National Defence Committee on March 9th, 2011

[Col Patrick K. Gleeson]

As I say, clause 75 as drafted is seeking to ameliorate that consequence with respect to the matters where an accused doesn't get the right to elect. That's what it's trying to do.

If I could ask him, perhaps Colonel Gibson could help you a little more.

[The Chair, Conservative, Maxime Bernier]

Yes, Colonel Gibson, briefly, please, and then Mr. Harris.

[LCol Michael R. Gibson]

I would not want the members of the committee to be under any misapprehension about the current state of the law and what is proposed.

Under the current state of the law, any conviction at a summary trial would be, pursuant to the meaning of section 3 of the Criminal Records Act, a conviction under an act of the federal Parliament. So it would result in the creation of a record within the meaning of the Criminal Records Act.

The effect of what's proposed in clause 75 of the bill would be that in those instances where the circumstances were sufficiently minor that a person received a punishment under the thresholds set out in that act, you wouldn't actually acquire that record.

So just to make it absolutely clear: in current law you would get a record. If clause 75 were passed and it was an objectively minor circumstance with the punishment underneath the threshold, you would not.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

Mr. Harris.

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

Thank you, Chair.

I'm encouraged.... I don't want to get into arguments with the JAG. Obviously they're here to help us out with factual information. But I want to say that what we're hearing here is the real problem: it's extremely arbitrary. If a member of the forces is charged with an offence and is fined $500, he doesn't get a criminal record. If he's fined $600, he does. It doesn't make sense, frankly.

When we look at the rate of conviction or the rate of charges, we're looking at 2,019-odd people per year in a force of, what, 60,000 regular members or thereabouts? We're talking about a pretty high number of people being exposed to this military justice. That may be necessary for disciplinary reasons--I'm not arguing that issue here, or at this point--but a lot of people are affected by this.

I recognize that there's an attempt here at least to start the process, but I don't think it's adequate at all. It's been suggested that this would be a disincentive for people choosing a court martial. There's already a disincentive; if you go before a commanding officer, there's a limit on detention before a commanding officer that's not there for a court martial. There are all sorts of reasons...and we've heard the reasons why people choose a summary conviction, which have nothing to do with this; they're already choosing it anyway.

The real problem is the arbitrariness. If the sentence--and here I'm picking up on something the Judge Advocate General said--is so minor that....

Let's say you take section 113. There's a minor fire caused by somebody not following the regulation. A fire is caused and he's charged. If it's a minor circumstance, even though it's section 113, then it's very arbitrary to say, well, a minor incident under 113 shouldn't cause any problem, but even a major.... I suppose “absent without leave” could be somebody coming in after curfew, or it could be somebody taking off for two weeks, or it could be somebody not coming back from furlough for an extra week and they have to go looking for him, etc. He hasn't deserted, he just hasn't shown up.

I suppose there are insignificant issues of AWOL and there are some that are probably more serious. Both of them get treated the same--they're both AWOL--but in the case of starting fires, no matter how minor it is, it's treated as something that attracts a criminal record.

I think we really have to do something here that avoids this level of arbitrariness. Either we have to change the list of offences or we have to expand the nature of the punishment involved and make it so that it applies, as Colonel Gleeson said, to both court martials and other offences.

I think we have a serious problem here. I think anybody who has a constituent or relative or child in the forces ought to be concerned that they're being treated without the benefit of proper procedure under the Charter of Rights level of protections; at the same time, we're having a different consequence for them.

The threshold here is, I think, inadequate, and I've proposed that all of the summary conviction trials be...not attract a criminal record. I think that solves the one issue. There may be other ways of doing it, and the other ways might have to do with the sentence itself. But unless somebody has an amendment to that, or proposes a change in that, I will stick with this.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Harris.

I will give the floor to Mr. Hawn, and then Ms. Gallant.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Chair.

Our fundamental problem with what Mr. Harris is proposing is that assault, assault with a weapon, assault causing bodily harm, impaired driving, dangerous driving, driving causing injury--all of those things would not attract, if they're done under summary trial....

If I'm a guy in that situation, and I have a choice between court martial and summary trial, and I know I'm going to get away with assault causing bodily harm, it's a summary trial for me. We'll have people who deserve criminal records for very serious offences not having criminal records, and that's fundamentally wrong.

