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

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).

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.