Military Rules of Evidence (C.R.C., c. 1049)

Short Title

1 These Rules may be cited as the Military Rules of Evidence.

Interpretation

• 2 (1) In these Rules, unless the context otherwise requires,

  accused

  accused means the accused personally or counsel or a defending officer acting on behalf of the accused, but does not include an adviser acting on behalf of the accused; (accusé ou prévenu)

  admissible

  admissible means admissible in evidence; (admissible)

  burden of persuasion

  burden of persuasion means the burden of convincing the court of the existence or non-existence, or probable existence or non-existence, of any fact; (fardeau de la persuasion)

  business

  business means every kind of business, occupation or calling, and includes the practice of a profession, and the operation of an institute and every kind of institution, whether carried on for profit or not; (entreprise)

  circumstantial evidence

  circumstantial evidence means evidence tending to establish the existence or non-existence of a fact that is not one of the elements of the offence charged, where the existence or non-existence of that fact reasonably leads to an inference concerning the existence or non-existence of a fact that is one of the elements of the offence charged; (preuve par présomption)

  confession

  confession means a statement made by an accused person, whether made before or after he is accused of an offence, that is completely or partially self-incriminating with respect to the offence of which he is accused; (aveu)

  credibility

  credibility means the degree of credit the court should give to the testimony of a witness; (crédibilité)

  declarant

  declarant means the person who originally makes a hearsay statement; (déclarant)

  direct evidence

  direct evidence means evidence tending directly to establish the existence or non-existence of an element of the offence charged; (preuve directe)

  evidence

  evidence means anything that has a significant rational tendency to make something manifest; (preuve)

  examined copy

  examined copy means a copy proved to have been compared with the original and to correspond to it; (copie conforme)

  expert witness

  expert witness means a witness qualified under section 81; (témoin expert)

  extra-judicial statement

  extra-judicial statement means in any proceedings of a court martial a hearsay statement that has been made by a declarant, other than in the course of those proceedings or in the course of taking evidence taken on commission for that court martial, and includes

  • (a) words, oral or written, used by him,

  • (b) the adoption, in some way, in whole or in part, of meaningful words uttered by another person as an accurate expression of the declarant’s own observations or experience, and

  • (c) the expression, in an intelligible manner, of the declarant’s observations or experience; (déclaration extrajudiciaire)

  judicial notice

  judicial notice means acceptance by a court of the truth of a fact or matter without requiring the introduction of evidence to prove its truth; (connaissance judiciaire)

  opinion

  opinion means interpretation of, or inference concerning, the significance in some respect of a given fact; (opinion)

  ordinary witness

  ordinary witness means a witness who testifies to facts observed or experienced by him, but who is not testifying as an expert in the matter concerned; (témoin ordinaire)

  public document

  public document includes a documentary statement made for an official purpose by a public officer acting under a duty or authority to make the statement; (document public)

  public officer

  public officer means a person having a legal duty or authority to make official statements which duty or authority is expressly imposed by or given in a statute, regulation or specific instruction, or implied from the nature of the office because he is an official of the Government of Canada, the government of a Canadian province, a Canadian municipality, or because he is a member of the Canadian Forces; (fonctionnaire public)

  Queen’s Regulations and Orders

  Queen’s Regulations and Orders or QR&O means the Queen’s Regulations and Orders for the Canadian Forces; (Ordonnances et Règlements royauxouORFC)

  real evidence

  real evidence means all evidence supplied by material objects when they are offered for direct perception by the court; (preuve réelle)

  rebuttable presumption of law

  rebuttable presumption of law means a presumption authorized by the National Defence Act, the Criminal Code or other Act of the Parliament of Canada that upon proof of a certain fact or set of facts, another fact exists, unless evidence to the degree required by law renders its existence unlikely; (présomption réfutable de droit)

  relevant evidence

  relevant evidence means evidence relating to a fact in issue at the trial, and includes evidence that tends to establish the cogency or accuracy of either direct or circumstantial evidence; (preuve pertinente)

  reporting witness

  reporting witness means a witness who is permitted to quote an extra-judicial statement; (témoin rapporteur)

  self-incriminating statement

  self-incriminating statement means a statement by the accused that, if admitted in evidence and believed in whole or in part, would directly or indirectly tend to prove the accused guilty of the charge; (déclaration renfermant une incrimination de soi-même)

  trial

  trial means trial by court martial. (procès)

• (2) Unless otherwise prescribed, or the context otherwise requires, words and phrases used in these Rules have the same meaning as in the National Defence Act and Queen’s Regulations and Orders.

Application

3 These Rules apply to all court martial proceedings and are not affected by the territorial location of the place where the court martial is sitting.

Cases Not Provided For

4 Where, in any trial, a question respecting the law of evidence arises that is not provided for in these Rules, that question shall be determined by the law of evidence, in so far as it is not inconsistent with these Rules, that would apply in respect of the same question before a civil court sitting in Ottawa.

Functions of Judge Advocate Under Rules

• 5 (1) Subject to subsection (2), when the judge advocate has the power or obligation under these Rules to determine a question, that power may be exercised or that obligation discharged only in accordance with QR&O 112.06.

• (2) If the judge advocate is not directed by the president to hear and determine a question, or if there is no judge advocate, the court shall hear and determine the question.

Effect of Failure to Comply with Rules

6 A finding made or a sentence passed by a court martial is not invalid by reason only of deviation from or failure to comply with these Rules unless it appears that a substantial miscarriage of justice has been caused by that deviation or failure.

PART IEvidence and Proof Generally

DIVISION IAdmission of Evidence Generally

Admission of Evidence

7 Subject to section 4 and except as prescribed in Parts III and IV, the court shall not admit irrelevant evidence but shall admit and consider all relevant evidence.

Necessity for Evidence

8 Except for those facts of which it has taken judicial notice under Division III, the court shall not consider a fact unless evidence of that fact has been adduced in one of the following ways:

• (a) by the oral testimony of a witness in court pursuant to Parts III and IV;

• (b) by the production and reading or inspection of documents in court pursuant to Parts III and IV;

• (c) by the inspection or viewing by the court of real evidence pursuant to Part IV;

• (d) by the admission by the prosecutor during the course of the trial of the existence of a fact, for the purpose of dispensing with proof thereof, the effect of which is to narrow the area of facts to be proved by the defence; and

• (e) by a judicial confession pursuant to section 37.

DIVISION IIBurden of Persuasion and Rebuttable Presumptions of Law

Burden of Persuasion — General Rule

9 Notwithstanding that the burden of persuasion is on the prosecutor or the accused, the court shall not find the accused guilty unless persuaded beyond reasonable doubt of the truth of every essential element of the charge.

Burden of Persuasion on Prosecutor

10 Subject to section 11, the prosecutor has the burden of persuading the court beyond reasonable doubt of the truth of every essential element of the charge.

Burden of Persuasion on Accused

• 11 (1) When an accused seeks acquittal on the ground of insanity, he has the burden of persuasion as to the existence of the type and degree of insanity necessary for acquittal.

• (2) When, under the Criminal Code or other Act of the Parliament of Canada, the accused would, in the trial of a criminal offence before a civil court, have the burden of persuasion on a material fact other than or in addition to insanity, the accused has that burden of persuasion in a trial by court martial involving the same offence and material fact.

• (3) The accused has the burden of persuasion under the National Defence Act when that Act so provides.

• (4) When the accused has a burden of persuasion under this section, the court shall consider him to have satisfied that burden if he establishes the probable truth or existence of the material fact.

Burden of Producing Evidence

• 12 (1) The burden of producing evidence of a material fact or on an issue is in the first instance upon the party who has the burden of persuasion on that fact or issue.