I don't know if there's some way around that, but that should not be acceptable to anybody, frankly.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Ms. Gallant.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

I thought I heard our witnesses say that anything that would have been a criminal conviction would also be a criminal conviction according to a summary trial. Is that correct?

[LCol Michael R. Gibson]

I recognize that this is an area of the law that's really confusing. You saw that in the evidence of the witnesses from the Criminal Lawyers' Association. I don't want to be pedantic; I just want to try to clarify for the members of the committee the distinction between a criminal record and a record within the meaning of the Criminal Records Act.

The Criminal Records Act doesn't actually define the term “criminal record”. At subsection 3(1), it speaks of “A person who has been convicted of an offence under an Act of Parliament...”. So clearly, a conviction for a National Defence Act offence would be a conviction under an act of Parliament. In the current circumstance, a person would acquire a record within the meaning of the Criminal Records Act for any conviction at a service tribunal. I hope that assists you.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

What I'm trying to understand is whether the NDP amendment, if it were to go forward, would clear a summary conviction of, let's say, a soldier striking a superior officer. Under this amendment, would that still require a criminal record, according to the rules?

[LCol Michael R. Gibson]

According to the way the amendment is drafted, any offence tried at summary trial would not result in the creation of a record under the Criminal Records Act. If any offence you're describing were tried at summary trial, it would not result in the creation of a record.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

There are crossovers with charges being laid by civilian police and military police. We read in the local newspaper sometimes that somebody is up on charges via the military police and that sometimes the local police force is called in. In domestic circumstances, we would have the civilian police come in when there is a domestic dispute, for example. But in a situation where there are two soldiers who are married to each other and one assaults the other, would that bring in the civilian police or the military police? How would that type of incident be processed?

[LCol Michael R. Gibson]

Ms. Gallant, what you're describing is a situation known as “concurrent jurisdiction” between the civilian justice system and the military justice system. In many cases such as the one you've described, there will be an exercise of discretion between the civilian police and civilian crown attorneys, on the one hand, and the military police and the director of military prosecutions staff, on the other, in deciding which system a particular charge should be tried in.

If a charge is laid by the civilian police, it would inevitably be tried in the civilian justice system. If a charge is laid by the military police, it would depend on which system they laid the charge under. Military police are peace officers. They can go downtown and lay a charge in the civilian system. Or the charge could be laid in the military system.

But the point is this: if a particular type of offence is tried by summary trial under the proposed amendment, and if that person is convicted, he or she would not acquire a record, whereas if that person were tried for the same incident in a civilian court, then he or she would acquire a record.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

There is my concern. If we have a situation where a man assaults a woman and he chooses to go by summary trial, there will be no criminal record. I take issue with that. So on that basis, I would not—

[The Chair, Conservative, Maxime Bernier]

Thank you.

I'll give the floor to Mr. Dryden, and after that to Mr. Harris.

[Ken Dryden, Liberal, York Centre, ON]

A criminal record is a significant consequence. So the question is, what should generate that significant consequence and what should not? I think that's what's behind Mr. Harris's amendment. And there is good sense to that.

I think what Mr. Hawn is saying is that the amendment as it reads now means the consequence would be that certain offences that should carry a criminal record might not carry a criminal record. And that makes sense.

I'm wondering whether we shouldn't put the matter aside and ask Mr. Hawn or the JAG to come back to the next meeting with some suggestions about what wording could give us serious consequences for serious actions, and less serious consequences for less serious actions.

[The Chair, Conservative, Maxime Bernier]

We'll go to Mr. Harris and then to Mr. Wilfert.

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

Thank you.

I'm very glad we had that question about concurrent jurisdiction, because I think that answers the problem, frankly.

To deal directly with Ms. Gallant's question, I perfectly agree with her. But if you have concurrent jurisdiction, the problem you have is that if a person is tried, for whatever offence, under the military justice system, they don't have any protections and they can get a criminal record. If they're tried under the civil criminal process, they have all the protections and they do get a record.

Mr. Hawn has a good point. In a serious circumstance, such as impaired driving, why should a soldier not attract a criminal record when a civilian might? If it's a concurrent jurisdiction, it is a matter of discretion. And that discretion can be exercised by military police, according to what we've just been told.

