Mr. Chris Alexander:
This one doesn't require too much introduction, because we heard about it in previous Parliaments. We heard about it from the minister on the floor of the House of Commons.
With this amendment we're making good on a commitment of the government to change the range of service offences that would result in a record under the Criminal Records Act for convictions that are at the lower end of the scale of punishments, such as a minor punishment, a relatively small fine, a reprimand, or a severe reprimand.
As well, where the person is convicted of an offence that would be a contravention under the Contraventions Act, this provision will allow that there no longer be a record generated within the meaning of the Criminal Records Act. That would free the person who is convicted of this offence of having to apply for a record suspension, what we used to refer to as a pardon.
This would increase the number of service offences for which, if the offender is sentenced to one or more of the specified punishments, the offence would be deemed not to constitute an offence for the purposes of the Criminal Records Act.
Let's be very clear that there are still service offences at the higher end of the scale, such as assault, or assault causing bodily harm. I think members are aware of the full panoply of those violent offences that would still result in a record for the purposes of the Criminal Records Act. That mirrors the situation in the civilian system much more closely, and therefore represents an important modernization update of the military justice system.
It would literally remove up to 95% of the service offences in recent years that have generated criminal records for the purposes of the Criminal Records Act from that category. That's quite a dramatic change. It's a welcome change in our view. It was something we were prepared to do in the last Parliament and didn't manage it, for reasons that are well known around this table. It's time to do it now.
Mr. Jack Harris:
We'll deal with them one at a time, but I am just letting you know by way of introduction how we see amendment G-2. I wanted to inform you that we have a number of subamendments.
We see amendment G-2 creating a circumstance where, regardless of the mode of trial, whether it's by summary trial or by court martial, anybody convicted of these particular service offences whose sentence is beneath the threshold here would not attract a criminal record. We have amendments that would add to that list, one at a time.
We have a second amendment that would seek to modify the provision in proposed new subparagraph 249.27(1)(a)(iii), which reads, “a fine not exceeding basic pay for one month, or” to eliminate the words after “fine”. There is a good explanation, and we'll get to that.
We have an amendment that is before you for consideration, amendment NDP-20 or NDP-21—I'm not sure as I don't have the numbers here.
We have another amendment having to do with ensuring there is a practical method to see that the criminal records, particularly of past offenders, are actually given effect to by removal from the Canadian Police Information Centre computer.
Those are some suggestions to add to these offences: changing the threshold with respect to a fine; adding our amendment, which effectively says that anything tried by summary trial should not lead to a criminal record; and dealing with the issue of retroactivity and how we ensure that the criminal records are actually removed.
That's just by way of introduction, Mr. Chair, and my colleague, Ms. Moore, has some specifics to speak to.
Ms. Christine Moore:
I wonder about the sections of the National Defence Act that have not been included in the amendment moved by the Conservative Party. If my understanding is correct, there is a logical progression in the sentences. We start with minimum sentences, fines, reprimands and severe reprimands, and then it goes further and includes forfeiture of seniority, reduction in rank, detention and so on.
I suppose that someone who has done something very serious will receive a sentence or sanction that goes beyond what is contained in the amendment in clause 75. There is a risk that a person may be sentenced, for example, to detention or reduction in rank. Clause 75 cannot apply to that, even if the section has been included in the amendment.
Section 83 of the National Defence Act reads as follows:
|Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
Although this section may apply to a broad range of situations, it nevertheless concerns disobedience of a command. Yes, that must be punished, but it is possible that the person concerned did not pose a security threat and that the act may not have constituted a serious disobedience of a command.
In my opinion, section 83 should be included in the Conservatives' amendment because we can have a broad spectrum. If we start with the idea that, if the person has committed something serious, the penalty he or she receives will not be on the list of those that may be exempted in any case. This lets us divide this clause somewhat.
In addition, section 98 of the National Defence Act reads as follows:
|| (a) malingers or feigns or produces disease or infirmity,
|| (b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or
|| (c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty's Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service, is guilty of an offence...
So this is still the same thing. It may be quite serious. Someone may deliberately cut an arm or do something more moderate.
I believe this should also be included in the Conservatives' amendment. It refers to malingering and failure to comply with medical orders. We often see people in the armed forces who, for example, will march with a sprained ankle, contrary to medical advice, because they are training and do not want to have to start over. These are things that happen.
I understand that person must be punished, but I do not believe that individual deserves a criminal record because he thought that he had been taking a course for three months—the toughest course in his life—and that, if he did not walk on his ankle he would be removed from the course and would have to start it over from the beginning. That is why he decided to walk on his injured ankle. I believe some judgment must be exercised.
Section 100 of the National Defence Act reads as follows: "Every person who...is guilty of an offence and on conviction—
Mr. Jack Harris:
I think notwithstanding the comments of my colleague, Mr. McKay, and the colonel, the offence itself can attract a maximum sentence of life imprisonment, but if I could refer you to the commentary in the text Canadian Military Law Annotated
, by Justice Létourneau and Colonel Michel Drapeau, they said:
|The offence of disobedience of a lawful command covers a wide variety of behaviours, acts, or omissions ranging from very serious to petty offences.
They refer to the 1983 case of Lucas v. the Queen. The court martial appeal court, CMAC, heard the case:
| The accused was ordered to report the following day dressed in his S-2s, with name tag and medals. He was found guilty of disobeying a lawful command and sentenced to detention because his collar insignia were improperly installed. The CMAC noted at p. 250, “nothing in the appellant's service record explains the matter escalating to the disciplinary level that it did”.
I take it from this that they changed the sentence.
The point is if that's an offence that can be charged for something as petty as that, then there ought to be some threshold, and I guess the threshold is what the government has chosen to put in this legislation, as to whether it's something deserving of having a criminal record for not having your insignia on properly, for example, in this particular case.
There's another case where someone was accused of disobedience for which the accused received a sentence of severe reprimand and a fine of $3,000. This is a 2004 case that consisted of his refusal to remove headdress at a division parade where at one point a short prayer was pronounced. In this case the conviction was overturned on appeal. This guy was fined $3,000.
The commentary goes on to say of course that is a very important aspect of military justice, and in fact lawful commands can justify the giving of many orders that might otherwise result in charter breaches, such as an order to advance under fire. So someone who is ordered to advance under fire and refuses to go is in breach of a lawful order. That's a rather severe circumstance. That comes under what we've been talking about here, the distinction between military justice and the ordinary law, and that's to be recognized. But when we have an offence that in its statement is so broad as to attract both the pettiness and the most severe type of particular order such as that, then there's clearly a range not only of disobedience, or a range of severity, but also a range of punishment as reflected in the range and the scope of sentencing going from life imprisonment to some of these minor offences, such as confinement to barracks.
I think what we're trying to do here with respect to the scheme proposed by the government in G-2, there are some offences regardless of how they're tried that ought not to attract penalties of a criminal record, and sorting them out, as the amendment does, by the severity of the punishment. As the scheme shows—and I'll say more when we get to another amendment—there is a hierarchy of penalties in the military that is spelled out in the National Defence Act. They determine which ones are lesser penalties or more serious penalties. It's our submission that if you're going to have a scheme which says there are two aspects of it, one is the offence itself, and the other is the nature of the penalty that is given for a breach of that, then someone who is convicted of a breach of that section, of disobeying a lawful order, if it's obviously a serious breach, there's going to be a serious consequence. The consequence would result in a criminal record if it in fact is of the serious type. If it's a petty offence, even though it involves disobeying an order, then it ought to be included in the scope of the amendment that's proposed.
Mr. Jack Harris:
It says “imprisonment for life or to less punishment”, and that means any punishment on the list that's lower than imprisonment for life. So if someone is sentenced to imprisonment for two years or more, or dismissal with pay, or reduction in rank, or forfeiture of seniority, etc., all of these things are lesser punishments than what's provided for in the code.
As Colonel Gibson said, while there is an objective severity here because it can attract life imprisonment, it also can attract lesser punishment. We're looking at a scheme of suggesting that those offences that attract the lesser punishments specified here, “severe reprimand”, “reprimand”, “fine not exceeding basic pay” and “minor punishments” don't attract a criminal record in the list of offences stated.
Our argument is basically that when we recognize that disobedience of lawful order can be very severe or it can be petty, then for those petty ones or those ones that don't attract any higher discipline or penalty than that of a severe reprimand ought not to attract a criminal record.
That's what helps explain it.
In this particular case all those offences listed in amendment G-2 don't attract a criminal record, whether they elect to go to court martial or whether they stay with the commanding officer. In amendment G-2 the government is recognizing that these listed offences, regardless of the mode of trial, whether it's commanding officer, superior officer or court martial, will not attract a criminal record if the penalty is severe reprimand or less.
What we're suggesting is that the scope of that be broadened to include disobedience of a lawful order, which is considered less serious. I don't like the word “petty” because not all offences that could be called“disobedience, which might attract a severe reprimand or a reprimand, might not fall under the petty category but might not lead to a reduction in rank or “dismissal with disgrace from Her Majesty’s service”, as specified in (c).
That's essentially the argument. I think it has merit and it's quite in keeping with amendment G-2 itself, which is designed to set forth a scheme of including all of these offences where the penalty is a severe reprimand or less and should not attract a criminal record.
Col Michael R. Gibson:
Mr. Chair, if I may briefly respond, I think there's perhaps a fundamental misapprehension that's underlying this discussion that I'd like to address in a moment. But the point of departure for the analysis is yes, section 139 of the National Defence Act prescribes what is called the scale of punishments, and it is indeed hierarchical, as Mr. Harris has pointed out, and that's amplified in regulations.
When a punishment provision that Parliament has created specifies it's punishable by up to life imprisonment or less punishment, then you can go down the list, and that's the task of sentencing, for the court to determine the appropriate sentence.
The fundamental misapprehension that I perceive here that I hope I can assist the committee with understanding, perhaps, is this. What clause 75 is about is not creating a record within the meaning of the Criminal Records Act. That is distinct—it's linked, but it's distinct logically—from an entry on CPIC, and I have the sense that not everybody appreciates that.
In practical terms, when one speaks about the adverse consequences of a “criminal record”, really what that means is there is an entry on the Canadian Police Information Centre data bank—in fact, on one of the four data banks, because that's an important point too—that is accessible by a court, by police, by CBSA officials at the border, by other people. The National Defence Act already provides, in essence, at section 196.27 that if a person is convicted at summary trial, it doesn't go on CPIC, and I have the sense that not everybody appreciated that.
What we're really talking about here, the policy intent of clause 75, is to alleviate the consequence of persons having to apply for a record suspension if they wish to seek civil employment afterwards and they have to fill out the normal questionnaire, the question which almost always reads, “Have you been convicted of an offence under an act of Parliament for which you have not received a record dispension?” It's record dispension now; it used to be a pardon. What clause 75 will provide is, if you fall within that threshold of the objective gravity of the enumerated offences and—it's a conjunctive requirement—the subjective gravity, you don't have to go through that.
If you're tried by summary trial, the effect of section 196.27 is you don't get on the relevant CPIC database, which is the identification database, unless that's supported by fingerprints. What section 196.27 provides is they're only supposed to have fingerprints taken, and there's a list of what are called designated offences, and even if fingerprints were taken, they're destroyed. So the dire consequences that have been suggested as flowing from conviction at summary trial shouldn't actually occur.
I had the sense that perhaps not everybody appreciated that because it's not the same thing. They're two different concepts: a record within the meaning of the Criminal Records Act, which is really relevant for applying for a record suspension, or getting put on CPIC.