• (2) The burden of producing evidence of a material fact or on an issue shifts to the other party during the course of a trial when the party on whom for the time being the burden of producing evidence rests has

  • (a) produced evidence that reasonable men might consider has proved the fact in issue to the extent that is required to be proved by that party; or

  • (b) established the fact in his favour by a rebuttable presumption of law under section 13.

Rebuttable Presumptions of Law

13 A rebuttable presumption of law applies in a trial when the offence to which it is applicable is in issue.

PART IIJudicial Notice

DIVISION IIIJudicial Notice

Limitation on Judicial Notice

14 Except as authorized by these Rules, a court shall not take judicial notice of a fact or matter.

Required Judicial Notice

• 15 (1) A court shall, whether or not requested to do so by the prosecutor or the accused, take judicial notice of

  • (a) the accession and death of the Sovereign;

  • (b) the title and sign manual of the Sovereign;

  • (c) the constitution of Canada;

  • (d) the Great Seal of Canada;

  • (e) Acts and resolutions of the Parliament of Canada;

  • (f) Acts and resolutions of the legislatures of the provinces and Territories of Canada;

  • (g) the territorial limits of Canada and of the provinces of Canada;

  • (h) the existence of an emergency recognized by the Government of Canada;

  • (i) the component or unit being on active service; and

  • (j) the status of foreign governments.

• (2) A court shall, whether or not requested to do so by the prosecutor or the accused, take judicial notice of the contents of, but not of the publication or sufficiency of notification of, proclamations, orders in council, ministerial orders, warrants, letters patent, rules, regulations or by-laws made directly under authority of a public Act of the Parliament of Canada or of the legislature of a province of Canada, including but not limited to QR&O and orders and instructions issued in writing by or on behalf of the Chief of the Defence Staff under QR&O 1.23.

Discretionary Judicial Notice

• 16 (1) Subject to section 18, a court may, whether or not requested to do so by the prosecutor or the accused, take judicial notice of the contents of

  • (a) law reports containing decisions, and the reasons therefor, of the Court Martial Appeal Board and appeal courts mentioned in sections 201 and 208 of the National Defence Act;

  • (b) the Canada Gazette and official gazettes of the provinces of Canada;

  • (c) subject to Division IV and to proof of identity of the person named therein,

    • (i) records of findings made and sentences passed at courts martial and summary trials, but not of the evidence adduced thereat,

    • (ii) records of the disposition made on appeals from courts martial or reviews of courts martial or petitions for new trial, and

    • (iii) subject to section 105, certificates of civil courts setting forth an offence for which a person was tried, and the judgment or order of the court thereon;

  • (d) official and departmental reports, forms, documents, commissions, and other papers purporting to be printed by the Queen’s Printer, or by the Queen’s Printer of a province of Canada; and

  • (e) books and other publications, and amendments to them, that are authorized officially for military use.

• (2) Subject to section 18, a court may, whether or not requested to do so by the prosecutor or the accused, take judicial notice of

  • (a) all matters of general service knowledge;

  • (b) particular facts and propositions of general knowledge that, in view of the state of commerce, industry, history, language, science or human activity, are at the time of the trial so well known in the community where the offence is alleged to have been committed that they are not the subject of reasonable dispute; and

  • (c) particular facts and propositions of general knowledge, the accuracy of which is not the subject of reasonable dispute, that are capable of immediate and accurate verification by means of readily available sources.

Judicial Notice on Request

• 17 (1) The prosecutor or the accused may request the court to rule that a fact or matter is within section 15 or 16, and he shall, if requested by the court, furnish the court with information relevant to the fact or matter.

• (2) The court shall give the adverse party an opportunity to oppose the granting of the request.

Determination of Propriety of Taking Judicial Notice

• 18 (1) When a court proposes to take or appears to be taking judicial notice of a fact or matter under section 15 or 16, or is requested to take judicial notice of it under section 17, both prosecutor and accused have the right to submit informally evidence and argument as to the competence of the court to take, or the propriety of the court taking, judicial notice.

• (2) When the court or the judge advocate raises a question as to whether judicial notice may be taken of a fact or matter under section 15 or 16, the judge advocate shall decide the question, and his decision shall be final.

• (3) When determining whether to take judicial notice of a fact or matter, the members of a court and the judge advocate may consult any source of pertinent information, including a person, document or book, whether or not furnished by a party, and use the information obtained therefrom.

• (4) If the information possessed by the court, regardless of source, fails to convince the judge advocate that a fact or matter is clearly within section 15 or 16, he shall rule against taking judicial notice of the fact or matter.

Effect of Taking Judicial Notice

• 19 (1) No evidence of a fact of which a court has taken judicial notice need be given by the party alleging its existence or truth.

• (2) When a court has taken judicial notice of a fact, it is conclusively taken to be true, and no allegedly contradictory evidence is thereafter admissible.

PART IIIMethods of Proof and Forbidden Types of Evidence

DIVISION IVCharacter and Similar Facts

Evidence of Character and Similar Facts Not Ordinarily Admissible before Finding

20 Except as prescribed in this Division, the prosecutor shall not introduce evidence of the general bad character or reputation of the accused, or of another act or other acts of the accused similar in essential respects to the act charged.

Character Evidence

• 21 (1) The accused may, by cross-examination or by witnesses, introduce evidence of his good character or reputation and, if he does so, the prosecutor may similarly introduce evidence to rebut it.

• (2) A witness testifying as to the character or reputation of the accused may

  • (a) report the general reputation of the accused among those who know him or would know about him respecting traits of his character relevant to the charge; and

  • (b) state his personal opinion of the general character of the accused in respects relevant to the charge.

• (3) When a witness is testifying as to the character or reputation of the accused, he shall not give evidence of particular acts of the accused as the basis of his report or opinion of the reputation or character of the accused, but shall answer questions concerning the duration and nature of his acquaintance or association with the accused, or with others who would be likely to know the accused.

• (4) Notwithstanding Divisions V, VI, VII and VIII, hearsay or opinion evidence permitted under this article is admissible.

• (5) This section applies to testimony in the course of examination-in-chief, cross-examination and re-examination.

Evidence of Similar Facts

• 22 (1) If it has been established that the act referred to in the charge was done by someone, but the state of mind or identity of the actor is in doubt, the prosecutor may, subject to subsections (2) and (3), introduce evidence of another act or other acts of the accused similar in essential respects to the act charged, where either or both of the following facts are in issue and the evidence tends to prove one or both of them:

  • (a) that the state of mind of the accused was wrongful as charged at the material time, that is, that he did the act charged either knowingly, or with wrongful intent, motive or purpose; or

  • (b) that there has been no mistake in the identity of the accused as being the person who did the act charged.

• (2) When attempting to prove the charge against the accused, the prosecutor shall establish a real suspicion of the guilt of the accused on issues of state of mind or identity with evidence other than that of essentially similar acts of the accused, before he may introduce evidence of essentially similar acts of the accused.

• (3) Although the prosecutor has evidence to offer within subsections (1) and (2), the judge advocate shall exclude that evidence if he decides that its probative value is slight or that it would have an undue tendency to arouse prejudice against the accused, thereby impairing the fairness of the trial.

Possession of Property Obtained by Commission of Offence

• 23 (1) Subject to subsection (2), when a person is charged with an offence under section 105 of the National Defence Act of receiving or retaining in possession property obtained by the commission of a service offence, evidence may be introduced by the prosecutor to show

  • (a) that property other than the property that is the subject matter of the charge

    • (i) was found in the possession of the accused, and

    • (ii) was stolen within 12 months before the charge was laid, and

  • (b) if evidence is adduced that the property that is the subject matter of the charge was found in the possession of the accused, that the accused was, within five years before the charge was laid, convicted of an offence

    • (i) involving theft,

    • (ii) under section 105 of the National Defence Act, or

    • (iii) under section 312 or paragraph 314(1)(b) of the Criminal Code,

  and that evidence may be taken into consideration for the purpose of proving that the accused knew that the property forming the subject matter of the charge was unlawfully obtained.

