National Defence Committee on Feb. 27th, 2013

[Jack Harris, NDP, St. John's East, NL]

—so we can have it photocopied if anyone wants a copy. They're available to the committee—

[The Chair, Conservative, James Bezan]

For a price.

[Jack Harris, NDP, St. John's East, NL]

If I had it in front of me, I'd read out the relevant parts to you. If you want to wait....

[The Chair, Conservative, James Bezan]

Okay, okay, regardless, you have the floor, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chair.

We heard arguments as to why this ought to be kept the way it is now—you don't want officers of a lower rank passing judgment on members of an upper rank—and the importance of having this. But I think we need to be reminded that the courts martial deal with the question of fact; they decide the questions of fact, whether or not certain facts existed. We have that in the civilian system, whereby it doesn't matter the rank—social, financial, or any rank—a jury of your peers is considered to be anybody who is fit for jury duty. You can have ordinary folks passing judgment on a question of fact for someone who is a wealthy corporate banker, say, or someone in the position of high authority, if they choose a jury trial.

So a very strong argument is to be made as part of civilianizing the system that would include the changes to be made to the court martial panels, whether it be to change it as Colonel Dugas suggested, and as we heard from the Standing Committee on Legal and Constitutional Affairs in the Senate. They recommended some changes, but they weren't very specific.

We're not bringing specific recommendations. We want to highlight that this is something that does need to be looked at as part of an overall review of the National Defence Act.

[The Chair, Conservative, James Bezan]

Any other comments?

(Clause 47 agreed to on division)

Clause 48 is just adding the term “military police”.

(Clause 48 agreed to)

(Clause 49 agreed to on division)

(Clauses 50 to 61 inclusive agreed to)

(On clause 62)

[The Chair, Conservative, James Bezan]

Are there any comments on clause 62? Clause 62 is another biggie. It starts on page 34 and carries all the way through to page 40. We have no amendments filed.

Do you have comments, Mr. Harris?

[Jack Harris, NDP, St. John's East, NL]

I think we have to recognize again that when we're dealing with sentencing here, we have an absolute discharge but no conditional discharge. The suggestion seems to be that it would require a certain amount of working with the civilian and provincial authorities to do this. I don't think that's necessary if we're going to provide for conditional discharges.

The problem with the absolute discharge availability is that it becomes an all or nothing circumstance, and an absolute or conditional charge recognizes that while an accused may have been guilty of a particular offence, it's not in the interests of the public, or in this case of the military justice system as well, to have a person convicted of that.

A person can be discharged absolutely or upon certain conditions. This provides for flexibility in sentencing, and I think this was recognized by the Senate Standing Committee on Legal and Constitutional Affairs. They asked for an amendment to provide sentencing flexibility to allow for conditional discharges, probation, forfeiture, restitution, suspended intermittent sentences. We've got an intermittent sentence in here. We've got an absolute discharge, but we're not really making the kinds of substantive changes that have been suggested by the Senate after due consideration and that have been suggested by Mr. Justice Létourneau. He acknowledges that there were substantial reforms proposed in the bill, but he says it's hard to understand why this stopped there.

If you look at the civilian court and the comparison, the suspended sentence is an option for up to two years, allowing a monitoring of a person's behaviour. One would think that in the military the opportunity to monitor one's behaviour would be even more available than in the civilian society, because you do have to have a system of probation. You have to have probation officers. You do have that available. In the military, of course, you have an option, obviously, within the chain of command to observe someone's behaviour. If a person has then been of good behaviour for a period of up to two years, he can be granted an absolute or conditional discharge.

So that's an important provision and flexibility that could be built into the military system. As retired Justice Létourneau says, we don't get that in the military. The sentence is already passed. What he was talking about was suspending passing of sentencing.

The conditional discharge, again, he suggested is something that would also be very helpful if someone is of good behaviour. Once again, this type of recommendation was supported by the submission of the Criminal Lawyers' Association to the committee as well.

We don't see that here. We see that as something that ought to be considered. There was plenty of time for the government to consider such a system here, and frankly, I don't think we've been given a very strong reason why it couldn't be done.

We see some very positive things here. The idea of having a victim impact statement is quite important. I think our courts have recognized for many years, and our judicial system, our legal system, has recognized for many years, how victims have been left out of the system. I practised law myself for many years before there was such a thing as a victim impact statement, and victims were treated as if they were merely witnesses in the court. Mr. Dechert, as a lawyer, knows that as well. That was very disconcerting, and in fact very disgusting to many victims of crime, and I think it has been changed.

So we're bringing that into this system here, the idea of having a very elaborate procedure for the principles of sentencing, of service tribunals. That's a very useful thing.

There are some things that obviously aren't in the system of civilian justice. Again, that's appropriate as well. We recognize that there are special aspects of sentencing with respect to the military that ought to be there, but to spell these things out is a very important thing to provide for victims and for restitution. But the conditional discharge is absent. The idea of having more flexibility in sentencing is missing, and we think that's something that ought to be here, and, again, ought to be part of the kind of review we would have expected after we had the recommendations from the Standing Committee on Legal and Constitutional Affairs. That was 2009, I believe.

