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

Marginal note:Non-disclosure of witness’s identity

• 183.4 (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

• 183.5 (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 sexual abuse and exploitation material

  (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 sexual abuse and exploitation material, 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

• 183.6 (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), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act;

  • (d) an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Foreign Interference and 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.

Marginal note:Security of witnesses

• 183.7 (1) In proceedings against an accused person, 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 or a witness or on his or her own motion, make any order other than one that may be made under section 180, if the military judge is of the opinion that the order is necessary to protect the security of any witness and is otherwise in the interest of the proper administration of military justice.

• Marginal note:Factors to be considered

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

  • (a) the witness’s age;

  • (b) the witness’s mental or physical disabilities, if any;

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

  • (d) the nature of the service offence;

  • (e) whether the witness needs the order to protect them from intimidation or retaliation;

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

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

  • (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

  (3) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

Evidence on Commission

Marginal note:Appointment of commissioner to take evidence

• 184 (1) The Chief Military Judge, or any military judge designated by the Chief Military Judge, may appoint any officer or other qualified person, in this section referred to as a “commissioner”, to take, under oath, the evidence of any person required as a witness at a court martial

  • (a) who is, by reason of physical disability arising out of illness, not likely to be able to attend at the time the trial is held;

  • (b) who is absent from the country in which the trial is held; or

  • (c) whose attendance is not readily obtainable for a good and sufficient reason.

• Marginal note:Admissibility of commission evidence

  (2) The document containing the evidence of a witness, taken under subsection (1) and duly certified by the commissioner is admissible in evidence at a trial by court martial to the same extent and subject to the same objections as if the evidence were given by the witness in person at the trial.

• Marginal note:Power to require personal attendance of witness

  (3) If, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of military justice, appear and give evidence before the court martial, and the witness is not too ill to attend the trial and is not outside the country in which the trial is held, the court martial may require the attendance of that witness.

• Marginal note:Representation, examination and cross-examination before commissioner

  (4) At any proceedings before a commissioner, the accused person and the prosecutor are entitled to be represented and the persons representing them have the right to examine and cross-examine any witness.

Marginal note:Copy to accused

185 The accused person shall, at least twenty-four hours before it is admitted at the court martial, be furnished without charge with a copy of the document referred to in subsection 184(2).

Objections

Marginal note:Objections

• 186 (1) When a court martial is assembled, the names of the military judge and the members, if any, must be read to the accused person and the prosecutor, who shall then be asked if they object to the constitution of the court martial and, in the event of an objection, the decision as to whether to allow the objection is to be made in accordance with the procedure prescribed in regulations.

• Marginal note:Replacements

  (2) The procedure for the replacement of a person in respect of whom an objection has been allowed shall be as prescribed in regulations.