One last point that I think is relevant for the committee to understand is that Parliament already, at section 4 in the Criminal Records Act, when it sets out the procedure for applying for a record suspension, prescribes a waiting period of either ten years or five years, and in the civilian context it does that by category. If it's an indictable offence, you have to wait ten years, and if it's a summary conviction offence, five years.
I would suggest Parliament has already legislated to the same effect, in terms of categorization by the gravity of the offence, in that case, distinguishing between indictable and summary conviction. So the concept of distinguishing by basis of objective gravity the offence that's in clause 75, I suggest, is analogous.
I hope that's of assistance to the committee in understanding. Thank you.
Mr. Jack Harris:
I think that debate may be for another amendment. We have provisions, for example, in the Criminal Records Act that suggest that even with an absolute discharge or conditional discharge there is instruction to remove criminal records from the CPIC computer. As I say, we'll get to that argument, and when we get there we'll be talking about the retroactive effect of this and whether the Criminal Records Act...whether there needs to be a further amendment. I won't address that right now.
But I'm not sure, Mr. McKay, you are seeing—
Hon. John McKay: The light?
Mr. Jack Harris: I'm not trying to enlighten you, I'm just hoping that you understand at least my argument. Amendment G-2 in that section of clause 75 that is being amended provides that there would be no criminal record whether it's a court martial or a summary trial for the offences listed in that section if the penalty is one of those four that are listed there. That's why, despite that, we have our other amendment that says that any matter brought by summary trial should not attract a criminal record. That's a second category, or a second set.
Our aim in adding section 83 to this government amendment is to say that in addition to all of these other ones—and you'd have to go through what they are, it could be AWOL or even escaping lawful custody, all sorts of offences that are there, which you might think in other contexts.... They're listed as service offences, but they won't attract a criminal record no matter what the mode of trial is, as long as the penalty is one of those prescribed there—severe reprimand, reprimand, fine of a particular type, or minor punishment.
I think your questions about whether he chooses a court martial or not aren't particularly relevant to this subamendment or this government amendment, because regardless of whether you're in a court martial or you're not in a court martial, if the offence for which you're being tried is one of those listed there—and they cover a lot of things that sound criminal, like falsifying records, etc.—they don't attract a criminal record if the punishment is one of those four listed.
I wasn't sure where you were going with the questions about choosing a court martial or having an election. None of that would have any effect on whether an offence of disobeying a lawful order attracted a criminal record. What would matter is the nature of the punishment, whether it met that threshold or whether it was below that threshold that's spelled out there for all of the offences set out in the amendment.
Mr. Jack Harris:
I do have to say this. The point is—and I guess we're asking if Mr. McKay is with us or not—regardless of whether or not someone chooses to go by court martial or by summary conviction, all those listed offences, and they include resisting arrest, escaping custody, connivance at desertion, false statement in respect of leave, making false accusations or statements or suppressing facts, setting free without authority or allowing or assisting escape—oh, I'm sorry, I read number 100, but I meant 101, which is escape from custody—regardless of how they're tried, as long as the sentence is one of those four, it doesn't attract a criminal record.
What we're simply saying is that we think the same condition should apply to disobeying an order if the sentence is regarded by the sentencing authority, whether it be court martial or whether it be the commanding officer, as one of these four sentences, because that would determine whether it was something petty or it was something that is so serious as to be considered a breach to attract more serious offences.
Part of the reason I say that is that you can have the same set of facts attract an insubordination charge and a disobeying a lawful order charge. For example, if some senior officer says “Come here”, and someone says “Shag you” or something else to that effect, the charge could be insubordination or refusing a lawful order. One attracts life imprisonment as a maximum, and the other one has a different offence, but the same set of facts exists.
What we're saying is that if you have that sort of circumstance and you have this threshold determined by whether you get a reprimand, whether you get a fine, or whether you get confinement to barracks, well, if it's one of those, then you don't attract a criminal record. If it's considered so serious that you end up in detention, say, or you end up losing your stripes or whatever, then that's considered a serious offence and it's treated differently. That's only in this section here. It has nothing to do with whether it's a court martial, whether it's a commanding officer, or whether it's a superior officer under other modes of trial.
I guess the question I'm asking is, are you with us on that or are you not? Initially the government liked your answer. I wasn't sure you understood what we were doing here, and I hope you do now.
Mr. Jack Harris:
The sections that are there, specific sections would be examined sometimes seven years from whenever this comes into law. That's a long time for this to take place. We've heard significant constitutional arguments before this committee on certain provisions, such as clause 75, and we haven't finished that yet, but also concerns about the grievance procedure and how the grievance procedure is inadequate. We've heard concerns about the whole structure of military courts and the necessity of examining them in connection with the worldwide trend in western countries of further civilianization of the act.
I think implicitly in these comments, one would suggest that the independent reviews that we've had, in particular the last one, wasn't supported by the kind of resources that one might need to have a thoroughly independent review such as you might have, and Mr. Justice Létourneau's previous experience with the Law Reform Commission having adequate resources to do that.
We don't think that this is adequate at all. We think that there ought to be a significant independent review, not just of particular sections, some of which may be being amended now, but that there, in fact, be a thorough and fundamental review of the entire National Defence Act.
If I may quote from Mr. Justice Létourneau's evidence before this committee, he said:
||As a proud member of the Canadian society, a society devoted to the promotion of equality of all before the law, I would like to close by reiterating some of the proposals found in the book that I filed with you today. Foremost, I urge this committee to study the international trends towards the civilianization of military tribunals to promote equality of all before the law, which can be achieved only by conducting a fundamental structural and organizational revamping of the National Defence Act in order to enhance its access, consultation, and legibility as well as its structure, internal arrangement, and form; and on a substantive level, to correct the flaws in the National Defence Act resulting from an imperfect duplication of the Criminal Code provisions, by taking into consideration the charter and military needs and by reviewing the provisions that attract constitutional criticism.
That's a very broad statement, but it requires in order to follow it a broader review than one that suggested that might take place some seven or eight years from now.
It's not clear from looking here, and maybe Colonel Gibson can enlighten us.... It says “seven years after the day on which this section comes into force”. When that might be, I don't know. The bill has to go back to the House. It has to go to the Senate. It has to be promulgated in force by some act of the Governor in Council. So, some seven years from that date, whenever it is, we will see another supposedly independent review of the provisions that are specified here.
I don't mean that in a flippant way when I say an independent review of the nature that Mr. Justice Létourneau was talking about, one that is fully resourced and fundamental in nature as opposed to a review of a particular section.
We don't support clause 101. We think it's inadequate and that it, in fact, prolongs the possibility of reform to this legislation, prolongs the possibility of fundamentally re-examining this. As we've seen already we didn't, and couldn't, attempt to re-write the National Defence Act by making amendments to this particular bill. Even some of the very modest recommendations that we had were deemed to be outside the scope of the legislation, and we accept that. That's the nature of dealing with an amending act. It is not a full act and you can't re-write an entire act in committee; you can only make amendments within the scope of the act. Therein lies some of the problems.
We've only gone so far as, in this case, the government was willing to go. Based on the criticisms that we've seen, based on the recommendations of Mr. Justice Létourneau and Colonel Drapeau and others who appeared before the committee, we think there are some substantial flaws in the scheme of the act, in the scheme of military justice, in the over-militarization of even matters such as grievance procedures, the failure to adequately address the concerns that have been raised about the inadequacy of grievance, and all sorts of things that are consequential upon that, and the failure to examine the international trends that see greater civilianization of the military justice system in other countries such as the U.K., Australia, New Zealand, Ireland, and other countries that have been mentioned.
Mr. Jack Harris:
In a word, no. I accept absolutely no responsibility for the fact that it's taken, as you suggest, nearly a decade to get to where we are. This legislation has been before this House on a number of occasions for a number of reasons, and I can detail them as to why. The House was prorogued by your Prime Minister. An election was called earlier than legislation required it. There were all sorts of reasons that the previous versions of the legislation never got through.
One of the reasons, of course, was that the matter was debated and we just passed off and put aside one of the significant consequences, and that had to do with the summary trial matter, which took, I suppose, six or seven months after the debate on Bill C-15 started and took place in the House. The government finally acknowledged that perhaps they were prepared to agree to put back an amendment that was passed in the last Parliament.
In the last Parliament we had numerous amendments. We had a very thorough discussion, and I don't think the speed at which this bill passed in the last Parliament left anything to be desired. We went through clause-by-clause study fairly rapidly, in three or four days at the most, with witnesses and the clause-by-clause.
During that particular Parliament I was where Mr. McKay is. We brought forth a dozen or more amendments, of which eight or nine were passed. They were stripped out of the bill the last time, so I guess we have to argue them again. So I take no responsibility for the fact that Mr. Justice Lamer was asked to make some recommendations back in 2003, and that we're here now in 2013. I only came here in 2008, and we had an opportunity to debate Bill C-41, and we made improvements to it. It was actually sent back to the House in good time to be passed, but the government chose not to call it for debate in the House of Commons. That's not my doing.
So we don't accept any responsibility for that. The government chooses when legislation is called.
To suggest that all of these reports are being taken into consideration, I would refer you to your own comments about Mr. Justice LeSage. Whereas that was only tabled in the House in June, well, that may be, but the government had it in December because it was tabled with the government in December, and the government had plenty of time to incorporate Mr. Justice LeSage's recommendations into this report and also to deal with amendments that had been proposed the last time and which the government didn't agree with, only because they thought the wording needed to be improved. Yet they didn't take any steps to improve the wording and bring them back some two years later.
So let's not be too sweeping about these remarks. What I'm suggesting here, with what we now have from this government, after recognizing that it took some time to get to where we are, is that there'll be another seven years before we even look at what needs to be done to this legislation. That's what's wrong.
If we are here now still dealing with the LeSage recommendations going back to 2003—
A voice: It's Lamer.
Mr. Jack Harris: —then there's something significantly wrong with the process.
Thank you for correcting me.
We're still dealing with Lamer and a number of Lamer's important recommendations that this government is still refusing to put into place. And now we're being asked to put into legislation that we should wait another seven years before some of the specific sections that are dealt with ought to be considered.
I don't think that's good enough. I think if this does get passed in the near future, which I assume it will, if the government decides to call it for debate in the House and bring it through, then whatever progress is contained in this legislation—those aspects of this bill that are progress—will actually take place.
What clause 101 says is that we're going to wait another seven years before we have another go at it. Does that mean the next changes we're going to expect to see are going to come in 15 or 16 or 17 years from now? If the same pace of legislative change that you're suggesting continues, then I don't think that's good enough.
The way to deal with that is starting now. Having gone through this process, having exposed the problems that we see with this legislation, can we not actually have a fundamental review of this legislation to see where we need to go to actually bring our military justice system into the 21st century? We're just scratching the surface in terms of some of the changes that are being made here.
I recognize that to have the list we're debating in the government amendment to clause 75—a watered-down version of an amendment that I made in the last Parliament on behalf of my party, and we reached that result back in the last Parliament—is progress. If 95% of the service offences that go to court do not result in a criminal conviction, as has been suggested by the government, that is some progress. I think we recognize that. Instead of feeling blame, I take some credit for that. I say this not to boast, but to counter your suggestion that I should somehow share the blame for taking 10 years to get to this point, when it was the efforts that were made two years ago in this very room that got us to the point where we are now, and another six months in the House of Commons to get us back to there, at least on clause 75.
No, I don't share the blame for that. I think we're making a mistake here to limit the review of this legislation to something that's going to commence in seven years from the day on which this particular piece of legislation, Bill C-15, receives royal assent. That's going to mean that any further changes could be put off as late as 10 years from now.