If it's something regarded as being in the realm of service discipline--issues of good order, morale, and so on--which requires a military prosecution, then you go that route, and you get your quick and speedy disposition. You get your summary trials. You get your laxer--or lack of--rules of evidence. You get your lack of disclosure. You get all of those things, but you don't get a criminal record.

If it's something the military decides is criminal in nature and is deserving of all the criminal sanctions, including a criminal record, then you prosecute it in the civil court. If it's impaired driving or if it's a case of domestic violence--spousal assault--and is deserving of the sanctions of spousal assault and the consequences of spousal assault, then it is prosecuted under the Criminal Code. The discretion rests with the military police, with the system, or with policy, whatever it comes down to.

To me that is a good threshold and a good test. If you're going to use the military justice system, then you do it as part of the disciplinary process, as part of maintaining good order and discipline, and people don't end up with criminal records. If it's an offence such as, let's say, deliberate arson, that smacks of criminal behaviour, whether it's a military person or a civilian. Well, prosecute the person under the criminal law. But if you're talking about somebody not following the proper regulation, which requires him to do X, Y, and Z and he doesn't do it, and a fire results, why should that person end up with what looks like arson and end up with a criminal record?

That's the way I see it. I think this concurrent jurisdiction, this discretion, provides the answer to the problem. I think it's supportable as such. It answers Mr. Hawn's concerns, I think, in a way that works.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Wilfert, you have the floor.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

I won't prolong it, but I would comment that since this is such an important clause, and given that the arguments I've heard on both sides make a lot of sense, we really should stand it down and ask the JAG to come back with appropriate wording or wording we can look at, maybe in consultation with Mr. Hawn and Mr. Harris, so that we get it right. This would obviously significantly impact a lot of individuals, and I don't think we want to rush into it.

If it's appropriate to stand it down or put it aside, I think that might be helpful.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn, you have the floor.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I don't have a problem with that.

I do have a couple of questions for the colonels. Correct me if I'm wrong, but when we talk about concurrent jurisdiction, we don't automatically have access to the civil system. The military police, because of all these things--and they're all legitimate concerns--can't call downtown in Cold Lake and say that they want them to try a guy on what they have charged him with and transfer the charge to them. Can we do that currently?

[Col Patrick K. Gleeson]

Mr. Chair, I would make two points on concurrent jurisdiction. One is that certainly there is, within the context or within a circumstance where concurrent jurisdiction actually exists...then yes, there can always be a discussion between the two systems as to which system is most appropriately situated or has the greatest interest in dealing with the matter.

In the Cold Lake example, yes, that discussion could occur around the fence, but I think the point that is important to recognize within the military justice system is that the military justice system is a portable system, and it's a worldwide system. We have concurrent jurisdiction domestically with the civilian justice system, but we operate around the world, and people are being charged for offences that occur outside Canada. In those circumstances, the concurrent piece doesn't work.

So for the domestic assault description that was provided earlier, if it occurs in Canada, then yes, there can always be a discussion with the civilian justice system as to which system is better placed and has the greater interest in dealing with that matter, that domestic assault.

But if it happens in Germany or Belgium or somewhere else around the world, then that discussion doesn't occur. There is no concurrent jurisdiction in that circumstance. The military justice system will have to deal with that offence if it is to be prosecuted. I would make that point.

Very quickly, the final point I would make is that even within the military justice system, in serious matters—that list of offences that can be tried at summary trial—the accused has an election to be tried, but if the matters and the circumstances are serious, the chain of command, the commanding officer, will refer it automatically to court martial.

There are a number of ways to get to court martial. One of them is the accused saying, “I want to be tried”. The other is that the commanding officer always has an obligation to assess the circumstances of an offence, and if he thinks it's too serious for him to try because of his limited powers of punishment, he refers it automatically to court martial.

So we have a number of ways to get there. The civilian justice system isn't the only answer to this sort of circumstance. But again, that doesn't address the concern I know the committee members are struggling with, which is where you draw the line. What's the mechanism to...? Clause 75 provides a mechanism and an option, and I'm hearing that there's obviously some discomfort with that. Does that actually cover the waterfront on this issue to the satisfaction of the committee members?

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn, you have the floor.