• (2) Subject to section 99, this section shall not apply unless the accused is given at least three days notice in writing of the details of the matters it is intended to prove and, in respect of property other than that forming the subject of the charge, a description of that property and of the person from whom it is alleged to have been stolen.

Offences under Security of Information Act

24 When a person is charged under section 130 of the National Defence Act with having committed an offence under section 6 of the Security of Information Act, the prosecutor may adduce evidence of that person’s character.

Admissibility after Finding

25 When there has been a finding of guilty and the trial continues to determine the appropriate sentence, evidence may be submitted in accordance with paragraphs 20 and 21 of QR 112.05, QR 112.47 and QR 113.13.

DIVISION VHearsay Evidence

Hearsay Generally Excluded

• 26 (1) Except as provided in this Division, Division VI and Division VII, an extra-judicial statement is not admissible.

• (2) Except where the declarant is an accused person whose confession is admissible under Division VI, and subject to subsection (4), the declarant must meet the same requirements for competence and qualification respecting his extra-judicial statement that a witness must meet under Division X, and the credibility of the declarant may be impeached or supported in the same way as that of a witness under Division X in so far as this is practical.

• (3) Subject to subsections (4), (5) and (6), the reporting witness must be a competent and qualified witness within the meaning of Division X, and must personally have heard or seen the declarant make the hearsay statement in question.

• (4) A witness who is a person who would be likely to know about the accused may report the reputation of the accused among those associated with him in accordance with sections 21 and 34.

• (5) A witness may offer primary or secondary evidence of a document as permitted by Division XII, if the documentary statement concerned is admissible under section 51, 52, 53 or 54.

• (6) An expert witness may quote the hearsay statement of another expert as permitted by sections 56 and 57.

Words as Facts in Issue

27 An extra-judicial statement is admissible and may be quoted by a reporting witness where the essential elements of the offence charged are such that the words constituting the statement might themselves be

• (a) the very means or instrument whereby the offence charged was committed,

• (b) as essential feature of the commission of the offence charged,

• (c) an indispensable preliminary to the commission of the offence charged, or

• (d) the substance of a legal defence to the offence charged.

Words Essential to Give Character to Acts that are Facts in Issue

• 28 (1) For the purposes of this section, “acts” does not include the uttering of coherent words.

• (2) When a person has committed acts that are alleged to be criminal acts according to the charge, but their criminal character by themselves is ambiguous or doubtful, words of the actor or another person present that were substantially contemporaneous with the acts and that suggest some further inference concerning the nature or quality of the acts are, subject to subsection (3), admissible and may be quoted by a reporting witness.

• (3) The words of a declarant under subsection (2) shall not be admissible if the party to whom the statement is adverse shows that the declarant had motive and opportunity before making the hearsay statement to contrive deceitful words to his own advantage, and in the particular circumstances was likely to have done so.

Words Essential to Prove Relevant Mental or Internal Physical State

• 29 (1) When the formation, occurrence or existence at some moment or during some period of a particular state of mind or internal physical condition of a person is relevant directly or indirectly to proof of the charge, words uttered by that person contemporaneously with the formation, occurrence or existence of that mental or physical state, and manifesting or implying something about the nature of it, are, subject to subsection (2), admissible and may be quoted by a reporting witness.

• (2) The words of a declarant under subsection (1) shall not be admissible if the party to whom the statement is adverse shows that the declarant had motive and opportunity before making the hearsay statement to contrive deceitful words to his own advantage, and in the particular circumstances was likely to have done so.

Spontaneous Words in Emergency Situation

30 Where a person has participated in or observed acts or events with which the charge in question is concerned, and these acts or events were of an exciting, startling or shocking character, words about them spoken spontaneously by the participant or observer, while he was under the influence of the original excitement or shock engendered by those acts or events, whether during or after their occurrence, are admissible and may be quoted by a reporting witness.

Complaints

• 31 (1) For the purposes of this section,

  complainant

  complainant means a person who made a complaint; (plaignant)

  complaint

  complaint means an extra-judicial statement concerning an offence made after the alleged commission of that offence to a person other than the accused by the person in respect of whom it is alleged to have been committed. (plainte)

• (2) Except as otherwise provided in these Rules, a complaint is not admissible.

• (3) The fact of a complaint having been made is admissible.

• (4) [Revoked, SOR/90-306, s. 1]

Dying Declarations

32 The words of a deceased person whose death is the subject of the charge are admissible and may be quoted by a reporting witness if

• (a) they are concerned with the facts leading up to or attending the injurious act that resulted in the declarant’s death;

• (b) they were spoken while the declarant had a settled hopeless expectation that his death was near, whether or not death did thereafter occur as or when expected; and

• (c) it appears that the declarant had completed uttering what he wished to say before death intervened.

Statements Made in Course of Duty by Persons since Deceased

33 An extra-judicial statement made during the lifetime of a declarant since deceased is, in so far as it relates to the charge, admissible and may be quoted or submitted by a reporting witness as proof of the facts, which it was the duty of the declarant in the ordinary course of his business to include in that statement, if the declarant

• (a) had a personal knowledge of the facts;

• (b) had a duty to make the statement in the ordinary course of his business;

• (c) made the statement at or near the time of the act or event to which it relates; and

• (d) had no motive to misrepresent the facts.

Declarations on Character Reputation of Accused

34 When, in accordance with section 21, a witness is called at a court to testify as to the reputation of the accused respecting traits of his character relevant to the charge, the hearsay statements on this subject of other persons who had or who have some significant direct or indirect association with the accused are admissible and may be quoted by the witness.

Self-Serving Evidence

• 35 (1) For the purposes of this section, self-serving evidence means any extra-judicial statement of the accused, or evidence of any other nature manufactured, created or arranged by the accused, that tends to exonerate him of the charge.

• (2) Except to the extent that it may be admissible under section 27, 28, 29, 30 or 60, and subject to the right of the accused to give evidence, self-serving evidence is not admissible when submitted by an accused.

DIVISION VIConfessions of Accused Persons

Types of Confessions

36 Confessions are judicial, official or unofficial.

Judicial Confession Explained

37 When, at his trial, the accused chooses to make a complete or partial admission of incriminating facts in respect of an offence for which he is being tried, he may make a judicial confession

• (a) by pleading guilty, including pleading guilty subject to variations and exceptions, when this plea is accepted by the court under QR&O 112.25;

• (b) after pleading not guilty, and whether or not he also decides to testify as a witness under oath, by personally or through his counsel or defending officer admitting, for the purpose of dispensing with proof, any fact the prosecutor must prove; or

• (c) after pleading not guilty, and having elected to testify under oath as a witness in accordance with section 73, by making a self-incriminating statement in the course of his testimony.

Effect of Judicial Confession

• 38 (1) Subject to QR&O 112.26, when a plea of guilty has been made by the accused and accepted by the court, it is conclusive proof of guilt.

• (2) If the accused, after pleading not guilty, admits, other than in the course of his own testimony, a fact alleged against him, the court may accept that admission as conclusive proof of the fact concerned.

• (3) If the accused testifies on his own behalf, the court may believe or disbelieve his testimony in whole or in part, including a self-incriminating statement made in the course of that testimony.

Official Confession Defined

• 39 (1) An official confession is a confession made by the accused, whether or not he has been charged, or might expect to be charged, with an offence at the time of making a statement

  • (a) when testifying as a legally compellable witness in the course of any judicial or other official proceeding or inquiry, civil or military, other than his own trial for the offence in question; or

  • (b) in the course of giving information pursuant to regulations or orders issued by the Chief of the Defence Staff under QR&O 1.23, or in response to an order to him by a superior officer to give information required for any proper military purpose

• (2) Notwithstanding paragraph (1)(b), a statement made by the accused in the course of giving information in respect of an accident that has occurred outside Canada involving a motor vehicle under the care, charge or control of the accused is not an official confession for the purpose of these Rules to the extent that the accused, if the accident had occurred in Canada, would have been required by subsection 233(2) of the Criminal Code to make the statement.