What I do want to say, though—and I acknowledge your slight detour there to the LeSage report, which we've heard many times wasn't available in time to make changes to this legislation, which I disagree with—is you did indicate that the LeSage recommendations will require some legislative change. I wonder what kind of commitment the government is prepared to give, in terms of when the LeSage recommendations might be addressed in legislation. I'm assuming that's not going to wait seven years, and that we may have a timetable already in mind. If there is a timetable with respect to that, please let us know.
(Clause 101 agreed on division)
(On clause 102)
Ms. Christine Moore:
Once again, the spectrum is broad. It can concern something not very important or something quite serious. I find it hard to accept that. This states: "malingers or feigns or produces disease or infirmity."
I have seen a number of cases. For example, body piercings are prohibited in the Canadian Forces. Members may not have them according to disciplinary rules. I have seen people with body piercings that had become infected. Consequently, they had to be absent from work in order to take antibiotics. They were subsequently charged under section 98 and elected summary trial. Since this was a minor offence, they were merely sentenced to a fine, but that was nevertheless under section 98.
People will be charged with quite minor offences under section 98. I also know of people who have been absent from work as a result of a sunburn. They had shaved off all their hair and suffered a sunburn that had slowed down the service.
Other behaviour related to injuries suffered during very long courses is often not discouraged by commanding officers. I have previously spoken about this. It frequently occurs that someone becomes injured three or four days before the end of a master corporal training course. A military member with a sprained ankle who obeys medical orders not to walk will miss the final exercises and fail the course. Military members will often ask personnel to tighten bandages so that they can walk, even if it means paying a fine.
Unfortunately, commanding officers do not necessarily discourage members from disobeying medical orders or aggravating injuries. They prefer that members not retake their training courses, in which a great deal of money has been invested. This behaviour is not widely discouraged.
I understand that we are talking about an entirely different kind of offence when someone deliberately cuts someone else's arm to prevent him or her from serving. As was the case a little earlier, I believe this does not seem logical in certain cases. Consider the example of someone who has disregarded medical orders and has aggravated a sprained ankle.
Consider as well the example of a 16-year-old military member who has a body piercing that has become infected and therefore has to be absent from work. I believe it is somewhat excessive not to include that in clause 75, particularly considering that, if someone cuts someone else's arm to prevent him or her from serving, that person will be sentenced only to a fine.
I believe there is a logic in the punishments that will be imposed, as a result of which we can readily include this in the Conservatives' amendment in clause 75. The logic behind the punishments will determine whether or not it applies.
That was the comment I had to make on section 98.
Mr. Jack Harris:
Mr. Chair, I'm dealing here with a section of the code which, as my colleague has pointed out, we are talking about whether or not a person first of all is in lawful custody. Sections 101 and 102 provide for someone escaping lawful custody, somebody who was in lawful custody who actually takes off. It's not someone who's AWOL and doesn't show up after a night on the town, but someone who is in lawful custody as a result of being arrested by military police, someone who has committed any number of offences and otherwise ought not to be in custody, someone who could be a danger to the public, but escapes from that and is committing an offence. That person somehow or other is treated more leniently, at least in connection with a criminal offence, than someone who actually allows that person to escape, or doesn't lock the door properly, or somehow fails in their duty as a result of which the person is actually gone.
We do have, I guess, in the argument or scheme presented by the Judge Advocate General some theoretical notion that the particular offence may be in one category. But it's pretty clear looking at the section itself, aside from the maximum penalty, that setting free without authority or allowing or assisting the escape can actually be something that's not worthy of significant penalty. It's pretty clear, once again, using the chapter that we put forward, chapter 104, which lists the scale of punishments, that imprisonment for any number of charges lesser than imprisonment for two years or more could result in a sentence for someone charged under section 100.
The provision here, if you read down through section 100, it talks about every person who “without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody, negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody”—so somebody who is guarding that is not doing a proper job—“or assists any person in escaping or in attempting to escape...”. Surely I don't know how they could be treated as offences for which the punishment they might receive is greater than that for the person who is escaping.
We do recognize that some attempt is being made here to remove the consequence of a criminal offence on individuals who are charged with specific offences, but how we can have a scheme which has two things in place, one, a particular offence, and two, the severity of the punishment, well, surely the severity of the punishment itself determines whether or not something is so serious. If someone is going to lose their rank in the service, someone is going to be dismissed from the service, someone is going to be held in detention for....
If you let somebody out who shouldn't be out and they do something horrible, that's likely to end up with someone being treated very significantly by a tribunal, whether it's a court martial or a service tribunal in the form of a commanding officer. You let this guy out and he went and did something notorious. That's going to result in some significant penalty. People for whom the consequences are serious are going to get serious punishments. They are not going to be considered in the category that the scheme of the act has created.
We have listed here a severe reprimand, a reprimand, a fine, or a minor punishment. These might apply to somebody who mistakenly allows someone to escape. Maybe he didn't have proper authorization. Maybe the person who was held in custody was simply confined to barracks or was in a car on his way somewhere and he thought he was allowed to go. There could be any number of ways in which someone could negligently allow someone to escape without doing anything that would get them more than a minor punishment. Maybe the person wasn't fully informed or was passed on to somebody else. One can easily come up with circumstances where somebody's charged with an offence and his degree of blameworthiness is rather minor. As a result of this rather minor blameworthiness for what is a service offence, a person could end up with a criminal record. What we're trying to do is ensure that fewer offences attract a criminal record, and we're trying to do it in such a way that we reach the most people possible within a reasonable scheme.
I don't think that this is the only provision. There are other amendments to clause 75 that we'll be discussing, but right here in the scheme proposed by the government in clause 75, as amended by G-2, we're listing offences that could be a problem. This could be true regardless of the mode of trial, whether it involves a court martial or not. You could have a court martial, or you could have a matter going before the commanding officer. But if you were on this list and attracted a minor punishment, you wouldn't get a criminal record.
We haven't come up with the whole list. I could go through the list of all of the offences under the National Defence Act that are considered service offences in that they're related to and directed at service. We haven't listed every single one of them. We're not certain that every single one of them is appropriate for this list, because some of them are quite serious.
You'll see when we get to it sometime later on our suggestion that any offence that's tried by summary conviction or trial, we think that the proper solution to the circumstances here is that those offences would not attract a criminal record for the reasons that have been argued strongly before this committee and in the House and by significant, experienced legal counsel and academics and, in one case, a former judge. We have the testimony and submission from Justice LeSage in relation to that as well.
We have to understand that we're here trying, in our different ways—ours with our own amendment that we'll get to later, and the government with this one—to expand the number of offences that won't attract a criminal record. We think that the arguments that are being presented here by my colleague Ms. Moore are quite compelling, as she has done in the argument on the malingering case, and as she has done in the argument on the disobedience of a lawful command.
Mr. Jean-François Larose:
Thank you, Mr. Chair.
As you know, I was a correctional officer for eight and a half years, during which time we had riots. We were responsible for accused who were suspected of committing heinous acts and for other persons. Escape attempts were made.
I see a danger here. People were responsible for keeping other people in prison, whether they were accused, convicted persons, people serving an intermittent sentence or even escorts. As a result of all kinds of circumstances, those individuals were not always in prison. We were also in the civilian world because it also includes people under house arrest. The danger is that, if a person responsible for supervising another persons can receive a stiffer penalty than the one he or she is supervising, that can have an impact on their relationship.
As you know, a convicted individual has rights. The individual in charge of that person has a responsibility to ensure that that person has what belongs to him or her, but also to supervise that individual so that he or she can serve the sentence. If the individual who has that responsibility loses control—whether as a result of negligence, fatigue or any other reason—and risks receiving a harsher sentence than the person who has escaped, the relationship will change. I have seen this. That relationship will be affected because, then, regardless of whether the rights of the person for which he or she is responsible are respected, he or she will be punished more harshly. This is a serious problem. I do not believe an exception is made for that in the armed forces, regardless of the person for whom that individual is responsible.
There have been sanctions in the past. People were negligent in the correctional sector and were punished. However, those punishments were not more severe than those imposed on the Hell's Angels, for example. That would have made no sense.
There is a serious danger that this will have a negative effect on the relationship between those individuals. In that case, would it be desirable to fire on the individual because the supervisor risks receiving an excessively harsh sentence because the prisoner escapes? The person in a position of responsibility would lose control and risk being fired upon. At what point do we encourage a removal of responsibility from the person who has to ensure control, through either a prohibition from acting or any other measure?
I have seen them all. I have not necessarily seen them all in the armed forces, but I have seen all the types of control and responsibility one can have. A person who already has the courage to supervise someone who is potentially dangerous should never run the risk of receiving a harsher sanction than that of the person he or she is supervising.
I am telling you that you are entering very dangerous territory.
Ms. Christine Moore:
I would like to return to section 100 and discuss it in a general way. The question arises as to what the basis was for determining which sections should be included in the amendment moved by the government party and which should not.
I believe that, at the outset, that party relied solely on sentences. We have been told that, if a situation might involve a serious sentence, it would not be included. I believe there is something logical in that. Ultimately, the amendment was moved to determine who should not attract a criminal record on the basis of the offences that would not attract a criminal record in the civilian system. In the civilian world, a person who helped a terrorist escape from prison would be convicted. However, if an individual improperly locked down the system as a result of fatigue or negligence—we agree that some prisoners can be real Houdinis, real experts, and that all procedures must be properly followed—I believe there would be a problem.
Coming back to what we said earlier, it is illogical for an individual who escapes not to attract a criminal record. A military member could escape without being penalized but would be punished if he improperly locked the door out of negligence. That is absolutely illogical. We have to agree on that in the context of this clause.
You said that the percentage of people who would not attract a criminal record for the same offences committed in the civilian world was currently about 95%, but I believe it is reasonable to consider increasing that figure. So the idea is to avoid all that. I think we can contemplate a better objective. With regard to the sections I have identified, including section 100, no criminal charges would be laid in civilian court in certain cases. As regards the sentence imposed by the authority responsible for trying the case, by either summary trial or court martial, a sentence is provided for under clause 75. This discrimination is therefore already in effect.
For example, if an individual who deliberately released a terrorist who had killed a number of people was sentenced only to a fine, I believe that would really constitute a problem. That would definitely call into question the way in which sentences are imposed, the logic of the process and the way in which people design the justice system. It would not be normal for that individual not to be reduced in rank or imprisoned. That would indicate that something is not working in the justice system.
Since these sentences are part of a graduated scale, the relative seriousness of the offences has already been determined. In the context of the amendment, the four most lenient sentences are the only ones that have been selected. In my opinion, the logic behind all that is to distinguish what is more serious from what is less so.
I have taken the time to reread all the sections of the National Defence Act. I have not presented those offences that attract a criminal record in the civilian system. Theft, for example, attracts a criminal record in both the civilian and military systems. Sincerely, the offences I have presented here concern cases in which individuals convicted under these sections would not be given a criminal record in the civilian system. So there is a logic in this. I did not do it for fun. I really targeted those sections that did not apply.
As I have already said, I find it hard to understand why an individual who has escaped from prison should receive a more lenient sentence—or at least one that will have a less harsh impact on his or her life—than another individual who failed to check to see whether the lock was properly closed, not out of gross negligence but because he or she failed to comply with certain procedures, for example.
That makes no sense to me. I think we have to find a way to correct this. We do not have to do much. We need only add section 100 to the amendment, and that will be enough.
In any case, if someone did that deliberately, he would receive a sentence harsh enough—I hope so, in any case; otherwise there would be a problem—that the provisions contained in section 75 could not apply because a sentence harsher than a reprimand has been imposed.
Thank you, Mr. Chair.
Mr. Jack Harris:
Thank you, Chair.
The word “facilitates” is very broad and it could include even such acts as providing information. You could provide information about certain things to someone who is in custody, or let them know or give them access to information, or let them look at some document that might assist them in escaping.
