National Defence Act

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

• 183.2 (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).