National Defence Act

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.