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

Solicitor-Client Privilege

• 77 (1) For the purposes of this section, legal adviser means

  • (a) a defending officer, counsel or adviser qualified under QR&O 111.60; and

  • (b) a solicitor.

• (2) A legal adviser is not permitted, except with his client’s express consent, to disclose, either during or after the termination of his employment,

  • (a) any communication, oral or documentary, made to him as legal adviser, by or on behalf of his client; or

  • (b) any advice given to his client by him as legal adviser.

• (3) A clerk, stenographer or assistant of a legal adviser is not permitted to disclose any matter relevant to the case of a client of that legal adviser learned by him or disclosed to him in the course of his employment except with the express consent of that client.

• (4) No person may be compelled to disclose any communication that he has made to his legal adviser.

• (5) Subsections (2), (3) and (4) do not apply to

  • (a) a communication made in furtherance of any criminal purposes; or

  • (b) a fact that the legal adviser became acquainted with otherwise than in his character as legal adviser or that his clerks, stenographers or assistants became acquainted with otherwise than in the course of their employment.

Penitential Privilege

• 78 (1) For the purposes of this section, penitential communication means a confession of culpable conduct made secretly and in confidence by a person to a clergyman or priest in the course of the discipline or practice of the church or religious denomination or organization of which the person making the penitential communication is a member.

• (2) A person making or receiving a penitential communication may refuse to disclose, or prevent a witness from disclosing, that communication if he claims the privilege and the judge advocate finds

  • (a) the communication was a penitential communication; and

  • (b) the witness is the person who made the penitential communication or the clergyman or priest to whom it was made.

PART IVPermitted Methods of Proof

DIVISION XOral Testimony

Competence of Witnesses

79 Every person is competent as a witness unless the judge advocate finds that he is incapable of

• (a) communicating his evidence so as to be understood by the court, whether by expressing himself directly, through interpretation by a person who can understand him or in any other manner; or

• (b) understanding the duty of a witness to tell the truth.

Testimonial Qualification of Witness

• 80 (1) Subject to subsection (2), a witness may testify only to relevant matters that he has perceived with his own senses.

• (2) A witness may testify to matters that he has not perceived with his own senses when permitted to do so under Part III, or under section 82.

Qualification of Expert Witness

81 A witness is an expert witness and is qualified to give testimony if the judge advocate finds that

• (a) to perceive, know or understand the matter concerning which the witness is to testify requires special knowledge, skill, experience or training;

• (b) the witness has the requisite knowledge, skill, experience or training; and

• (c) the expert testimony of the witness would substantially assist the court.

Testimony by Graphic Media

• 82 (1) For the purposes of this section, graphic medium means a model, map, diagram, photograph or other pictorial or graphic mode of description and includes a record of data, experience, communications or events made by accurate mechanical, electrical or other scientific methods.

• (2) Subject to subsections (3), (4) and (5), testimony may be given or supplemented by a graphic medium.

• (3) A graphic medium shall be presented as part of the testimony of a witness who has sufficient knowledge of the facts represented to prove that the graphic medium used does accurately represent them.

• (4) A photograph or other mode of depicting facts, made with scientific apparatus that is capable of disclosing data not perceivable by the unaided senses, may be admitted as part of the evidence of a witness who can prove that the apparatus was of a standard make, in good condition and used by a competent operator.

• (5) If proved to be trustworthy, a mechanical, electrical or other device may be employed to display or render audible to the court the data, experience, communications or events recorded by a graphic medium admitted under this section.

Testimony of Accomplice

• 83 (1) When evidence is given by a person who may be an accomplice, the judge advocate shall

  • (a) instruct the court as to what in law makes a person an accomplice;

  • (b) direct the attention of the court particularly to the facts in evidence implicating the witness in the offence charged; and

  • (c) submit to the court the issue as to whether or not the facts implicating the witness would make him an accomplice.