The Queen's regulations and orders uses the term “without authority”. That's broad enough as well to signify that the accused did or omitted to do something without the approval of his superior officer or without the sanction of law, practice, or custom. It could be something rather minor that they neglected to do, or actually did, but it wasn't authorized by either the approval of an officer, or with a legal sanction, or with a custom. Again, that's very broad and allows for all sorts of things to run one afoul of the law.
When you look at paragraph (b) of section 100 of the National Defence Act, where one “negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody”, that offence is committed when the person actually escapes as a result of the act or omission. So you not only have to do something, you have to be negligent or wilfully allow something to happen.
For example, if a person were in a cell and you failed to lock the cell, or if you left the keys on a hook next to the door and the person reached through the bars and took the keys, by being negligent you would have run afoul of this. Assisting anyone in custody also deals with someone who is attempting to escape custody, and if there is an attempt to escape, there has to be a definition of how that works. Even something such as diverting the attention of the person who had the custody of someone, thus enabling him to leave his room in the detention barracks in an attempt to escape, is an example of this offence. The same charge is suggested for leaving unlocked a cell door used to hold a person in custody, which constitutes an offence. Even if you divert somebody's attention while some guy who is confined to barracks is able to get out without being seen, that's considered to be assisting someone escape lawful custody.
When we talk about custody here, it doesn't have to be someone who is in detention. It doesn't have to be someone who is a prisoner of war. It doesn't have to be someone who is a known terrorist who has been arrested and is known to be about to commit an offence of some sort. It can be anyone who is... It's not defined, and it says here that, “A required element of this offence is that the person being assisted must be in custody.”
The definition of custody is essential in order to determine the scope of the offence, so the broader it's defined, the broader the offence. There being no definition of “custody” in section 100 or elsewhere, it then goes to the Oxford English Dictionary , which defines it as “protection”, “care”, “guardianship“, or “imprisonment”. It could be any one of those that could be talked about here.
Again, the reason for the custody would itself reflect on the significance of what kind of punishment one would get. If someone is in protective care or guardianship and some careless act occurs and they wander out of the place where they are, and then they wander out of a barracks into the parade grounds, and somebody says, “Hey, what's he doing out here? He's supposed to be in his room for his own good.”... If he's brought back there five minutes later and somebody has carelessly allowed him to escape—“escape” is not necessarily the word, but “wander off”. If someone is there and they say, “Look, keep an eye on so-and-so, and don't let him go out”, he's in custody.
An hon. member: How do you know all these tricks?
Mr. Jack Harris:
I just want to assure the chair that what I have to say is totally relevant to section 100 and the subamendment we're talking about, because when we're looking at the offence that we're dealing with here, we have such a broad definition of assisting or facilitating, because it says, “authorizes or otherwise facilitates”. One can authorize something by making a mistake or reading an order negligently or not understanding the rules, or thinking that something is authorized when it's not. But when you say “negligently or wilfully”, that clearly indicates that you either have to do it intentionally or you just do it by failing to show enough care. Facilitating, as indicated here, could be any number of possible things.
When we're talking about assisting or enabling escape, especially in the context when the person who actually escapes, who could be anybody subject to military discipline.... I don't imagine that's anyone, because I don't think you can charge anybody else for escaping under section 100. Maybe you can do something else with them, but under the code of military justice here, the code of service conduct, I think we are talking about charging an individual who is a member of the CF who was in custody and escapes. If you're under arrest or confinement or in prison or otherwise in lawful custody, escaping or attempting to escape makes one guilty of an offence. Well, the person who escapes or is allowed to escape can be charged, and if he's given a severe reprimand or fine or minor punishment, he doesn't get a criminal record. But the person whose negligence or inadvertence and lack of attention, shall we call it, allowed him to escape, gets a criminal record. Meanwhile, the person who escapes, the primary culprit, if you want to call him that, is not treated that way. There's an unfairness here.
What we're trying to achieve is fairness. I think that has to be understood. I understand Colonel Gibson's theoretical scheme where because the maximum sentence is so high, it's therefore more serious. Well, it can be treated more seriously depending on the circumstances. But pretty clearly, it's intended, and any sentencing court would say that this is reserved for the most egregious and serious offence one can imagine under that particular section. If you look at the Criminal Code, for example, if you break and enter into a dwelling house, it attracts life imprisonment. Most people charged with a first offence of break and entry—or it used to be so when I practised law—would get a suspended sentence. Maybe they shouldn't, but that's what they got. They didn't get life imprisonment. The sentence for break and entry into a dwelling house is different from break and entry into a commercial premises.
So, yes, as Colonel Gibson said, they're objectively treated more seriously in the sense of the maximum sentence being higher, but that doesn't mean in the application of the law that anywhere near that occurs with respect to an individual who commits that offence. When we're talking here of fairness, we're talking about having a list of offences that, provided the person is treated with the kind of sentence that we're talking about here, will not attract a criminal record. Fairness demands that like circumstances attract like penalties.
If you have a very minor offence in a circumstance where one would never receive any of the more serious penalties here, then why should that person, particularly when you juxtapose section 100 with section 101, particularly when the person who escapes doesn't, and in fact can't, get a criminal record if one of these sentences applies.... The guy who allowed him to escape, regardless of the penalty, even if his own behaviour was so minor that he simply got a reprimand because he wasn't paying enough attention, and the guy he was supposed to be looking after, because he wasn't in closed custody and locked up, wandered out into the parade ground and was spotted by a senior officer who asked, “What's he doing out here? You're supposed to be looking after him.” The guy responds, “Oh, I didn't see him go. I was getting a cup of coffee.” That doesn't sound too serious, and it may not be serious if the kind of custody wasn't so important and it was in a circumstance where the consequences were relatively minor, where there was no real danger and nothing occurred. Why would that person get a criminal record?
That's what we're talking about here. I don't know why we have to be religiously devoted to the notion that because there is the possibility of a more serious version of that offence to attract a criminal record, that there should be a criminal record imposed here.
We looked at this with Madam Moore, particularly from her experience in the military, and we think that 83, 98, 100, and we think we have another one, ought to be included in the list of offences that ought not to attract a criminal record. It's as simple as that.
Mr. Tarik Brahmi (Saint-Jean, NDP):
Thank you, Mr. Chair.
First of all, I want to thank Mr. Butt, who is helping us and attending this meeting.
I have the same questions as my colleagues regarding section 100. I have two questions for Colonel Gibson.
The first concerns the fact that a person may be charged and receive a sentence greater than what might be imposed on an inmate, even if there was no criminal intent to allow him to escape. Reference was made to a terrorist, but we are not necessarily talking about a terrorist. It can be any person. It may simply be a private who has made a mistake in carrying out his duties and obeying orders given to him. I am not a lawyer, but I have a few notions, particularly relative to what lawyers call mens rea. I believe some lawyers here will be able to confirm that for me. I have a more general question as to whether it is possible to convict someone who has no criminal intent.
That is my first question for Colonel Gibson. Is this situation different in the military justice system? Do you accept something that would not be acceptable in the civilian justice system? It has previously been said that we want one thing from this bill: we want to do what has been recommended by witnesses who said they wanted military justice to be more similar to civilian justice because that is a global trend. We want to have the same degree of equity in the treatment of criminals, as other countries such as Australia and Great Britain are doing.
Would this difference between the treatment an accused might experience in a trial in a military court and the way he would be treated in the civilian justice system pose a problem, knowing the consequence—this is what we are interested in today—he would experience upon leaving the military? In the civilian system, he would attract a criminal record with all the consequences that has for his ability to find a job and to travel outside the country.
I am not a lawyer or a specialist, but how can we justify this difference in treatment?
Mr. Jean-François Larose:
Mr. Chair, that has a considerable impact on the principle that, in the armed forces or in any other professional body that has responsibility for a person, people are not motivated to be there by potential consequences. In this case, we are talking about the consequences for people who will be victims of the actions of the person for whom they have responsibility. What is more, this point is made after the fact, not before it.
I do not understand why the government is so bent on not including it. We are proving very clearly, with everything that has been put on the table today, my experience and that of other people, that there is a genuine danger in applying this in the field, from both a legal and practical standpoint. In fact, this sends a strange message. If a person for whom you are responsible escapes, he may or may not be punished, but, as the individual responsible for that person, you will definitely be punished, and very seriously. I do not see the point.
This is not a matter of troop motivation. Their actions are not shaped by the thought that they will wind up in prison if they do not act properly. I do not understand the logic behind this. We are all in favour of the Canadian Forces wanting to have an appropriate management tool. We all agree that certain actions are absolutely intolerable. In this case, it is much more a matter of the management principle or of negligence. There are other equally effective tools that can help. I would think that the attitude would be to help improve the way the troops function. There is the stick, but there is also the carrot. In this case, we are talking about a stick that is virtually a bazooka. It really sends a strange message.
I used to belong to the armed forces, and this is honestly the first time I have heard this point discussed. If I had known about it, I would definitely have had the opportunity to discuss it, particularly since I worked in intelligence. I would have made people understand that this has a direct impact on motivation. As I mentioned earlier, in the relationship between the incarcerated individual who is under your responsibility and you, the danger lies in knowing that you will be punished to a greater degree.
There are consequences even in the civilian correctional system, but there are other provisions. If an employee is negligent, his negligence will have consequences. He may receive an administrative sanction, which is virtually equivalent in the civil system, depending on the consequences. However, when events become very serious, investigations will often be conducted, and the individual will wind up with a criminal record and lose his job.
In this case, that will become automatic. This sends a strange message and has a direct impact on people's motivation. They are there for the right reasons. All the military members I have ever met, when I was a reservist and on other occasions, were all very proud of the work they did. They never did it so that they could be punished harshly.
I do not see why the government is prepared to add this. What is the cost, if it is only to improve this point? The arguments have been laid on the table.
Mr. Jack Harris:
We're talking here about the will of Parliament. Well, the will of Parliament is being expressed in the legislation that we're passing now, whatever that will happens to be.
When the legislation was put before Parliament this time out, the only offences listed were ones that were “described in sections 85, 86, 90, 97 or 129”. Five offences were listed. The sentence was either “a minor punishment or a fine of $500 or less”.
If we look at the scale of punishments that we talked about before, where there's (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), the only ones able to be dealt with are minor punishments. I don't have the list in front of me, but minor punishment includes confinement to barracks.... Does anyone have that list? Someone is going to get me that list of what constitutes minor punishment, but they're less than any of the ones that are here, by definition, and the fine was $500.
Now we have an amendment that says that in addition to 85, 86, 90, 97 and 129, we also have an additional list, and I don't have a count of the numbers, but the list includes, 87, 89, 91, 95, 96, 99, 101, 101.1, 102, 103, 108. All of these are added to that. I could carry on, but in the interest of time, I won't.
Mr. Jack Harris:
The subamendment merely seeks to add another to that list.
I don't know how we can get all caught up in principle here when what we're talking about is how to achieve a fair result in relation to section 100 as compared to sections 101 or 101.1, and the others that are included here.
There are various theories we can apply to it. Our application is based on fairness.
My colleague, Mr. Brahmi, talked about the need for mens rea, and he got an answer that yes, mens rea is needed, and it is the same. I would agree with Colonel Dufour that in either civilian criminal law or in the case of this kind of offence there is a mental element required.
But because it's either wilful or negligent.... And we're not talking about the kind of negligence that's called criminal negligence in criminal law, just ordinary negligence, which is made criminal here because the offence is to, in the case of allowing an escape, negligently or wilfully allow escape. The kind of negligence we're talking about here is not the criminal negligence. The word “negligently”, according to the commentary found in Canadian Military Law Annotated, signifies that “...the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonable capable and careful person in his position in the Service under similar circumstances”, which is quite a lot of qualification.
