National Defence Committee on March 23rd, 2011

[Col Patrick K. Gleeson]

So that's section 113. Again, 114 is “stealing”, and it's bifurcated as well, but it's maximum of 14 or maximum of seven years. Section 115 is “receiving”, which is improperly receiving property, and that has a seven-year maximum punishment provision.

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

It's receiving what, sir?

[Col Patrick K. Gleeson]

It says “receives or retains...property obtained by the commission of [an] offence.” So essentially it's an offence involving stolen property, and again it's a maximum of seven years.

I think those are all of the offences identified on the list. If I missed any, I'm happy to go back and have a look at them.

[The Chair, Conservative, Maxime Bernier]

Thank you, Colonel Gleeson.

Monsieur Bachand.

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

Colonel, you drew up a rather comprehensive list. Could there be cases that would set a precedent? In other words, could there be offences that are not on the list but that would make their way there? How would you deal with that?

I suppose there is also jurisprudence in military law. Could a person be charged with a serious offence that is not on the list you have given us?

[Col Patrick K. Gleeson]

It's certainly possible that somebody would be charged for an offence that is not on this list. This is not intended to be an exhaustive list of all service offences. This is intended to identify.... As I indicated earlier, we started out with the policy view that there were a small number of service offences that could be particularly minor in nature, so minor in nature that they're the only five offences for which an individual, if the offence occurred in minor circumstances, would not get an election to be tried by court martial. It was for that grouping of offences that the policy choice was made to extend an exemption from consequences under the Criminal Records Act. That was the starting-out position. All other offences would not have attracted the Criminal Records Act exemption provision, for lack of a better term.

After the discussion among committee members, we've gone and come back with three options. Two of those options actually expand that original listing of five offences to 27 offences, but there are many other offences under both the code of service discipline, which are incorporated or brought into the code of service discipline through section 130 of the National Defence Act under other federal statutes, which are not captured here. If you're convicted of an offence that is not on this list, then you would not escape the Criminal Records Act consequence.

[The Chair, Conservative, Maxime Bernier]

Mr. Harris.

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

Mr. Chairman, I've listened to the arguments put forth as to why the Judge Advocate General's analysis has moved to a larger sphere of offences, but I still have the problem here where he or the office has done an analysis based on what I think he called the “objective seriousness”, in the sense of the maximum sentence provided for a particular offence. We see the same thing in the regular criminal law, where someone who's charged with breaking and entering into a dwelling house is liable to life imprisonment. If it's a first offence, usually they get a suspended sentence or something of that nature.

So that still causes me a lot of problems, because you have somebody who is charged with an offence that might attract these serious penalties in certain circumstances, but in fact the circumstances may be so minor as to be something that would offend the sense we raised here at committee in terms of concerns about what having a criminal record would do. On disobeying an officer, if someone tells you to shine your shoes, and you don't shine your shoes and you get fined $100, that's a criminal record offence, whereas some of these other ones that we now have on the list, while they're not the most serious offences, are serious offences and are certainly worse than the kinds of things that could attract a criminal record.

There really is a sense of arbitrariness about this. I'm wondering if we can find a way to amend the proposed motion here to add, in addition to the list of offences there, something to the effect of “or other offences not mentioned for which the offender is sentenced to these”...A, B, C, D, or one, two, three, four. So if you had a case in which someone was charged with some technical violation of one of the other offences that we're now talking about--and that aren't on the list--and ends up getting a rather modest penalty within this list in terms of reprimand, severe reprimand, fine, or other minor punishment, that person would not have to go through the criminal records process and go to the parole board to get a pardon.

If we can come up with the wording, I think.... I see that we're almost at 5:30, and if I want to talk it out, I suppose I can just keep talking, but if we can find the wording that would allow us to do that, then perhaps I can have the satisfaction that we're getting significant progress here, and that not only are these offences listed, but there may be other offences--even though they're not on your list--where there's a minor penalty such that the person doesn't have to go through the process, doesn't end up with a criminal record, and doesn't have to go to a pardon.

Is there simple wording that can do that, in your view?

[Col Patrick K. Gleeson]

Certainly that could be achieved. That would require us simply to eliminate the listing of offences that are already there and express the idea that a conviction on any offence from section whatever up to 129, where these punishments are imposed, would not result in a criminal record.

From a public policy perspective, that would arguably create some very interesting situations where that type of blanket exemption from a Criminal Records Act consequence does not exist in the civilian justice system at all. While we talk about the military justice system and the ability to be convicted for minor offences--and granted, there's greater likelihood that this may occur in the military justice system--it's not an exclusive situation. There are minor convictions within the civilian justice system for which Criminal Records Act consequences are attracted.

So again, it becomes a public policy issue at the end of the day.

Is it technically possible? Yes. Yes, it is.

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

Well, the public policy issue we were addressing here was the fact that people who are not under the civilian system, but rather under the military system, and who don't have the protections of the Charter of Rights application to the procedure, are ending up with a criminal record, whereas in the civilian side, it doesn't happen. One of the conversations we had the last time we discussed this here at the committee was about the possibility of leaving it up to the military if they felt something was serious enough to require there to be, from a public policy perspective, a criminal record--that it's something that could then be prosecuted in the criminal courts and the civilian courts.

