Evidence of meeting #67 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was grievance.
A recording is available from Parliament.
Conservative
The Chair Conservative James Bezan
I take that recommendation. Mr. McKay is suggesting that we group clauses 12 to 23.
Conservative
The Chair Conservative James Bezan
We don't have concurrence.
(Clause 12 agreed to on division)
(Clause 13 agreed to)
(On clause 14)
Are there any comments on clause 14?
NDP
Jack Harris NDP St. John's East, NL
I have a question for Colonel Gibson or others who can help us out.
This refers to being “discharged absolutely or on conditions”. Now, we don't have conditional discharge in our military, so is that for some other court in another country or foreign state? Foreign states may have absolute or conditional discharge. We only have absolute. Am I right about that?
What I'm talking about here is that there's a reference to being discharged “on conditions”. Can you give us an explanation?
Col Michael R. Gibson
Yes, Mr. Chair.
What that provision applies to is section 66 of the NDA, which deals with “Plea in Bar of Trial” and the defences of autrefois acquit and autrefois convict. In other words, in layman's terms, you can't be charged or tried again for something you've already been convicted of or dealt with.
That is meant to embrace convictions or acquittals not only within the military system but in the civilian system, so as to provide a protection against double jeopardy. That's why there's a reference to being discharged conditionally. If you had been dealt with in the civilian justice system for essentially that same offence, the matter had been dealt with, and you received a conditional discharge, then you could plead autrefois acquit or autrefois convict, depending on what it was.
In other words, what is being changed here, so the committee is aware, is that we're just adding absolute discharge to that list, essentially.
NDP
Jack Harris NDP St. John's East, NL
Okay. So it doesn't just refer to foreign tribunals; that's an “or” there. If somebody were found guilty but not convicted, that's what the absolute discharge is—
NDP
Jack Harris NDP St. John's East, NL
This is to avoid double jeopardy, so you have to say “conditional discharge”, because someone could have received a conditional discharge in a civil court, a civilian court, and if someone happened to be charged militarily for the same offence, they can plead that they've already...you can't go ahead.
Conservative
The Chair Conservative James Bezan
Thank you.
Are there any other comments or questions?
(Clauses 14 and 15 agreed to)
Conservative
NDP
Jack Harris NDP St. John's East, NL
This is a technical question, I guess.
Proposed section 101.1 says:
Every person who, without lawful excuse, fails to comply with a condition...or a condition of an undertaking...is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
I guess maybe we're jumping the gun here. It's called a conviction, but this is one of the offences, under proposed section 101.1, for which it would be deemed that there would not be a conviction, so if the amendment proposed by the government to clause 75 passed, this would not result in a criminal offence. Is that right?
Col Michael R. Gibson
Mr. Chair, the answer is sort of yes. You'll recall, of course, that what's been proposed under the proposed amended version of clause 75 is a bifurcated test. It has to be one of the enumerated offences, and those in proposed section 101.1 would be, but, secondly, it has to be under the prescribed punishment threshold. So given that amplification, I would say that the answer is yes, this particular offence in proposed subsection 101.1 would be one of the ones captured in the proposed amended version of clause 75.
NDP
Jack Harris NDP St. John's East, NL
Even though the liability to imprisonment can be up to two years, if it's dealt with below the threshold of offences—with severe reprimands, etc.—then it would not attract criminal conviction.
Col Michael R. Gibson
Mr. Chair, that is correct, but of course you'll recall that in dealing with the objective-gravity prong of the clause 75 standards, two years is actually for the lowest objective gravity of offences prescribed in the National Defence Act, so that's essentially as low as you go.
Conservative
Conservative
The Chair Conservative James Bezan
Moving on to clause 17, are there any questions or comments?
Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
Again, this is a technical question.
With regard to “any inquiry committee established under regulations”, what's the purpose of that, Colonel? What's the purpose of the amendment here? I can see having the grievances committee, because there's a new tribunal, the external review committee. The Military Judges Inquiry Committee is a new tribunal. What do you contemplate in terms of, “any inquiry committee established under regulations”? Is that being contemplated as far as you know? Are other inquiry committees being established, or is that just there in case somebody decides to establish one?
Col Michael R. Gibson
Mr. Chair, the answer is yes and yes. It's a general provision in respect of potential future amendments to the act, but it also specifically refers to the requirement for an inquiry committee to consider removal of the director of military prosecutions, the director of defence counsel services, or the Canadian Forces provost marshal. You'll see other amendments in the bill that would establish inquiry committees, or call for them to be established under regulations for DDCS and CFPM.
Conservative
The Chair Conservative James Bezan
Thank you.
Are there any other questions or comments?
(Clauses 17 to 19 inclusive agreed to)
On clause 20, are there any comments or questions?
Mr. Harris.