In other words, simply being careless is enough to attract a conviction under section 100, which is totally different from what in criminal law is called criminal negligence, where somebody has to be acting with wanton disregard for the life and safety of others. But to have this particular offence, the mental element is so minor in terms of carelessness or doing something in a manner that would not have been adopted by a reasonably capable and careful person in that position under similar circumstances.
It's not so egregious as to attract a criminal negligence charge, but it's something that's simply either wilful.... Well, wilful may be pretty obvious, but wilful indicates that the accused knew what he was doing, intended to do it, and wasn't acting under any compulsion. So that's the mental element. It's wilful: you wanted to let this guy out; you opened the door; you took him out or you attached a rope to the bars and rode your horse away—as in the cowboy movies—and you did it on purpose. Or it's the other sense of being careless or negligent. That is enough to attract this.
But it's not enough, and I submit that if the circumstances are such, and all of the sentencing provisions relate to the circumstances of the individual: the seriousness of the offence, yes, but also the seriousness of the consequences of the action, the degree of blameworthiness of an individual, and all of that....
If we had Clayton Ruby here, who is the guy who has written the book Sentencing, which is used throughout the country, he would tell us that. In fact, in Bill C-15 that we have before us today, we're putting a list of the purposes of sentencing.
All we're saying here is that if those purposes of sentencing can be achieved by the imposition of either a minor punishment or a fine, in this case a month's pay, or a reprimand or a severe reprimand, then that ought to apply.
On offences that are considered minor offences, by the way, with minor punishments—because that's in our list of the least of the punishments that can be granted—those minor punishments include confinement to a ship or to quarters or to barracks, so you're confined to your ship if you're in the navy, or to your barracks or quarters if you're in one of the other forces. The second thing that's included in minor punishment is work or extra exercises, which would be telling someone to jog around the military base five times or whatever. Prohibiting someone from taking a vacation and keeping him on duty is considered a minor punishment. The last of the four matters listed in minor punishments is a warning.
For any of these lesser punishments, if somebody did something that was so minor as to only require a warning, is that something we would want to see involving a criminal offence? What if it were so minor as to only attract a warning, or some disciplinary matter such as a work detail, or giving someone an order to perform extra exercises, or confinement to barracks for a weekend or whatever? For those kinds of punishments, if these were the consequence of violating this act, even though the maximum penalty is quite high, if the level or degree of culpability were so minor and the consequence so minor as to attract a punishment up to and including a severe reprimand, then there ought not to be a criminal record.
We must have some compassion for the individual who is affected by this and recognize that if we can start off here with a bill that only has five offences listed and only talks about minor punishments and a fine of $500, an amendment submitted by the government, obviously upon reconsideration, that lists perhaps another 15 or more—
Mr. Jack Harris:
Well, I think we've been told, Mr. Chair, with respect, that it's all about the will of Parliament. The will of Parliament is being determined by the people who are here. If the will of Parliament is to move from clause 75, as submitted in the second reading version of the bill, to a proposal to the committee by the government in amendment G-2, then surely the will of Parliament can be expanded in an amendment to G-2 to add another section, and we're proposing section 100. Even though it potentially attracts a large punishment, the possibility is that any lesser punishment, including the four listed in G-2, ought not to result in a criminal record.
As Colonel Gibson has said, the will of Parliament has been expressed in the past by giving the maximum punishment. That's an objective gravity. Well, I can't imagine what circumstances would attract life imprisonment for an offence of this nature, but I suppose you could consider the most extreme circumstances. Almost an act of treason would be required to allow enough people to escape or to organize the escape of enough people in the wrong circumstances that it ended up causing a major disaster where people lost their lives.
You'd have to have something that you would have to pile on, detail after detail of aggravating factors to end up with the possibility of a life sentence for something like this. But if you wilfully let someone out who then committed an act of terror or an act of murder or caused that kind of mayhem, I can see that there might well be circumstances that could be strong enough to attract significant sentences beyond what we're talking about.
But it's the kind of offence that could have a small amount of actual harm being done. It could be a very minor escape. If someone is not in custody for a few minutes because he got out of one room and was grabbed by the fellow officer and returned to his cell, that wouldn't necessarily be serious. It might well involve someone being negligent in the performance of his duties. As Mr. Larose said, quite often there can be an administrative response to something like this that wouldn't require someone having a criminal record.
I like the fact that Mr. Larose is here to provide us with the reality of life for soldiers. He helped us out by saying that they don't always think of all of these things. They're thinking in the moment. There was the idea that the best thing to do was to try to get to Mexico to avoid the consequences. I'm assuming they never made it to Mexico. But that gives you an idea of the state of mind of people who end up being confronted with the kind of law we're making here today. I'm asking that we try to make that law as fair as possible, and one of the ways of doing that is by adding section 100.
It is very easy to see how the person who is actually doing the escaping is far more culpable than the person who is actually found guilty of carelessly allowing them to escape or admitting to doing something that ended up in somebody getting out. That seems to me to be wrong and we should try to fix it. If the circumstances are such that that's the case, then this law should allow that the person who, through some omission, maybe a minor omission, ends up being guilty of this offence should not get a criminal record.
When we're talking about punishment, especially when we are having a scheme like this, where certain offences with certain levels of punishment attract a criminal record and some do not, we have to regard the criminal record as part of the punishment.
So, in case A your punishment is a severe reprimand and in case B your punishment is a severe reprimand plus a criminal record. If that's the consequence, if it's possible that there can be an A and a B, then there must be a level of fairness associated with that.
If we have a situation, as we're talking about here, particularly with section 100, where offender A, who commits an offence and gets a severe reprimand, has no criminal record, and offender B, who instead of a severe reprimand just gets an ordinary reprimand, or who gets a fine, but also gets a criminal record in a related circumstance—it could even be the same incident, where the escapee gets a severe reprimand and the person who is found guilty of assisting in the escape or facilitating the escape negligently ends up with a criminal record—then that's wrong.
This is why we're opposing this, Mr. Chairman. We think that this particular provision ought to be included and that we ought to add section 100 to G-2, as proposed.
Mr. Jack Harris:
Thank you, Mr. Chair.
Given the comments, particularly those of Mr. Norlock and others opposite, about the length of this meeting, I'm assuming unless told otherwise that we came here, along with Colonel Gibson and Colonel Dufour, and anybody else who's here, for a meeting from 3:30 to 5:30 today. We came here prepared for that. We had other plans. That's why some people actually had to leave; they couldn't change their other plans. We came for a civilized meeting of the committee from 3:30 to 5:30, as per the notice that was provided.
The people who are here now are here because nobody made any arrangements to go beyond 5:30. There was no consultation, no suggestion, no question, no seeking of cooperation, no attempt to do things in an ordinary, civilized, and reasonable manner. It was just, “No, it's 5:30, but we're going to carry on.”
I want it on the record that this is what happened here, and that's why we're here, because there's been no attempt to do anything in a reasonable, civilized way. I also want it on the record that when this happened, the Liberal member of the committee voted with the government to continue the meeting, yet the Liberal member was the first one to leave.
Mr. Jack Harris:
We have here another subamendment to G-2, which adds the sentence in section 113. In fact, this one is even more so a case where this ought to be added because, as my colleague has pointed out, causing fires normally is associated with arson, which sounds pretty bad. But when you look at the provision itself, again, we've got this maximum of life imprisonment, but only in the case of wilfully causing fires. In any other case than wilfully, the maximum penalty is two years or to less punishment.
We've got a situation where, and I'll read out the section:
||Every person who wilfully or negligently or by neglect of—
I'm not sure what the difference is.
||—or contrary to regulations,—
So you neglect to carry out a duty contrary to regulations.
||—orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
Now, this could be a serious offence or it could be something done in violation of a regulation. If some regulation or some rule or some instruction requires a certain thing to be done, or suggests you ought not to do something, then you can find yourself with a criminal record if it causes or is likely to cause a fire.
So, if somebody tosses a cigarette butt on the ground and it's contrary to a regulation to do that—if the ground happens to be near dry grass or something like that—but doesn't do anything, doesn't cause a fire, but may be likely to cause a fire to occur in any materiel, defence establishment or work for defence, so on a base somewhere, then that's enough to make you guilty of an offence.
Or there may be other kinds of technical rules or instructions, or regulations that are avoided that will make you liable for an offence. But if it attracts something less, again, than the list and the scope of punishments, starting with minor punishments, fines, reprimands, severe reprimands, any of those four particular punishments for wilfully or negligently causing or likely to cause a fire in any defence establishment...well, it doesn't have to cause a fire to anything in particular, it just has to cause a fire in a defence establishment. A defence establishment is a pretty broad place. That could be in any part of any base in the country.
Again, I don't know what examples there are of this in actual practice. I don't know whether or not the experience of the military is such that this is something that ought to attract a criminal record in every case. Somehow I doubt it, if we're looking at a list here of things that have far more serious consequences than something that may cause a danger or even be likely to cause a danger of causing a fire by failing to follow instructions.
I'm looking here at the list of things that are contained in amendment G-2 and seeing all sorts of things that are apparently serious, that are included in the list of things that would not attract a criminal record. Yet here there is no exception for something that might be a very minor breach of a regulation but that could give rise to an accidental fire. I think once again we're seeing a situation where we're trying to make amendment G-2 more complete, more fair, and have it treat similar types of seriousness similarly.
Now, we've heard from Colonel Gibson before that the characterization of these groups have to do with the scheme that I believe was referred to as the objective gravity and the subjective gravity. I disagree with that characterization because it's not objective gravity versus subjective gravity. I think the maximum sentence gives rise to Parliament saying that yes, there are circumstances where, if this offence is committed, it could be so grave as to attract a large sentence of life imprisonment.
But in the case of the threshold for sentencing, that's not about the subjective gravity of the offence. Surely sentencing has to be objective as well. It's about the objective gravity of the particular offence that the individual is being sentenced for, the circumstances of the offence and the offender. So in fact it's an objective assessment of the punishment that's due to an individual.
He says that the two conditions that have to be met are the objective gravity of the offence and the subjective gravity of the offence. But the objective gravity of an offence by virtue of saying what the maximum sentence is only indicates what the maximum seriousness of the punishment can be in the worst possible event under that particular definition of the offence.
What we're dealing with in clause 75 is a list of offences that are objectively determined by the sentencing court, whether it be a court martial or whether it be a commanding officer, the one who determines in a judicial manner how serious it is. So we know we're dealing with how serious an offence is in relation to the actual offence that was committed, the actual circumstances of the offence, what the offender did, what the consequences were, what the state of mind of the individual was. It's related to the individual and that's not subjective; that's just different. That's different from the general notion of the offence itself.
Even using the understanding we have from Colonel Gibson as to how serious Parliament has taken the offence, it is very clear in relation to section 113 that when Parliament looked at that offence and designated a penalty for that offence in terms of the potential gravity of the offence, it actually has two separate understandings of how serious the offence is.
If someone wilfully did an act, and is convicted of this offence, the one in 113, and if that person acted wilfully, he is liable to imprisonment for life or less punishment, and in any other case, in other words, either negligently, or by neglect of, or contrary to regulations, orders or instructions.
Mr. Jack Harris:
Well, first of all, I resent any suggestion that my actions or words are abusing the witnesses. That's totally—
A voice: They are.
The Chair: Order.
Mr. Jack Harris: —unfounded.
The Chair: Let's get back to the amendment.
Mr. Jack Harris: I won't repeat that again, but they're totally unfounded.
