DAOD 7002-4, Examination of Witnesses

1. Introduction

Date of Issue: 2002-02-08

Date of Last Modification: 2011-03-08

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Approval Authority: Chief Review Services (CRS)

Enquiries: Administrative Investigation Support Centre (AISC)

2. Preparation

Context

2.1 This DAOD applies to the gathering of evidence from witnesses during the conduct of an investigation by a board of inquiry (BOI) or a summary investigation (SI).

2.2 The Military Rules of Evidence do not apply to the gathering of evidence at a BOI or SI.

Planning

2.3 The examination of witnesses shall be planned in advance. The steps in planning are the following:

  1. brief preliminary interviews of possible witnesses to establish the relevance of their testimony and the nature of their knowledge of the matter under investigation;
  2. determination of the order in which witnesses are to be called to allow the evidence to unfold in a chronological sequence to assist in recreating the event or events;
  3. determination of the primary questions to be asked of each witness;
  4. obtaining the necessary recording capability and a reliable back-up system to ensure the accurate recording of the testimony at a BOI, and at an SI if reasonable in the circumstances; and
  5. obtaining legal advice from the legal adviser for the BOI, or the nearest representative of the Judge Advocate General (JAG), if necessary, in the case of an SI.

Recording of Testimony at a BOI

2.4 The testimony of a witness at a BOI shall commence with a recording of the oath or affirmation of the witness. See QR&O article 21.10, Procedure, in respect of the taking of oaths and solemn affirmations at a BOI.

2.5 The witness shall then identify him- or herself on the recording prior to answering questions.

2.6 Questions posed to a witness at a BOI shall be accurately recorded in the transcript of the witness because:

  1. reviewing authorities are solely dependent on the report; and
  2. the testimony is normally taken under oath or solemn affirmation.

Statements Made to an SI Investigator

2.7 Evidence received during an SI is not taken under oath or solemn affirmation as an SI investigator does not have the power to administer an oath or solemn affirmation.

2.8 Statements made to an SI investigator shall be accurately recorded:

  1. in the form of notes;
  2. as a written statement made to the SI by a witness; or
  3. electronically, if appropriate.

2.9 Accuracy is essential since reviewing authorities are solely dependent on the SI report.

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3. Witnesses, Counsel and Assistance

Witnesses

3.1 Subsection 45(2) of the National Defence Act provides that a BOI has the power to summon a DND employee, CAF member or any other person and compel the person to give evidence.

3.2 A civilian witness may be requested, but cannot be compelled, to provide statements to an SI investigator.

3.3 A civilian witness who is not a DND employee and who is compelled to appear before a BOI is entitled to the payment of witness fees and the reimbursement of expenses (see QR&O article 210.60, Witness Fees and Allowances, and CFAO 210-1, Civilian Witnesses - Fees and Expenses).

3.4 DND employees and CAF members are entitled to the reimbursement of expenses but not the payment of witness fees.

3.5 A CAF member may be compelled to appear before a BOI by way of order or summons. The AISC may be contacted for a sample summons.

3.6 A CAF member shall provide a statement to an SI investigator upon the request of the investigator.

3.7 See the Exhibits block in DAOD 7002-1, Boards of Inquiry, in respect of documents or things which may be offered by a witness at a BOI and received as an exhibit.

Counsel at a BOI

3.8 A witness ordered to appear before a BOI may choose to retain counsel, i.e. a barrister or advocate who is a member in good standing of a law society of a province or territory. Counsel retained by a witness may be present for the testimony of their client. A witness who has received a notice of adverse evidence (NOAE) may also have counsel present if the witness chooses to be present for the testimony of other witnesses. For additional information in respect of an NOAE, see QR&O paragraphs 21.10(4) and (5).

3.9 For additional information in respect of the appearance of counsel at a BOI, see QR&O article 21.12, Meetings Not Open to the Public, or contact the AISC.

Assistance at an SI

3.10 A CAF member of any rank or a civilian may assist a CAF member who is providing oral or written evidence to an SI.

3.11 The person assisting the CAF member is not permitted to take part in the SI except to be present during the interview of the CAF member.

3.12 The person assisting the CAF member shall, as a minimum, assist the CAF member in understanding:

  1. the purpose of the SI;
  2. the reason for obtaining the CAF member's evidence; and
  3. the provisions of this DAOD.

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4. Adverse Impact of Evidence and Incriminating Statements

Adverse Impact of Evidence

4.1 BOI members and an SI investigator may, during the conduct of an investigation, encounter evidence which appears likely to adversely affect a person. Evidence may adversely affect a person if it:

  1. suggests professional misconduct or incompetence;
  2. suggests malfeasance; or
  3. otherwise harms the person's reputation.

4.2 Some evidence may appear neutral by itself, but in combination with other evidence may lead to a conclusion that is likely to adversely affect a person.

Provision of an NOAE

4.3 If at any time during a BOI or an SI, the evidence received, or expected to be received, appears likely to adversely affect a person, the president of the BOI or the SI investigator shall:

  1. provide a written NOAE to the person that he or she could be adversely affected by the evidence and why;
  2. advise the person as to whether or not he or she will be called as a witness by a BOI or requested to provide a statement to an SI investigator; and
  3. include with the NOAE a copy of the convening order for the BOI or the terms of reference for the SI.

