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

Marginal note:Order — production to military judge

• 180.05 (1) The military judge may order the person who has possession or control of the record or therapeutic record to produce it, or any part of it, to the military judge for review if, after the hearing referred to in section 180.04, the military judge is satisfied that

  • (a) the application was made in accordance with subsections 180.03(2) to (7);

  • (b) in the case of a record, the accused person has established that it is likely relevant to an issue at trial or to the competence of a witness to testify or, in the case of a therapeutic record, the accused person has established that it contains evidence that could raise a reasonable doubt as to the accused person’s guilt; and

  • (c) the production of all or any part of the record or therapeutic record is necessary in the interests of military justice.

• Marginal note:Factors to be considered

  (2) In determining whether to order the production of the record or therapeutic record, or part of it, for review, 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 or therapeutic record relates. In particular, the military judge shall take the following factors into account:

  • (a) the extent to which the record or therapeutic record is necessary for the accused person to make a full answer and defence;

  • (b) the probative value of the record or therapeutic record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record or therapeutic record;

  • (d) whether production of the record or therapeutic 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 or therapeutic 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 therapeutic record, or part of it, for review, the military judge shall review it, or the part of it, in the absence of the parties in order to determine whether the record or therapeutic record, or the part, should be produced to the accused person.

• Marginal note:Hearing in private

  (2) The military judge may hold a hearing in private if the military judge considers that it will assist in making the determination.

• Marginal note:Provisions that apply to hearing

  (3) Subsections 180.04(2) to (4) apply in the case of a hearing under subsection (2).

Marginal note:Order — production of record to accused person

• 180.07 (1) If the military judge is satisfied that the record, or part of it, 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, that is likely relevant be produced to the accused person, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Order — production of therapeutic record to accused person

  (2) If the military judge is satisfied that the therapeutic record, or part of it, contains evidence that is likely to raise a reasonable doubt as to the accused person’s guilt and that is not available from any other source, the military judge may order that the therapeutic record, or the part, be produced to the accused person, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Factors to be considered

  (3) In determining whether to order the production of the record or therapeutic record, or part of it, to the accused person, 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 or therapeutic record relates and, in particular, the military judge shall take the factors set out in subsection 180.05(2) into account.

• Marginal note:Conditions

  (4) If the military judge orders the production of the record or therapeutic record, or part of it, to the accused person, the military judge 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 or therapeutic record relates, including, for example, the following conditions:

  • (a) that the record or therapeutic record be edited as directed by the military judge;

  • (b) that a copy of the record or therapeutic record, rather than the original, be produced;

  • (c) that the accused person and counsel for the accused person not disclose the contents of the record or therapeutic record to any other person, except with the approval of the military judge;

  • (d) that the record or therapeutic record be viewed only at a location specified by the military judge;

  • (e) that no copies of the record or therapeutic record be made or that restrictions be imposed on the number of copies of it that may be made; and

  • (f) that information regarding any person named in the record or therapeutic record, such as their address, telephone number and place of employment, be severed from the record or therapeutic record.

• Marginal note:Copy to prosecutor

  (5) If the military judge orders the production of the record or therapeutic record, or part of it, to the accused person, the military judge shall direct that a copy of the record or therapeutic record, or the part, 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:Restriction on use

  (6) The record or therapeutic record, or the part of it, that is produced to the accused person under an order made under subsection (1) must not be used in any other proceedings.

• Marginal note:Retention by military judge

  (7) If the military judge refuses to order the production of the record or therapeutic record, or part of it, to the accused person, the record or therapeutic record, or the part, must, unless a military judge orders otherwise, be kept by the military judge in a sealed package until the later of the end 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 therapeutic record, or the part, 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 therapeutic record, or part of it, under subsection 180.05(1) or 180.07(1) or (2).

Production to Accused Person of Records and Therapeutic Records in Possession of Prosecutor

Marginal note:Records and therapeutic records possessed by prosecutor

• 180.09 (1) Except in accordance with sections 180.1 to 180.15, no record or therapeutic record relating to a complainant or a witness that is in the possession or control of the prosecutor 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:Permitted production

  (2) The prosecutor may produce to the accused person

  • (a) a record or part of a record, if the prosecutor intends to adduce the record or part in court or if the record or part directly relates to the activity that forms the subject matter of the charge against the accused person;

  • (b) a record or therapeutic record, or a part of one, if the complainant or witness to whom it relates agrees to its disclosure to the accused person; and

  • (c) any communication between the accused person and the complainant.

• Marginal note:Duty of prosecutor to give notice

  (3) Subject to subsection (2), if a record or therapeutic record in respect of which this section applies is in the possession or control of the prosecutor, the prosecutor shall notify the accused person that it is in the prosecutor’s possession or control but, in doing so, the prosecutor shall not disclose its contents.

• Marginal note:Application of certain provisions

  (4) Production under subsection (2) does not affect the application of any of sections 180.16 to 180.21, paragraphs 230(i.01) and (i.1) and 230.1(j.01) and (j.1) and section 303.

Marginal note:Application for production

• 180.1 (1) An accused person who seeks production of a record or therapeutic record referred to in subsection 180.09(1) 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 to a military judge presiding at 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;

  • (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 person’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

  (5) The accused person shall serve the application on the prosecutor, 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 180.11(1) or within any shorter interval that the military judge may allow in the interests of military justice.

• 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 person personally serves the application on the complainant.

Marginal note:Hearing in private

• 180.11 (1) The military judge shall hold a hearing in private to determine whether to order the prosecutor to produce the record or therapeutic record for review by the military judge.

• Marginal note:Persons who may appear at hearing

  (2) 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.

Marginal note:Order — production to military judge

• 180.12 (1) The military judge may order the prosecutor to produce the record or therapeutic record, or any part of it, to the military judge for review if, after the hearing referred to in section 180.11, the military judge is satisfied that

  • (a) the application was made in accordance with subsections 180.1(2) to (6);

  • (b) in the case of a record, the accused person has established that it is likely relevant to an issue at trial or to the competence of a witness to testify or, in the case of a therapeutic record, the accused person has established that it contains evidence that could raise a reasonable doubt as to the accused person’s guilt; and

  • (c) the production of all or any part of the record or therapeutic record is necessary in the interests of military justice.

• Marginal note:Factors to be considered

  (2) In determining whether to order the production of the record or therapeutic record, or part of it, for review, 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 or therapeutic record relates. In particular, the military judge shall take the following factors into account:

  • (a) the extent to which the record or therapeutic record is necessary for the accused person to make a full answer and defence;

  • (b) the probative value of the record or therapeutic record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record or therapeutic record;

  • (d) whether production of the record or therapeutic 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 or therapeutic 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.