What we're dealing with here is trying to make the argument that when you look at section 113, when you look at the ways of committing the offence, there are more than two ways spelled out there, but it's only in the case of wilfully setting a fire—or wilfully causing a fire, let's call it—by your actions that it attracts the potential of a life imprisonment sentence. In all other cases, punishment is two years or less.
That's the category of offences that are included—that and less than that—in all of the numbers that are listed. I'm suggesting that makes it clear that whatever arguments can and have been made about the other ones ought not to apply here, because section 113 clearly recognizes that there are two categories of seriousness, one that involves wilfully committing an offence, and the other that involves any other way of committing the offence.
So it can easily be seen, I submit, that the kind of penalty we see in amendment G-2 involving a severe reprimand, reprimand and fine, or minor punishments could apply. What are we talking about here? We're talking about a situation in which there's a possible danger to property. This seems to be more interested in property, but there is the potential damage to military materiel or a defence establishment or work. That's important. Obviously, you don't want to have your buildings burnt down or your equipment damaged by fire. If someone does it because they fail to follow a regulation, if they didn't properly handle a spark suppressor and that caused a fire—some regulations say you have to do that—or is likely to cause a fire, they're going to get charged. So-and-so gets charged because they have neglected to follow a regulation. The maximum sentence is two years. The person gets a reprimand or gets a fine, or whatever—
Mr. Jack Harris:
Thank you, Chair.
What we're trying to do here, is we've seen already a change from the existing clause 75 in the bill, which had as a part of the threshold a fine of $500. That's now been changed to “a fine not exceeding basic pay for one month”.
The reason for removing that is to say that any fine ought to be the threshold, not the fine of “basic pay for one month”. I can see why someone would choose a number like that. It's an attempt to be more fair, in the sense that $500 might be arbitrary. For somebody who's got all kinds of money, a fine of $500 would mean a lot less than to someone who depends on every dollar they get in order to support themselves.
I can see the intent here is to try to make it more proportionate. But if I look at the scale of punishment that's found in chapter 104 of the Queen's Regulations and Orders, which I think we passed out a little earlier in both official languages, it's clear that when we've got the scale of punishment going from “imprisonment for life”, which is (a), to “minor punishments”, which is (l), when we get to “fine”, which is (k), it doesn't give any amount of the fine at all. The fact that it doesn't do that—and this is from section 139 of the National Defence Act—is that any fine is greater than any minor punishment, according to the definition here, because it says that “each of those punishments is a punishment less than every punishment preceding it”. In other words, this goes in descending order from “imprisonment for life” down to “minor punishments”, and any fine is considered to be less than a severe reprimand or certainly less than any of the other ones listed above it.
I think it's very logical and very reasonable to say that if your basic pay happens to be $3,000 a month and you're fined $3,500, you end up with a criminal record, and if you're fined $2,500, you're not. Yet a reprimand would be considered a more severe punishment than a $3,500 fine in those very same circumstances, or a severe reprimand as well. In fact, you have to go to three levels higher than a fine to get a sentence that's more severe to put you into the category where you'd get a criminal record.
While I recognize that the intention was certainly honourable, to try to have something that's a little less arbitrary than a fine of $500, I think we ought to go further and say that the four categories that establish the threshold above which a punishment that includes a criminal record ought to be any fine at all. It's easier to administer. You don't have a circumstance where a person giving the sentence has to consider the actual amount of the fine and someone's basic pay to determine whether or not a criminal record applies. You don't want a criminal record to apply just because it happens to be...it could even be an unintended consequence of a sentence, if it turns out that the basic pay is less than the fine that's given.
I think it makes sense, even under the scheme of the act, as contemplated by amendment G-2, that not specifying any amount of the fine makes more sense, is more fair, is more reasonable, and is more in keeping with the scheme that's proposed here of having (i), (ii), (iii) and (iv) as the possibilities.
Mr. Chris Alexander:
Mr. Chair, it's a public meeting. If we've been maligned, we have a right to reply, and we will do so simply by saying that Mr. Harris claims we're here because he was not given notice that we would be here.
We were on the last clause. We were well within range of passing that last clause—clause 75—to which he had agreed in an earlier period of debate. You welcomed the bringing forward of that amendment. Instead, he has chosen to discuss at great length, and indeed in a manner that we consider wasteful of this committee's time.... We'd like that to be on the record. The amendments he has proposed, for which we got no notice, would have made it impossible for people—malingerers, those disobeying orders, those allowing the enemy to escape, arsonists—to have their criminal records—
Mr. Jack Harris: Mr. Chair, that's not a point of order.
The Chair: Order.
Mr. Chris Alexander: —carried over into this system. That is absurd.
We had no notice of this. The Canadian Forces, and above all those responsible for military justice in the Canadian Forces, had no notice in recent years that there would be 70 speakers from the NDP on this matter, which was rehearsed in two earlier parliaments, or that we would be detaining the brain trust of our Judge Advocate General's office well into the night to discuss amendments that actually relate to an amendment proposed by the government, but which had the support of the NDP, and was indeed welcomed by the NDP, in the last Parliament. In fact, they're arguing and filibustering against their own position tonight, a practice that we find petulant, that we find cynical, and that we find extremely wasteful of this committee's time.
Mr. Jack Harris:
I'm not going to prolong the kind of debate that Mr. Alexander wishes to engage in about what we're doing here.
The Chair: Gentlemen, please.
Mr. Jack Harris: What we are doing is seeking to improve the legislation by amendment. Having heard what you had to say, it leads me to think you're not prepared to consider improvements to legislation, which is what amendments and subamendments are all about.
The idea of using section 139 of the National Defence Act to determine what is a more severe punishment than the other.... According to the act itself, which is the will of Parliament, a reprimand or reduction in rank, detention, etc., all of these things are more serious than a fine. That's spelled out here in another section of the act itself.
In another subsection of the act, subsection 139(2)(2), it states the following:
||Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression “less punishment” means any one or more of the punishments lower in the scale of punishments than the specified punishment.
I'm not suggesting a severe or large fine is not a punitive consequence or a penal consequence, or as Colonel Gibson says, “true penal consequence”. We're not disputing that at all. What we are suggesting and disputing is that if a reprimand, and a severe reprimand, are, by law, more serious consequences, then the fact of the matter is that the section we're talking about is not appropriate.
I'd be surprised, frankly, if there is a huge fine imposed on someone that would be significantly greater than a month's pay, for example, that's not combined with something more severe than what we're talking about here, whether it's forfeiture of seniority or reduction in rank, or something that's deserving of such a significant penal consequence as being suggested by a huge fine. There might not be other consequences.
Any fine, I would submit, is by law lesser than a reprimand, lesser than a severe reprimand, and therefore, by definition, ought to be included in the category that doesn't attract a criminal record.
Mr. Jack Harris:
I move amendment NDP-20, which provides a subclause after line 7 on page 49, reading as follows:
||(1.1) A person who is convicted by summary trial of an offence, or who has been so convicted before the coming into force of this subsection, has not been convicted of a criminal offence.
This amendment would ensure that all people who are subject to a summary conviction trial can be treated as cases of military discipline, and given, in accordance with section 163 of the National Defence Act, specifically subsection 163(3), by a commanding officer, they can receive:
||a sentence in which any one or more of the following punishments may be included: (a) detention for a period not exceeding thirty days;
—and we're talking about imprisonment here in the detention centre in Edmonton for a period not exceeding 30 days—
||(b) reduction in rank by one rank; (c) severe reprimand, (d) reprimand, (e) a fine not exceeding basic pay for one month, and
—I guess and/or—
All of these punishments are available to a commanding officer who, after a summary trial, can give any one of these sentences. It involves, as Clayton Ruby mentioned in his testimony, the liberty of the subject.
Detention for 30 days is a serious matter. It involves someone being imprisoned against his or her will. It's a significant punishment in the law and involves a situation where you don't have the benefit of proper procedure—the lack of a public hearing, the lack of constitutional rights, and the lack of respect for what's called natural justice. You don't know the case against you, because you don't have the same kind of disclosure that's available in a criminal trial in a civil system.
We have a very elaborate system of disclosure before our provincial courts, even when someone is charged with a minor offence. Those procedural protections are not available in circumstances where someone is facing a summary trial procedure. You don't have the right to counsel. You don't have a trained judicial officer determining your guilt or innocence. You don't have rules of evidence. You don't have an impartial tribunal in the sense of the meaning of the law for someone who not only is impartial but also is seen to be impartial.
You could have a judge, or someone judging your case, who knows you, knows the witnesses, could be a friend of the witnesses, or in many respects knows the facts before things happen. There is a whole series of matters that aren't available with respect to a summary trial, that are taken for granted, and, in fact, are the basics of an impartial tribunal and a fair procedure.
It's a circumstance that does not find itself in the civil law system outside of the military, and yet it's the mode by which more than 98% of the trials that take place take place in the summary trial system. That's approximately 2,000 a year. In the last year that we have records for, 97% were actually found guilty.
As has been pointed out, 94% of the people who are convicted or found guilty, after the passage of this legislation—again, going by the one year that we have records for—will be exempted from a criminal record. Some 107 Canadian Forces members in the year for which we are examining would have a criminal record, having been tried in a circumstance where you don't have the procedural rights to what's called procedural fairness, which is a constitutional requirement.
There have been some arguments about whether it's charter compliant or not. We've had witnesses come before us. Colonel Drapeau was one, a practising lawyer who practises military law and has written the text from which I've quoted. He has expressed his view about the concerns about the lack of procedural fairness and the legal difficulties from a constitutional point of view.
Mr. Clayton Ruby, one of the leading criminal lawyers in Canada, and one who has a sterling reputation, his text on sentencing in Canada is one that is most often used across the country. He is also, as he pointed out, the constitutional litigator and editor of the Canadian Rights Reporter, which is a law journal dealing with constitutional cases. He makes it clear that one of the reasons.... I believe Mr. Opitz asked him why there has been no challenge. I think he explained it quite well, the fact that individuals had to mount the case, to actually bring that case.
The suggestion again has been made that Justice Lamer and Justice LeSage said that the military justice system was constitutional. I think that argument was dealt with by several of our witnesses.
I guess Mr. Ruby said that we've never seen the legislation being challenged in that particular...that when you're dealing with constitutional challenges, you actually have to look at the challenge in a particular section of the code.
He said in his testimony:
||There's been reference to the military justice system being constitutional; it is constitutional, in my view, in the sense that having a separate and different justice system for the military is constitutional. That's all that anyone is saying. No one has ever examined these provisions one at a time for constitutional compliance.
When he's saying “no one” he means no court. He added:
||It's right to say that it's expeditious. It works well for the guys in charge, but it really is beyond any rational thought to call this fair. The judge....
And I guess we're talking here about judge in the service tribunal, which could be a commanding officer, or could be a delegate.
||...may not be impartial; he could be friends with the witnesses. No transcript is kept, and there is no right of appeal or to full disclosure of the case against you. You're made to stand like a child in front of the tribunal for its entirety. This is demeaning and unfair. We should not hesitate to acknowledge that and change it.
That's his very strong opinion about this.
We've had this argument before at this committee. The last time we talked about it, it was suggested that, well, you know, you can't have people not getting a criminal record for some things that ought to attract public opinion, that the public should know about it.
That may be, but what is the solution? I think the solution was stated by Clayton Ruby in his testimony. He said that if you want someone to attract a criminal record, you must provide the proper procedures, or have them charged in criminal court.
One of the things that was raised the last time was sexual assaults. Right now the military deals with them under section 129, Conduct Prejudicial to Good Order and Discipline. That's a rather general section for something as specific and significant as sexual assault. But it's only been in the last 15 years that the military has actually tried sexual assaults. Since 1998 the changes to the act provide for that type of charge, as I understand it.