Now, it was raised that this may be an issue if you're overseas and don't have access to the civilian courts in Canada. That being the case, maybe that's too bad. I don't think the public policy can be applied that surgically, if you want to say it that way. If the interest, particularly in overseas operations, is operational reasons--good order and discipline--then maybe the criminal record part is not so important.

I would be happy to let this thing go if we remove the list of offences and say that if the offender is sentenced to any of these that are here.... It's not the same list that I have in my original amendment, but if we could remove that--I don't know if there's agreement to that around the table to move this thing forward--we could perhaps continue on. If that's not going to happen, well...we're out of time, I think.

[The Chair, Conservative, Maxime Bernier]

Thank you very much.

I have Mr. Dryden and after that Mr. Hawn.

[Ken Dryden, Liberal, York Centre, ON]

Just going back to the example that was presented, that of the soldier being ordered to shine shoes and deciding not to, that would be insubordination. If it was insubordination, then whatever penalty that would be applied would have to be a matter that would generate a criminal record. Is that right?

[Col Patrick K. Gleeson]

If I may answer, Mr. Chair, no, it would not create a criminal record under this scheme, because it wouldn't be charged as insubordination. That type of minor transgression is charged as a 129-type offence, “Conduct to the Prejudice of Good Order and Discipline”, and 129 is on your list. If you were charged with insubordination, however, not in the factual circumstance that you just described, which wouldn't result in an insubordination charge.... But insubordination is not on the list.

[Ken Dryden, Liberal, York Centre, ON]

Just quickly, then, there was another example. I think it was under malingering, under 98 or 99. The most minor example of malingering might be...? Can you give me an example of that? Would that bring with it a criminal offence or not?

[Col Patrick K. Gleeson]

Again, if malingering were charged, malingering is not on the list in option 3, so it would lead to a Criminal Records Act consequence, but--

[Ken Dryden, Liberal, York Centre, ON]

What would be the most minor or among the most minor malingering offences?

[Col Patrick K. Gleeson]

From a technical perspective, any faking of sickness could in theory be a malingering charge, but again, I'm not aware in my 29 years of experience of a malingering charge being laid for somebody claiming that they had the flu one morning.

Malingering tends to be, as reflected by Parliament's identification of the maximum punishment that can be imposed, as engaging serious circumstances.... So again, theoretically, could it be charged? Yes. Have I ever seen it charged in minor circumstances? No. In fact, we don't do a lot of malingering charges. It's not a significant problem within the--

[Ken Dryden, Liberal, York Centre, ON]

Instead of a malingering charge under the example you provide--somebody claims to have the flu--what might they be charged with?

[Col Patrick K. Gleeson]

Well, they might not be charged at all. Again, it's a discretionary thing. It may be a 129 charge. Again, it's difficult to articulate that unless you know all the circumstances in the--

[Ken Dryden, Liberal, York Centre, ON]

Sure. Is 129 a bit of a catch-all?

[Col Patrick K. Gleeson]

It is. It's a very broad offence provision--“Conduct to the Prejudice of Good Order and Discipline”--and it includes breach of orders, breach of instructions, whether they be verbal or written, and there's a proving element to 129 that can be fairly complex from a prosecution perspective. But 129 is really intended to capture all of those things, that hodgepodge of military disciplinary types of things, where essentially the offender is not following instruction or direction of a general nature. That's where you would end up.

So would malingering never be charged? I certainly can't sit here and say that, but I certainly have no experience that would suggest it would be in those very minor circumstances.

[Ken Dryden, Liberal, York Centre, ON]

What you believe is that what is there can operate both ways. Not only wouldn't there be too severe a charge being brought just because it happened to fall under a heading that generates severe consequences, but at the same time something that was also worthy of note and worthy of some kind of punishment would not go unpunished because the option would be either something too great or not at all.

[Col Patrick K. Gleeson]

I think that's very fair to say. Again, this is an exercise of discretion by charge layers and those who prosecute as to what they deal with. Again, by and large the system is intended to demonstrate fairness to both the accused and the system, and that fairness element is critical in both sets of tribunals, at summary trial and court martial. If the system isn't perceived as being fair, it's not doing its job.

This option 3 we're talking about right now is really an attempt to try to strike a balance. Is it the only balance that could be struck? Certainly not. Is there some judgment being exercised in what's currently on the table? Absolutely. Could others take a different view as to what should and should not be on that list? Absolutely. But the principle we've used in developing this list is what Parliament has determined from an objective perspective to be the most minor offences under the code. That's a grouping we've put in there, trying to rely on some principle to highlight what would go on the list and what would not.

I certainly don't dispute that we could have a long debate as to whether or not other offences in the code that Parliament has objectively said could be much more serious could also be on that list, but that's the option we put on the table so that we could articulate a principle as to why the offences were there.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Mr. Chair, I'm sensing that we may be getting somewhere across the way. There is common sense applied in the military justice system, as has just been outlined. From a public policy point of view, we couldn't go to the point where the military justice system eliminates all of the aspects of this that are in the Criminal Code. That would be really bad public policy, in our view.

I don't know if the discussion has alleviated Mr. Harris's concerns or not, but if he is prepared for the question to be called, then we're certainly prepared to do that.