Admissibility of Official Confession

• 40 (1) Subject to subsection (2), an official confession by the accused shall not be admissible or used in his trial for an offence in respect of which it is a confession.

• (2) When the charge involves perjury, giving false or contradictory evidence, or making a false or contradictory statement, and is based upon a previous statement of the accused purporting at least in part to be an official confession, the prosecutor may introduce this previous statement in evidence.

Unofficial Confession Defined

41 An unofficial confession is a self-incriminating statement made by the accused respecting the offence charged, other than a statement which is a judicial confession under section 37 or an official confession under section 39, and includes a statement made by the accused to civil or military police or other persons in authority as defined in subsection 42(3), whether or not in response to questions by such a person.

Admissibility of Unofficial Confession

• 42 (1) Subject to subsection (9) and Division IX (Effect of Public Policy and Privilege), a statement by the accused alleged to be an unofficial confession may be introduced in evidence by the prosecutor if he proves that

  • (a) there is evidence that the accused did make the statement attributed to him; and

  • (b) the statement was voluntary in the sense that it was not made by the accused when or because he was or might have been significantly under the influence of

    • (i) fear of prejudice induced by threats exercised, or

    • (ii) hope of advantage induced by promises held out, in relation to the offence in question, by a person in authority.

• (2) The only inducements by way of threats or promises significant for the purpose of excluding a statement of the accused under subsection (1) are those that a reasonable man would think might have a tendency to cause an innocent accused person to make a false confession.

• (3) A person in authority is one who was in a position relative to the accused at the material time to exercise or hold out inducements of the character described in subsections (1) and (2) or was someone who might reasonably have appeared to the accused to be in such a position.

• (4) A person may be a person in authority within subsection (3) and possess power by military law to order the accused to answer relevant questions, and yet clearly not exercise nor purport to exercise this power in a particular case, so that a voluntary confession within subsections (1) and (2) might in some circumstances be made by the accused to such a person.

• (5) A person who holds a higher service rank than the accused is not, for that reason alone, a person in authority within subsection (3).

• (6) Subject to subsection (7), when an unofficial confession is admissible under this section, the whole of it, including any part that is exculpatory, shall be admitted.

• (7) When an unofficial confession contains a statement that the accused has committed an offence other than that with which he is charged, the part of the confession relating to that other offence shall not be admitted unless it is relevant to and otherwise admissible in respect of the offence with which he is charged.

• (8) The admissibility of an alleged unofficial confession tendered by the prosecutor should be determined at a hearing by the judge advocate in the absence of the court.

• (9) The admissibility of a statement made by an accused in the circumstances described in subsection 39(2) to the extent that the statement is not an official confession shall be determined in accordance with the rules of evidence that would have been applied by a court of criminal jurisdiction as defined in the Criminal Code sitting in Ottawa if the statement has been made by the accused in the course of giving his name and address pursuant to subsection 233(2) of the Criminal Code.

Statements in Presence of Accused

• 43 (1) When a statement has been made by another person in the presence of the accused that, if true, would incriminate the accused in whole or in part respecting the offence in question, and the statement was fully understood by the accused, then if it was also clear from the contemporaneous words, conduct or demeanour of the accused that he accepted the statement as true in whole or in part, the statement to the extent that he so accepted it may be treated as an unofficial confession made by the accused.

• (2) Whether a statement described in subsection (1) should be deemed to have been fully understood and accepted by the accused as true in whole or in part is, as regards admissibility, a question for the judge advocate under subsection 42(8).

Evaluation of Unofficial Confession

• 44 (1) The decision as to the truth or falsity in whole or in part of an unofficial confession is exclusively a matter for the court.

• (2) It is the duty of the court to consider whether an unofficial confession is to be believed or disbelieved in whole or in part in the light of its nature, the circumstances in which it was made, and other relevant and admissible evidence available.

• (3) The court may convict on the basis of a complete unofficial confession alone, if it is satisfied beyond a reasonable doubt of its truth.

Accomplice’s Evidence

45 Subject to section 46, where two or more persons are accused of complicity in the same offence, the confession of any one of them is admissible evidence against that one alone, and not against the others.

Conspirator’s Evidence

• 46 (1) When two or more persons are alleged to have been parties to a common criminal plan or design, the words of one of them, apparently spoken or written as part of or in furtherance of the formation or carrying out of that plan, are admissible as evidence against the others as well as against the speaker or writer.

• (2) Subsection (1) applies whether the charge alleges the conspiracy itself, or the commission of the offence planned, or the attempt to commit it, and whether an accused is charged singly, or jointly with the alleged co-conspirator whose words purport to incriminate them.

• (3) The probative value of evidence admitted under subsection (1) is a matter for the court.

Evidence Discovered from Inadmissible Confession

47 Where an official or unofficial confession is inadmissible under section 40 or 42, but has led to the discovery of other evidence of independent probative value tending to show the accused guilty as charged, that evidence may be given or produced in the usual way by prosecution witnesses, and they may also tell the court that the evidence was discovered because of information given by the accused, but there shall be no other reference to the inadmissible confession.

Self-Incrimination

48 Except as provided in these Rules, an accused person, when giving evidence, has no privilege against self-incrimination by his own statements.

Statements not Treated as Confessions

49 A statement that meets the conditions for admission in section 27, 28, 29, 30 or 60 need not also meet the requirements of this Division, though the statement is classifiable as an unofficial confession.

DIVISION VIIOther Kinds of Hearsay Evidence

Statements by Persons Other than Accused made in Judicial or Other Official Proceedings

• 50 (1) Evidence taken on commission under section 161 of the National Defence Act is admissible as provided therein.

• (2) When an accused person has been tried by court martial and found guilty, but a new trial on the same charge has been ordered, evidence given at the former trial by a witness other than the accused may be quoted at the new trial when proved as provided by Division XII if it appears that

  • (a) the former witness is not available to testify at the new trial because he refuses to be sworn or to give evidence at the new trial, or he is dead, or insane, or absent from the country where the trial is being held, or so ill as to be unable to travel; and

  • (b) the evidence of the former witness was given in such circumstances that the parties had full opportunity to exercise their respective rights of examination of the witness.

Public Documents

• 51 (1) Subject to section 55, a public document is admissible in evidence at a court martial when relevant to the charge.

• (2) The making and content of a public document may be proved in the manner provided in Division XII without requiring the personal appearance of the maker as a witness.

• (3) A public officer making a public document need not have personally observed or experienced the facts that he records or certifies by virtue of his duty or office; it is enough if the information concerned has come to him in a manner considered reliable and usual in the discharge of his duty or the exercise of his authority, and this includes facts reported to him by his superiors, equals or subordinates or by members of his staff, when acting in the discharge of their duties or the exercise of their authorities.

• (4) Public documents may be in any form including registers, records, books, maps, recordings, photographs, returns, reports and letters.

• (5) It is immaterial for purposes of admission how public documents are filed, collected, bound or stored by the person or persons responsible for their custody, or whether such documents are normally classified for security purposes and it is not a requirement for its admissibility that a public document should form part of a register or record to which members of the general public are entitled to access, it is enough if the document was made for any official purpose.

Public Documents of Other Countries

• 52 (1) For the purposes of this section, a public officer of a country other than Canada is a person who in the opinion of the judge advocate appears to hold an equivalent position and to possess similar authority to a Canadian public officer.

• (2) The judge advocate may permit a documentary statement made for an official purpose by a public officer of a country other than Canada to be admitted in evidence to the same extent and in the same manner that an equivalent Canadian public document would be admissible under section 51 and Division XII.

