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

Examination of Witnesses — Incriminating Questions

• 97 (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

98 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

• 99 (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

• 100 (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

• 101 (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

• 102 (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

• 103 (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

• 104 (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.

Proof of Public Documents

• 105 (1) Proof of the existence, character or content of a public document may be given by primary evidence or secondary evidence.

• (2) Without limiting the forms of secondary evidence available, they include

  • (a) an examined copy of, or extract from, a public document proved under subsection 104(2);

  • (b) the copy received by the addressee, when a public document is communicated by letter, radio, teletype, landline, visual signalling or other reliable means; and

  • (c) a copy of, or extract from, a public document signed and certified as a true copy or extract by an official entrusted with custody of the original.

• (3) The signature and appropriate official character of the person purporting to have signed and certified the copy or extract mentioned in paragraph (2)(c) shall, prima facie, be deemed authentic as they appear, and, unless the other party produces evidence that it is probably not authentic, the party seeking to rely on the document need give no evidence of the authenticity of the copy or extract in addition to its appearance.

• (4) The documents referred to in sections 19, 21, 22, 23, 24, 25, 26, 27, 31 and 32 of the Canada Evidence Act are public documents within the meaning of these Rules and may be proved as provided in those sections.

• (5) For the purpose of proving a conviction under subsection 99(3), a certificate containing the substance of the charge and conviction, purporting to be signed by the officer having the custody of the records of the court in which the offender was convicted, or by his deputy, shall, upon proof of the identity of the witness as the offender, be evidence of the conviction, without proof of the signature or of the offical character of the person appearing to have signed the certificate.

Proof of Regular Entries

106 A record in any business of an act, condition or event is proved by the custodian of the record or other qualified person testifying

• (a) to its identity,

• (b) to its mode of preparation, and

• (c) to its having been made in the usual and ordinary course of business, at or near the time of the act, condition or event,

if, in the opinion of the judge advocate, the sources of information and the method and time of preparation were such as to justify its admission as evidence of possibly significant weight.

Bankers’ Books

• 107 (1) For the purposes of this section,

  bank

  bank means an establishment or corporation in any country authorized to receive deposits and to pay out money on a customer’s order, and includes its agencies and successors; (banque)

  branch

  branch means an office of a bank, and includes the head office of that bank. (succursale)

• (2) Subject to subsections (3) and (6), a copy of an entry in any book or record kept in a bank or branch is admissible as evidence of the entry, and of the matters, transactions and accounts therein recorded.

• (3) A copy of an entry in a book or record kept in a bank or branch shall not be admitted under this article unless it is first proved

  • (a) that the book or record was, at the time of making the entry, one of the ordinary books or records of the bank or branch,

  • (b) that the entry was made in the usual and ordinary course of business,

  • (c) that the book or record is in the custody or control of the bank or branch, and

  • (d) that the copy is a true copy,

  and the proof of any of these matters may be given by the manager or accountant or a former manager or accountant of the bank or branch, and may be given orally or by affidavit or statutory declaration.

• (4) When a cheque has been drawn on a branch by any person, an affidavit or statutory declaration of the manager or accountant of the branch setting out that

  • (a) he has made a careful examination and search of the books and records of the branch for the purpose of ascertaining whether or not that person has an account with the branch, and

  • (b) he has been unable to find such an account,

  shall be admissible as evidence that the person has no account in the branch.

• (5) A statement of the official character of a person making an affidavit or statutory declaration may be included in the body of the affidavit or statutory declaration admissible under this section and when so included is evidence of the official character of that person.

• (6) Unless by order of the court made for special cause, a bank or officer of a bank shall not be compellable to produce any book or records the contents of which can be proved in the manner prescribed by this Division, or to appear as a witness to prove the matters, transaction, and accounts therein recorded.

Proof of Date, Handwriting and Signature of Documents

• 108 (1) Documents are presumed to have been executed on the date of execution stated therein but, where there is no date, a wrong date, or conflicting dates, the true date may be proved by oral or other evidence.

• (2) When the handwriting of or signature on an unattested document is in issue, the disputed fact may be proved

  • (a) by the testimony of

    • (i) the writer of the document,

    • (ii) a witness who saw the document signed, or

    • (iii) a witness who can satisfy the court that he knows the writing in question;

  • (b) by a comparison of the disputed writing with other writing proved to the satisfaction of the court to be genuine; or

  • (c) by an admission under paragraph 8(d) or 37(b).

Proof of Execution of Attested Documents

109 When the execution of an attested document is in issue, whether or not attestation is required by statute for its effective execution, no attestor is a necessary witness even if all attestors are available.

DIVISION XIIIReal Evidence

Admissibility of Real Evidence

• 110 (1) Subject to subsection (2), real evidence is admissible whenever the existence, identity or the quality or condition of a person or thing is relevant.

• (2) Unless the quality or condition of a document is in issue it is not admissible as real evidence.

Introduction of Real Evidence

111 Real evidence may be introduced in the following ways:

• (a) by the production by a witness of the material object for inspection of the court;

• (b) by experimentation in the presence of the court; or

• (c) by a visit of the court to view a place, thing or person, under QR&O 112.63.

DIVISION XIVForeign Law

Foreign Law

• 112 (1) The law of a country other than Canada relevant to a charge or issue is proved by an expert witness testifying as to that law.

• (2) The judge advocate shall, if he so desires or the court so requests, advise the court on the effect of the evidence of an expert witness as to the law of a country other than Canada, and the meaning or construction of that law as proved.