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

Marginal note:Extension

165.36 The Governor in Council may, on the request of the Military Judges Compensation Committee, extend the time for the submission of a report.

Marginal note:Minister’s duties

• 165.37 (1) Within 30 days after receiving a report, the Minister shall notify the public and facilitate public access to the report in any manner that the Minister considers appropriate.

• Marginal note:Response

  (2) The Minister shall respond to a report within six months after receiving it.

General Courts Martial

Marginal note:Jurisdiction

166 A General Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

Marginal note:Punishment limitation

166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

Marginal note:Composition

• 167 (1) A General Court Martial is composed of a military judge and a panel of five members.

• Marginal note:Rank of senior member

  (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel.

• (3) [Repealed, 2013, c. 24, s. 47]

• Marginal note:Ranks for trial of brigadier-general or above

  (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.

• Marginal note:Rank for trial of colonel

  (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.

• Marginal note:Rank for trial of lieutenant-colonel or lower-ranked officer

  (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.

• Marginal note:Rank for trial of non-commissioned member

  (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.

Marginal note:Ineligibility to serve

168 None of the following persons may sit as a member of the panel of a General Court Martial:

• (a) an officer or non-commissioned member who is a lawyer or notary;

• (b) a witness for the prosecution or the accused person;

• (c) the commanding officer of the accused person;

• (d) a member of the military police;

• (e) an officer below the rank of captain;

• (f) any person who, before the court martial, participated in any investigation respecting the matters on which a charge against the accused person is founded; or

• (g) an officer or non-commissioned member of any armed force who is attached, seconded or on loan to the Canadian Forces.

169 [Repealed, 2008, c. 29, s. 10]

170 [Repealed, 2008, c. 29, s. 10]

171 [Repealed, 2008, c. 29, s. 10]

172 [Repealed, 2008, c. 29, s. 10]

Standing Courts Martial

Marginal note:Jurisdiction

173 A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.

Marginal note:Composition

174 Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.

Marginal note:Punishment limitation

175 A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.

176 [Repealed, 2008, c. 29, s. 12]

177 [Repealed, 2008, c. 29, s. 12]

178 [Repealed, 2008, c. 29, s. 12]

Powers

Marginal note:Courts martial

• 179 (1) A court martial has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to

  • (a) the attendance, swearing and examination of witnesses;

  • (b) the production and inspection of documents;

  • (c) the enforcement of its orders; and

  • (d) all other matters necessary or proper for the due exercise of its jurisdiction.

• Marginal note:Military judges

  (2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.

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 military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 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 judge’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 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.

Admissibility of Sexual Activity Evidence

Marginal note:Evidence of complainant’s sexual activity

• 180.001 (1) In proceedings in respect of 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 170, 171, 172, 173, 271, 272 or 273 of the Criminal Code or any other offence under that Act or any other Act of Parliament that is of a sexual nature or that is committed for a sexual purpose, evidence that the complainant has engaged in sexual activity, whether with the accused person or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

  • (a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or

  • (b) is less worthy of belief.

• Marginal note:Conditions for admissibility

  (2) In proceedings in respect of an offence referred to in subsection (1), evidence that the complainant has engaged in sexual activity, other than the sexual activity that forms the subject matter of the charge, whether with the accused person or with any other person, shall not be adduced unless the military judge determines, in accordance with the procedures set out in sections 180.002, 180.003, 180.005, 180.007, 180.17 or 180.2, as the case may be, that the evidence is not being adduced for the purpose of supporting an inference described in subsection (1), is relevant to an issue at trial, is of specific instances of sexual activity and

  • (a) if sought to be adduced by the accused person, has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of military justice; or

  • (b) if sought to be adduced by the prosecutor, has probative value that is not outweighed by the danger of prejudice to the proper administration of military justice.

• Marginal note:Factors to be considered

  (3) In determining whether evidence is admissible under subsection (2), the military judge shall take into account the following factors:

  • (a) the interests of military justice, including the right of the accused person to make a full answer and defence;

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

  • (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

  • (d) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the panel;

  • (f) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

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

• Marginal note:Interpretation

  (4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

• Marginal note:For greater certainty

  (5) For the purposes of this section, and for greater certainty, evidence of sexual activity includes evidence of sexual inactivity.

Procedure for Accused Person

Marginal note:Application for hearing

• 180.002 (1) The accused person may apply to a military judge or, if the court martial has been convened, to the military judge assigned to preside at the court martial, for a hearing under section 180.003 to determine whether evidence is admissible under subsection 180.001(2).

• Marginal note:Form and content

  (2) The application must be made in writing and be accompanied by an affidavit setting out detailed particulars of the evidence that the accused person seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application and the affidavit must be given to the prosecutor and filed with the Court Martial Administrator.

• Marginal note:Panel and public excluded

  (3) The military judge shall consider the application with the panel and the public excluded.

• Marginal note:Hearing

  (4) If the military judge is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and filed with the Court Martial Administrator at least 60 days previously or within any shorter interval that the military judge may allow in the interests of military justice, and that the evidence sought to be adduced is capable of being admissible under subsection 180.001(2), the military judge shall grant the application and hold a hearing under section 180.003 to determine whether the evidence is admissible under subsection 180.001(2).

• Marginal note:Copy to complainant

  (5) If the military judge grants the application and agrees to hold the hearing, the accused person shall cause a copy of the application to be given to the complainant by a person other than the accused person.