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

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.