Chapter 15 – The Laws of Evidence
15.1 Introduction
As discussed in Chapter 7, the laws of evidence applicable to the court martial system are only somewhat effective and somewhat efficient, primarily as they can be an obstacle to the generation of accurate / correct outcomes or promote timely outcomes. The military laws of evidence are also different from the ordinary criminal rules of evidence in ways that can affect the legitimacy of the system, due to a perceived lack of fairness and intelligibility.1
This chapter will describe two representative options to update the laws of evidences applicable within the court martial system that would increase the effectiveness and efficiency of this aspect of the court martial system.
15.2 Option 1: Update the Military Rules of Evidence
This option would provide for the continued use of codified Military Rules of Evidence but commence a process to amend them to ensure that the relevant common law and statutory laws of evidence are incorporated into the MRE where appropriate and, where necessary, new MRE would be created to account for contemporary military and societal realities (for instance, the reality that electronically signed documents may be authentic and reliable in ways that should make them admissible, even if no “original” of such a document can be easily identified).2
The CMCRT was not mandated to conduct an exhaustive review of the MRE but notes that implementation of this option would require a detailed comparison of the current MRE provisions and the common law and statutory laws of evidence that need to be paralleled, in addition to a thorough analysis of how changes in evidence law should be drafted and reflected in the MRE. The CMCRT notes that the most recent changes to the MRE were made after extensive analysis conducted by contracted experts.
15.2.1 Assessment of Option 1
It is assessed that, relative to the current court martial system, implementation of this option would increase the effectiveness and efficiency of the court martial system by improving how the rules of evidence support the generation of accurate / correct outcomes and by promote timely outcomes.
It is assessed that, under this option, updating the MRE would increase the generation of accurate / correct outcomes for several reasons. First, the common law of evidence is constantly evolving and results in more accurate / correct outcomes in the civilian criminal justice system by permitting or prohibiting reliance on evidence during a criminal trial. As the common law has developed significantly and continuously since the MRE were last updated,3 there is a disconnect between the common law and the MRE. Under Option 1, the MRE would be updated and more aligned with the common law rules. 4 Currently, although prosecutors, defence counsel and judges must be familiar with the common law and statutory rules, however, the MRE prevent them from using this existing criminal law knowledge. Thus, under this option, the MRE would promote an increase the overall criminal law expertise of the judges, prosecutors, and defence counsel in the court martial system as the MRE would mirror the common law and statutory laws of evidence applicable in the civilian criminal justice system. However, it is assessed that unless the MRE are constantly and frequently updated, this option may have a neutral impact on the generation of accurate / correct outcomes in the long term, if the MRE continue to be inconsistent with the constantly evolving civilian rules of evidence.5
Similarly, it is assessed that, in the short term, this option could improve perceptions of fairness and intelligibility regarding the court martial system. Since the MRE would be aligned with the civilian law of evidence, this option would provide for an accused person to be dealt with in a similar manner, that is likely more familiar and comprehensible, regardless of the justice system (military or civilian) in which he/she is being tried. However, in the long term, the court martial system may still be perceived as not fair nor intelligible by some if, over time, the MRE were not updated to be aligned with civilian law; this situation would lead differences and unfamiliarity in the applicable laws of evidence depending on whether an accused person is being dealt within the civilian justice system or the court martial system.
15.3 Option 2: Abolish the MRE and Use Statutory Amendments to Address Specialized Issues
This option would abolish the MRE and would use statutory amendments to incorporate specific military rules. These statutory amendments could be achieved through an amendment to the Canada Evidence Act or by directly amending the NDA. In particular, this option would provide for a small number of rules to address unique military aspects of evidence such as a rule that would permit a court martial tribunal to take judicial notice of matters of general service knowledge, and for a rule that would permit the efficient proving of a military document.6
This option would also provide that the rules of evidence at courts martial, regardless of the location of trial either inside of outside of Canada, shall be the common law rules of evidence in a set Canadian location7 and the CEA.
15.3.1 Assessment of Option 2
It is assessed that, relative to the current court martial system, implementation of this option would increase the effectiveness, efficiency, and legitimacy of the court martial system.
It is assessed that, under this option, abolishing the MRE and amending the CEA would increase the generation of accurate / correct outcomes for many reasons. First, the common law and CEA have developed significantly and continuously since the MRE were last updated8 and the abolishment of the MRE would permit the common law or CEA to apply instead of outdated rules. Additionally, under this option, abolishment of the MRE would increase the overall criminal expertise of the judges, prosecutors, and defence counsel in the court martial system as they would become more familiar with the common law and statutory laws of evidence applicable in the civilian criminal justice system.
Similarly, it is estimated that this option could increase the proportionate use of financial and human resources as prosecutors, defence counsel, and judges would only be require to learn a single set of evidentiary rules, thereby reducing the requirement for training and time associated with learning and maintaining knowledge of two sets of rules.
Additionally, it is assessed that this option could improve perceptions of fairness and intelligibility regarding the court martial system. Since there would no longer be a distinct body of evidence law applicable to the court martial system, and only the civilian law of evidence would apply (with special provision for a very small number of military rules), this option would provide for an accused person to be dealt with in almost an identical manner, that is likely more familiar and comprehensible, regardless of the justice system (military or civilian) in which he/she is being tried. As the abolishment of the MRE would be permanent, there would be no requirement to constantly and frequently update them, so the improvements in fairness and intelligibility within the court martial system would be long-term improvements.
15.4 Conclusion
This chapter has canvassed two options to update the military laws of evidence. The implementation of either of these options would increase the effectiveness and legitimacy of this aspect of the court martial system.
Footnotes
1 For example, Military Rules of Evidence, CRC, c 1049 [MRE] provisions on the inadmissibility of hearsay evidence, and on the exceptions to this general rule (Rules 26-35) do not reflect the common law of evidence as articulated most recently by the Supreme Court of Canada in R v Khelawon, 2006 SCC 57. Furthermore, provisions on spousal competence to testify in the MRE (Rule 74) are out of date and do not reflect the current state of the law in civilian criminal courts as provided for at section 4 of the Canada Evidence Act, RSC 1985, c C-5, that were last amended in 2015 as part of a law reform package intended to better address the needs and circumstances of victims in the criminal justice system (see Victims Bill of Rights Act, SC 2015, c 13).
2 This was recommended in Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, (Ottawa: Bronson Consulting Group, 2008), at 17: “we recommend that a review be conducted of the Military Evidence Act (Military Rules of Evidence) with the view to simplifying the methods for proving certain elements of offences without unduly infringing on the fundamental rights of accused persons.”
3 MRE were last updated in 2001, see above, Chapter 2 (Historical Background).
4 Supra, note 1.
5 See above, Chapter 4 (Consultation), at section 4.5.4.2.2 (RHFC). As was remarked during public consultations, the common law “grows and expands to face new challenges, whereas the MRE are overly stilted, inflexible, and out of date.”
6 Given the frequencies of postings and releases from the CAF it may not always be practical or possible for the individual who created or witnessed a document to be called as a witness to testify as to the document’s authenticity.
7 Potentially, Ottawa, as this is the jurisdiction currently used in the MRE.
8 MRE were last updated in 2001, see Chapter 2 (Historical Background).