National Defence Committee on March 4th, 2013

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

Thank you.

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.

[The Chair, Conservative, James Bezan]

Mr. Brahmi, you have the floor.

[Tarik Brahmi, NDP, Saint-Jean, QC]

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?

[Col Michael R. Gibson]

Briefly, Mr. Chair, first of all I would point out that it's Parliament that has prescribed the objective gravity of these offences, and all this commentary, of course, relates to Parliament's judgment in creating those offences, which is, as far as I can tell, not relevant to the discussion of this bill.

But to answer your question directly, it partakes simply of prejudice to assert that somehow the military justice system convicts people on a different standard. If it's a criminal offence or an offence involving deprivation of liberties, section 7 of the charter requires, and our system requires, that the person have the requisite mens rea as an element of the offence.

I would simply observe that I don't think the interpretation you have given to the evidence you have heard in other fora would actually be correct.

Thank you, Mr. Chair.

[Tarik Brahmi, NDP, Saint-Jean, QC]

My next question concerns the case of an inmate who takes off and escapes. Once again, this is hypothetical because we cannot assume what sentence would in fact be imposed on an inmate who managed to escape. Whatever the case may be, this does pose a moral problem, and my colleagues in fact previously mentioned this.

If an inmate who has committed a crime or a wrongful act and has been committed winds up in a situation in which he escapes, he could receive a lesser sentence than the one that would be imposed on the person responsible for guarding him and who paradoxically did not allow the inmate to escape out of criminal intent but rather out of mere negligence. As was previously said, he might simply have fallen asleep. That could also be the result of an illness. For example, that person might suffer from sleep apnea, which might have made him fall asleep, thus allowing the convicted criminal to escape.

I think back to my military training in considering this difference in treatment. Like several permanent members of this committee, I have military training. I have course did not acquire it in Canada, but rather in France. That is a different system, but one that is based on the Napoleonic organization of the military code. That system has spread to many countries and not just those conquered by Napoleon in the 19^th century. Some other countries have simply drawn on that Napoleonic vision of the military code. So I remember that it was explained to us in one of the basic military training courses that every soldier who was imprisoned by the enemy had a duty—I repeat that this is not an option, but rather an obligation—to escape.

So here is the question that comes to my mind with regard to Parliament's intent in drafting this article not to criminalize this act. We are talking about criminalizing this act not only from a military standpoint, but also from the standpoint of the potential consequences for the military member in civilian life when he leaves his military life to enter civilian life. That moreover is what we imagine for most of our military members who serve our country nobly by wearing their uniform. Is it possible that this intent derives precisely from this moral obligation of every soldier who has been imprisoned by enemy forces to escape? Is that not the origin of section 100? It must be said that it is possible for our fellow citizens to misunderstand that section. That is a paradox that my colleague, of Abitibi—Témiscamingue, raised.

That is my question.

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

Colonel Dufour, did you get a question there?

[LCol André Dufour]

I would simply like to repeat what Colonel Gibson said earlier. The decision and policies related to objective seriousness are less than two years old. The National Defence Act defines what a serious offence is and prescribes the maximum punishment for it. It is five years or more. That is what I can say in addition to your comments. Now it is up to Parliament to decide whether or not that offence is included.

[Tarik Brahmi, NDP, Saint-Jean, QC]

In fact, I was speaking more specifically about the paradox that may exist. Once again, this is a matter of perception. As legislators, we have a moral obligation to give the people who have elected us a clear interpretation of what is just, proper and acceptable.

My question focused more specifically on what might seem paradoxical to people who are not experts, lawyers or judges. If the individual escaped, the person who is charged and detained would receive a lighter sentence than the person who was responsible for guarding him and who let him escape. That would not have been done intentionally, but rather in a manner entirely beyond his control. Is this not a paradox? Is there a connection with the fact that every soldier who is captured by enemy forces has the will, or rather the obligation—in most countries in the world—to escape and to free himself from his status as a prisoner?

[LCol André Dufour]

I have no other comment to add on that question.

[Tarik Brahmi, NDP, Saint-Jean, QC]

Thank you.

[The Chair, Conservative, James Bezan]

You have to remember our witnesses are here just to provide technical expertise and not to extrapolate on hypothetical situations.

Monsieur Larose.