• (2) Subject to the directions given in connection with sections 85 and 86, if the only evidence against the accused is that given by a witness who may be an accomplice, the judge advocate shall, either

  • (a) instruct the court that, if it concludes that the witness was at any stage an accomplice in the offence charged, there is danger of injustice in convicting the accused of that offence upon the evidence of the apparent accomplice standing alone and uncorroborated, but it is at liberty to do so; or

  • (b) advise the court not to convict on the uncorroborated evidence of the apparent accomplice, but that it is at liberty to do so if it chooses.

• (3) The evidence of one accomplice is not corroborative of the evidence of another accomplice.

• (4) Subject to statutory provisions as to corroboration or the number of witnesses necessary for conviction, if the court considers an accomplice to be a credible witness his evidence may of itself be sufficient for a conviction.

Meaning of Corroboration

• 84 (1) Corroboration means independent evidence that confirms in some material particular not only the evidence that the offence has been committed, but also that the accused committed it.

• (2) The independent testimony mentioned in subsection (1) need not be direct evidence that the accused committed the offence but may be circumstantial evidence of his connection with the offence.

• (3) Corroboration may be found in the evidence of the accused or in the evidence of other witnesses whether called for the defence or for the prosecution.

Corroboration of Certain Offences

85 Where, under the Criminal Code or any other Act of Parliament, corroboration of the evidence of a particular witness is required in the trial of a particular issue by a civil court in a criminal case, the same corroboration is required in a trial of that issue by a court martial.

Witness Whose Capacity is in Question

• 86 (1) Where a proposed witness who is a competent witness under section 79 is a person under 14 years of age or a person whose mental capacity is challenged, the judge advocate shall, before permitting the person to give evidence, determine

  • (a) whether the person understands the nature of an oath or a solemn affirmation; and

  • (b) whether the person is able to communicate the evidence.

• (2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

• (3) A person referred to in subsection (1) who does not understand the nature of an oath or solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.

• (4) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation and who is not able to communicate the evidence shall not testify.

• (5) A party who challenges the mental capacity of a proposed witness of 14 years of age or more has the burden of satisfying the judge advocate that there is an issue as to the capacity of the proposed witness to testify under oath or solemn affirmation.

DIVISION XIExamination of Witnesses

Order of Testimony

• 87 (1) Subject to QR&O 112.05, the order of testimony, generally, shall be

  • (a) direct examination, that is, the party calling a witness may interrogate him on facts relevant to his case;

  • (b) cross-examination, that is, the opposing party then may interrogate the witness on relevant matters, including matters that may tend to discredit the testimony of the witness or support the case of the opposing party; and

  • (c) re-examination, that is, the party who called the witness then may interrogate him on matters arising out of the opposing party’s cross-examination.

• (2) The president, the judge advocate or, with the permission of the president, any member of the court, may put further questions to a witness either during or at the conclusion of the examination described in subsection (1).

• (3) If a witness has been questioned under subsection (2), the prosecutor or accused may, with the permission of the president, put to him such questions relative to the answers as seem proper to the court.

Direct Examination — General Rules

• 88 (1) Subject to subsection (2) as soon as a witness has been duly sworn, the party calling him shall examine him by means of oral questions confined to facts that are relevant to the charge.

• (2) Where a witness is called merely for cross-examination by the opposing party, the party calling him need not examine him.

Direct Examination — Leading Questions

• 89 (1) Subject to subsections (2) and (3) and to section 90, the party calling a witness shall not ask him a question that

  • (a) is in a form calculated to suggest the answer to it;

  • (b) contains a statement of some fact material to the issue, and that the witness could answer by a simple affirmative or negative; or

  • (c) leads the mind of the witness to a particular subject.

• (2) Subsection (1) of this section does not apply to a question

  • (a) as to introductory matter;

  • (b) as to undisputed matter; or

  • (c) to contradict an account that a witness called by the opposite party has given of an extra-judicial utterance.

• (3) A question is not forbidden on the ground that it leads the mind of a witness to a particular subject if it will tend to elicit fairly in the circumstances the honest belief of the witness.

