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

Marginal note:Hearing — panel and public excluded

• 180.003 (1) The panel and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 180.001(2).

• Marginal note:Complainant not compellable

  (2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

• Marginal note:Right to counsel

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

• Marginal note:Determination and reasons

  (4) At the conclusion of the hearing, the military judge shall determine whether the evidence, or any part of it, is admissible under subsection 180.001(2) and shall provide reasons in writing for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 180.001(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Marginal note:Instruction to panel — use of evidence

180.004 If evidence is admitted at trial on the basis of a determination made under subsection 180.003(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.

Procedure for Prosecutor

Marginal note:Application

• 180.005 (1) The prosecutor 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, 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 must set out detailed particulars of the evidence that the prosecutor seeks to adduce and the relevance of that evidence to an issue at trial.

• Marginal note:Clarification

  (3) The application need not be supported by any affidavit or oral testimony of the complainant or of any other person with knowledge of the complainant’s sexual history or any sworn police or military police statement.

• Marginal note:Copy of the application

  (4) A copy of the application must be given to the accused person and filed with the Court Martial Administrator at least 60 days before the hearing or within any shorter interval that the military judge may allow in the interests of military justice.

• Marginal note:Panel and public excluded

  (5) The panel and the public shall be excluded from the hearing.

• Marginal note:Complainant not compellable

  (6) The complainant is not a compellable witness at the hearing.

• Marginal note:Determination and reasons

  (7) At the conclusion of the hearing, the military judge shall determine whether the evidence, or any part of it, is admissible under subsection 180.001(2) and shall provide reasons in writing for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 180.001(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Marginal note:Instruction to panel — use of evidence

180.006 If evidence is admitted at trial on the basis of a determination made under subsection 180.005(7), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.

Joint Application

Marginal note:Admissibility of sexual activity evidence

• 180.007 (1) The prosecutor, the accused person and the complainant may jointly 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 determination as to whether any evidence referred to in subsection 180.001(1) is admissible under subsection 180.001(2) without holding a hearing under section 180.003.

• Marginal note:Form and content

  (2) The application must be made in writing and signed by the applicants and must set out the detailed particulars of the evidence and

  • (a) the relevance of that evidence to an issue at trial;

  • (b) how the conditions for admissibility referred to in subsection 180.001(2) are satisfied; and

  • (c) any information the applicants consider necessary to assist the military judge when the military judge takes into account the factors referred to in subsection 180.001(3).

• Marginal note:Copy to Court Martial Administrator

  (3) A copy of the application must be filed with the Court Martial Administrator at least 60 days before the trial.

• Marginal note:Determination and reasons

  (4) The military judge shall, in the absence of the applicants, and without holding a hearing, consider the application and make a determination no later than 30 days after the day on which the application is made as to whether the evidence, or any part of it, is admissible under subsection 180.001(2) and shall provide reasons in writing for that determination, and

  • (a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

  • (b) the reasons must state the factors referred to in subsection 180.001(3) that affected the determination; and

  • (c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

• Marginal note:Power to grant application or hold hearing

  (5) If the military judge is satisfied that the evidence of sexual activity is admissible under subsection 180.001(2), taking into account the factors set out in subsection 180.001(3), they shall grant the application. If they are not so satisfied, they shall hold a hearing under section 180.003 to determine whether the evidence is admissible under subsection 180.001(2).

• Marginal note:Use of evidence

  (6) If evidence of sexual activity is determined to be admissible, the military judge shall direct the applicants as to the uses that they may and may not make of that evidence.

• Marginal note:For greater certainty

  (7) For greater certainty, the complainant has the right to be represented by counsel.

Marginal note:Instruction to panel — use of evidence

180.008 If evidence is admitted at trial on the basis of a determination made under subsection 180.007(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.

Marginal note:Reputation evidence

180.009 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, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

Production and Admissibility of Records and Therapeutic Records

Definitions

Marginal note:Definitions

180.01 The following definitions apply in sections 180.02 to 180.2.

record

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

therapeutic record

therapeutic record means any form of record, regardless of its contents, that was produced in the course of psychiatric treatment or any therapy or counselling provided by a health care professional who is entitled under the laws of a province or of a foreign state to provide the treatment, therapy or counselling. (dossier thérapeutique)

Production to Accused Person of Records and Therapeutic Records in Possession of Third Party

Marginal note:Records and therapeutic records possessed by third party

• 180.02 (1) Except in accordance with sections 180.03 to 180.08, no record or therapeutic record relating to a complainant or a witness that is in the possession or control of a third party 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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 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;

  • (b) any offence under that Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

• Marginal note:Definition of third party

  (2) In subsection (1), third party means a person other than the prosecutor or the accused person.

Marginal note:Application for production

• 180.03 (1) An accused person who seeks production of a record or therapeutic record referred to in section 180.02 must 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:Clarification

  (2) For greater certainty, the application referred to in subsection (1) must not be made in any other proceedings.

• Marginal note:Form and content

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

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

  • (b) in the case of a record, 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; and

  • (c) in the case of a therapeutic record, the grounds on which the accused person relies to establish that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused person’s guilt.

• Marginal note:Insufficient grounds

  (4) 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 or that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused persons’s guilt:

  • (a) that the record or therapeutic record exists;

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

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

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

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

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

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

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

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

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

• Marginal note:Service of application and summons

  (5) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record or therapeutic 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 or therapeutic record relates, at least 60 days before the hearing referred to in subsection 180.04(1) or within any shorter interval that the military judge may allow in the interests of military justice. The accused person shall also serve a summons on the person who has possession or control of the record or therapeutic record at the same time as the application is served.

• Marginal note:Service on other persons

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

• Marginal note:Service on complainant

  (7) The service requirement on the accused person in subsection (5) is not fulfilled if the accused personally serves the application or a summons on the complainant.

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 or therapeutic 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 or therapeutic record, the complainant or witness, as the case may be, and any other person to whom the record or therapeutic 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) An order for costs must not be made against a person referred to in subsection (2) in respect of their participation in the hearing.