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

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Act current to 2022-06-20 and last amended on 2022-06-20. Previous Versions

PART IIICode of Service Discipline (continued)

DIVISION 6Trial by Court Martial (continued)

Witnesses at Courts Martial (continued)

Marginal note:Support person — witnesses under 18 or with disability

  •  (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 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: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 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 may be drawn from the fact that an order is, or is not, made under subsection (2).

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

  •  (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 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: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 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) 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 may be drawn from the fact that an order is, or is not, made under subsection (2).

Marginal note:Accused not to cross-examine witnesses under 18

  •  (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 on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.

  • Marginal note:Accused not to cross-examine complainant — certain offences

    (2) In proceedings against an accused person in respect of an offence punishable under section 130 that is an offence under section 264, 271, 272 or 273 of the Criminal Code, a military judge shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused person not personally cross-examine the witness, unless the military judge is of the opinion that the proper administration of military justice requires the accused person to personally conduct the cross-examination. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.

  • Marginal note:Other witnesses

    (3) 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 who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused person not personally cross-examine the witness, 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. If such an order is made, the military judge shall direct the Director of Defence Counsel Services to provide counsel to conduct the cross-examination.

  • Marginal note:Factors to be considered

    (4) In determining whether to make an order under subsection (3), 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:No adverse inference

    (5) No adverse inference may be drawn from the fact that counsel is, or is not, provided under this section.

Marginal note:Non-disclosure of witness’s identity

  •  (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 may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.

  • Marginal note:Hearing may be held

    (2) The military judge may hold a hearing to determine whether the order should be made, and the hearing may be in private.

  • Marginal note:Factors to be considered

    (3) In determining whether to make the order, the military judge shall consider

    • (a) the right to a fair and public hearing;

    • (b) the nature of the offence;

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

    • (d) whether the order is needed to protect the security of anyone known to the witness;

    • (e) 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;

    • (f) 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;

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

    • (h) the importance of the witness’s testimony to the case;

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

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

    • (k) 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:Order restricting publication — sexual offences

  •  (1) Subject to subsection (2), a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify a victim or a witness not be published in any document, or broadcast or transmitted in any way, if the proceedings are in respect of

    • (a) any of the following offences:

      • (i) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347 of the Criminal Code,

      • (ii) any offence under the Criminal Code, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it had occurred on or after that day; or

    • (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

  • Marginal note:Mandatory order on application

    (2) In proceedings in respect of any offence referred to in subsection (1), the military judge shall

    • (a) as soon as feasible, inform the victim and any witness under the age of 18 years of their right to make an application for the order; and

    • (b) on application of the victim, the prosecutor or any such witness, make the order.

  • Marginal note:Victim under 18 — other offences

    (3) Subject to subsection (4), in proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim not be published in any document or broadcast or transmitted in any way.

  • Marginal note:Mandatory order on application

    (4) In proceedings in respect of a service offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall

    • (a) as soon as feasible, inform the victim of their right to make an application for the order; and

    • (b) on application of the victim or the prosecutor, make the order.

  • Marginal note:Child pornography

    (5) In proceedings in respect of an offence punishable under section 130 that is an offence under section 163.1 of the Criminal Code, the military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial shall make an order directing that any information that could identify a witness who is under the age of 18 years or any person who is the subject of any representation, written material or recording that constitutes child pornography, as defined in that section 163.1, not be published in any document or broadcast or transmitted in any way.

  • Marginal note:Limitation

    (6) An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.

Marginal note:Order restricting publication — victims and witnesses

  •  (1) Unless an order is made under section 183.5, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the victim or witness not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.

  • Marginal note:Military justice system participants

    (2) On application of the prosecutor in respect of a military justice system participant who is involved in proceedings in respect of an offence referred to in subsection (3) or on application of the military justice system participant themself, a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial may make an order directing that any information that could identify the military justice system participant not be published in any document or broadcast or transmitted in any way, if the military judge is of the opinion that the order is in the interest of the proper administration of military justice.

  • Marginal note:Offences

    (3) For the purpose of subsection (2), an offence is any of the following:

    • (a) an offence punishable under section 130 that is an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13 of the Criminal Code or that is a serious offence committed for the benefit of, at the direction of, or in association with a criminal organization;

    • (b) a terrorism offence;

    • (c) an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act;

    • (d) an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Security of Information Act and that is committed in relation to an offence referred to in paragraph (c).

  • Marginal note:Limitation

    (4) An order made under this section does not apply in respect of the disclosure of information if the disclosure is made in the course of the administration of military justice and it is made for a purpose other than to make the information known in the community.

  • Marginal note:Making of application

    (5) An application for an order under this section must be made in accordance with regulations made by the Governor in Council.

  • Marginal note:Grounds

    (6) The application must set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of military justice.

  • Marginal note:Hearing may be held

    (7) The military judge may hold a hearing to determine whether an order under this section should be made, and the hearing may be held in private.

  • Marginal note:Factors to be considered

    (8) In determining whether to make an order under this section, the military judge shall consider

    • (a) the right to a fair and public hearing;

    • (b) whether there is a real and substantial risk that the victim, witness or military justice system participant would suffer harm if their identity were disclosed;

    • (c) whether the victim, witness or military justice system participant needs the order for their security or to protect them from intimidation or retaliation;

    • (d) society’s interest in encouraging the reporting of service offences and the participation of victims, witnesses and military justice system participants;

    • (e) whether effective alternatives are available to protect the identity of the victim, witness or military justice system participant;

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

    • (g) the impact of the order on the freedom of expression of those affected by it; and

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

  • Marginal note:Conditions

    (9) An order made under this section may be subject to any conditions that the military judge thinks fit.

  • Marginal note:Publication prohibited

    (10) Unless the military judge refuses to make an order under this section, no person shall publish in any document or broadcast or transmit in any way

    • (a) the contents of the application for the order;

    • (b) any evidence taken, information given or submissions made at a hearing held under subsection (7); or

    • (c) any other information that could identify the person to whom the application relates as a victim, witness or military justice system participant in the proceedings.

 
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