[Jean-François Larose, NDP, Repentigny, QC]

Thank you, Mr. Chair.

This question respecting section 100 is a problem for me because it directly affects troop motivation. Although this is not its intent, the government gives the impression that it believes the troops are affected solely by punishment, not by motivation. And yet when I was in the Canadian Forces, I was motivated by results, not punishment. When I took my recruit course, I was charged because other recruits and I had done something stupid. We had forgotten to secure our weapons, which happens to a lot of people when they are very tired. We had no legal knowledge. Our first reaction was to want to run away to Mexico because we did not want to suffer the foreseeable consequences, particularly since we were unaware of the principles involved.

[A voice]

Oh, oh!

[Jean-François Larose, NDP, Repentigny, QC]

I am happy I can make madam laugh.

I have another question for you, Lieutenant-Colonel Dufour.

If we added section 100—this is a hypothetical question—would there be any other provisions and tools that we could consider? I understand that tools are necessary in order to punish. That is absolutely necessary in an operational context. Having worn the uniform in the civilian world for a long time, I know there are other provisions. It is not because a subsection is repealed or set aside that there are no other tools that can be used to punish the individual based on the seriousness of the acts committed. We all acknowledge that, if the act is serious, punishment is necessary. We cannot tolerate very serious acts in the Canadian Forces because there are consequences. Are there any other provisions? If we deleted section 100, would there be any other provisions under which a person who committed an offence could be punished? I am talking about a very serious offence in this case.

[LCol André Dufour]

I have not studied that question in detail. It is conceivable that other clauses might apply, but that would have to apply to the case in question. I believe that section 100 is clear. There are three categories. The matter will have to be interpreted at that point based on the facts in issue.

That is the answer I can give because your question is somewhat hypothetical.

[Jean-François Larose, NDP, Repentigny, QC]

It is nevertheless the question we are considering. We are asking that it be deleted. We can understand that the Canadian Forces want to keep it as a way of preserving tools. We agree on that. However, the question is whether there are any others. We are addressing a question that, as you said, is very specialized. It can apply to a lot of situations. The government obviously takes a position by saying that it might involve terrorists, but the fact is that civilians working in operations in Afghanistan, for example, are also subject to the code of service discipline.

It may happen that an individual who has committed an offence during an operation is in detention and does not understand the mechanisms involved. He may panic, which is normal in a situation like that, in which people do not get a lot of sleep and regularly hear gunshots and explosions. Given a host of circumstances, the psychology can change and the individual in detention may decide to escape. It may be due to panic. Regardless of the reason, however, the person in charge may act out of negligence, respect or the fact that the individual is a civilian. This is really a matter of context and an extremely special case in the circumstances.

I would like to believe that the Canadian Forces have other tools because not everything is applicable in this case. What troubles us is the fact that the consequences may be equally serious for actions that must be handled on a case-by-case basis, particularly in the case of a summary trial.

I am going to ask my question once again. You were not ready for it. It is obviously hypothetical since these matters are handled on a case-by-case basis. You said so yourself. Would it be possible to use other means? Would it be easier if we deleted section 100?

[The Chair, Conservative, James Bezan]

I want to clarify because I think with interpretation—

[Jean-François Larose, NDP, Repentigny, QC]

Was I speaking too fast?

[The Chair, Conservative, James Bezan]

No, no, just that you wanted section 100 deleted, and—

[Jean-François Larose, NDP, Repentigny, QC]

No, no, no, no—

[The Chair, Conservative, James Bezan]

—it's going to be added—

[Jean-François Larose, NDP, Repentigny, QC]

But by being added, it becomes....

[The Chair, Conservative, James Bezan]

Right now, it would be part of the criminal records. That is what you're suggesting under clause 75.

I'll turn it over to Colonel Dufour.

[LCol André Dufour]

What I may add is this.

I am going to respond in French.

The authority responsible for laying charges will be able to do so under section 100 or possibly section 129. Section 129 is included in the list of exemptions. Once again, this is a hypothetical case. The authorities who lay charges—particularly the Director of Military Prosecutions—will have to be allowed to make that decision. It seems to me there will be some flexibility in the act, under which the authorities responsible for laying charges will be granted that discretion.

[Jean-François Larose, NDP, Repentigny, QC]

All right. Thank you.