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

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.

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.