject of the examination the justices shall hear and receive all admissible evidence tendered on behalf of the defendant which tends to show whether or not the defendant is guilty of the offence with which the defendant is charged. (sec.104-ssec.5) Where upon the examination the defendant is committed for trial, the justices shall warn the defendant that the defendant may not be permitted at that trial to give evidence of an alibi or to call witnesses in support of an alibi unless the defendant gives to the director of public prosecutions written notice in the prescribed form of that alibi and of those witnesses within the time prescribed by the Criminal Code , section 590A . - (a) may be conducted by a single justice; and - (b) subject to the provisions of section 40 , shall be conducted in the presence and hearing of the defendant, if the defendant is required to be present, and of the defendant’s lawyer (if any). - (a) save, with respect to a particular defendant, in relation to evidence given during the absence of that defendant pursuant to the provisions of section 104A , cause to be read to the defendant the deposition of the witnesses who may have given evidence at the examination in the defendant’s absence; and - (b) address to the defendant the following words or words to like effect— ‘You will have an opportunity to give evidence on oath before us and to call witnesses for the defence. But first I am going to ask you whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea; and you have nothing to hope from any promise, and nothing to fear from any threat that may have been held out to induce you to make any admission or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial. Do you wish to say anything in answer to the charge or enter any plea?’.