National Defence Committee on March 9th, 2011

[Claude Bachand, Bloc, Saint-Jean, QC]

I will comply with your decision, Mr. Chairman.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Bachand.

We will now vote on clause 62.

(Clause 62 agreed to)

Now that clause 62 has been carried, we will move on to clauses 63 to 74, for which we have no amendments.

Shall clauses 63 to 74 carry?

(Clauses 63 to 74 inclusive agreed to)

(On clause 75)

We are now on clause 75. We have two amendments from the New Democratic Party: they are amendments NDP-8 and NDP-9.

I will now give the floor to Mr. Harris.

Mr. Harris, for your NDP-8, you have the floor.

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

Thank you, Mr. Chairman.

Amendment NDP-8 essentially deals with the question raised by the witnesses on the concern that, due to the lack of procedural fairness to the standard that civilian law has under the charter, the additional civilian consequence--I guess I would call it that--of being stuck with a criminal record ought not to apply.

I think this provides a balance in that we understand the principles of military law--and I don't need to repeat the authorities, because I think they're accepted by all members of this committee--in terms of the role of military justice and the importance of morale and efficiency and discipline and order. But in order to treat our men and women in uniform fairly, they ought not to carry the additional burden of a criminal record. This is designed to deal with that. Of course, as is obvious from the existing clause 75, the framers of this legislation recognize that there's a difficulty there.

If you look at the existing clause--and I'm waiting for my assistant to come back with a full list of offences for which a summary trial can take place--there are only a few of them picked out: those described in sections 85, 86, 90, 97, or 129. There is the further restriction that someone sentenced to a minor punishment, to a fine of $500 or less, or to both, doesn't get a criminal record.

One side point is that we did have Colonel Dugas testify that a fine of $500 is probably unheard of. The minimum fines seemed to be around $1,000, so obviously that was not in keeping with the practice in military justice, and that seems to be a difficulty to start with.

If I could go into some of the other service offences that would be covered by my amendment but that aren't covered by the existing clause 75, I think you might see that there are plenty of service offences that really ought not to end up in the same category.

We have, for example, section 83, on disobedience of a lawful command. Well, that could be something extremely minor: someone doesn't salute when they're told to salute, or someone doesn't obey a command in a manner satisfactory to the superior officer. Why would that have a criminal law consequence? Why would someone have to go under the pardons act to clear their record for that?

Section 84 is on striking or offering violence to a superior officer. Now, I'm not encouraging mutiny or anything here, but still, I think offering violence is what is called in civil criminal law “uttering threats” or something like that.

Section 85 is on insubordinate behaviour. Well, I suppose the first two might be branches of insubordinate behaviour as covered under the existing clause, but the others aren't. Under section 86, quarrels and disturbances are covered, but section 87, on resisting or escaping from arrest or custody, for example, is not. Section 89 is perhaps a rather serious one. It's connivance at desertion.

Section 90, absence without leave, is covered, but section 91, false statement in respect of leave, is not. I think I gave an example the other day of somebody who gives incorrect information, false information, about their reason for having a leave: he really wants to see his girlfriend,but he says his mother is sick or something like that. Is that something that a person should get a criminal record for? That's my concern here.

Members who have large contingencies of soldiers would know that there are an awful lot of circumstances that might come under some of these sections that ought not to, in common sense, result in a criminal record. Signing an inaccurate certificate could be serious or it could be not serious. Improper use of a vehicle is not covered. That's section 112: improper driving of vehicles. Next is “Causing fires”. That's not the same as arson. This doesn't mean deliberately causing fires. It could be a negligent causing of a fire by not properly looking after equipment.

These are things that concern me. First of all, it's obviously important for maintenance, good order and discipline that these be considered to be service offences and be treated with seriousness by the military. I don't have a problem with that. I don't think anybody has a problem with that. But the issue here is, should these offences, particularly when they're covered by the summary conviction process without the rights that are associated with that, result in a criminal record? That's what I'm trying to avoid here.

I'll say at the outset that there's opportunity here for some flexibility. Actually, I have a list of offences that can be included in another version, for example, of this amendment. So I will say that if members aren't satisfied with a blanket approach here, I have another version that may be more acceptable. But my starting position, I guess, and I may as well say it, is that I think the summary conviction procedure has been shown by the witnesses and the evidence to be inadequate in terms of protection of the individuals in the military under the law.

