National Defence Act (R.S.C., 1985, c. N-5)

Marginal note:Application for hearing

• 180.17 (1) The accused person may apply to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial, for a hearing under section 180.18 to determine whether the record or therapeutic record, or part of it, is admissible under subsection 180.16(2).

• Marginal note:Form and content

  (2) The application must be made in writing and must be accompanied by an affidavit setting out

  • (a) detailed particulars of the record or the therapeutic record, or the part of it, that the accused person seeks to adduce;

  • (b) in the case of a record, or a part of one, the relevance of that evidence to an issue at trial; and

  • (c) in the case of a therapeutic record, or a part of one, how that evidence is likely to raise a reasonable doubt as to the accused person’s guilt.

• Marginal note:Copy of the application

  (3) A copy of the application and the affidavit must be given to the prosecutor and filed with the Court Martial Administrator.

• Marginal note:Panel and public excluded

  (4) The military judge shall consider the application with the panel and the public excluded.

• Marginal note:Hearing

  (5) If the military judge is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and filed with the Court Martial Administrator at least 60 days previously or within any shorter interval that the military judge may allow in the interests of military justice, and that the record or therapeutic record, or the part of it, sought to be adduced is capable of being admissible, the military judge shall grant the application and hold a hearing under section 180.18 to determine whether the evidence is admissible under subsection 180.16(2).

• Marginal note:Copy to complainant

  (6) If the military judge grants the application and agrees to hold the hearing, the accused person shall cause a copy of the application to be given to the complainant by a person other than the accused person.

Marginal note:Hearing — panel and public excluded

• 180.18 (1) The panel and the public shall be excluded from a hearing to determine whether the record or therapeutic record, or part of it, is admissible under subsection 180.16(2).

• Marginal note:Complainant not compellable

  (2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

• Marginal note:Right to counsel

  (3) The military judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

• Marginal note:Determination and reasons

  (4) At the conclusion of the hearing, the military judge shall determine whether the record or therapeutic record, or part of it, is admissible under subsection 180.16(2) and shall provide reasons in writing for that determination, and

  • (a) if not all of the record or therapeutic record is to be admitted, the reasons must state the part of it that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 180.16(3) that affected the determination;

  • (c) if all or any part of the record is to be admitted, the reasons must state the manner in which it is expected to be relevant to an issue at trial; and

  • (d) if all or any part of the therapeutic record is to be admitted, the reasons must state how it is likely to raise a reasonable doubt as to the accused person’s guilt and why the military judge is of the opinion that there is no other evidence that is capable of raising a reasonable doubt as to the accused person’s guilt.

Marginal note:Instruction to panel — use of evidence

180.19 If evidence is admitted at trial on the basis of a determination made under subsection 180.18(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.

Joint Application

Marginal note:Admissibility of record

• 180.2 (1) The prosecutor and the accused person, together with the complainant or any witness to which a record, or part of it, relates, may jointly apply to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial, for a determination as to whether the record, or part of it, is admissible under subsection 180.16(2) without holding a hearing under section 180.18.

• Marginal note:Form and content

  (2) The application must be made in writing and signed by the applicants and must set out the detailed particulars of the record or part and

  • (a) the relevance of that record or part to an issue at trial;

  • (b) if the admissibility of the record or part is subject to section 180.001, how it meets the conditions set out in subsection 180.001(2) while taking into account the factors set out in subsection 180.16(3);

  • (c) that the record or part has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of military justice; and

  • (d) any information the applicants consider necessary to assist the military judge when the military judge takes into account the factors referred to in subsection 180.16(3).

• Marginal note:Copy to Court Martial Administrator

  (3) A copy of the application must be filed with the Court Martial Administrator at least 60 days before the trial.

• Marginal note:Determination and reasons

  (4) The military judge shall, in the absence of the applicants, and without holding a hearing, consider the application and make a determination no later than 30 days after the day on which the application is made as to whether the evidence, or any part of it, is admissible under subsection 180.16(2) and shall provide reasons in writing for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 180.001(3) or 180.16(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

• Marginal note:Power to grant application or hold hearing

  (5) If the military judge is satisfied that the record, or part of it, is admissible under subsection 180.16(2), the military judge shall grant the application. If the military judge is not so satisfied, they shall hold a hearing under section 180.18 to determine whether the evidence is admissible under subsection 180.16(2).

• Marginal note:Use of evidence

  (6) If the record, or part of it, is determined to be admissible, the military judge shall direct the applicants as to the uses that they may and may not make of that record or part.

• Marginal note:For greater certainty — therapeutic record

  (7) For greater certainty, this section does not apply to a therapeutic record.

• Marginal note:For greater certainty — right to counsel

  (8) For greater certainty, the complainant or any witness has the right to be represented by counsel.

Marginal note:Instruction to panel — use of evidence

180.21 If evidence is admitted at trial on the basis of a determination made under subsection 180.2(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.

Rules of Evidence

Marginal note:Rules of evidence

• 181 (1) Subject to this Act, the Governor in Council may make rules of evidence to be applicable at trials by court martial.

• Marginal note:Publication

  (2) No rule made under this section is effective until it has been published in the Canada Gazette, and every rule shall be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which it is made.

Marginal note:Admission of documents and records

• 182 (1) Documents and records of the classes that are prescribed in rules made under section 181 may be admitted, as evidence of the facts stated in them, at trials by court martial or in any proceedings before civil courts arising out of those trials, and the conditions governing the admissibility of the documents and records — or copies of them — in those classes shall be as prescribed in those rules.