Cancellation of an NOAE

4.4 If a determination is made that the evidence received or expected to be received is in fact not adverse and that no adverse findings may be made against a person who has received an NOAE, the president of the BOI or the SI investigator may cancel the NOAE.

4.5 If the president of a BOI or an SI investigator considers the cancellation of an NOAE, legal advice shall be sought from the legal advisor for the BOI or the nearest JAG representative in the case of an SI.

Participation at a BOI by a Person Who Receives an NOAE

4.6 If a person has received an NOAE during the conduct of a BOI, the president shall:

  1. give the person, prior to being called as a witness, a reasonable opportunity to review all relevant evidence heard by, or documents or things submitted to, the BOI;
  2. allow the person to be present for any further testimony of witnesses;
  3. allow the person to make a concluding statement to the BOI;
  4. advise the person of the right to request that:
    1. any witness previously heard be recalled;
    2. additional questions be put to any witness called by the BOI; and
    3. additional witnesses be called; and
  5. advise the person that a letter of closure will be provided by the final approving authority (see the Letter of Closure - NOAE block in DAOD 7002-1).

4.7 In accordance with QR&O paragraph 21.10(7), the president may dispense with compliance with any of these requirements if:

  1. the evidence to be heard is likely to adversely affect a person other than a CAF member; and
  2. potentially injurious information or sensitive information, as those terms are defined in section 38 of the Canada Evidence Act, could be disclosed.

4.8 The president shall seek legal advice from the legal advisor for the BOI if such a situation occurs.

Participation at an SI by a Person Who Receives an NOAE

4.9 If a person has received an NOAE during the conduct of an SI, the SI investigator shall:

  1. give the person a reasonable opportunity to review all relevant evidence;
  2. allow the person to make a written statement to the SI investigator in response to all relevant evidence;
  3. advise the person of the right to request that:
    1. any witness previously heard be re-interviewed;
    2. additional questions be put by the SI investigator to any witness; and
    3. additional witnesses be questioned; and
  4. advise the person that a letter of closure will be provided by the final approving authority (see the Letter of Closure – NOAE block in DAOD 7002-2, Summary Investigations).

Incriminatory Statements

4.10 For the purpose of this block, a "self-incriminatory statement" is an admission of facts by a witness that would make the witness liable to prosecution for an offence under the Criminal Code, the National Defence Act, any other federal statute or a provincial statute, or that might be used against the witness in a civil action.

4.11 If it appears likely that a witness may make a self-incriminatory statement during their testimony, the president of the BOI or the SI investigator shall direct the attention of the witness to:

  1. section 13 of the Canadian Charter of Rights and Freedoms;
  2. section 45.1 of the National Defence Act, in the case of a BOI; and
  3. section 5 of the Canada Evidence Act.

4.12 In addition, the president of the BOI or the SI investigator shall, as applicable:

  1. acquaint the witness with the provisions of QR&O article 21.16, Admissibility - Report of a Board of Inquiry - Report of a Summary Investigation, if the witness is a CAF member or other person subject to the Code of Service Discipline;
  2. direct the attention of the witness to DAOD 7004-0, Claims By or Against the Crown and Ex gratia Payments and DAOD 7004-1, Claims and Ex gratia Procedures, if the incident being investigated may result in a claim by or against the Crown; and
  3. exclude the coroner or the representative of the Attorney General from the sittings of the BOI if necessary.

Recall of Witnesses

4.13 Witnesses shall be recalled by a BOI or an SI investigator to resolve discrepancies or inaccuracies in evidence, especially if the findings or recommendations may be affected.

Commission of an Offence

4.14 If the evidence received by a BOI or an SI appears likely to relate to the commission of an offence, the president of the BOI or the SI investigator shall:

  1. adjourn the investigation; and
  2. report the matter to the convening authority or the officer who ordered the SI, who shall refer the matter to the nearest JAG representative for legal advice.

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5. Legal Rights

Section 13 of the Canadian Charter of Rights and Freedoms

5.1 Section 13 of the Canadian Charter of Rights and Freedoms provides:

"13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence."

Section 45.1 of the National Defence Act

5.2 Section 45.1 of the National Defence Act provides:

"45.1(1) No witness shall be excused from answering any question relating to a matter before a board of inquiry when required to do so by the board of inquiry on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

(2) No answer given or statement made by a witness in response to a question described in subsection (1) may be used or receivable against the witness in any disciplinary, criminal or civil proceeding, other than a hearing or proceeding in respect of an allegation that the witness gave the answer or made the statement knowing it to be false."

Section 5 of the Canada Evidence Act

5.3 Section 5 of the Canada Evidence Act provides:

"5.(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence."

Protection under section 5 of the Canada Evidence Act

5.4 If a witness wishes to claim protection under section 5 of the Canada Evidence Act, the witness shall first hear the question and then shall state that the witness objects to answering because the answer may tend to incriminate the witness or establish the liability of the witness to a civil proceeding. If, after claiming section 5 protection, the witness is ordered to answer the question, the witness shall comply.

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6. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

  • QR&O article 210.60, Witness Fees and Allowances
  • Military Rules of Evidence
  • DAOD 7002-1, Boards of Inquiry
  • DAOD 7002-2, Summary Investigations
  • DAOD 7004-0, Claims By or Against the Crown and Ex gratia Payments
  • DAOD 7004-1, Claims and Ex gratia Procedures
  • CFAO 210-1, Civilian Witnesses - Fees and Expenses