I don't agree, frankly--despite the debate that we had here the other day--with Mr. Hawn that you park your charter rights at the door, and that despite the fact that you are in the military you can suffer these other civil consequences of having a criminal record that you have to deal with, and the consequences thereof, and despite the fact that you don't get treated with the same degree of procedural fairness. I think Mr. Hawn did a very good job of defending that position. We heard the debate between him and retired Colonel Drapeau the other day.

I don't agree with Mr. Hawn. I think we can find a better balance here by ensuring that there's a protection for members of the force who can be subject to military discipline, but not suffer the consequences. That's basically what I have to say in relation to this. I will allow other members the opportunity to speak.

[The Chair, Conservative, Maxime Bernier]

Thank you, Mr. Harris.

I will give the floor to Mr. Payne, and after that to Mr. Hawn and Mr. Boughen.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Mr. Chairman.

I have a question that I'd like to pose to Colonel Gleeson. It's in regard to what Jack talked about in terms of causing a fire. It led me to think about negligence and maybe not maintaining equipment properly, or failing to do your duty and a fire resulting from that. So my question to you, Colonel, would be, would that in fact then be criminal?

[The Chair, Conservative, Maxime Bernier]

Colonel Gleeson.

[Col Patrick K. Gleeson]

I'm just looking through section 113. One of the general points that I think it is important to make is that the offences that were identified certainly can occur in subjectively minor circumstances, but they are objectively serious offences and can encompass very significantly serious behaviour or conduct.

If we look at causing fires, section 113, it talks about a “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” a fire. Again, this type of offence is not unique to the code of service discipline. Civil society also prohibits that type of activity and seeks to punish it.

If we look at the offences in relation to vehicles, we can see again that they encompass what may be minor offences but also very serious conduct. Paragraph 111(1)(a), for example, says “drives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances...”. Paragraph (b) talks about driving a vehicle while your ability to do so “is impaired by alcohol or a drug”. Again, this is criminal conduct in civil society. This particular offence is punishable by a term not exceeding five years' imprisonment.

These are objectively serious offences that are within the jurisdiction of a summary trial officer because we recognize that they can also occur in very minor circumstances that are critical and important to discipline.

So when you look at the way clause 75 is drafted, it does not provide that you do not obtain a record within the meaning of the Criminal Records Act with respect to convictions at summary trial. It says that you shall not receive that record with respect to any service tribunal conviction. In other words, what we're looking at is the harshness of the Criminal Records Act effect, where these types of offences—the list of offences—occur in very minor circumstances. What we don't do is try to exempt one of the types of service tribunals from the Criminal Records Act structure or mechanism. The reason that is not done in this legislation is that the military justice system, with its two tiers of tribunal structures, needs to work as two parts of a machine that need to work together.

We've heard about the summary trial system and it has been noted that not all the procedural protections exist at summary trial that exist at court martial. We've explained why that occurs. But one of the key safety mechanisms in place to ensure that soldiers are fairly protected is that in all but the most minor of circumstances, a soldier always has the right to choose to be tried by court martial.

If we introduce a system that essentially includes a disincentive to exercise the right to go to court martial, the effect that will have, we believe, is to unfairly disadvantage the soldier in making a bona fide informed choice with respect to what type of tribunal he wants to appear before. If you tell a soldier that he will get a record within the meaning of the Criminal Records Act if he exercises his right to be tried by a court martial, our fear is that the soldier won't exercise that right and will feel compelled to have the matter dealt with at summary trial. That is the very fairness issue that I think many people have talked about within the context of the hearings around this issue.

The introduction of this type of amendment that makes a distinction based on tribunal we think does not serve the interests of the system, and it does not serve the interests of the people who are subject to the system.

Colonel Gibson, I don't know if you have anything you want to add to that, but if you do, please do so.

[The Chair, Conservative, Maxime Bernier]

Colonel Gibson.

[LCol Michael R. Gibson]

Thank you, Mr. Chair.

Yes, I would certainly concur with the concern expressed by Colonel Gleeson with respect to a potential chilling effect of such an amendment on the exercise of the right to elect court martials. Court martials exist not only for the very important purpose of trying the most serious types of offences, but also as a safety valve for the system, to prevent any circumstance where the accused has a concern that he or she may not be treated fairly at summary trial.

If you're putting in place a disincentive for that person to exercise that right to elect court martial—if they do have a concern--by saying that if they go to summary trial they'll have no record, and that if they go to court martial and get convicted they may get a record, that frustrates that important safety valve.

