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

Marginal note:Procurement of attendance of witnesses

• 183. (1) The commanding officer of an accused person shall take all necessary action to procure the attendance of the witnesses whom the prosecutor and the accused person request to be called and whose attendance can, having regard to the exigencies of the service, reasonably be procured.

• Marginal note:Exception

  (1.1) Nothing in subsection (1) requires the procurement of the attendance of any witness, the request for whose attendance is considered by the commanding officer to be frivolous or vexatious.

• Marginal note:Procurement of attendance in exceptional cases

  (2) Where a commanding officer considers to be frivolous or vexatious a request by the accused person for the attendance of a witness whose attendance, having regard to the exigencies of the service, can reasonably be procured, the attendance of that witness shall be procured if the accused person pays in advance the fees and expenses of the witness in accordance with section 251.2.

• Marginal note:Reimbursement of accused for fees and expenses

  (3) Where the evidence of a witness whose attendance is procured under subsection (2) proves to be relevant and material at the trial, the court martial shall order that the accused person be reimbursed in the amount of the fees and expenses paid to the witness.

• Marginal note:Rights of accused preserved

  (4) Nothing in this section limits the right of an accused person to procure and produce at the trial, at the expense of the accused person, if the exigencies of the service permit, such witnesses as that person may desire.

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) Where, in the opinion of a court martial, a witness whose evidence has been taken on commission should, in the interests of 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.