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

Regulations are current to 2016-06-21

Burden of Persuasion on Prosecutor

 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

  •  (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

  •  (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

 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

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

Required Judicial Notice

  •  (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

  •  (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

  •  (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

  •  (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

  •  (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

 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

  •  (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.

 
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