So if there is a sexual assault, it obviously needs to be dealt with and be taken seriously. The method should then be to bring in the civilian authorities to carry out such a prosecution. Otherwise, before someone can have a criminal record, you must ensure that the procedures and protections are in place.
We heard some suggestion in a general way that when you sign up for the military you sign away your rights. I don't think that when someone takes the oath of office in the military they are asked to give up the legal protections of the Charter of Rights and due process with respect to their liberty. They are the people who are fighting on our behalf to protect the Constitution and offering to sacrifice themselves to pursue that. Yes, there are specific issues with respect to the Charter of Rights. One of them is actually contained in the charter, but there is no suggestion that people waive their constitutional rights.
Mr. Ruby said:
||It has been said that when you enlist in the military, you waive your constitutional rights. This is nonsense. It is legal nonsense because the charter has its own provisions for exempting certain laws, and each one must be justified on an individual, focused basis. You can't have a blanket exemption for the military about anything as general as that. The look at the legislation the particular practise is fact-specific, and it can't be based on general concepts like the need for discipline in the armed forces, because that attracts every aspect of armed forces life.
That, I would suggest, is a proper answer to this notion that when you join the military you don't have the protection of the Charter of Rights when it comes to being treated as an offender, being sentenced to a fine and imprisonment and ending up with a criminal record.
I think we've talked about this quite a lot in our debate and argument. I think our side has clearly accepted and advanced the argument that military justice is different from civilian justice. That is constitutional in the sense that it's appropriate to have a separate system of military justice, and there are reasons why that justice system would be harsher than the civilian justice system. All of those things are accepted. The consequence might be that you might end up in a military prison for things you would not be incarcerated for in civilian society. As long as the system is fair and properly administered, that's appropriate.
Where we are seeking to draw the line is to prevent this process, which doesn't meet the constitutional standard in terms of procedural fairness and the rights of an accused person. We want to ensure that it would not leave you with a criminal record that would follow you for the rest of their life or until you are able to obtain, I would say, some kind of pardon. However, our law has now been changed to take away even the notion of a pardon, which, again, we opposed vehemently, but which the government nevertheless, with its majority in the House, passed.
This is a very important principle, one that we think is at a very high level of significance. It has to do with the constitutional rights of the people who join our Canadian Forces who we ask to give unlimited liability with their own lives in the service of their country. As we know from the past 10 years, we've seen quite a number of individuals lose their lives in the service of their country in Vietnam and elsewhere as a result of their being willing, in a voluntary army and air force and navy, choosing to join the Canadian Forces and serve their country. They deserve our consideration, our respect, with respect to ensuring that while military justice may be different, it's not going to stick them with a criminal record contrary to their having the constitutional protections, in the absence of the constitutional protections that they are in fact fighting for and willing to sacrifice for and joined the Canadian Forces in the service of.
That's the most succinct way I can put it, Mr. Chair. This is an extremely important amendment. It's very different from the amendment we just passed. The amendment we just passed has to do with excluding certain particular sections in a circumstance where the penalty is not high, not beyond the item set out. This is a different category. This is based on the mode of trial. If we have a summary trial resulting in a conviction, that ought not to attract a criminal record. If there are circumstances or offences or charges that need to be laid based on what happened, and it's deemed to be important enough that a conviction ought to result in a criminal record, and a public record, so that other employers and others who come into contact with that individual have means to know what they've done, then the system ought to be changed, or they ought to be tried in a civilian court.
Mr. Chris Alexander:
Thank you, Chair.
We'll be opposing the amendment for the simple reason that it runs contrary to fundamental principles of this bill and the military justice system. Mr. Harris says that the NDP accepts that the military justice system is different from the civilian system. Then he goes on to suggest that it is harsher. The effect of this amendment would be to make it more lenient, in a dramatic way.
If this amendment went through, and I, as a serving member of the Canadian Forces, were to commit an assault or an assault causing bodily harm and elect to be tried at summary trial rather than by court martial, my criminal record would not pass into the civilian system. Those are offences under the Criminal Code of Canada. There are eight such offences. If they are tried at summary trial in the military system, they should show up in the civilian system. That, to our mind, is common sense.
I think the real grievance, or hesitation, that Mr. Harris has, that the NDP have, is about the summary trial system itself. He raised the question of its procedural fairness, which indeed was attacked by Clayton Ruby, but by no one else among the witnesses that I remember, certainly not by those charged with reviewing the system, who think not just the military justice system but the summary trial system would stand a charter challenge, a constitutional challenge. And those are very eminent jurists indeed.
Even while proposing this more lenient approach to Criminal Code offences that if tried at summary trial would not generate a criminal record, Mr. Harris doesn't want to revise the summary trial system. There have been no amendments to that effect. They would be dramatic, far-reaching. We would oppose them, almost certainly. But he has not proposed that.
Ms. Christine Moore:
I want to repeat that there is no subsequent written record in the case of summary trials. It is therefore very difficult to determine whether that has been done properly. It must also be understood that the accused in a summary proceeding is tried by someone who knows him. When it is the commanding officer, he knows him. In all other justice systems, the judge refuses to try someone whom he knows personally. That is even the case for a military judge. There is a legal problem in this case.
We may have to reconsider whether we are prepared to adopt the amendment moved by my colleague from St. John's East, acknowledging that the rights of our Canadian military members must be respected. Perhaps we will have to review the list of offences that may be tried by summary trial and the list of those that could not. Perhaps we will choose to exclude certain offences that may currently be tried by summary trial and that may attract a criminal record.
It is really important to respect military members here. It must be understood that, despite all good will, the fact remains that very little is known about the consequences, particularly by our military members who may have been in the system for a shorter period of time, especially the privates. Members often choose a summary trial because they think it will be simpler and will resolve the matter quickly. They may have the wrong impression. They feel they will undergo a summary proceeding, pay their fine and serve their punishment and that the matter will be resolved and put behind them. However, when they realize, years later, that they will have a criminal record as a result, they will not be able to turn back the clock. What has happened is recorded nowhere. If they realize the actual consequences 5 or 10 years later, it will be very difficult to go back to the situation and to be tried again.
Furthermore, as nothing is written, every time we adopted a retroactivity clause, now or later, we would be unable to consult the written record to determine whether the retroactivity clause might apply in a criminal case. That complicates administration.
I really believe this must be adopted. We must help our military members avoid attracting a criminal record.
If the government party is prepared to adopt this amendment, we may subsequently have to consider determining whether we should exclude certain offences that may currently be tried by summary trial. We can think about that. Whatever the case may be, we owe it to our military members, particularly considering everything that might be retroactive. Even now, some provisions of the bill could apply retroactively. However, as there is no written record, it is very difficult to determine whether this could apply in this specific case. It thus becomes difficult for a military member to argue.
The idea here is really to prevent negative consequences for our military members. If the government party is open to this idea, some other steps may subsequently be taken to ensure that we exclude certain offences from these provisions and ensure that they can no longer be tried by summary trial. My colleague Mr. Alexander referred to offences such as assault, for example. I believe we really owe it to our military members. They do not necessarily understand the consequences. As there is no written record, it is very difficult for them to mount subsequent challenges.
Mr. Jack Harris:
I just want to respond to some of Mr. Alexander's comments.
Clayton Ruby is not the only one to raise concerns about this. The Criminal Lawyers' Association expressed grave concerns about it. They were opposed to the giving of a criminal record to people who were charged and convicted under a summary trial, objected to the procedures and to the constitutionality of it.
Mr. Justice LeSage, himself, in his report, said:
||...I have very real concerns about obtaining a criminal record from a summary trial conviction. The issue of criminal records flowing from convictions at summary trial must be reviewed. The very damage that flows from a criminal record and the potential effect on a person’s life is far too severe a consequence for most offences tried by summary trial. I am fully supportive of the summary trial as an efficient and effective method of maintaining discipline. However, because the summary trial, although constitutional for its purposes—
—and I think he's again talking in the general way—
||—does not provide the panoply of safeguards of a civilian criminal trial, the unintended consequence of acquiring a “criminal record” at a summary trial should occur only in exceptional circumstances.
Now we're not talking about exceptional circumstances here. I suppose one might argue that if we're getting 94% out of 100%, the other 6% must therefore, by definition, be exceptional. I don't think that's the case. There's no particular special circumstances. For example, the mere shoving of a person is an assault. If one decided to charge someone with assault, you could get a conviction, possibly even in a criminal court. But I doubt very much that every shoving match that occurs in the military is dealt with by a charge of assault, just as every time something like that happens in a school yard or a school, the police are called. But I think it could be recognized that this kind of behaviour could be a discipline issue; fighting, shoving, even striking someone could be a discipline issue, but not necessarily one that ought to attract a criminal offence.
Mr. Alexander referred to the eight offences that we're talking about that are Criminal Code offences. If there are only eight offences that we're talking about, then you make a choice.
You invoke the police in a civilian trial system to ensure that what is regarded truly as a criminal offence ought to be treated as such, handled by the civilian authorities. A person gets all of the rights that they're entitled to under our Constitution and under the law, and if they're convicted, they end up with the consequences of that.
If it's going to be regarded as a disciplinary matter, we've all agreed that it's important to have a military discipline system, one that is, as Justice LeSage said, “an efficient and effective method of maintaining discipline” through the summary trial process. It's fast; it can be dealt with in a matter of days, not in the kind of time that a civil trial might take. It can restore unit cohesion, restore morale, restore discipline in a swift way and an appropriate way, and the punishment might be greater than one would get for the same offence in society.
We understand that may be required to maintain that discipline and efficiency. It's not being done because it should be. No one says soldiers should be punished more than civilians. That's not the purpose of it, not to provide a greater punishment.
Mr. Alexander's argument about treating them more leniently by not getting criminal records doesn't hold water in this context. Because the purpose of making it tougher on the individual is to ensure that the unit cohesiveness, the discipline, and the morale is maintained, not to punish them for the rest of their lives with a criminal record.
That's not the point here at all. The issue is the punishment that you're given, the process by which you get there, doesn't have the same constitutional protections, and therefore as Justice LeSage says, ought not to attract the unintended consequence in many respects of having a criminal record. Clause 75, with the G-2 amendment, goes some way to recognizing it, and it has taken a couple of years. It's taken the last iteration of this bill, Bill C-41, Bill C-15, and two years of arguments to get to the point where it was accepted. It was accepted in the last Parliament mainly because it was a minority Parliament. I would venture to say, given the makeup of the last Parliament and the makeup of this committee, there's no possibility that the changes to clause 75, which are now there, would have got through. If they didn't get through then, they'd be unlikely to be passed by this committee.
It's all very well to talk about ten years to get here, or six years or seven years or three iterations or whatever, but we would never have got here if it wasn't for the arguments that were made in the past two years. We're now here, but we're here obviously because the recognition of the consequence of a criminal record is a serious matter and the government and Parliament has now decided to do something about that, not everything, but something about that, and that something is contained in Bill C-15, clause 75.
We are putting forth the proposition or the argument that we must go further, that we must prevent people from getting a criminal record when they don't have due process of law, which every other citizen outside of the military has access to if they are going to obtain a criminal record. That's the distinction we're making here. We're saying to the men and women who sign up to the military that they could come out of here with a criminal record without due process of law. Every other person in our society who is going to end up with a criminal record has the constitutional guarantees, has the ability and the right to a fair and independent tribunal with the right procedural protections that are enshrined in our Constitution, and the procedures, laws, cases, and all the things that have been put into our law as the law progressed.
As retired Justice Létourneau said, the law has changed. The law changes as time goes on. There's been a development in the law and in the application of the Charter of Rights to our criminal law and our system. He suggested that the military justice system has not kept up with that. I have to agree with him; we are trying here to help it catch up in this particular aspect. Yes, we have a military justice system that may need a fundamental review but we have an opportunity here to say we want to make sure in the meantime that we don't give people criminal records who don't have legal protection.
