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.
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