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

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.

• 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.