National Defence Act

Marginal note:Application for production

• 180.03 (1) An accused person who seeks production of a record or therapeutic record referred to in section 180.02 must make an application for its production to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial.

• Marginal note:Clarification

  (2) For greater certainty, the application referred to in subsection (1) must not be made in any other proceedings.

• Marginal note:Form and content

  (3) The application must be made in writing and must set out

  • (a) particulars identifying the record or the therapeutic record that the accused person seeks to have produced and the name of the person who has possession or control of it;

  • (b) in the case of a record, the grounds on which the accused person relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) in the case of a therapeutic record, the grounds on which the accused person relies to establish that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused person’s guilt.

• Marginal note:Insufficient grounds

  (4) Any one or more of the following assertions by the accused person are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify or that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused persons’s guilt:

  • (a) that the record or therapeutic record exists;

  • (b) that the record or therapeutic record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) that the record or therapeutic record relates to the incident that is the subject matter of the proceedings;

  • (d) that the record or therapeutic record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) that the record or therapeutic record may relate to the credibility of the complainant or witness;

  • (f) that the record or therapeutic record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) that the record or therapeutic record may reveal allegations of sexual abuse of the complainant by a person other than the accused person;

  • (h) that the record or therapeutic record relates to the sexual activity of the complainant with any person, including the accused person;

  • (i) that the record or therapeutic record relates to the presence or absence of a recent complaint;

  • (j) that the record or therapeutic record relates to the complainant’s sexual reputation;

  • (k) that the record or therapeutic record was made close in time to a complaint or to the activity that forms the subject matter of the charge against the accused person.

• Marginal note:Service of application and summons

  (5) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record or therapeutic record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused person, the record or therapeutic record relates, at least 60 days before the hearing referred to in subsection 180.04(1) or within any shorter interval that the military judge may allow in the interests of military justice. The accused person shall also serve a summons on the person who has possession or control of the record or therapeutic record at the same time as the application is served.

• Marginal note:Service on other persons

  (6) The military judge may at any time order that the application be served on any person to whom the military judge considers the record or therapeutic record may relate.

• Marginal note:Service on complainant

  (7) The service requirement on the accused person in subsection (5) is not fulfilled if the accused personally serves the application or a summons on the complainant.