National Defence Act

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.