Protecting Victims Act (S.C. 2026, c. 19)
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Assented to 2026-06-18
2015, c. 13, s. 2Canadian Victims Bill of Rights (continued)
137 (1) The portion of section 6 of the Act before paragraph (a) is replaced by the following:
Marginal note:General information
6 Every victim has the right to information about
(2) Paragraph 6(b) of the Act is replaced by the following:
(b) the services and programs available to them as a victim;
(3) Section 6 of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after that paragraph:
(d) their rights under this Act.
138 The portion of section 7 of the Act before paragraph (a) is replaced by the following:
Marginal note:Investigation and proceedings
7 Every victim has the right to information about
139 The Act is amended by adding the following after section 7:
Marginal note:Protection measures
7.1 Every victim has the right to information about the protection measures available to them in the criminal justice system.
Marginal note:Restorative justice process
7.2 (1) Every victim has the right to information about the restorative justice processes available to them as a victim, including how the processes operate, what outcomes the victim can expect and the voluntary nature of participation at every stage of the processes.
Marginal note:Agreement reached during process
(2) If an accused or offender and a victim of the offence participate in a restorative justice process, the victim has the right to receive information about the accused’s or offender’s fulfillment of the terms of any agreement reached in the course of the process.
140 The portion of section 8 of the Act before paragraph (a) is replaced by the following:
Marginal note:Information about offender or accused
8 Every victim has the right to information about
141 The Act is amended by adding the following after section 8:
Marginal note:Federal entities
8.1 The federal departments, agencies or bodies from which victims have a right to receive the information referred to in sections 6 to 8 include, but are not limited to,
(a) the Royal Canadian Mounted Police;
(b) the Office of the Director of Public Prosecutions;
(c) the Correctional Service of Canada;
(d) the Parole Board of Canada;
(e) the Miscarriage of Justice Review Commission;
(f) the Canada Border Services Agency; and
(g) the Department of Justice.
Marginal note:Information about rights
8.2 The federal departments, agencies or bodies that are involved in the criminal justice system, including the ones referred to in section 8.1, must ensure that information about the rights of victims under this Act is made readily available.
142 Section 12 of the Act is replaced by the following:
Marginal note:Identity protection
12 Every victim, if they are a complainant to the offence or a witness in proceedings relating to the offence, has the right to
(a) be asked whether they wish to have their identity protected;
(b) request that their identity be protected;
(c) be informed when an order is made to protect their identity; and
(d) be informed of their right to apply to revoke or vary an order made to protect their identity.
143 Section 15 of the Act is replaced by the following:
Marginal note:Victim impact statement
15 Every victim has the right to present a victim impact statement to the court and, if applicable, a victim statement to other appropriate authorities in the criminal justice system, including the Correctional Service of Canada and the Parole Board of Canada, and to have it considered.
R.S., c. N-5National Defence Act
Amendments to the Act
144 (1) Paragraphs (a) and (b) of the definition serious personal injury offence in subsection 2(1) of the National Defence Act are replaced by the following:
(a) a serious offence, or an offence referred to in section 77, 86, 87, 92, 95, 113, 120, 124 or 127, involving any of the following in respect of another person, including the accused person’s intimate partner, a member of the intimate partner’s family and a member of the accused person’s family:
(i) the use or attempted use of violence against the other person, or
(ii) conduct endangering or likely to endanger the life or safety of — or conduct inflicting or likely to inflict severe psychological damage on — the other person, or
(b) an offence punishable under section 130 that is an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 171.1, 172, 172.1, 172.2, 271, 272 or 273 of the Criminal Code, or an attempt to commit such an offence; (infraction grave contre la personne)
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- intimate partner
intimate partner has the same meaning as in section 2 of the Criminal Code; (partenaire intime)
145 The Act is amended by adding the following after the heading “Rights” after section 71.01:
Respect
Marginal note:Respect, courtesy, compassion and fairness
71.011 Every victim has the right to be treated with respect, courtesy, compassion and fairness by the appropriate authorities in the military justice system.
Timely Justice
Marginal note:Timely trial and resolution
71.012 Every victim has the right to have taken into consideration their interest in a timely trial and the timely resolution of matters relating to the service offence.
146 (1) The portion of section 71.02 of the Act before paragraph (a) is replaced by the following:
Marginal note:General information
71.02 Every victim has the right to information about
(2) Section 71.02 of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) their rights under this Division.
147 The portion of section 71.03 of the Act before paragraph (a) is replaced by the following:
Marginal note:Investigation and proceedings
71.03 Every victim has the right to information about
148 The Act is amended by adding the following after section 71.03:
Marginal note:Protection measures
71.031 Every victim has the right to information about the protection measures available to them in the military justice system.
