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

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 Foreign Interference and 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 Foreign Interference and 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.