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

Regulations are current to 2020-09-09

Military Rules of Evidence

C.R.C., c. 1049

NATIONAL DEFENCE ACT

Regulations Respecting the Rules of Evidence at Trial by Court Martial

Short Title

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

Interpretation

  •  (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

 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

 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

  •  (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

 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

 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

 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

 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.

 
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