National Defence Committee on March 23rd, 2011

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

I agree. We want to continue going through the list of offences that is proposed. Earlier, I offered my assistance in order to review this without haste. This would allow us to make up our minds and to reach a decision. So I believe we should keep going and I hope it can be done quickly.

[The Chair, Conservative, Maxime Bernier]

Yes.

You have no questions, Mr. Bachand? Fine.

Colonel Gleeson, you have the floor.

[Col Patrick K. Gleeson]

Certainly--

[The Chair, Conservative, Maxime Bernier]

Excuse me, Colonel Gleeson.

Mr. Dryden, you have the floor.

[Ken Dryden, Liberal, York Centre, ON]

No, I agree with what you're saying, Chair. We're back here now, and we have progressed to looking at this as closely as we can. We have the opportunity to do so.

The Libya briefing will be very nice to have, and I hope we will still have the chance to have it, but I think we have some work to do on this first.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Colonel Gleeson, can you go on with your details?

[Col Patrick K. Gleeson]

I think we had arrived at section 100, setting free without authority or allowing or assisting escape.

That offence has a double-tier maximum punishment provided for. One is for a term not in excess of seven years, and the other is two years or less. Given its bifurcated maximum punishment provision, it was not included.

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

Could you explain the problems with 98 and 99, please?

[Col Patrick K. Gleeson]

Oh, sorry; I thought we'd done 98.

So 99 is on the list of offences that would be excluded from a criminal records act consequence and 98 is not; 98 is malingering and 99 is detaining unnecessarily or failing to bring up for investigation.

Again, 98, the malingering offence, is an offence for which the maximum punishment is life in some circumstances, or five years or less imprisonment in other circumstances.

That's the reason 98 was not included on the list.

[Ken Dryden, Liberal, York Centre, ON]

Can you describe what “malingering” is?

[Col Patrick K. Gleeson]

I'll just read the offence provision for you:

Every person who

(a) malingers or feigns or produces disease or infirmity,

(b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

(c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces

And then it goes on to talk about forces cooperating.

That's the way the offence is described in the act.

[Ken Dryden, Liberal, York Centre, ON]

Thank you.

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

So it deals with faking illnesses or something more serious, and deals with injuring yourself or others as well.

[Col Patrick K. Gleeson]

Yes. That's a provision of that offence: “malingers or feigns or produces disease or infirmity”.

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

An example of that would be someone pretending to be sick when they aren't.

[Col Patrick K. Gleeson]

That could fall under the definition of malingering, yes.

Section 100, setting free without authority or allowing to escape, has a maximum punishment of seven years or less imprisonment.

If I miss any that were.... I made a note as I went through these, so hopefully I don't miss any.

The next one on my list is section 106, disobedience of captain’s orders. This has to do with somebody on board a ship. Imprisonment for life is the maximum punishment for that offence. Again, it's an operational nature offence.

Section 107 is wilful acts in relation to aircraft or aircraft material. That has a maximum punishment of imprisonment for life in some circumstances, and in others two years or less. It has a bifurcated maximum punishment provision.

Section 110 again deals with disobedience of captain’s orders. This is with respect to aircraft. Again, the maximum punishment for that is either imprisonment for life or less punishment.

Section 111 deals with improper driving of vehicles. This covers impaired driving and those types of offences. It has a five-year maximum punishment provision.

Section 113 is the causing fires provision. Again, that's a bifurcated scheme, where there's imprisonment for life or less punishment. Given its bifurcated nature, it was excluded.

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

When you say “bifurcated”, Colonel, are you talking about something that can proceed in one of two ways?

[Col Patrick K. Gleeson]

Well, it's not really a process issue, it's a circumstance issue that drives the maximum punishment provision. In the military justice scheme, it's not....

The military justice system is not like the civilian justice system, where there is a summary conviction and an indictable-type proceeding. There's only one type of proceeding in the military justice system.

Perhaps it's best if l just read the offence provision to you so that you can understand how it's been framed:

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.

That's the way that offence is framed.

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

And you found no way of including the lesser circumstances in these categories?

[Col Patrick K. Gleeson]

As I say, we worked on the principle of Parliament's objective assessment of how grave the offence could be and adopted the two years less punishment provision.

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

But that's what appears there in the circumstances.

[Col Patrick K. Gleeson]

That's in one of the circumstances, exactly.

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

Could you not find a way of ensuring...? If your principle is a two-year rule, would you not be able to easily say, where the punishment for that offence, in this particular case, is two years or less, that would include those offences, but only for those cases where the punishment is less than two years?

[Col Patrick K. Gleeson]

I'd have to go back and do legal research on this point, but unless a court desires to impose a punishment of greater than two years, it may not make any finding as to whether or not it was intentional.

Again, without doing that research, I can't answer that question in detail. But that would be one of the concerns I would identify. That's why we didn't include these bifurcated-type punishment offences.

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

There's a problem here too, I guess.