Hostile Witness

• 90 (1) If the prosecutor or accused concludes during the direct examination or re-examination of a witness called by him that the witness is

  • (a) directly hostile to him, or

  • (b) unwilling to give evidence,

  the party calling the witness may apply for a declaration that the witness is hostile.

• (2) If the judge advocate declares a witness to be hostile, the party who called him may cross-examine him during the remainder of his testimony, whether on direct examination or re-examination.

• (3) A declaration that a witness is hostile shall not affect the rights of the opposite party to cross-examine him.

Recorded Past Recollection

• 91 (1) Where a witness, when the facts are fresh in his mind, has made or verified a written record of them, and is able to swear to the accuracy of that record, it is, subject to subsection (2), admissible as part of his testimony, even though he does not have an independent recollection of the facts disclosed in the record.

• (2) Before a record of past recollection can be introduced in evidence, it must be shown to have been made or verified at a time when it was sufficiently fresh and vivid in the mind of the witness to make it trustworthy.

• (3) Where the original record has been lost or destroyed, a copy that was verified by comparison with the lost original, or verified apart from the original while the recollection of the witness was still fresh, may be used under subsection (1).

Refreshing Memory of Witness

• 92 (1) A witness may be shown a written document to enable him to recall a fact that he has forgotten and, if he then recalls that fact, he may testify to it as he would do any other fact that he has perceived.

• (2) In order to refresh his memory, a witness may use documents that are not themselves admissible in evidence.

• (3) Documents used under subsection (1)

  • (a) may be inspected by the judge advocate solely for the purpose of determining whether or not they could properly refresh the memory of the witness; and

  • (b) must be shown to the opposite party, on demand, for inspection and use in questioning the witness.

Cross-Examination — General Rules

• 93 (1) Subject to this section and to sections 94, 98, 99, 100 and 101, when a witness is called by one party and sworn, the opposite party may cross-examine him at the proper stage of the trial.

• (2) A witness who has been called and sworn may be cross-examined even if direct examination is waived or if the party calling him asks no questions.

• (3) The cross-examining party may interrogate a witness on

  • (a) matters already dealt with in the direct examination;

  • (b) other relevant facts that constitute part of the cross-examining party’s own case; and

  • (c) subject to subsection (6), matters that, though otherwise irrelevant, tend to impeach the credit of the witness.

• (4) The provisions of section 89 do not apply to the cross-examination of a witness.

• (5) The cross-examining party shall not put questions to a witness in a bullying way or in any other manner calculated to confuse or mislead the witness unnecessarily, or to insult him.

• (6) Where a question is put to a witness as to a matter that is not relevant except in so far as it affects the credibility of the witness, and the witness objects to answering the question, the judge advocate shall consider whether the witness should be compelled to answer it, and if the judge advocate is of the opinion that the imputation conveyed by the question, would, if true,

  • (a) seriously affect the opinion of the court as to the credibility of the witness, he shall require the witness to answer the question; or

  • (b) not seriously affect the opinion of the court as to the credibility of the witness, he shall excuse the witness from answering the question.

Cross-Examination — Exemptions

• 94 (1) A witness shall not be cross-examined where

  • (a) he was called merely to produce a document of which

    • (i) proof is not required, or

    • (ii) proof is to be given by the testimony of other witnesses;

  • (b) he was called in error and knows nothing of the facts in issue; or

  • (c) his examination has been stopped by the court before a material question has been put.

• (2) A witness called and sworn but not asked any questions by the party calling him, being merely offered for cross-examination, shall not be asked, in cross-examination, questions the sole purpose of which is to discredit him.

Postponement of Cross-Examination

95 The judge advocate may allow the cross-examination of a witness to be postponed where, in his opinion, the application for postponement is not made for purposes of obstruction.

Re-Examination

• 96 (1) Subject to subsection (2), the party calling a witness may re-examine him for the purpose of meeting or explaining what has been brought out in cross-examination.

• (2) Unless otherwise permitted by the judge advocate, the re-examination of a witness shall be confined to interrogation on matters arising out of cross-examination.

• (3) The provisions of section 89 shall apply to the re-examination of a witness.