Evidence of meeting #55 for National Defence in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was section.
A recording is available from Parliament.
Bloc
Conservative
The Chair Conservative Maxime Bernier
We're here to discuss all the amendments. We have amendments from the NDP right now, but we have a proposal also.
Bloc
Claude Bachand Bloc Saint-Jean, QC
But it is in English only, so we refuse to discuss it. I need a French version, otherwise I refuse to discuss it.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Pretend you don't have that, and we'll have the discussion from the JAG, which will be in English or French, as we do normally when we get guidance from the JAG. It isn't necessarily on a piece of paper. Throw that away. Pretend you never got it, and just carry on.
Conservative
The Chair Conservative Maxime Bernier
I think that's the best way to proceed.
Could we have your point of view, Colonel Gleeson?
Colonel Patrick K. Gleeson Deputy Judge Advocate General, Military Justice Strategic Response Team, Office of the Judge Advocate General, Department of National Defence
Certainly, Mr. Chair.
As has been noted, what happened after the last committee meeting is that there was a discussion. We went back and looked, based on the discussion or debate that took place among the members of the committee, and we essentially concluded that there were two issues that we're trying to deal with here. One is the issue of the objective gravity of the offences that might be exempted from Criminal Records Act consequences. The second concern deals with the subjective gravity surrounding the commission of those offences.
As clause 75 is currently drafted, it deals with both of those issues. First of all, the objective gravity is reflected in the four or five offences that are captured in that scheme as it is currently drafted in the bill, and the subjective gravity question is captured with respect to the punishment threshold that is described, which is currently a $500 fine or less.
As I say, it appeared, based on our understanding of the debate, that there were concerns with both of those thresholds; that neither one of them was significant enough or captured enough potential offences, and in particular that neither captured a significant percentage of the population of offences that might be dealt with at the summary trial level. Then, we had also discussed the consequences of expressly exempting summary trial offences, as distinct from service tribunal offences, from this scheme.
Given that background, we went back to look at three potential options. Those options were generated, and there was a set of speaking points generated that were intended to simply inform an informal discussion on this matter. They formed a document that was not intended to be put forward or tabled at committee.
That document outlines the three options. Attached to it are the actual options, showing how proposed section 249.27 would be drafted to reflect the implementation of both of those options—and those options, at least in the version I have, are drafted in both French and English.
Option 1 looks at the issue of the objective gravity of the offence. Essentially it seeks to broaden the number of unique service offences that would be captured by the Criminal Records Act exemption provision, from the current five to 27 offences. The reason the number has grown by such a large number is that we started to look at offences that would be dealt with at summary trial. When we went through that list, we essentially concluded that what we were looking at was a grouping of offences that are objectively the least serious in the code of service discipline. We determined that they were the least serious because the maximum punishment prescribed for these offences was imprisonment of two years less a day—or a lesser punishment.
Given that we were getting that grouping of offences by looking at the summary trial offences, we went through part III of the National Defence Act and looked at all the offences that prescribed this minimum punishment. This is the minimum maximum punishment prescribed for any offence in the code.
We took all of those and put them in a list and then looked at that list. We exempted two offences from that list after we had a look at it. Those were offences under sections 119 and 119.2. Section 119 deals with offences in relation to the Sex Offender Information Registration Act. Section 119.2 deals with offences in relation to DNA identification.
We took those two off the list on the basis that they reflect a civil offence almost directly. Obviously, if you breached those or were convicted of those, you would have a Criminal Record Act consequence in the civilian system, and therefore they should come out in this model.
So that is what option 1 does. It expands that grouping of five offences to include 27, and these are objectively the least serious unique service offences in the code of service discipline. That is the first part of the test.
The second part of the test remains unchanged; this is the subjective gravity of the offence, which is reflected by the punishment threshold, which remains a $500 fine or less. If you are convicted of one of these offences under option 1 and are awarded a punishment—
Conservative
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
I have just a quick point. Do you have those in French and English now?
Conservative
Col Patrick K. Gleeson
What we have is the motions for each of these options in French and English.
Conservative
Laurie Hawn Conservative Edmonton Centre, AB
Can we get whatever you have in French and English photocopied and distributed right now?
Col Patrick K. Gleeson
We'll just pass those up to the clerk.
We do not have this working instrument in French and English; that is, the speaking points that Mr. Bachand was referring to. I apologize for that, but as I said, they weren't intended to be anything other than an informal discussion document.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
I'm just looking at the appropriate point, but of the three options that we have here—I assume, Mr. Gleeson, you have these three options that were distributed—which one has the widest exemption?
Col Patrick K. Gleeson
So that's what option 1 does. As I said, the punishment threshold remains the same, so if you're convicted, a $500 fine or less is imposed and you would not have a Criminal Records Act consequence.
Option 2 doesn't touch the objective gravity question, so it remains limited to the five original offences. But what we do in option 2 is look at the subjective gravity question, and we raise the threshold. In raising the threshold, we capture severe reprimand, reprimand, a fine up to one month's pay, and minor punishments—a much broader range of offences that would be dealt with, that would be captured by this.
The third option, in response to the question asked, is the broadest of the three. It essentially expands both the objective gravity category and the subjective gravity category by merging options 1 and 2 together. So there is a much broader range of offences, coupled with a higher punishment threshold, to take advantage of the Criminal Records Act exemption.
I'm happy to address any of those in more detail, but in a broad-brush overview, that is what the three options do. They essentially reflect an option that was provided, I believe by Mr. Harris, the last time we spoke.
Conservative
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Colonel Gleeson, can you tell me, in number 3, what would be the highest...? Are there concerns with regard to that higher threshold in number 3?
Col Patrick K. Gleeson
There is a public policy balancing that is going on here. As you move the thresholds in both cases, you're obviously exempting conduct that becomes both objectively and subjectively more serious from the standpoint of the Criminal Records Act consequence. But none of these options would capture Criminal Code offences. We've excluded all Criminal Code offences from this scheme—and those from other federal acts, so the Controlled Drugs and Substances Act convictions.... All of that would be excluded.
So there is obviously a balancing issue as you move along this spectrum.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Yes, that obviously seems to be.... I'd like to see a balance that is fair, obviously, but at the same time sends the appropriate message. We don't want to cast such a wide net that it creates difficulties down the line.
Col Patrick K. Gleeson
I would suggest that all three options, including option 3, which is the broadest, strike a balance, in the sense that option 3 does not exempt serious criminal conduct. That is really both with respect to the offences that are listed and also with the punishment threshold. Anything that involves a very serious fine would not be exempted, and anything that involved any kind of custodial sentence or a reduction in rank, which is also a relatively serious punishment at the end of the day, would not benefit from this exemption.
So as I said, the balance is struck, but obviously we're further down that balancing process as we get to option 3 than we are with option 1 or the original drafting of this provision.
Liberal
Bryon Wilfert Liberal Richmond Hill, ON
Thank you for that, Colonel.
Mr. Chair, if I may, the question I have, which is not for these gentlemen, is.... I have my view as to which one we should go with, but I guess this is a procedural question.
Is there an intent around this table to move this out of here today, or are we just saying something like “the house is on fire, let's go mow the lawn”? Is that what we're doing? I'm not sure what we're doing.