Documents of Canadian Forces

53 Subject to section 55, and without limiting the general provisions of section 51, the following classes of service documents are deemed to be public documents and may be proved in the manner provided in Division XII without requiring the personal appearance of the maker as a witness:

• (a) orders and instructions issued in writing by or on behalf of military commanders under the authority of Queen’s Regulations and Orders;

• (b) official gradation and seniority lists; and

• (c) documents and records kept for official purposes, including those kept in respect of officers and men.

Regular Entries

54 Subject to section 55, a record in any business of an act, condition or event, in so far as relevant, shall be admissible in evidence if proved under section 106 or 107.

Limitations on Admission of Certain Documents

55 Except as specified in this article, and notwithstanding sections 51, 52, 53 and 54, the following documents shall not be admitted in evidence at a court martial:

• (a) a synopsis prepared pursuant to QR&O 109.02;

• (b) a report of a civil or military investigation relating to the alleged offence;

• (c) a document that contains a statement classifiable as an official or unofficial confession by the accused except when such evidence is admissible under Division VI;

• (d) the record of evidence given before, or the findings or decision of, another judicial or official tribunal or body specifically concerned with the investigation of or punitive action in relation to, the acts and events that form the subject of the charge against the accused before the court martial in question except when necessary as evidence in support of a plea of the accused in bar of trial on the basis of a previous acquittal or conviction for the same offence in accordance with section 56 of the National Defence Act and QR&O 112.24, or when admissible under section 40 or 50; or

• (e) the record of a previous conviction of the accused by a judicial or disciplinary tribunal, except when such evidence is admissible under paragraph (d), Division IV or section 99.

Expert Opinion as Hearsay

56 When the opinion evidence of an expert admissible under Division VIII is based in whole or in part on the hearsay statement of another expert in the same field, that statement is admissible as part of or as a basis for the opinion evidence.

Statements in Learned Treatises

57 Statements in a learned treatise are admissible in evidence if the treatise is identified as authoritative by a witness who is expert in the field with which the treatise is concerned, and any expert in the same field may be asked to explain statements in the treatise.

Statutory Declarations

58 A relevant statement contained in a statutory declaration is admissible under subsection 159(2) of the National Defence Act.

Mode of Proving Documentary Statements and Effect of Admission

• 59 (1) Except where special provision is made in these Rules, the party who seeks to rely on a documentary statement admissible under this Division must prove the existence, character and content of the document concerned by primary or secondary evidence in accordance with Division XII.

• (2) The admission of a document does not mean that statements contained in it must be accepted as accurate.

• (3) The probative value of a documentary statement, the character and content of which has been established, is a matter for the court to determine.

Kinds of Hearsay not Specifically Covered

60 A hearsay statement of a kind not specifically dealt with in Divisions V, VI and VII is admissible and may be quoted by a reporting witness, if

• (a) it would be admissible in a trial involving the same charge or issue in a civil court sitting in Ottawa; and

• (b) its admission would not reduce in any way the rights and privileges of the accused against self-incrimination as provided by these Rules.

DIVISION VIIIOpinion

Opinion — General Rule

61 Except as provided in this Division and Divisions IV and VII, the opinion of a witness is not admissible in evidence.

Expert Witness

• 62 (1) When permitted to give an opinion under this Division or Division VII, an expert witness may give the court that opinion whether or not he has observed the facts needing further interpretation.

• (2) Unless leave is granted by the judge advocate before any experts have been called by a party, not more than three experts may be examined by that party.

Opinion of Expert Witness

• 63 (1) When a matter is within the special knowledge of an expert witness, he may give his expert opinion of the direct or indirect significance relative to the charge or issue

  • (a) of certain relevant facts that have been or may be established by evidence; and

  • (b) hypothetically on the basis of any acceptable version of the facts.

• (2) An expert witness may be questioned as to the grounds of his opinion, and in answering may quote the hearsay statement of another expert in the same field.

Opinion Evidence of Ordinary Witness

• 64 (1) Subject to subsections (2) and (3), an ordinary witness may give his opinion of the significance relative to the charge or issue of certain relevant facts needing further interpretation if

  • (a) those facts were observed or experienced by him; and

  • (b) the inference embodied in his opinion is of a type that persons without special competence in such matters are qualified to make with some accuracy on the basis of their everyday knowledge or experience.

• (2) An ordinary witness may give his opinion under subsection (1) whether or not he can remember the particular personally observed or experienced facts on which he based his opinion, if it was so based.

• (3) An ordinary witness shall not give his opinion under subsection (1) if the members of the court are clearly in as good a position as is the witness himself to form the necessary opinion.

• (4) When permitted to give an opinion under subsection (1), an ordinary witness may be questioned as to the grounds of his opinion.

Opinions of Experts and Ordinary Witnesses

65 Where in the circumstances the requirements of both sections 63 and 64 can be satisfied by an expert and an ordinary witness respectively, each may give his opinion of the significance relative to the charge or issue of the same facts.

Opinion in Comparison of Writing

66 Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine may be made by witnesses acquainted with the writing, or skilled in the comparison of writing, or by the court itself; and the writing, and the evidence of witnesses respecting it, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.

DIVISION IXEffect of Public Policy and Privilege

Secrecy

67 When disclosure of any facts relative to the charge would, in the opinion of the convening authority, be prejudicial to national defence, good international relations or other national interests, evidence of those facts may not be given at a trial open to the public but, subject to section 68, may be given at a trial when the public has been excluded in accordance with QR&O 112.10.

Effect on Trial if Secrecy Precludes Disclosure

68 If in the opinion of the convening authority the need for secrecy of information relative to the charge concerning national defence, good international relations or other national interests is so vital that the facts concerned should not be disclosed even at a trial from which the public has been excluded, the charge

• (a) shall not be proceeded with, if in the opinion of the convening authority the accused would be prejudiced unless evidence of those facts is adduced; or

• (b) shall be proceeded with and no evidence of those facts given, if the convening authority is of the opinion that the accused would not be prejudiced if no evidence of those facts is adduced.

Decisions on Secrecy

• 69 (1) The convening authority shall, in consultation with the Judge Advocate General or his representative, make the decisions required under sections 67 and 68.

• (2) The decisions and opinions of a convening authority under sections 67 and 68 shall be given in writing.

Concealment of Identity of Informants

• 70 (1) Subject to subsection (2), a witness who is officially associated with the prosecution may refuse to answer questions concerning the identity of any informant who assisted in furthering the prosecution.

• (2) If, in the opinion of the judge advocate, it is essential to a fair trial that an informant should be identified and called as a witness, the court shall direct a witness referred to in subsection (1) to answer questions as to the identity of the informant.

Governmental Privilege on Disclosure

71 Except as provided in this Division or in an Act of the Parliament of Canada, there is no official or governmental privilege to withhold relevant evidence from a court martial.

Privilege — Generally

72 Except as provided in this Division, no person is privileged to refuse to disclose or to prevent any other person from disclosing a communication or to refuse to produce a document that has passed between them.

Privilege of Accused

• 73 (1) The accused is not a compellable witness, but he may, at his option, give evidence when by Queen’s Regulations and Orders he is permitted to do so.

• (2) Neither the court, the judge advocate nor the prosecutor shall comment upon the failure of an accused to testify.

Privilege of Spouse of Accused

• 74 (1) Subject to subsection (2), the spouse of the accused may not be compelled to testify either on behalf of the defence or the prosecution.

