National Defence Act

Marginal note:Application for production

• 180.03 (1) An accused person who seeks the production of a record may 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:Form and content of application

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

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

  • (b) 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.

• Marginal note:Insufficient grounds

  (3) 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:

  • (a) the record exists;

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

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

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

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

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

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

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

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

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

• Marginal note:Service of application

  (4) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the 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 relates, at least 14 days before the hearing referred to in subsection 180.04(1) begins or any shorter interval that the military judge may allow in the interests of military justice.

• Marginal note:Service on other persons

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