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

Regulations are current to 2020-09-09

PART IVPermitted Methods of Proof (continued)

DIVISION XIExamination of Witnesses (continued)

Cross-Examination — Exemptions

  •  (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

 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

  •  (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.

Examination of Witnesses — Incriminating Questions

  •  (1) A witness shall not refuse to answer a question put to him on the ground that the answer may tend to incriminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

  • (2) Except in so far as the evidence given by a witness is relevant to a charge against him involving perjury, giving false or contradictory evidence, or making a false or contradictory statement, evidence given by a witness shall not be admissible in any subsequent proceeding against him.

Credibility of Witness Generally

 Subject to subsection 94(2) and sections 99, 100 and 101, the prosecutor or accused may, at the proper stage of the trial, by cross-examination or by other witnesses, introduce evidence relevant to the credibility of a witness of the other party.

Credibility — Effect of Answers

  •  (1) Where a witness has given testimony on matters not material to the charge, he may be cross-examined on that testimony to test his credibility, but subject to subsections (2) and (3), his answers on cross-examination are conclusive in the sense that the cross-examining party may not call witnesses to contradict them.

  • (2) A witness may be cross-examined on matters not material to the charge to test his credibility by disclosing emotional prejudice and, if the witness denies the facts that show his bias or partiality, the cross-examining party may prove these facts by the testimony of other witnesses.

  • (3) If a witness who has been convicted of an offence is asked whether he has been convicted of any offence, and he denies the fact or refuses to answer, the cross-examining party may prove the conviction.

Credibility — Use of Former Statements to Contradict

  •  (1) For the purposes of this section, statement does not include

    • (a) a statement that a regulation prescribes is not to be used at a trial; or

    • (b) when the accused is a witness, an official or unofficial confession by him that has not been admitted under section 40 or 42, respectively.

  • (2) A witness may be cross-examined in accordance with this article as to a previous statement made by him relative to the charge.

  • (3) Subject to subsection (4), a witness may be cross-examined on a statement in writing or reduced to writing without the writing being shown to him.

  • (4) When a previous statement of a witness is inconsistent with his present evidence and the witness does not admit making the statement, proof may be given that he did make it, but before the proof is given

    • (a) when the statement

      • (i) is in writing or reduced to writing, his attention shall be called to the parts of the writing that are to be used to contradict him, or

      • (ii) was oral, the circumstances of the statement sufficient to designate the particular occasion shall be mentioned to him; and

    • (b) he shall be asked whether or not he did make the statement.

  • (5) A writing mentioned in subsection (4), shall, if the judge advocate so requires, be produced for his inspection and decision as to whether or not it may be used for the purpose of contradicting the witness and, if allowed for this purpose, may be used only to the extent necessary to prove that the witness made the statement contained in it.

  • (6) A previous statement proved under this section shall not be considered as evidence of the facts therein but may be considered in so far as it is relevant to the credibility of the witness.

Credibility — General Reputation of Witness for Veracity

  •  (1) Subject to subsections (2) and (3), a cross-examining party may attack the credit of a witness by introducing evidence of his general reputation for veracity.

  • (2) A witness called to testify to the general reputation for veracity of another witness shall be questioned, first, as to his means of knowledge of the general reputation of the witness to be impeached and shall then be asked: “From your knowledge of the general reputation of the witness for veracity, would you believe him on oath?”

  • (3) The impeaching witness shall not be asked questions designed to show that the witness whose credit is being attacked has committed particular acts that disentitle him to credit.

DIVISION XIIDocuments

Original Documents — Explanation

  •  (1) When a document is fully executed in several complete and identical copies, each copy is an original document.

  • (2) When a document is executed in several copies, and each copy is executed by one or more of the parties only, each copy is an original document for purposes adverse to a party who has executed it.

  • (3) Subject to subsection (5), when a number of finished documents apparently uniform were each created for the first time in their intended final form by the same operation of printing, lithography, photography, or other reproductive process adapted to secure their uniformity, finished documents that result from repeating the operation of the same process are original documents.

  • (4) Whether certain finished and apparently uniform documents were created in a manner mentioned in subsection (3) may be inferred from an inspection of them.

  • (5) A document is not an original document if the party to whom it is adverse proves that the particular reproductive operation concerned or the kind of reproductive process used was not or is not reliable in securing the uniformity of the resulting finished documents.

Proof of Documents by Primary Evidence

  •  (1) Except where secondary evidence of a document is permitted under this section, the existence, character or content of a document shall be proved by primary evidence in accordance with subsection (2).

  • (2) A document is proved by primary evidence by the production of the original document for the inspection of the court and identification of it by a qualified witness as the document it is alleged or appears to be.

  • (3) For the purposes of this section, qualified witness includes

    • (a) the maker of the document;

    • (b) a person who perceived the making of it; or

    • (c) a person who is properly entrusted with the custody of the document along with others of the same class or type.

Proof of Documents by Secondary Evidence

  •  (1) Secondary evidence of the existence, character or content of a document may be given in accordance with subsection (2) when

    • (a) the original document is not available for any reason other than the wrongdoing of the party offering the secondary evidence;

    • (b) the original is a public document;

    • (c) the original is a document that may be proved by secondary evidence before a civil court sitting in Ottawa in a trial of a similar charge, in which case proof may be given in the manner permitted in that court; or

    • (d) the originals consist of numerous documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole and is capable of being ascertained by calculation.

  • (2) Secondary evidence, either direct or circumstantial, as to the existence, character or content of a document may be given by oral testimony or documents or by an admission under paragraph 8(d) or 37(b) and, without restricting the generality of the foregoing, will usually be given

    • (a) by producing a copy and calling a witness who can testify that the copy is correct; or

    • (b) where no copy is obtainable, by calling a witness who has seen the original and can give a reliable account of its character or content.

 
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