• (2) The spouse of the accused may be compelled to testify for the prosecution without the consent of the accused in cases where the accused is charged

  • (a) with inflicting personal injuries by violence or coercion on his spouse; or

  • (b) under section 120 of the National Defence Act with an offence under sections 33 and 34 of the Juvenile Delinquents Act or with an offence under sections 143 to 146, 148, 150 to 155, 157, 166, 167, 168, 169, 175, 195, 197, 200, 248 to 250, 255 to 258, 275, paragraph 423(c) of the Criminal Code, or an attempt to commit an offence under section 146 or 155 of the Criminal Code.

• (3) Neither the court, the judge advocate nor the prosecutor shall comment upon the failure of the spouse of an accused to testify.

Communication during Marriage

75 A husband is not compellable to disclose any communication made to him by his wife during their marriage, and a wife is not compellable to disclose any communication made to her by her husband during their marriage.

Witness — Incriminating Questions

76 The position of a witness at a court martial in respect of incriminating questions is governed by section 97.

Solicitor-Client Privilege

• 77 (1) For the purposes of this section, legal adviser means

  • (a) a defending officer, counsel or adviser qualified under QR&O 111.60; and

  • (b) a solicitor.

• (2) A legal adviser is not permitted, except with his client’s express consent, to disclose, either during or after the termination of his employment,

  • (a) any communication, oral or documentary, made to him as legal adviser, by or on behalf of his client; or

  • (b) any advice given to his client by him as legal adviser.

• (3) A clerk, stenographer or assistant of a legal adviser is not permitted to disclose any matter relevant to the case of a client of that legal adviser learned by him or disclosed to him in the course of his employment except with the express consent of that client.

• (4) No person may be compelled to disclose any communication that he has made to his legal adviser.

• (5) Subsections (2), (3) and (4) do not apply to

  • (a) a communication made in furtherance of any criminal purposes; or

  • (b) a fact that the legal adviser became acquainted with otherwise than in his character as legal adviser or that his clerks, stenographers or assistants became acquainted with otherwise than in the course of their employment.

Penitential Privilege

• 78 (1) For the purposes of this section, penitential communication means a confession of culpable conduct made secretly and in confidence by a person to a clergyman or priest in the course of the discipline or practice of the church or religious denomination or organization of which the person making the penitential communication is a member.

• (2) A person making or receiving a penitential communication may refuse to disclose, or prevent a witness from disclosing, that communication if he claims the privilege and the judge advocate finds

  • (a) the communication was a penitential communication; and

  • (b) the witness is the person who made the penitential communication or the clergyman or priest to whom it was made.

PART IVPermitted Methods of Proof

DIVISION XOral Testimony

Competence of Witnesses

79 Every person is competent as a witness unless the judge advocate finds that he is incapable of

• (a) communicating his evidence so as to be understood by the court, whether by expressing himself directly, through interpretation by a person who can understand him or in any other manner; or

• (b) understanding the duty of a witness to tell the truth.

Testimonial Qualification of Witness

• 80 (1) Subject to subsection (2), a witness may testify only to relevant matters that he has perceived with his own senses.

• (2) A witness may testify to matters that he has not perceived with his own senses when permitted to do so under Part III, or under section 82.

Qualification of Expert Witness

81 A witness is an expert witness and is qualified to give testimony if the judge advocate finds that

• (a) to perceive, know or understand the matter concerning which the witness is to testify requires special knowledge, skill, experience or training;

• (b) the witness has the requisite knowledge, skill, experience or training; and

• (c) the expert testimony of the witness would substantially assist the court.

Testimony by Graphic Media

• 82 (1) For the purposes of this section, graphic medium means a model, map, diagram, photograph or other pictorial or graphic mode of description and includes a record of data, experience, communications or events made by accurate mechanical, electrical or other scientific methods.

• (2) Subject to subsections (3), (4) and (5), testimony may be given or supplemented by a graphic medium.

• (3) A graphic medium shall be presented as part of the testimony of a witness who has sufficient knowledge of the facts represented to prove that the graphic medium used does accurately represent them.

• (4) A photograph or other mode of depicting facts, made with scientific apparatus that is capable of disclosing data not perceivable by the unaided senses, may be admitted as part of the evidence of a witness who can prove that the apparatus was of a standard make, in good condition and used by a competent operator.

• (5) If proved to be trustworthy, a mechanical, electrical or other device may be employed to display or render audible to the court the data, experience, communications or events recorded by a graphic medium admitted under this section.

Testimony of Accomplice

• 83 (1) When evidence is given by a person who may be an accomplice, the judge advocate shall

  • (a) instruct the court as to what in law makes a person an accomplice;

  • (b) direct the attention of the court particularly to the facts in evidence implicating the witness in the offence charged; and

  • (c) submit to the court the issue as to whether or not the facts implicating the witness would make him an accomplice.

• (2) Subject to the directions given in connection with sections 85 and 86, if the only evidence against the accused is that given by a witness who may be an accomplice, the judge advocate shall, either

  • (a) instruct the court that, if it concludes that the witness was at any stage an accomplice in the offence charged, there is danger of injustice in convicting the accused of that offence upon the evidence of the apparent accomplice standing alone and uncorroborated, but it is at liberty to do so; or

  • (b) advise the court not to convict on the uncorroborated evidence of the apparent accomplice, but that it is at liberty to do so if it chooses.

• (3) The evidence of one accomplice is not corroborative of the evidence of another accomplice.

• (4) Subject to statutory provisions as to corroboration or the number of witnesses necessary for conviction, if the court considers an accomplice to be a credible witness his evidence may of itself be sufficient for a conviction.

Meaning of Corroboration

• 84 (1) Corroboration means independent evidence that confirms in some material particular not only the evidence that the offence has been committed, but also that the accused committed it.

• (2) The independent testimony mentioned in subsection (1) need not be direct evidence that the accused committed the offence but may be circumstantial evidence of his connection with the offence.

• (3) Corroboration may be found in the evidence of the accused or in the evidence of other witnesses whether called for the defence or for the prosecution.

Corroboration of Certain Offences

85 Where, under the Criminal Code or any other Act of Parliament, corroboration of the evidence of a particular witness is required in the trial of a particular issue by a civil court in a criminal case, the same corroboration is required in a trial of that issue by a court martial.

Witness Whose Capacity is in Question

• 86 (1) Where a proposed witness who is a competent witness under section 79 is a person under 14 years of age or a person whose mental capacity is challenged, the judge advocate shall, before permitting the person to give evidence, determine

  • (a) whether the person understands the nature of an oath or a solemn affirmation; and

  • (b) whether the person is able to communicate the evidence.

• (2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

• (3) A person referred to in subsection (1) who does not understand the nature of an oath or solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.

• (4) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation and who is not able to communicate the evidence shall not testify.

• (5) A party who challenges the mental capacity of a proposed witness of 14 years of age or more has the burden of satisfying the judge advocate that there is an issue as to the capacity of the proposed witness to testify under oath or solemn affirmation.

DIVISION XIExamination of Witnesses

Order of Testimony

• 87 (1) Subject to QR&O 112.05, the order of testimony, generally, shall be

  • (a) direct examination, that is, the party calling a witness may interrogate him on facts relevant to his case;

  • (b) cross-examination, that is, the opposing party then may interrogate the witness on relevant matters, including matters that may tend to discredit the testimony of the witness or support the case of the opposing party; and

  • (c) re-examination, that is, the party who called the witness then may interrogate him on matters arising out of the opposing party’s cross-examination.

• (2) The president, the judge advocate or, with the permission of the president, any member of the court, may put further questions to a witness either during or at the conclusion of the examination described in subsection (1).

• (3) If a witness has been questioned under subsection (2), the prosecutor or accused may, with the permission of the president, put to him such questions relative to the answers as seem proper to the court.

Direct Examination — General Rules

• 88 (1) Subject to subsection (2) as soon as a witness has been duly sworn, the party calling him shall examine him by means of oral questions confined to facts that are relevant to the charge.

• (2) Where a witness is called merely for cross-examination by the opposing party, the party calling him need not examine him.

