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

Regulations are current to 2020-09-09

PART IIIMethods of Proof and Forbidden Types of Evidence (continued)

DIVISION VHearsay Evidence (continued)

Declarations on Character Reputation of Accused

 When, in accordance with section 21, a witness is called at a court to testify as to the reputation of the accused respecting traits of his character relevant to the charge, the hearsay statements on this subject of other persons who had or who have some significant direct or indirect association with the accused are admissible and may be quoted by the witness.

Self-Serving Evidence

  •  (1) For the purposes of this section, self-serving evidence means any extra-judicial statement of the accused, or evidence of any other nature manufactured, created or arranged by the accused, that tends to exonerate him of the charge.

  • (2) Except to the extent that it may be admissible under section 27, 28, 29, 30 or 60, and subject to the right of the accused to give evidence, self-serving evidence is not admissible when submitted by an accused.

DIVISION VIConfessions of Accused Persons

Types of Confessions

 Confessions are judicial, official or unofficial.

Judicial Confession Explained

 When, at his trial, the accused chooses to make a complete or partial admission of incriminating facts in respect of an offence for which he is being tried, he may make a judicial confession

  • (a) by pleading guilty, including pleading guilty subject to variations and exceptions, when this plea is accepted by the court under QR&O 112.25;

  • (b) after pleading not guilty, and whether or not he also decides to testify as a witness under oath, by personally or through his counsel or defending officer admitting, for the purpose of dispensing with proof, any fact the prosecutor must prove; or

  • (c) after pleading not guilty, and having elected to testify under oath as a witness in accordance with section 73, by making a self-incriminating statement in the course of his testimony.

Effect of Judicial Confession

  •  (1) Subject to QR&O 112.26, when a plea of guilty has been made by the accused and accepted by the court, it is conclusive proof of guilt.

  • (2) If the accused, after pleading not guilty, admits, other than in the course of his own testimony, a fact alleged against him, the court may accept that admission as conclusive proof of the fact concerned.

  • (3) If the accused testifies on his own behalf, the court may believe or disbelieve his testimony in whole or in part, including a self-incriminating statement made in the course of that testimony.

Official Confession Defined

  •  (1) An official confession is a confession made by the accused, whether or not he has been charged, or might expect to be charged, with an offence at the time of making a statement

    • (a) when testifying as a legally compellable witness in the course of any judicial or other official proceeding or inquiry, civil or military, other than his own trial for the offence in question; or

    • (b) in the course of giving information pursuant to regulations or orders issued by the Chief of the Defence Staff under QR&O 1.23, or in response to an order to him by a superior officer to give information required for any proper military purpose

  • (2) Notwithstanding paragraph (1)(b), a statement made by the accused in the course of giving information in respect of an accident that has occurred outside Canada involving a motor vehicle under the care, charge or control of the accused is not an official confession for the purpose of these Rules to the extent that the accused, if the accident had occurred in Canada, would have been required by subsection 233(2) of the Criminal Code to make the statement.

Admissibility of Official Confession

  •  (1) Subject to subsection (2), an official confession by the accused shall not be admissible or used in his trial for an offence in respect of which it is a confession.

  • (2) When the charge involves perjury, giving false or contradictory evidence, or making a false or contradictory statement, and is based upon a previous statement of the accused purporting at least in part to be an official confession, the prosecutor may introduce this previous statement in evidence.

Unofficial Confession Defined

 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.

Admissibility of Unofficial Confession

  •  (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.

Statements in Presence of Accused

  •  (1) When a statement has been made by another person in the presence of the accused that, if true, would incriminate the accused in whole or in part respecting the offence in question, and the statement was fully understood by the accused, then if it was also clear from the contemporaneous words, conduct or demeanour of the accused that he accepted the statement as true in whole or in part, the statement to the extent that he so accepted it may be treated as an unofficial confession made by the accused.

  • (2) Whether a statement described in subsection (1) should be deemed to have been fully understood and accepted by the accused as true in whole or in part is, as regards admissibility, a question for the judge advocate under subsection 42(8).

Evaluation of Unofficial Confession

  •  (1) The decision as to the truth or falsity in whole or in part of an unofficial confession is exclusively a matter for the court.

  • (2) It is the duty of the court to consider whether an unofficial confession is to be believed or disbelieved in whole or in part in the light of its nature, the circumstances in which it was made, and other relevant and admissible evidence available.

  • (3) The court may convict on the basis of a complete unofficial confession alone, if it is satisfied beyond a reasonable doubt of its truth.

Accomplice’s Evidence

 Subject to section 46, where two or more persons are accused of complicity in the same offence, the confession of any one of them is admissible evidence against that one alone, and not against the others.

Conspirator’s Evidence

  •  (1) When two or more persons are alleged to have been parties to a common criminal plan or design, the words of one of them, apparently spoken or written as part of or in furtherance of the formation or carrying out of that plan, are admissible as evidence against the others as well as against the speaker or writer.

  • (2) Subsection (1) applies whether the charge alleges the conspiracy itself, or the commission of the offence planned, or the attempt to commit it, and whether an accused is charged singly, or jointly with the alleged co-conspirator whose words purport to incriminate them.

  • (3) The probative value of evidence admitted under subsection (1) is a matter for the court.

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