The other point that l think is important for members of the committee to appreciate is that the list of offences that are triable at summary trial is set out in QR and O article 108.07. At the most serious end of those, there are some very serious Criminal Code and Controlled Drugs and Substances Act offences, including assault, assault with a weapon or assault causing bodily harm, assaulting a peace officer, or possession of a substance under subsection 4(1) of the CDSA.

I would suggest that the members of the committee would wish to very seriously consider from a public policy perspective whether Parliament's intent is best suited or best served by exempting those types of--literally--Criminal Code offences from acquiring a record, whereas if a person had been tried at a court downtown, they would.

I have one last very small point. I would not want the members of the committee to be under any misapprehension as to what the policy intent of clause 75 was. It was put into the bill, as Colonel Gleeson mentioned, for the purpose of recognizing that by the nature of service life, one is subject to constant scrutiny, to being held to a higher standard of discipline than a civilian would be, and therefore, as a consequence of that, one should not acquire a meaning within the Criminal Records Act for conviction for very minor types of offences. It was not put in there under any notion or suggestion that the scheme of summary trials was deficient.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn, you have the floor.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair. You can't add a lot more to that.

Just to reiterate two points: the chilling effect it would have with respect to a service member's liability to select court martial with all the options and protections he has in that, and the point just made about some very serious offences that would automatically then not have a criminal record. I clearly don't think that is our intent here. Those reasons are much better explained than I could explain them. I don't think there's any way we can support this amendment.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Dryden, you have the floor.

[Ken Dryden, Liberal, York Centre, ON]

Thank you.

You described certain instances where you said objectively they were minor. The example was used about causing a fire or something along that line. If somebody was causing a fire but in an instance that was very minor, objectively, then would the decision rendered be necessarily one where a criminal record would follow?

[Col Patrick K. Gleeson]

If the individual is convicted of an offence—in this case, causing fires—yes. Regardless of the level of punishment, a criminal record within the meaning of the Criminal Records Act would follow, but that individual in a civil circumstance would suffer the same consequence, I would suggest, sir.

[Ken Dryden, Liberal, York Centre, ON]

Well, again, we're talking about something that is objectively minor. My question is the same point: do we want somebody to carry a criminal record where they have caused something that was objectively very minor?

Their option would be either to render the decision where there would be a criminal record, or to say to themselves, “Look, I realize that it's causing a fire, but it's really not all that significant, and I know that it would generate a criminal record, so therefore I am not going come down as hard as I should because I don't have the option of coming down in a less serious way...I only have to come down in a harsher way, which in fact is a punishment beyond what should be the case”.

[Col Patrick K. Gleeson]

Mr. Chair, may I reply? Then maybe I'll ask Colonel Gibson to add to that.

First of all, if an individual is tried with the causing fires offences, it is triable at summary trial, but the accused has an automatic election. The individual accused gets to decide in which forum or before which tribunal he or she will be tried with respect to that type of offence, regardless of how serious it is--

[Ken Dryden, Liberal, York Centre, ON]

That's not my question.

[Col Patrick K. Gleeson]

I'm going to get to that in a moment.

[Ken Dryden, Liberal, York Centre, ON]

Well, that's the question I want to have answered.

[Col Patrick K. Gleeson]

Okay. I understand. I just wanted to make sure that context was there.

If that individual is convicted by either tribunal for that offence, regardless of the seriousness of the punishment it would then be a record within the meaning of the Criminal Records Act, because it would be a conviction under a federal act of Parliament and it's not exempted in the current drafting of clause 75. So yes, they would get a criminal record within the meaning of the Criminal Records Act, but the presiding officer would in no way feel compelled to give a harsher punishment.

Maybe I misunderstood that. I'm not sure how the harsher punishment piece comes in--

[Ken Dryden, Liberal, York Centre, ON]

Well, the harsher punishment is carrying a criminal record.

[Col Patrick K. Gleeson]

Well, it's an administrative consequence. The criminal record within the meaning of the Criminal Records Act is not a punishment in law. It's an administrative consequence based on.... But technically speaking--

[Ken Dryden, Liberal, York Centre, ON]

It's a harsh consequence.

[Col Patrick K. Gleeson]

It is a harsh consequence or can be a harsh consequence.

[Ken Dryden, Liberal, York Centre, ON]

Right.