Direct Examination — Leading Questions

• 89 (1) Subject to subsections (2) and (3) and to section 90, the party calling a witness shall not ask him a question that

  • (a) is in a form calculated to suggest the answer to it;

  • (b) contains a statement of some fact material to the issue, and that the witness could answer by a simple affirmative or negative; or

  • (c) leads the mind of the witness to a particular subject.

• (2) Subsection (1) of this section does not apply to a question

  • (a) as to introductory matter;

  • (b) as to undisputed matter; or

  • (c) to contradict an account that a witness called by the opposite party has given of an extra-judicial utterance.

• (3) A question is not forbidden on the ground that it leads the mind of a witness to a particular subject if it will tend to elicit fairly in the circumstances the honest belief of the witness.

Hostile Witness

• 90 (1) If the prosecutor or accused concludes during the direct examination or re-examination of a witness called by him that the witness is

  • (a) directly hostile to him, or

  • (b) unwilling to give evidence,

  the party calling the witness may apply for a declaration that the witness is hostile.

• (2) If the judge advocate declares a witness to be hostile, the party who called him may cross-examine him during the remainder of his testimony, whether on direct examination or re-examination.

• (3) A declaration that a witness is hostile shall not affect the rights of the opposite party to cross-examine him.

Recorded Past Recollection

• 91 (1) Where a witness, when the facts are fresh in his mind, has made or verified a written record of them, and is able to swear to the accuracy of that record, it is, subject to subsection (2), admissible as part of his testimony, even though he does not have an independent recollection of the facts disclosed in the record.

• (2) Before a record of past recollection can be introduced in evidence, it must be shown to have been made or verified at a time when it was sufficiently fresh and vivid in the mind of the witness to make it trustworthy.

• (3) Where the original record has been lost or destroyed, a copy that was verified by comparison with the lost original, or verified apart from the original while the recollection of the witness was still fresh, may be used under subsection (1).

Refreshing Memory of Witness

• 92 (1) A witness may be shown a written document to enable him to recall a fact that he has forgotten and, if he then recalls that fact, he may testify to it as he would do any other fact that he has perceived.

• (2) In order to refresh his memory, a witness may use documents that are not themselves admissible in evidence.

• (3) Documents used under subsection (1)

  • (a) may be inspected by the judge advocate solely for the purpose of determining whether or not they could properly refresh the memory of the witness; and

  • (b) must be shown to the opposite party, on demand, for inspection and use in questioning the witness.

Cross-Examination — General Rules

• 93 (1) Subject to this section and to sections 94, 98, 99, 100 and 101, when a witness is called by one party and sworn, the opposite party may cross-examine him at the proper stage of the trial.

• (2) A witness who has been called and sworn may be cross-examined even if direct examination is waived or if the party calling him asks no questions.

• (3) The cross-examining party may interrogate a witness on

  • (a) matters already dealt with in the direct examination;

  • (b) other relevant facts that constitute part of the cross-examining party’s own case; and

  • (c) subject to subsection (6), matters that, though otherwise irrelevant, tend to impeach the credit of the witness.

• (4) The provisions of section 89 do not apply to the cross-examination of a witness.

• (5) The cross-examining party shall not put questions to a witness in a bullying way or in any other manner calculated to confuse or mislead the witness unnecessarily, or to insult him.

• (6) Where a question is put to a witness as to a matter that is not relevant except in so far as it affects the credibility of the witness, and the witness objects to answering the question, the judge advocate shall consider whether the witness should be compelled to answer it, and if the judge advocate is of the opinion that the imputation conveyed by the question, would, if true,

  • (a) seriously affect the opinion of the court as to the credibility of the witness, he shall require the witness to answer the question; or

  • (b) not seriously affect the opinion of the court as to the credibility of the witness, he shall excuse the witness from answering the question.

Cross-Examination — Exemptions

• 94 (1) A witness shall not be cross-examined where

  • (a) he was called merely to produce a document of which

    • (i) proof is not required, or

    • (ii) proof is to be given by the testimony of other witnesses;

  • (b) he was called in error and knows nothing of the facts in issue; or

  • (c) his examination has been stopped by the court before a material question has been put.

• (2) A witness called and sworn but not asked any questions by the party calling him, being merely offered for cross-examination, shall not be asked, in cross-examination, questions the sole purpose of which is to discredit him.

Postponement of Cross-Examination

95 The judge advocate may allow the cross-examination of a witness to be postponed where, in his opinion, the application for postponement is not made for purposes of obstruction.

Re-Examination

• 96 (1) Subject to subsection (2), the party calling a witness may re-examine him for the purpose of meeting or explaining what has been brought out in cross-examination.

• (2) Unless otherwise permitted by the judge advocate, the re-examination of a witness shall be confined to interrogation on matters arising out of cross-examination.

• (3) The provisions of section 89 shall apply to the re-examination of a witness.

Examination of Witnesses — Incriminating Questions

• 97 (1) A witness shall not refuse to answer a question put to him on the ground that the answer may tend to incriminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

• (2) Except in so far as the evidence given by a witness is relevant to a charge against him involving perjury, giving false or contradictory evidence, or making a false or contradictory statement, evidence given by a witness shall not be admissible in any subsequent proceeding against him.

Credibility of Witness Generally

98 Subject to subsection 94(2) and sections 99, 100 and 101, the prosecutor or accused may, at the proper stage of the trial, by cross-examination or by other witnesses, introduce evidence relevant to the credibility of a witness of the other party.

Credibility — Effect of Answers

• 99 (1) Where a witness has given testimony on matters not material to the charge, he may be cross-examined on that testimony to test his credibility, but subject to subsections (2) and (3), his answers on cross-examination are conclusive in the sense that the cross-examining party may not call witnesses to contradict them.

• (2) A witness may be cross-examined on matters not material to the charge to test his credibility by disclosing emotional prejudice and, if the witness denies the facts that show his bias or partiality, the cross-examining party may prove these facts by the testimony of other witnesses.

• (3) If a witness who has been convicted of an offence is asked whether he has been convicted of any offence, and he denies the fact or refuses to answer, the cross-examining party may prove the conviction.

Credibility — Use of Former Statements to Contradict

• 100 (1) For the purposes of this section, statement does not include

  • (a) a statement that a regulation prescribes is not to be used at a trial; or

  • (b) when the accused is a witness, an official or unofficial confession by him that has not been admitted under section 40 or 42, respectively.

• (2) A witness may be cross-examined in accordance with this article as to a previous statement made by him relative to the charge.

• (3) Subject to subsection (4), a witness may be cross-examined on a statement in writing or reduced to writing without the writing being shown to him.

• (4) When a previous statement of a witness is inconsistent with his present evidence and the witness does not admit making the statement, proof may be given that he did make it, but before the proof is given

  • (a) when the statement

    • (i) is in writing or reduced to writing, his attention shall be called to the parts of the writing that are to be used to contradict him, or

    • (ii) was oral, the circumstances of the statement sufficient to designate the particular occasion shall be mentioned to him; and

  • (b) he shall be asked whether or not he did make the statement.

• (5) A writing mentioned in subsection (4), shall, if the judge advocate so requires, be produced for his inspection and decision as to whether or not it may be used for the purpose of contradicting the witness and, if allowed for this purpose, may be used only to the extent necessary to prove that the witness made the statement contained in it.

• (6) A previous statement proved under this section shall not be considered as evidence of the facts therein but may be considered in so far as it is relevant to the credibility of the witness.

Credibility — General Reputation of Witness for Veracity

• 101 (1) Subject to subsections (2) and (3), a cross-examining party may attack the credit of a witness by introducing evidence of his general reputation for veracity.

