An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (S.C. 2019, c. 15)

Marginal note:Reasons for not proceeding

165.13 If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.

Admission to Courts Martial and Certain Proceedings Before Military Judges

Marginal note:Proceedings public

• 180 (1) Unless this Act provides otherwise, court martial proceedings and proceedings before a military judge under any of sections 147.6, 159, 187 and 248.81 must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.

• Marginal note:Exception

  (2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judges’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.

• Marginal note:Factors to be considered

  (3) In determining whether making the order is in the interest of the proper administration of military justice, the military judge shall consider

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

  • (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

  • (c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;

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

  • (e) the protection of military justice system participants who are involved in the proceedings;

  • (f) whether effective alternatives to the making of the order are available in the circumstances;

  • (g) the salutary and deleterious effects of the order; and

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

• Marginal note:No adverse inference

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

• Marginal note:Reasons to be stated

  (5) If a person is charged with an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.

• Marginal note:Witnesses

  (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.

• Marginal note:Clearing court

  (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.

Production of certain records

Marginal note:Definition of record

180.01 For the purposes of sections 180.02 to 180.08, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or of a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence.

Marginal note:Production of record to accused

• 180.02 (1) Except in accordance with sections 180.03 to 180.08, no record relating to a complainant or a witness shall be produced to an accused person 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, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code;

  • (b) any offence under the Criminal Code, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involved a violation of the complainant’s sexual integrity and would be an offence referred to in paragraph (a) if it had occurred on or after that day.

• Marginal note:Application of provisions

  (2) Section 180.01, this section and sections 180.03 to 180.08 and 303 apply in respect of a record relating to the complainant or a witness that is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness, as the case may be, has expressly waived the application of those sections.

• Marginal note:Duty of prosecutor to give notice

  (3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that the record is in the prosecutor’s possession or control, but, in doing so, the prosecutor shall not disclose the record’s contents.

Marginal note:Application for production

• 180.03 (1) An accused person who seeks the production of a record may 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:Form and content of application

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

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

  • (b) 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.

• Marginal note:Insufficient grounds

  (3) 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:

  • (a) the record exists;

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

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

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

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

  • (f) the 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) the record may reveal allegations of sexual abuse of the complainant by a person other than the accused person;

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

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

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

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

• Marginal note:Service of application

  (4) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the 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 relates, at least 14 days before the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice.

• Marginal note:Service on other persons

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

Marginal note:Hearing in private

• 180.04 (1) The military judge shall hold a hearing in private to determine whether to order the person who has possession or control of the record to produce it to the military judge for review.

• Marginal note:Persons who may appear at hearing

  (2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

• Marginal note:Right to counsel

  (3) The military judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.

• Marginal note:Costs

  (4) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

Marginal note:Order to produce record for review

• 180.05 (1) The military judge may order the person who has possession or control of the record to produce the record or a part of the record to the military judge for review if, after the hearing, the military judge is satisfied that

  • (a) the application was made in accordance with subsections 180.03(2) to (5);

  • (b) the accused person has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) the production of the record is necessary in the interests of military justice.

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, 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 relates. In particular, the military judge shall take the following factors into account:

  • (a) the extent to which the record is necessary for the accused person to make a full answer and defence;

  • (b) the probative value of the record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record;

  • (d) whether production of the record is based on a discriminatory belief or bias;

  • (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

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

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

  • (h) the effect of the determination on the integrity of the trial process.

Marginal note:Review of record by military judge

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

• Marginal note:Hearing in private

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

• Marginal note:Provisions re hearing

  (3) Subsections 180.04(2) to (4) apply in the case of a hearing held under subsection (2).

Marginal note:Order to produce

• 180.07 (1) If the military judge is satisfied that the record or a part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and that its production is necessary in the interests of military justice, the military judge may order that the record or the part of the record, as the case may be, be produced to the accused person, subject to any conditions that may be imposed under subsection (3).

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, 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 relates and, in particular, the military judge shall take the factors specified in paragraphs 180.05(2)(a) to (h) into account.

• Marginal note:Conditions on production

  (3) The military judge who orders the production of the record or a part of the record to the accused person, 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 relates, including the following conditions:

  • (a) the record is to be edited as directed by the military judge;

  • (b) a copy of the record, rather than the original, is to be produced;

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

  • (d) the record is to be viewed only at a location specified by the military judge;

  • (e) no copies of the record are to be made or only the number of copies specified by the military judge may be made; and

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

• Marginal note:Copy to prosecutor

  (4) If the military judge orders the production of the record or a part of the record to the accused person, the military judge shall direct that a copy of the record or the part of the record, as the case may be, be provided to the prosecutor, unless the military judge determines that it is not in the interests of military justice to do so.

• Marginal note:Record not used in other proceedings

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

• Marginal note:Retention of record by court

  (6) If the military judge refuses to order the production of the record or a part of the record to the accused person, the record or the part of the record, as the case may be, must, unless the military judge orders otherwise, be kept by the military judge in a sealed package until the later of the expiry 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 the part of the record must be returned to the person lawfully entitled to possession or control of it.

Marginal note:Reasons for decision

180.08 The military judge shall provide reasons in writing for ordering or not ordering the production of the record or a part of the record under subsection 180.05(1) or 180.07(1).