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

Short Title

1 These Rules may be cited as the Military Rules of Evidence.

Interpretation

• 2 (1) In these Rules, unless the context otherwise requires,

  accused

  accused means the accused personally or counsel or a defending officer acting on behalf of the accused, but does not include an adviser acting on behalf of the accused; (accusé ou prévenu)

  admissible

  admissible means admissible in evidence; (admissible)

  burden of persuasion

  burden of persuasion means the burden of convincing the court of the existence or non-existence, or probable existence or non-existence, of any fact; (fardeau de la persuasion)

  business

  business means every kind of business, occupation or calling, and includes the practice of a profession, and the operation of an institute and every kind of institution, whether carried on for profit or not; (entreprise)

  circumstantial evidence

  circumstantial evidence means evidence tending to establish the existence or non-existence of a fact that is not one of the elements of the offence charged, where the existence or non-existence of that fact reasonably leads to an inference concerning the existence or non-existence of a fact that is one of the elements of the offence charged; (preuve par présomption)

  confession

  confession means a statement made by an accused person, whether made before or after he is accused of an offence, that is completely or partially self-incriminating with respect to the offence of which he is accused; (aveu)

  credibility

  credibility means the degree of credit the court should give to the testimony of a witness; (crédibilité)

  declarant

  declarant means the person who originally makes a hearsay statement; (déclarant)

  direct evidence

  direct evidence means evidence tending directly to establish the existence or non-existence of an element of the offence charged; (preuve directe)

  evidence

  evidence means anything that has a significant rational tendency to make something manifest; (preuve)

  examined copy

  examined copy means a copy proved to have been compared with the original and to correspond to it; (copie conforme)

  expert witness

  expert witness means a witness qualified under section 81; (témoin expert)

  extra-judicial statement

  extra-judicial statement means in any proceedings of a court martial a hearsay statement that has been made by a declarant, other than in the course of those proceedings or in the course of taking evidence taken on commission for that court martial, and includes

  • (a) words, oral or written, used by him,

  • (b) the adoption, in some way, in whole or in part, of meaningful words uttered by another person as an accurate expression of the declarant’s own observations or experience, and

  • (c) the expression, in an intelligible manner, of the declarant’s observations or experience; (déclaration extrajudiciaire)

  judicial notice

  judicial notice means acceptance by a court of the truth of a fact or matter without requiring the introduction of evidence to prove its truth; (connaissance judiciaire)

  opinion

  opinion means interpretation of, or inference concerning, the significance in some respect of a given fact; (opinion)

  ordinary witness

  ordinary witness means a witness who testifies to facts observed or experienced by him, but who is not testifying as an expert in the matter concerned; (témoin ordinaire)

  public document

  public document includes a documentary statement made for an official purpose by a public officer acting under a duty or authority to make the statement; (document public)

  public officer

  public officer means a person having a legal duty or authority to make official statements which duty or authority is expressly imposed by or given in a statute, regulation or specific instruction, or implied from the nature of the office because he is an official of the Government of Canada, the government of a Canadian province, a Canadian municipality, or because he is a member of the Canadian Forces; (fonctionnaire public)

  Queen’s Regulations and Orders

  Queen’s Regulations and Orders or QR&O means the Queen’s Regulations and Orders for the Canadian Forces; (Ordonnances et Règlements royauxouORFC)

  real evidence

  real evidence means all evidence supplied by material objects when they are offered for direct perception by the court; (preuve réelle)

  rebuttable presumption of law

  rebuttable presumption of law means a presumption authorized by the National Defence Act, the Criminal Code or other Act of the Parliament of Canada that upon proof of a certain fact or set of facts, another fact exists, unless evidence to the degree required by law renders its existence unlikely; (présomption réfutable de droit)

  relevant evidence

  relevant evidence means evidence relating to a fact in issue at the trial, and includes evidence that tends to establish the cogency or accuracy of either direct or circumstantial evidence; (preuve pertinente)

  reporting witness

  reporting witness means a witness who is permitted to quote an extra-judicial statement; (témoin rapporteur)

  self-incriminating statement

  self-incriminating statement means a statement by the accused that, if admitted in evidence and believed in whole or in part, would directly or indirectly tend to prove the accused guilty of the charge; (déclaration renfermant une incrimination de soi-même)

  trial

  trial means trial by court martial. (procès)

• (2) Unless otherwise prescribed, or the context otherwise requires, words and phrases used in these Rules have the same meaning as in the National Defence Act and Queen’s Regulations and Orders.

Application

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.

Burden of Producing Evidence

• 12 (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

13 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

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

Required Judicial Notice

• 15 (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

• 16 (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

• 17 (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

• 18 (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.