• (2) A witness called to testify to the general reputation for veracity of another witness shall be questioned, first, as to his means of knowledge of the general reputation of the witness to be impeached and shall then be asked: “From your knowledge of the general reputation of the witness for veracity, would you believe him on oath?”

• (3) The impeaching witness shall not be asked questions designed to show that the witness whose credit is being attacked has committed particular acts that disentitle him to credit.

DIVISION XIIDocuments

Original Documents — Explanation

• 102 (1) When a document is fully executed in several complete and identical copies, each copy is an original document.

• (2) When a document is executed in several copies, and each copy is executed by one or more of the parties only, each copy is an original document for purposes adverse to a party who has executed it.

• (3) Subject to subsection (5), when a number of finished documents apparently uniform were each created for the first time in their intended final form by the same operation of printing, lithography, photography, or other reproductive process adapted to secure their uniformity, finished documents that result from repeating the operation of the same process are original documents.

• (4) Whether certain finished and apparently uniform documents were created in a manner mentioned in subsection (3) may be inferred from an inspection of them.

• (5) A document is not an original document if the party to whom it is adverse proves that the particular reproductive operation concerned or the kind of reproductive process used was not or is not reliable in securing the uniformity of the resulting finished documents.

Proof of Documents by Primary Evidence

• 103 (1) Except where secondary evidence of a document is permitted under this section, the existence, character or content of a document shall be proved by primary evidence in accordance with subsection (2).

• (2) A document is proved by primary evidence by the production of the original document for the inspection of the court and identification of it by a qualified witness as the document it is alleged or appears to be.

• (3) For the purposes of this section, qualified witness includes

  • (a) the maker of the document;

  • (b) a person who perceived the making of it; or

  • (c) a person who is properly entrusted with the custody of the document along with others of the same class or type.

Proof of Documents by Secondary Evidence

• 104 (1) Secondary evidence of the existence, character or content of a document may be given in accordance with subsection (2) when

  • (a) the original document is not available for any reason other than the wrongdoing of the party offering the secondary evidence;

  • (b) the original is a public document;

  • (c) the original is a document that may be proved by secondary evidence before a civil court sitting in Ottawa in a trial of a similar charge, in which case proof may be given in the manner permitted in that court; or

  • (d) the originals consist of numerous documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole and is capable of being ascertained by calculation.

• (2) Secondary evidence, either direct or circumstantial, as to the existence, character or content of a document may be given by oral testimony or documents or by an admission under paragraph 8(d) or 37(b) and, without restricting the generality of the foregoing, will usually be given

  • (a) by producing a copy and calling a witness who can testify that the copy is correct; or

  • (b) where no copy is obtainable, by calling a witness who has seen the original and can give a reliable account of its character or content.

Proof of Public Documents

• 105 (1) Proof of the existence, character or content of a public document may be given by primary evidence or secondary evidence.

• (2) Without limiting the forms of secondary evidence available, they include

  • (a) an examined copy of, or extract from, a public document proved under subsection 104(2);

  • (b) the copy received by the addressee, when a public document is communicated by letter, radio, teletype, landline, visual signalling or other reliable means; and

  • (c) a copy of, or extract from, a public document signed and certified as a true copy or extract by an official entrusted with custody of the original.

• (3) The signature and appropriate official character of the person purporting to have signed and certified the copy or extract mentioned in paragraph (2)(c) shall, prima facie, be deemed authentic as they appear, and, unless the other party produces evidence that it is probably not authentic, the party seeking to rely on the document need give no evidence of the authenticity of the copy or extract in addition to its appearance.

• (4) The documents referred to in sections 19, 21, 22, 23, 24, 25, 26, 27, 31 and 32 of the Canada Evidence Act are public documents within the meaning of these Rules and may be proved as provided in those sections.

• (5) For the purpose of proving a conviction under subsection 99(3), a certificate containing the substance of the charge and conviction, purporting to be signed by the officer having the custody of the records of the court in which the offender was convicted, or by his deputy, shall, upon proof of the identity of the witness as the offender, be evidence of the conviction, without proof of the signature or of the offical character of the person appearing to have signed the certificate.

Proof of Regular Entries

106 A record in any business of an act, condition or event is proved by the custodian of the record or other qualified person testifying

• (a) to its identity,

• (b) to its mode of preparation, and

• (c) to its having been made in the usual and ordinary course of business, at or near the time of the act, condition or event,

if, in the opinion of the judge advocate, the sources of information and the method and time of preparation were such as to justify its admission as evidence of possibly significant weight.

Bankers’ Books

• 107 (1) For the purposes of this section,

  bank

  bank means an establishment or corporation in any country authorized to receive deposits and to pay out money on a customer’s order, and includes its agencies and successors; (banque)

  branch

  branch means an office of a bank, and includes the head office of that bank. (succursale)

• (2) Subject to subsections (3) and (6), a copy of an entry in any book or record kept in a bank or branch is admissible as evidence of the entry, and of the matters, transactions and accounts therein recorded.

• (3) A copy of an entry in a book or record kept in a bank or branch shall not be admitted under this article unless it is first proved

  • (a) that the book or record was, at the time of making the entry, one of the ordinary books or records of the bank or branch,

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

  • (c) that the book or record is in the custody or control of the bank or branch, and

  • (d) that the copy is a true copy,

  and the proof of any of these matters may be given by the manager or accountant or a former manager or accountant of the bank or branch, and may be given orally or by affidavit or statutory declaration.

• (4) When a cheque has been drawn on a branch by any person, an affidavit or statutory declaration of the manager or accountant of the branch setting out that

  • (a) he has made a careful examination and search of the books and records of the branch for the purpose of ascertaining whether or not that person has an account with the branch, and

  • (b) he has been unable to find such an account,

  shall be admissible as evidence that the person has no account in the branch.

• (5) A statement of the official character of a person making an affidavit or statutory declaration may be included in the body of the affidavit or statutory declaration admissible under this section and when so included is evidence of the official character of that person.

• (6) Unless by order of the court made for special cause, a bank or officer of a bank shall not be compellable to produce any book or records the contents of which can be proved in the manner prescribed by this Division, or to appear as a witness to prove the matters, transaction, and accounts therein recorded.

Proof of Date, Handwriting and Signature of Documents

• 108 (1) Documents are presumed to have been executed on the date of execution stated therein but, where there is no date, a wrong date, or conflicting dates, the true date may be proved by oral or other evidence.

• (2) When the handwriting of or signature on an unattested document is in issue, the disputed fact may be proved

  • (a) by the testimony of

    • (i) the writer of the document,

    • (ii) a witness who saw the document signed, or

    • (iii) a witness who can satisfy the court that he knows the writing in question;

  • (b) by a comparison of the disputed writing with other writing proved to the satisfaction of the court to be genuine; or

  • (c) by an admission under paragraph 8(d) or 37(b).

Proof of Execution of Attested Documents

109 When the execution of an attested document is in issue, whether or not attestation is required by statute for its effective execution, no attestor is a necessary witness even if all attestors are available.

DIVISION XIIIReal Evidence

Admissibility of Real Evidence

• 110 (1) Subject to subsection (2), real evidence is admissible whenever the existence, identity or the quality or condition of a person or thing is relevant.

• (2) Unless the quality or condition of a document is in issue it is not admissible as real evidence.

Introduction of Real Evidence

111 Real evidence may be introduced in the following ways:

• (a) by the production by a witness of the material object for inspection of the court;

• (b) by experimentation in the presence of the court; or

• (c) by a visit of the court to view a place, thing or person, under QR&O 112.63.

DIVISION XIVForeign Law

Foreign Law

• 112 (1) The law of a country other than Canada relevant to a charge or issue is proved by an expert witness testifying as to that law.

• (2) The judge advocate shall, if he so desires or the court so requests, advise the court on the effect of the evidence of an expert witness as to the law of a country other than Canada, and the meaning or construction of that law as proved.