149 The portion of subsection 71.04(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Information about offender or accused
71.04 (1) Every victim has the right to information about
150 The Act is amended by adding the following after section 71.04:
Marginal note:Authorities in the military justice system
71.041 The authorities in the military justice system from which victims have a right to receive the information referred to in sections 71.02 to 71.04 include
(a) the Director of Military Prosecutions;
(b) the Provost Marshal; and
(c) a commanding officer, including the commanding officer of a service prison or detention barrack.
Marginal note:Information about rights
71.042 The appropriate authorities in the military justice system, including the ones referred to in section 71.041, shall ensure that information about the rights of victims under this Division is made readily available.
151 Section 71.08 of the Act is replaced by the following:
Marginal note:Identity protection
71.08 Every victim, if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence, has the right to
(a) be asked whether they wish to have their identity protected;
(b) request that their identity be protected;
(c) be informed when an order is made to protect their identity; and
(d) be informed of their right to apply to revoke or vary an order made to protect their identity.
152 The Act is amended by adding the following after section 119:
Offence in Relation to Orders Prohibiting Contact
Marginal note:Failure to comply — orders under section 203.73
119.01 Every person who, without reasonable excuse, fails to comply with an order made under section 203.73 is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding two years or to less punishment.
153 Subsection 158.6(1.2) of the Act is replaced by the following:
Marginal note:Copy to victim
(1.2) The custody review officer shall cause a copy of the direction to be given to a victim of the alleged offence if the victim wishes to receive it.
154 Subsection 159.7(3) of the Act is replaced by the following:
Marginal note:Copy to victim
(3) The military judge shall cause a copy of the direction to be given to a victim of the alleged offence if the victim wishes to receive it.
155 The heading before section 180.01 and sections 180.01 to 180.08 of the Act are replaced by the following:
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.
Marginal note:Instruction to panel — use of evidence
180.008 If evidence is admitted at trial on the basis of a determination made under subsection 180.007(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.
Marginal note:Reputation evidence
180.009 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, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
Production and Admissibility of Records and Therapeutic Records
Definitions
Marginal note:Definitions
180.01 The following definitions apply in sections 180.02 to 180.2.
- record
record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, education, employment, child welfare, adoption and social services records, personal journals and diaries, and any record containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the service offence. (dossier)
- therapeutic record
therapeutic record means any form of record, regardless of its contents, that was produced in the course of psychiatric treatment or any therapy or counselling provided by a health care professional who is entitled under the laws of a province or of a foreign state to provide the treatment, therapy or counselling. (dossier thérapeutique)
Production to Accused Person of Records and Therapeutic Records in Possession of Third Party
Marginal note:Records and therapeutic records possessed by third party
180.02 (1) Except in accordance with sections 180.03 to 180.08, no record or therapeutic record relating to a complainant or a witness that is in the possession or control of a third party 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:Definition of third party
(2) In subsection (1), third party means a person other than the prosecutor or the accused person.
Marginal note:Application for production
180.03 (1) An accused person who seeks production of a record or therapeutic record referred to in section 180.02 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 in 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 and the name of the person who has possession or control of it;
(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 persons’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 and summons
(5) The accused person shall serve the application on the prosecutor, on the person who has possession or control of the record or therapeutic 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 or therapeutic record relates, at least 60 days before the hearing referred to in subsection 180.04(1) or within any shorter interval that the military judge may allow in the interests of military justice. The accused person shall also serve a summons on the person who has possession or control of the record or therapeutic record at the same time as the application is served.
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 personally serves the application or a summons on the complainant.
Marginal note:Hearing in private
180.04 (1) The military judge shall hold a hearing in private to determine whether to order the person who has possession or control of the record or therapeutic record to produce it to the military judge for review.
Marginal note:Persons who may appear at hearing
(2) The person who has possession or control of the record or therapeutic record, 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
180.05 (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.
Marginal note:Review by military judge
180.13 (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 it, 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 180.11(2) to (4) apply in the case of a hearing under subsection (2).
Marginal note:Order to produce record to accused person
180.14 (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 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 to produce 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, shall take the factors set out in subsection 180.12(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:Restriction on use
(5) The record or therapeutic record, or the part of it, that is produced to the accused person under an order under subsection (1) must not be used in any other proceedings.
Marginal note:Retention by military judge
(6) 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 prosecutor or the person lawfully entitled to possession or control of it.
Marginal note:Reasons for decision
180.15 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 180.12(1) or 180.14(1) or (2).
