National Defence Committee on March 4th, 2013

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Frankly, first of all, they're witnesses at this committee. I don't think we should be playing games as to whose witnesses they are. They're here on the public dime to testify on public bills and it's up to all of us as parliamentarians to investigate every possible aspect.

[The Chair, Conservative, James Bezan]

I'm just going to make a ruling here. I'm referring to chapter 20, pages 1068-9, of O'Brien and Bosc, which I've read to you guys many times before. When it comes to witnesses, particularly when we're dealing with public servants, we have to remember the following:

The role of the public servant has traditionally been viewed in relation to the implementation and administration of government policy, rather than the determination of what that policy should be. Consequently, public servants have been excused from commenting on the policy decisions made by the government. In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which involve the giving of a legal opinion,—

—although we are dealing with military legal matters here—

—which may be perceived as a conflict with the witness’ responsibility....

Further, let's make sure that we're talking about repetition and irrelevance. So as we know in chapter 13 of O'Brien and Bosc, it states:

Repetition is prohibited in order to safeguard the right of the House—

—and in this case the committee—

— to arrive at a decision and to make efficient use of its time.

As well, I'll remind committee of the rule of relevance as written by J. G. Bourinot back in 1882. He was the Clerk of the House and is quoted on page 623 of O'Brien and Bosc:A just regard to the privileges and dignity of Parliament demands that its time should not be wasted in idle and fruitless discussion; and consequently every member, who addresses the house, should endeavour to confine himself as closely as possible to the question under consideration.

Now we have been talking for two hours on section 100, and I think the witnesses have answered numerous questions about the aspect of section 100 in question and adding it to clause 75 through the subamendment proposed by Mr. Harris.

So I would think that we have already flogged this horse to death and that it's time to get towards the question.

Mr. Harris.

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

On a point of order, Mr. Chair, I accept your reading of everything you've cited. It is totally accurate. However, the question that was asked is, first of all, new, and second of all, it's relevant to our discussion here because the discussion has to do with the fairness of including section 100 of the National Defence Act in this list of offences that ought not to attract a criminal offence if these punishments are given out.

When my colleague Mr. Toone asked the Judge Advocate General's representatives to give us some examples of circumstances around charges of this nature, I think that's totally relevant. I say so because we know that the range of sentencing can go anywhere from life imprisonment to a minor charge, and whether or not this offence has been used and how often it has been used and what the circumstances are is relevant. I don't know what the answer is and I don't think it's abusing the witness. Mr. Norlock is impugning motives here. If someone came to the committee as a lawyer practising in the province of Quebec, that would be a reasonable question to ask of a witness here to assist the committee.

I think it is relevant, Chair, and related to the work that we're doing. I don't see any reason why it can't be asked and why we can't proceed.

[The Chair, Conservative, James Bezan]

Mr. Alexander, on that point.

I thought I'd already made a ruling, but go ahead.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thanks, Mr. Chair.

Your ruling is obviously supported by many of us on this committee, and I hope eventually by all.

In the meantime, the NDP members should really, when they propose an amendment relating to an important article, do their own research. That's part of the preparation that we as parliamentarians must do.

If they don't know of cases in which section 100 has been applied, why is it part of a significant amendment that they're proposing in a clause-by-clause consideration of this bill? It is not the responsibility, and it is not a display of respect, for our witnesses to be playing the role that the Library of Parliament, that staffers, should be playing in support of the NDP members of this committee.

I take grave exception to the way that Mr. Toone has sidled in here and treated our witnesses, who are here as a technical resource for clause-by-clause discussion, as if they were bringing him up to speed on the issue for the first time. That is a mark of disrespect, and it is a waste of the committee's time on a scale that has been discouraged since at least the 1880s.

[The Chair, Conservative, James Bezan]

Mr. Toone, you have the floor. Do you have anything else you wish to add?

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

On the point of order?

[The Chair, Conservative, James Bezan]

No, you have the floor. I made a ruling and you still have the floor. You can still talk to the subamendment, which is adding section 100 to the list that was proposed by Mr. Alexander.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

All right.

Going back to the proposed subamendment, this does require, or so it would seem, a degree of mens rea. I'm wondering, for example.... I'm not going to use examples. Let's go on to a definition of mens rea and the possibility that the actus reus would need to be brought forward during the particular hearing that would be in place.

Is this an example of where there would be questions of strict liability, for instance?

[Col Michael R. Gibson]

No. It's an offence subject to penal sanction. There's a mens rea requirement.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

How would that mens rea be determined?

[Col Michael R. Gibson]

As with any other offence, one looks at the specification of the elements of defence that Parliament has described and as they have been traditionally interpreted. In this case, clearly it's without authority, negligently, or wilfully.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

I'm sorry, there was a bit of background noise. Could you repeat that?

[Col Michael R. Gibson]

It's without authority, negligently, or wilfully, as specified in the offence provision that Parliament has created.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Has this particular clause ever been used in the history of court proceedings?

[Col Michael R. Gibson]

I'm not aware that this particular offence has been recently charged. Obviously, if and when it were to be prosecuted, then it would be incumbent upon the court to define or interpret the particular mens rea requirements of this offence provision.

I would reiterate, the general principle being applied here is that the offence provision that Parliament has stipulated is called the threshold of five years, and would constitute by definition, under section 2 of the act, a serious offence.

That is the policy basis upon which this clause 75 provision is presented.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

When we have these kinds of hearings held, what is the general duration of such a hearing?

[Col Michael R. Gibson]

I'm sorry, I didn't quite catch that.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

What would be the normal duration of such a hearing? How long would it take?

[The Chair, Conservative, James Bezan]

That's outside the relevance of the subamendment, which is talking about the offence itself, not the hearing. We've already gone through that in other parts of the bill dealing with the hearings themselves.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Okay, fair enough.

[The Chair, Conservative, James Bezan]

I have no other speakers on my list, so let's put the question on subamendment three.

This essentially is adding section 100 from the National Defence Act to the amendment proposed by the government.

(Subamendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, James Bezan]

We're back to the main amendment.

Madam Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Now I would like to introduce a subamendment, if possible. I would like us to add to the Conservative amendment section 113 of the National Defence Act, which reads as follows:

113. Every person who wilfully or negligently or by neglect of or 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.

The problem, as it were, is the same here too. I understand that the act is really harmful when wilfully committed. In any case, I believe that if it is done wilfully, we will go beyond the sentences included in the amendment to clause 75 of the bill, that is to say severe reprimand, reprimand, fine or minor sentences. We should logically tend toward a harsher sentence. I cannot understand why, if someone wilfully caused a fire—

[The Chair, Conservative, James Bezan]

If I could interrupt you for a quick moment, do you have that subamendment in writing?