If the concern is, and I know it is, that some people who perhaps should have a criminal record are not going to have one, well then there is a solution. That solution is to have them charged in the civil system. If someone commits a sexual assault against a minor on a base or a rape, then they can be tried civilly and prosecuted to the full extent of the law, and they will have the consequences associated with that. But we don't want to have a system wherein the only people in our system of justice who don't have access, as of law, to the procedural protections of our Constitution are the people who are serving our country in the military. That's a situation we'd find ourselves in if we don't pass this amendment here today.
Mr. Jack Harris:
We're distributing Ms. Shaw's paper, which was prepared in response to questions we had concerning the effectiveness of the act as it's written, in terms of having the practical effect of getting rid of the records.
I think we're all agreed here. The idea is that we don't want whatever is being excluded here to prevent people from.... You know, if all of these sections are being taken out of the criminal record provision, then we don't want people who have been convicted of these things have it show up with respect to police activity or border activity or the things that we're trying to avoid.
I want to give you a reference to section 6.1 of the Criminal Records Act, which talks about how you get rid of these records. This talks about “Discharges”. There are marginal notes on these sections in the act itself. There are various marginal notes on the side—“disclosure”, “inadequate”, etc.—on various sections. For clause 75, for example, the marginal note says, “Convictions for certain offences”. You'll see that on the outside. That's the marginal note. Well, the marginal note on section 6.1 of the Criminal Records Act is, “Discharges”.
This is on the back page of Ms. Shaw's paper, by the way, for your information. Page 3 of Ms. Shaw's paper has a reference to section 6.1 of the Criminal Records Act.
Then there's the marginal note “Purging C.P.I.C.” on the outside of subsection 6.1(2). CPIC is the Canadian Police Information Centre.
||The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).
That refers to a discharge. The discharge, as you know, means that there was never a conviction. A person given a discharge is not convicted of a criminal offence, is found guilty but not convicted, and there's a certain period during which the discharge expires.
It's the same with the absolute discharge. If someone has an absolute discharge, it means they've never been convicted of a criminal offence. That's what section 730 says, that a judge may discharge an accused absolutely or with conditions.
An absolute discharge means it's done instead of convicting someone. It has the same effect as what we're saying here; you're not convicted of a criminal offence, or you've never been if you've already been, and that's what it says in subsection 6.1(1).
My argument is as follows. If it's necessary to have that kind of provision to get an absolute discharge out of the CPIC database, and that's the one that the police use, and peace officers, whether it be RCMP or local police.... I'm sure the MPs in the military have access to it as well, as do municipal police forces. We ought to have a provision here to ensure that if these records, potentially thousands of them going back, I guess, ever since they've been keeping these records and putting them in, are on that computer system with respect to these offences, then they ought to be removed.
That's essentially the question we asked: how do we ensure that as a practical matter, with the retroactive nature of these, we remove the criminal records of individuals convicted of certain offences under the code of service discipline?
The answer that was suggested to us was that we ought to go further, as suggested here on page 2, to accomplish the goal of Justice LeSage, where in his recommendation about reviewing the consequences he talked about:
||There ought to be a full review of the issue of criminal records flowing from convictions at summary trial. I also recommend a review of the processes and procedures for entering information into CPIC and of the relevant NDA sections to avoid consequences disproportionate to the violation.
Looking at that, we considered the possibility of an amendment that would ensure the records get out of the RCMP database. It was suggested that:
||...an amendment would need to instruct the Commissioner of the RCMP to remove all references to convictions that meet the criteria set out in the proposed amendment.... Such an amendment could be modelled on section 6.1(2) of the CRA, which sets out provisions for dealing with absolute and conditional discharges....
That's the model we have here, section 6(1) of the Criminal Records Act, and there's an explanation above that saying that—
Col Michael R. Gibson:
Yes, Mr. Chair.
Solely from a technical point of view—and I understand I'm not here to make an argument—there are a number of significant concerns with this proposed amendment which I would summarize by saying I think it would be premature.
To address the point that was just raised, it's very important to appreciate the difference between a record within the meaning of the Criminal Records Act and an entry on CPIC. As I've said before, the purpose of the Criminal Records Act is to regulate the granting of record suspensions. In other words, it expresses society's view about, in essence, how long one has to wait and what should be captured. That is the purpose of clause 75.
An entry on CPIC is a different matter. In essence, it's a practical matter that does have profound consequences for an individual. The point is under division 6.2 of the National Defence Act—in other words it's already law—under section 196.27, if fingerprints are taken in respect of a matter that is tried by summary trial, they must be destroyed without delay. The reason that matters is that you shouldn't get on to one of the databases on CPIC without those fingerprints. So I think there's a significant misapprehension there.
The point I think it's very important for the committee to appreciate, and why I would have considerable concern with the way that proposed paragraph 249.27(2)(b) is drafted, it says “...all references to those offences from the automated criminal records retrieval system”. All of them? There are four data banks on the CPIC system. One is the information data bank, which contains criminal records data. That would be the one that a court, for example, would refer to to confirm a conviction, but there's also an investigative data bank, an intelligence data bank, and an ancillary data bank that deals with a variety of stuff.
Is it the case that to accomplish the policy intent here that every reference to these things should be taken out of the investigative data bank? Maybe the answer is yes, but the problem is that hasn't been consulted. It's fine to make a recommendation if you're not responsible for running the system, but I would respectfully suggest that the appropriate way for Parliament to make law here is to be absolutely sure that the Commissioner of the RCMP and the Minister of Public Safety, who are responsible for running this system, have been consulted. There may very well be aspects of this that haven't been considered in the very short and sustained consideration this committee has given.
So I respectfully say I think it would be premature, verging on dangerous, to enact the amendment as it's drafted without the consultation and without the process that needs to be gone through to make sure that this is legislatively sound.
With respect to proposed paragraph 249.27(2)(a), I would respectfully suggest that it is probably redundant. But, again, this issue of consultation with the Department of Public Safety, Minister of Public Safety, officials of the RCMP, would need to take place so we understand all of this.
Please understand I'm not saying no way, no how, that it would always be a bad idea. I have significant concerns with how it's drafted and that it's premature, as an official would have to implement this as policy.
Mr. Jack Harris:
I was in the process of introducing it until we got clarifications and points of order.
Whatever can be said about it, it's pretty clear that we're trying to ensure that we give effect to what's clearly the intention here, which was confirmed by Colonel Gibson when he first appeared before this committee to talk about this. He certainly confirmed that the intention was to be retroactive. Whatever might happen now and in the future in terms of what gets on CPIC, Colonel Gibson referred earlier to some provisions regarding what does or doesn't go on as a criminal record.
My understanding is that these changes weren't made until 2002, so we have a whole area going back long before 2002 that could end up with people on there. We have a situation where hybrid offences, for example, are always there, whether or not fingerprints could be taken.
I think also there are two aspects to what Colonel Gibson said. There may well be three or four databases that are kept by the RCMP, and we agree with that, but the reference here is to the automated retrieval system, the one that's available to the police services across the country on an automated retrieval basis through their computers.
That's what section 6.1 of the Criminal Records Act deals with. It talks about purging CPIC and refers to the automated criminal conviction records retrieval system. That's the one that we were talking about, because they still keep records, obviously, of absolute discharges. They keep records of conditional discharges. They keep records of investigations, as you pointed out. But we're talking here about references to the conviction under the automated system, the one that's available to people across the country.
I want to quote from the report of the retired justice, the Honourable Patrick LeSage. He says:
||It strikes me as unreasonable that a CF member charged, for example, with “absence without leave” (“AWOL”) for being late for work and who has a summary trial,—
—this is before we made these changes—
||—could have this charge and perhaps even a subsequent conviction entered on the CPIC database. Such information is often shared with the Canadian Border Services Agency, which I have been informed has resulted in some members being denied entry into the United States because of the charge and/or conviction.
He talks about the related concern of having a criminal record:
||A related concern is information regarding charges and convictions entered into CPIC.
He describes CPIC from their website as:
||a computerized system that provides tactical information about crimes and criminals…it is the only national information-sharing system that links criminal justice and law enforcement partners across Canada and internationally.
|| CPIC is responsible for the storage, retrieval and communication of shared operational police information to all accredited criminal justice and other agencies involved with the detection, investigation and prevention of crime.
So the removal of these records from that automated access is important if we're going to give effect to what we're saying we're doing here: You don't have a criminal conviction, and if you are convicted of one of these offences in the future. you're not going to get one, and if you were convicted in the past, you're not going to have one.
We have done our due diligence in terms of finding out how we deal with this. We've consulted with the analyst. We received an opinion as to how it might be done. We prepared an amendment to conform to that and we've presented it for the consideration of this committee. If the committee has a better way of ensuring that people are not going to be stopped at the border and prevented from going to the United States because of something lingering on a police computer, then I would submit that it be produced, or if there is an amendment to the amendment, then it might be dealt with. If we need time to come up with one, then we can stand this down, and that will give us some time to amend it so that it effectively deals with what we're trying to effect here.
All law tries to remedy some particular mischief, and the mischief we see here is that the records that people have obtained in the past are available to any peace officer in this country, available to any border guard, available to any municipal police officer or RCMP officer who stops someone in a car. If we're going to get the full effect of this, then we have to do more than just leave it as it is.
That's the intention here; that's the attempt here. We submit it's necessary to pass this to give effect to this, otherwise we're not going to achieve what we're setting out to achieve.
Mr. Chris Alexander:
We're talking here about criminal records. The amendment we've already passed will have the effect of ensuring that any of those service offences that do not meet the same threshold for generating a criminal record in the civil system will no longer generate a criminal record in the military system. But still, both before and after this amendment, they are not generating an entry in CPIC. This is the point that needs to be taken on board. Trials and summary convictions do not result, according to all the testimony and information we've heard, in the fingerprinting of the offender and transfer to the RCMP that would generate an entry in CPIC.
Trials at court martial for more serious offences have done so and will continue to do so. We have not discussed doing things differently on that front in our consideration of Bill C-15, but the effect of our amendment will be to bring the military justice system with regard to criminal records to the point of reflecting the modern Criminal Code of Canada.
If the person who has a criminal record from a summary trial wishes to have that record now expunged, removed, have that record suspended as we now call it rather than a pardon, they will approach, I'm given to understand, the Parole Board of Canada and go through whatever procedure is required because they will be considered to have a criminal record under the Criminal Records Act, which says that any violation of a federal law constitutes a criminal record.
In this case they have violated the National Defence Act, so they will be applying for a suspension of that record. At no time will they need to go to the RCMP or will they need to have their record expunged from CPIC. That simply is not a relevant dimension of this particular issue. For that reason we think it's irrelevant to the policy goal we're trying to achieve. We would encourage all members to recognize that is the case and to conclude this debate as quickly as possible.
We will certainly be opposing this amendment.
Okay, shall the short title carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chair: Shall the title carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chair: Shall I report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: Shall the committee order a reprint of the bill as amended for the use of the House at report stage?
Some hon. members: Agreed.
The Chair: I want to thank our hard-working interpreters who had to keep up with all that very technical discussion. I appreciate that very much and for the time they put in.
I want to thank all the support staff, our analysts, and clerks who worked here.
I want to thank Colonel Gibson and Colonel Dufour for sticking it out to this late hour and to being here at previous meetings as technical witnesses. You may give them a round of applause if you wish.
The Chair: Now I'll have a motion to adjourn.
Mr. Rick Norlock: It is so moved.
The Chair: We're out of here.
The meeting is adjourned.