Admissibility of Records and Therapeutic Records in Possession of Accused Person
Marginal note:Admissibility — possession by accused person
180.16 (1) Except in accordance with this section, no record or therapeutic record relating to a complainant that is in the possession or control of the accused person — and which the accused person intends to adduce — shall be admitted in evidence 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; or
(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:Requirements for admissibility
(2) The record or therapeutic record is inadmissible in whole or in part unless the military judge determines, in accordance with the procedures set out in sections 180.17, 180.18 or 180.2,
(a) if the admissibility of the record or therapeutic record, or part of it, is subject to section 180.001, that the evidence meets the conditions set out in subsection 180.001(2) while taking into account the factors set out in subsection (3);
(b) that the record, or part of it, is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of military justice; and
(c) that the therapeutic record, or part of it, is evidence that is likely to raise a reasonable doubt as to the accused person’s guilt and there is no other evidence that is capable of raising a reasonable doubt as to the accused person’s guilt.
Marginal note:Factors to be considered
(3) In determining whether the record or therapeutic record, or part of it, 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) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the record or therapeutic record, or part of it, will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the panel;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the military judge considers relevant.
Marginal note:Application for hearing
180.17 (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 180.18 to determine whether the record or therapeutic record, or part of it, is admissible under subsection 180.16(2).
Marginal note:Form and content
(2) The application must be made in writing and must be accompanied by an affidavit setting out
(a) detailed particulars of the record or the therapeutic record, or the part of it, that the accused person seeks to adduce;
(b) in the case of a record, or a part of one, the relevance of that evidence to an issue at trial; and
(c) in the case of a therapeutic record, or a part of one, how that evidence is likely to raise a reasonable doubt as to the accused person’s guilt.
Marginal note:Copy of the application
(3) 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
(4) The military judge shall consider the application with the panel and the public excluded.
Marginal note:Hearing
(5) 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 record or therapeutic record, or the part of it, sought to be adduced is capable of being admissible, the military judge shall grant the application and hold a hearing under section 180.18 to determine whether the evidence is admissible under subsection 180.16(2).
Marginal note:Copy to complainant
(6) 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
180.18 (1) The panel and the public shall be excluded from a hearing to determine whether the record or therapeutic record, or part of it, is admissible under subsection 180.16(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 record or therapeutic record, or part of it, is admissible under subsection 180.16(2) and shall provide reasons in writing for that determination, and
(a) if not all of the record or therapeutic record is to be admitted, the reasons must state the part of it that is to be admitted;
(b) the reasons must state the factors referred to in subsection 180.16(3) that affected the determination;
(c) if all or any part of the record is to be admitted, the reasons must state the manner in which it is expected to be relevant to an issue at trial; and
(d) if all or any part of the therapeutic record is to be admitted, the reasons must state how it is likely to raise a reasonable doubt as to the accused person’s guilt and why the military judge is of the opinion that there is no other evidence that is capable of raising a reasonable doubt as to the accused person’s guilt.
Marginal note:Instruction to panel — use of evidence
180.19 If evidence is admitted at trial on the basis of a determination made under subsection 180.18(4), 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 record
180.2 (1) The prosecutor and the accused person, together with the complainant or any witness to which a record, or part of it, relates, 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 the record, or part of it, is admissible under subsection 180.16(2) without holding a hearing under section 180.18.
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 record or part and
(a) the relevance of that record or part to an issue at trial;
(b) if the admissibility of the record or part is subject to section 180.001, how it meets the conditions set out in subsection 180.001(2) while taking into account the factors set out in subsection 180.16(3);
(c) that the record or part has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of military justice; and
(d) any information the applicants consider necessary to assist the military judge when the military judge takes into account the factors referred to in subsection 180.16(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 180.16(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) or 180.16(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 record, or part of it, is admissible under subsection 180.16(2), the military judge shall grant the application. If the military judge is not so satisfied, they shall hold a hearing under section 180.18 to determine whether the evidence is admissible under subsection 180.16(2).
Marginal note:Use of evidence
(6) If the record, or part of it, 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 record or part.
Marginal note:For greater certainty — therapeutic record
(7) For greater certainty, this section does not apply to a therapeutic record.
Marginal note:For greater certainty — right to counsel
(8) For greater certainty, the complainant or any witness has the right to be represented by counsel.
Marginal note:Instruction to panel — use of evidence
180.21 If evidence is admitted at trial on the basis of a determination made under subsection 180.2(4), the military judge shall instruct the panel as to the uses that the panel may and may not make of that evidence.
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