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

Marginal note:Review by military judge

• 180.13 (1) If the military judge has ordered the production of the record or therapeutic record, or part of it, for review, the military judge shall review it, or the part of it, in the absence of the parties in order to determine whether it, or the part, should be produced to the accused person.

• Marginal note:Hearing in private

  (2) The military judge may hold a hearing in private if the military judge considers that it will assist in making the determination.

• Marginal note:Provisions that apply to hearing

  (3) Subsections 180.11(2) to (4) apply in the case of a hearing under subsection (2).

Marginal note:Order to produce record to accused person

• 180.14 (1) If the military judge is satisfied that the record, or part of it, is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of military justice, the military judge may order that the record, or the part, that is likely relevant be produced to the accused person, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Order to produce therapeutic record to accused person

  (2) If the military judge is satisfied that the therapeutic record, or part of it, contains evidence that is likely to raise a reasonable doubt as to the accused person’s guilt and that is not available from any other source, the military judge may order that the therapeutic record, or the part, be produced to the accused person, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Factors to be considered

  (3) In determining whether to order the production of the record or therapeutic record, or part of it, to the accused person, the military judge shall consider the salutary and deleterious effects of the determination on the accused person’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record or therapeutic record relates and, in particular, shall take the factors set out in subsection 180.12(2) into account.

• Marginal note:Conditions

  (4) If the military judge orders the production of the record or therapeutic record, or part of it, to the accused person, the military judge may impose conditions on the production to protect the interests of military justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record or therapeutic record relates, including, for example, the following conditions:

  • (a) that the record or therapeutic record be edited as directed by the military judge;

  • (b) that a copy of the record or therapeutic record, rather than the original, be produced;

  • (c) that the accused person and counsel for the accused person not disclose the contents of the record or therapeutic record to any other person, except with the approval of the military judge;

  • (d) that the record or therapeutic record be viewed only at a location specified by the military judge;

  • (e) that no copies of the record or therapeutic record be made or that restrictions be imposed on the number of copies of it that may be made; and

  • (f) that information regarding any person named in the record or therapeutic record, such as their address, telephone number and place of employment, be severed from the record or therapeutic record.

• Marginal note:Restriction on use

  (5) The record or therapeutic record, or the part of it, that is produced to the accused person under an order under subsection (1) must not be used in any other proceedings.

• Marginal note:Retention by military judge

  (6) If the military judge refuses to order the production of the record or therapeutic record, or part of it, to the accused person, the record or therapeutic record, or the part, must, unless a military judge orders otherwise, be kept by the military judge in a sealed package until the later of the end of the time for any appeal and the completion of any appeal in the proceedings against the accused person, at which time the record or therapeutic record, or the part, must be returned to the prosecutor or the person lawfully entitled to possession or control of it.

Marginal note:Reasons for decision

180.15 The military judge shall provide reasons in writing for ordering or not ordering the production of the record or therapeutic record, or part of it, under subsection 180.12(1) or 180.14(1) or (2).

Admissibility of Records and Therapeutic Records in Possession of Accused Person

Marginal note:Admissibility — possession by accused person

• 180.16 (1) Except in accordance with this section, no record or therapeutic record relating to a complainant that is in the possession or control of the accused person — and which the accused person intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

  • (a) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code or any other offence under that Act or any other Act of Parliament that is of a sexual nature or that is committed for a sexual purpose; or

  • (b) any offence under that Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

• Marginal note:Requirements for admissibility

  (2) The record or therapeutic record is inadmissible in whole or in part unless the military judge determines, in accordance with the procedures set out in sections 180.17, 180.18 or 180.2,

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

  • (b) that the record, or part of it, is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of military justice; and

  • (c) that the therapeutic record, or part of it, is evidence that is likely to raise a reasonable doubt as to the accused person’s guilt and there is no other evidence that is capable of raising a reasonable doubt as to the accused person’s guilt.

• Marginal note:Factors to be considered

  (3) In determining whether the record or therapeutic record, or part of it, is admissible under subsection (2), the military judge shall take into account the following factors:

  • (a) the interests of military justice, including the right of the accused person to make a full answer and defence;

  • (b) society’s interest in encouraging the reporting of sexual assault offences;

  • (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

  • (d) whether there is a reasonable prospect that the record or therapeutic record, or part of it, will assist in arriving at a just determination in the case;

  • (e) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the panel;

  • (g) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

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

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.