National Defence Act

Marginal note:Proceedings public

• 180 (1) Unless this Act provides otherwise, court martial proceedings, and proceedings before military judges under any of sections 147.6, 148, 158.7, 159, 187, 215.2 and 248.81, must be public and, to the extent that accommodation permits, the public must be admitted to the proceedings.

• Marginal note:Exception

  (2) A military judge or, if a court martial has been convened, the military judge assigned to preside at the court martial may, on application of the prosecutor or a witness or on the military judge’s own motion, order that the public be excluded during the whole or any part of the proceedings or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the military judge considers that it is necessary in the interests of public safety, public morals, the maintenance of order or the proper administration of military justice, or to prevent injury to international relations, national defence or national security.

• Marginal note:Factors to be considered

  (3) In determining whether the order is in the interest of the proper administration of military justice, the military judge shall consider

  • (a) society’s interest in encouraging the reporting of service offences and the participation of victims and witnesses in the military justice process;

  • (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

  • (c) the ability of any witness, if the order were not made, to give a full and candid account of the acts complained of;

  • (d) whether any witness needs the order for their security or to protect them from intimidation or retaliation;

  • (e) the protection of military justice system participants who are involved in the proceedings;

  • (f) whether effective alternatives to the making of the order are available in the circumstances;

  • (g) the salutary and deleterious effects of the order; and

  • (h) any other factor that the military judge considers relevant.

• Marginal note:No adverse inference

  (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

• Marginal note:Reasons to be stated

  (5) If a person is charged with 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 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 of the Criminal Code and the prosecutor or the person applies for an order under subsection (2), the military judge shall, if no such order is made, state, by reference to the circumstances of the case, the reasons for not making an order.

• Marginal note:Witnesses

  (6) Witnesses are not to be admitted to the proceedings except when under examination or by leave of the military judge.

• Marginal note:Clearing court

  (7) For the purpose of any deliberation, the military judge may cause the place where the proceedings are being held to be cleared.