PART IIIMethods of Proof and Forbidden Types of Evidence (continued)
DIVISION IVCharacter and Similar Facts (continued)
Evidence of Similar Facts
22 (1) If it has been established that the act referred to in the charge was done by someone, but the state of mind or identity of the actor is in doubt, the prosecutor may, subject to subsections (2) and (3), introduce evidence of another act or other acts of the accused similar in essential respects to the act charged, where either or both of the following facts are in issue and the evidence tends to prove one or both of them:
(2) When attempting to prove the charge against the accused, the prosecutor shall establish a real suspicion of the guilt of the accused on issues of state of mind or identity with evidence other than that of essentially similar acts of the accused, before he may introduce evidence of essentially similar acts of the accused.
(3) Although the prosecutor has evidence to offer within subsections (1) and (2), the judge advocate shall exclude that evidence if he decides that its probative value is slight or that it would have an undue tendency to arouse prejudice against the accused, thereby impairing the fairness of the trial.
Possession of Property Obtained by Commission of Offence
23 (1) Subject to subsection (2), when a person is charged with an offence under section 105 of the National Defence Act of receiving or retaining in possession property obtained by the commission of a service offence, evidence may be introduced by the prosecutor to show
(a) that property other than the property that is the subject matter of the charge
(b) if evidence is adduced that the property that is the subject matter of the charge was found in the possession of the accused, that the accused was, within five years before the charge was laid, convicted of an offence
and that evidence may be taken into consideration for the purpose of proving that the accused knew that the property forming the subject matter of the charge was unlawfully obtained.
(2) Subject to section 99, this section shall not apply unless the accused is given at least three days notice in writing of the details of the matters it is intended to prove and, in respect of property other than that forming the subject of the charge, a description of that property and of the person from whom it is alleged to have been stolen.
Offences under Security of Information Act
24 When a person is charged under section 130 of the National Defence Act with having committed an offence under section 6 of the Security of Information Act, the prosecutor may adduce evidence of that person’s character.
- 2001, c. 41, s. 41
Admissibility after Finding
25 When there has been a finding of guilty and the trial continues to determine the appropriate sentence, evidence may be submitted in accordance with paragraphs 20 and 21 of QR 112.05, QR 112.47 and QR 113.13.
DIVISION VHearsay Evidence
Hearsay Generally Excluded
(2) Except where the declarant is an accused person whose confession is admissible under Division VI, and subject to subsection (4), the declarant must meet the same requirements for competence and qualification respecting his extra-judicial statement that a witness must meet under Division X, and the credibility of the declarant may be impeached or supported in the same way as that of a witness under Division X in so far as this is practical.
(3) Subject to subsections (4), (5) and (6), the reporting witness must be a competent and qualified witness within the meaning of Division X, and must personally have heard or seen the declarant make the hearsay statement in question.
(4) A witness who is a person who would be likely to know about the accused may report the reputation of the accused among those associated with him in accordance with sections 21 and 34.
(5) A witness may offer primary or secondary evidence of a document as permitted by Division XII, if the documentary statement concerned is admissible under section 51, 52, 53 or 54.
(6) An expert witness may quote the hearsay statement of another expert as permitted by sections 56 and 57.
Words as Facts in Issue
27 An extra-judicial statement is admissible and may be quoted by a reporting witness where the essential elements of the offence charged are such that the words constituting the statement might themselves be
(a) the very means or instrument whereby the offence charged was committed,
(b) as essential feature of the commission of the offence charged,
(c) an indispensable preliminary to the commission of the offence charged, or
(d) the substance of a legal defence to the offence charged.
Words Essential to Give Character to Acts that are Facts in Issue
(2) When a person has committed acts that are alleged to be criminal acts according to the charge, but their criminal character by themselves is ambiguous or doubtful, words of the actor or another person present that were substantially contemporaneous with the acts and that suggest some further inference concerning the nature or quality of the acts are, subject to subsection (3), admissible and may be quoted by a reporting witness.
(3) The words of a declarant under subsection (2) shall not be admissible if the party to whom the statement is adverse shows that the declarant had motive and opportunity before making the hearsay statement to contrive deceitful words to his own advantage, and in the particular circumstances was likely to have done so.
Words Essential to Prove Relevant Mental or Internal Physical State
29 (1) When the formation, occurrence or existence at some moment or during some period of a particular state of mind or internal physical condition of a person is relevant directly or indirectly to proof of the charge, words uttered by that person contemporaneously with the formation, occurrence or existence of that mental or physical state, and manifesting or implying something about the nature of it, are, subject to subsection (2), admissible and may be quoted by a reporting witness.
(2) The words of a declarant under subsection (1) shall not be admissible if the party to whom the statement is adverse shows that the declarant had motive and opportunity before making the hearsay statement to contrive deceitful words to his own advantage, and in the particular circumstances was likely to have done so.
Spontaneous Words in Emergency Situation
30 Where a person has participated in or observed acts or events with which the charge in question is concerned, and these acts or events were of an exciting, startling or shocking character, words about them spoken spontaneously by the participant or observer, while he was under the influence of the original excitement or shock engendered by those acts or events, whether during or after their occurrence, are admissible and may be quoted by a reporting witness.
complainant means a person who made a complaint; (plaignant)
complaint means an extra-judicial statement concerning an offence made after the alleged commission of that offence to a person other than the accused by the person in respect of whom it is alleged to have been committed. (plainte)
(2) Except as otherwise provided in these Rules, a complaint is not admissible.
(3) The fact of a complaint having been made is admissible.
(4) [Revoked, SOR/90-306, s. 1]
- SOR/90-306, s. 1
32 The words of a deceased person whose death is the subject of the charge are admissible and may be quoted by a reporting witness if
(a) they are concerned with the facts leading up to or attending the injurious act that resulted in the declarant’s death;
(b) they were spoken while the declarant had a settled hopeless expectation that his death was near, whether or not death did thereafter occur as or when expected; and
(c) it appears that the declarant had completed uttering what he wished to say before death intervened.
Statements Made in Course of Duty by Persons since Deceased
33 An extra-judicial statement made during the lifetime of a declarant since deceased is, in so far as it relates to the charge, admissible and may be quoted or submitted by a reporting witness as proof of the facts, which it was the duty of the declarant in the ordinary course of his business to include in that statement, if the declarant
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