National Defence Act

Marginal note:Order to produce record for review

• 180.05 (1) The military judge may order the person who has possession or control of the record to produce the record or a part of the record to the military judge for review if, after the hearing, the military judge is satisfied that

  • (a) the application was made in accordance with subsections 180.03(2) to (5);

  • (b) the accused person has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) the production of the record is necessary in the interests of military justice.

• Marginal note:Factors to be considered

  (2) In determining whether to make the order, 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 relates. In particular, the military judge shall take the following factors into account:

  • (a) the extent to which the record is necessary for the accused person to make a full answer and defence;

  • (b) the probative value of the record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record;

  • (d) whether production of the 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 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.