There has been plenty of time in the last three years, before this bill was presented, to have broadened the scope of the sentencing provisions and provide for the kind of flexibility that is available to judges or tribunals in the civilian system. We think that's something that ought to have been included and developed.

Again, we're not in a position to create wholesale provisions for amending the act. If it's not provided for in the act, we're mindful that these kinds of provisions might be ruled out of order as being new instruments. But we do have the substantive comment from serious people, including the standing committee of the Senate; Mr. Justice Létourneau, who has considerable judicial and legal reform experience; and, of course, the Criminal Lawyers' Association has also spoken to this issue.

[The Chair, Conservative, James Bezan]

Thank you.

Are there any other comments?

(Clause 62 agreed to on division)

(On clause 63)

We're on to page 40, at the bottom.

Are there any comments?

[Jack Harris, NDP, St. John's East, NL]

Colonel Gibson, this is perhaps a technical point.

On the commencement of the sentence—I don't know if this changes anything—it says the “punishment of imprisonment or detention shall commence on the day on which” the sentence is pronounced. For instance, the fact that detention is supposed to take place in Edmonton, do we count the time to get there as part of the sentence? And with regard to “subsections (3) and 148(1)” and “sections 215 to 217”, what do they provide by way of exception?

[Col Michael R. Gibson]

Mr. Chair, section 217 merely refers to the ability for review and remission, so if there's an order for remission, that would affect the running of the time.

Subsection (3) refers to the special case where a sentence cannot be lawfully carried out by reason of a vessel being at sea. That would be one exceptional case that would depart from the general rule.

Otherwise, these are just minor adjustments that are being accomplished in that section.

[The Chair, Conservative, James Bezan]

Thank you.

(Clause 63 agreed to)

(On clause 64)

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

We're talking here about the suspension of the execution of a sentence of imprisonment or detention. I'm assuming this provides for the release of a person who is sentenced pending the hearing and determination of appeal.

Am I right about that?

[Col Michael R. Gibson]

No, Mr. Chair.

Release pending appeal is dealt with in a separate provision of the act. This is having to do with the suspension of the execution of the punishment once the sentence has been imposed. It's two different concepts.

[Jack Harris, NDP, St. John's East, NL]

It does make reference to the offender's sentence being affirmed or substituted on the appeal by the Court Martial Appeal Court, so it could still be suspended even if it's affirmed.

Why would you do that?

[Col Michael R. Gibson]

The effect of the provision, Mr. Chair, is to add the ability to the Court Martial Appeal Court, as was recommended by Chief Justice Lamer, to suspend a sentence—in other words, to equip them with the full tool kit that they need to craft an appropriate sentence. If the offender's sentence is affirmed or substituted on appeal, the Court Martial Appeal Court will still have the ability to suspend.

[Jack Harris, NDP, St. John's East, NL]

Is that what Justice Létourneau was saying, that it was the power to suspend the execution of a sentence, but not to suspend the sentence at all? In an ordinary court, when your sentence to a particular thing is suspended for two years, if you have good behaviour within the two-year period, they can apply some other sentence. You're talking about having given a sentence and suspending the execution of it. How does that work? Does that suspend forever, or does it have the sword of Damocles, so called, hanging over your head for some time?

[Col Michael R. Gibson]

Mr. Chair, the short answer is yes, that is the fundamental difference in the term “suspended sentence” between the civilian system and the military system. In the civilian criminal justice system a suspended sentence means that the court suspends the passing of the sentence, whereas in the military context, it is already the case in the act, and has been for a long time, that the court may suspend the putting into execution of the sentence. There are remission provisions—so no, it doesn't hang over their head indefinitely—that calculate how long it takes for that suspension to actually expire. One of the innovations as well in proposed section 215 is the ability to provide conditions.

So in a way it's a kind of probation scheme. It's meant to give that incentive to the offender, that they will be restored to their liberty so long as they abide by these conditions. It gives them a positive incentive to abide by those conditions.

[Jack Harris, NDP, St. John's East, NL]

So it does have a form of conditional release, at least. But in terms of the sentence itself, if someone is sentenced to 60 days' detention, or whatever, that sentence, even though suspended, stays in place as a sentence that was passed?

[Col Michael R. Gibson]

That's correct, Mr. Chair. That's the difference between this and a conditional discharge.

[The Chair, Conservative, James Bezan]

Thank you.

I see no other comments.

(Clauses 64 to 66 inclusive agreed to)

(On clause 67)

[Jack Harris, NDP, St. John's East, NL]

I have a question.

[The Chair, Conservative, James Bezan]

Okay, there's a question.

[Jack Harris, NDP, St. John's East, NL]

We're being asked to repeal section 218.

Colonel Gibson, could you tell us what that...?

[The Chair, Conservative, James Bezan]

Colonel Gibson, what section are we repealing?