• Marginal note:Statutory declarations admissible, subject to conditions

  (2) A court martial may receive, as evidence of the facts stated in them, statutory declarations made in the manner prescribed by the Canada Evidence Act, subject to the following conditions:

  • (a) if the declaration is one that the prosecutor wishes to introduce, a copy shall be served on the accused person at least seven days before the trial;

  • (b) if the declaration is one that the accused person wishes to introduce, a copy shall be served on the prosecutor at least three days before the trial; and

  • (c) at any time before the trial, the party served with a copy of the declaration under paragraph (a) or (b) may notify the opposite party that the party so served will not consent to the declaration being received by the court martial, and in that event the declaration shall not be received.

Witnesses at Courts Martial

Marginal note:Procurement of attendance of witnesses

• 183 (1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.

• Marginal note:Exception

  (1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.

• Marginal note:Procurement of attendance in exceptional cases

  (2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.

• Marginal note:Reimbursement of accused for fees and expenses

  (3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.

• Marginal note:Rights of accused preserved

  (4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire.

Marginal note:Support person or animal — witnesses under 18 or who have disability

• 183.1 (1) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’s choice or a support animal be permitted to be present and to be close to the witness while the witness testifies, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.

• Marginal note:Victims — certain offences

  (1.1) In proceedings against an accused person in respect of an offence punishable under section 130 that is an offence under the Criminal Code and that is also an offence of a sexual nature or committed for a sexual purpose, an offence related to criminal harassment or trafficking in persons or an offence committed against their intimate partner, a military judge — or, if the court martial has been convened, the military judge assigned to preside at the court martial — shall, on application of the prosecutor in respect of a witness who is a victim of such an offence or on application of such a witness, order that a support person of the witness’s choice or a support animal be permitted to be present and to be close to the witness while the witness testifies, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.

• Marginal note:Inquiry by court

  (1.2) If an application for an order under subsection (1) or (1.1) is not made, the military judge shall inquire of the prosecutor whether reasonable steps have been taken to inform the witness that such an application may be made.

• Marginal note:Other witnesses

  (2) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’s choice or a support animal be permitted to be present and to be close to the witness while the witness testifies, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the military judge shall consider

  • (a) the witness’s age;

  • (b) the witness’s mental or physical disabilities, if any;

  • (c) the nature of the offence;

  • (d) the nature of any relationship between the witness and the accused person;

  • (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (f) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and

  • (g) any other factor that the military judge considers relevant.

• Marginal note:Witness not to be support person

  (4) The military judge shall not permit a witness to be a support person unless the military judge is of the opinion that doing so is necessary for the proper administration of military justice.

• Marginal note:No communication while testifying

  (5) The military judge may order that the support person and the witness not communicate with each other while the witness testifies.

• Marginal note:No adverse inference

  (6) No adverse inference shall be drawn from the fact that an order is, or is not, made under this section.

Marginal note:Testimony outside courtroom — witnesses under 18 or who have disability

• 183.2 (1) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify, at the option of the witness, either outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.

• Marginal note:Victims — certain offences

  (1.1) In proceedings against an accused person in respect of an offence punishable under section 130 that is an offence under the Criminal Code and that is also an offence of a sexual nature or committed for a sexual purpose, an offence related to criminal harassment or trafficking in persons or an offence committed against their intimate partner, a military judge — or, if the court martial has been convened, the military judge assigned to preside at the court martial — shall, on application of the prosecutor in respect of a witness who is a victim of such an offence, or on application of such a witness, order that the witness testify, at the option of the witness, either outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, unless the military judge is of the opinion that the order would interfere with the proper administration of military justice.

• Marginal note:Inquiry by court

  (1.2) If an application for an order under subsection (1) or (1.1) is not made, the military judge shall inquire of the prosecutor whether reasonable steps have been taken to inform the witness that such an application may be made.

• Marginal note:Other witnesses

  (2) In proceedings against an accused person in respect of a service offence, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify at the option of the witness, either outside the courtroom or behind a screen or other device that would allow the witness not to see the accused person, if the military judge is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of military justice.

• Marginal note:Factors to be considered

  (3) In determining whether to make an order under subsection (2), the military judge shall consider

  • (a) the witness’s age;

  • (b) the witness’s mental or physical disabilities, if any;

  • (c) the nature of the offence;

  • (d) the nature of any relationship between the witness and the accused person;

  • (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

  • (f) whether the order is needed to protect the identity of a peace officer, as defined in section 2 of the Criminal Code, who has acted, is acting or will be acting in an undercover capacity or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer as defined in that section;

  • (g) whether the order is needed to protect the witness’s identity if they have had, have or will have responsibilities relating to national security or intelligence;

  • (h) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process; and

  • (i) any other factor that the military judge considers relevant.

• Marginal note:Same procedure for determination

  (4) If the military judge is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of the witness, the military judge shall order that the witness testify in accordance with that subsection.

• Marginal note:Conditions of exclusion

  (5) A witness shall not testify outside the courtroom in accordance with an order made under subsection (1), (1.1) or (2) unless arrangements are made for the accused person, the military judge and, if a General Court Martial has been convened, its panel to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused person is permitted to communicate with counsel while watching the testimony.

• Marginal note:No adverse inference

  (6) No adverse inference shall be drawn from the fact that an order is, or is not, made under this section.