PART IIIMethods of Proof and Forbidden Types of Evidence (continued)
DIVISION VIIIOpinion (continued)
Opinions of Experts and Ordinary Witnesses
65 Where in the circumstances the requirements of both sections 63 and 64 can be satisfied by an expert and an ordinary witness respectively, each may give his opinion of the significance relative to the charge or issue of the same facts.
Opinion in Comparison of Writing
66 Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine may be made by witnesses acquainted with the writing, or skilled in the comparison of writing, or by the court itself; and the writing, and the evidence of witnesses respecting it, may be submitted to the court as evidence of the genuineness or otherwise of the writing in dispute.
DIVISION IXEffect of Public Policy and Privilege
67 When disclosure of any facts relative to the charge would, in the opinion of the convening authority, be prejudicial to national defence, good international relations or other national interests, evidence of those facts may not be given at a trial open to the public but, subject to section 68, may be given at a trial when the public has been excluded in accordance with QR&O 112.10.
Effect on Trial if Secrecy Precludes Disclosure
68 If in the opinion of the convening authority the need for secrecy of information relative to the charge concerning national defence, good international relations or other national interests is so vital that the facts concerned should not be disclosed even at a trial from which the public has been excluded, the charge
(a) shall not be proceeded with, if in the opinion of the convening authority the accused would be prejudiced unless evidence of those facts is adduced; or
(b) shall be proceeded with and no evidence of those facts given, if the convening authority is of the opinion that the accused would not be prejudiced if no evidence of those facts is adduced.
Decisions on Secrecy
(2) The decisions and opinions of a convening authority under sections 67 and 68 shall be given in writing.
Concealment of Identity of Informants
70 (1) Subject to subsection (2), a witness who is officially associated with the prosecution may refuse to answer questions concerning the identity of any informant who assisted in furthering the prosecution.
(2) If, in the opinion of the judge advocate, it is essential to a fair trial that an informant should be identified and called as a witness, the court shall direct a witness referred to in subsection (1) to answer questions as to the identity of the informant.
Governmental Privilege on Disclosure
71 Except as provided in this Division or in an Act of the Parliament of Canada, there is no official or governmental privilege to withhold relevant evidence from a court martial.
Privilege — Generally
72 Except as provided in this Division, no person is privileged to refuse to disclose or to prevent any other person from disclosing a communication or to refuse to produce a document that has passed between them.
Privilege of Accused
(2) Neither the court, the judge advocate nor the prosecutor shall comment upon the failure of an accused to testify.
Privilege of Spouse of Accused
(2) The spouse of the accused may be compelled to testify for the prosecution without the consent of the accused in cases where the accused is charged
(a) with inflicting personal injuries by violence or coercion on his spouse; or
(b) under section 120 of the National Defence Act with an offence under sections 33 and 34 of the Juvenile Delinquents Act or with an offence under sections 143 to 146, 148, 150 to 155, 157, 166, 167, 168, 169, 175, 195, 197, 200, 248 to 250, 255 to 258, 275, paragraph 423(c) of the Criminal Code, or an attempt to commit an offence under section 146 or 155 of the Criminal Code.
(3) Neither the court, the judge advocate nor the prosecutor shall comment upon the failure of the spouse of an accused to testify.
Communication during Marriage
75 A husband is not compellable to disclose any communication made to him by his wife during their marriage, and a wife is not compellable to disclose any communication made to her by her husband during their marriage.
Witness — Incriminating Questions
76 The position of a witness at a court martial in respect of incriminating questions is governed by section 97.
(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,
(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
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
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.
- SOR/90-306, s. 2
Testimonial Qualification of Witness
(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.
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