National Defence Committee on Feb. 27th, 2013

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

Thank you, sir.

Before moving the amendment, I would like to ask some technical questions of the witnesses about this. We did have some discussion during committee about this, and there was a suggestion from the Criminal Lawyers' Association, for example, that there ought to be a 90-day provision similar to the civilian system. I understand there's some relationship between the number of days a person can or can't serve in detention.

Colonel Gibson, can you clarify that for us? The definition or the interpretation of this legislation would suggest that the 14 days we're talking about must be the total sentence. I'm thinking, for example, that we have an amendment suggesting 30 days. If your intermittent sentence were served in three-day increments, so 10 weekends, let's say, none of those periods of detention would be greater than 14 days. Why is that not a rational way to do it, as opposed to treating the 14 days as a totality of sentence?

[Col Michael R. Gibson]

Mr. Chair, in brief response, there are three reasons—one legal, two policy-oriented.

The legal one, first of all, is that the law already provides at QR and O 114.11(3) that any sentence longer than 14 days of detention must be served at the Canadian Forces Service Prison and Detention Barracks in Edmonton. Imagine the circumstance where you're suggesting that one allowed a person to serve a 30-day sentence intermittently. If that person didn't live in Edmonton, you'd be shuttling him back and forth from Toronto to Edmonton every weekend. That would make absolutely no sense at all. It wouldn't make sense, but there is also a legal prohibition against it.

The second reason, in terms of policy, is that the sentence of detention, especially for a longer period, up to 30 days, is meant to serve a particularly rehabilitative function, and there's a unique regime in place at the Canadian Forces Service Prison and Detention Barracks that is meant to take a person through a progressive stage of rehabilitation. We consider for that period that the rehabilitative effect of that special regime at the service prison and detention barracks would be lost.

Thus, for practical reasons, a legal reason, and also a policy reason, we suggested that the appropriate threshold would be 14 days.

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

Thank you for that explanation, although the legal prohibition could be overcome, I would submit, by changing the regulations to meet the act, if the act were so changed.

I do apprehend and understand the policy reason why you're saying a sentence beyond 14 days, in order to achieve the rehabilitative results, as you pointed out, is not going to be much good if you're in barracks or some other form of confinement that would apply on an intermittent basis.

Having heard that explanation, Mr. Chairman, I withdraw the amendment.

[The Chair, Conservative, James Bezan]

Are there any other comments on clause 24?

(Clause 24 agreed to)

(On clause 25)

[The Chair, Conservative, James Bezan]

Are there comments or questions?

We are now on page 12, halfway down.

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

Let's go for it.

[The Chair, Conservative, James Bezan]

Okay.

(Clauses 25 to 30 inclusive agreed to)

(On clause 31)

Mr. Harris.

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

This is a provision whereby a person is released under conditions. We had a debate about conditional versus absolute sentences. We are talking here about setting conditions for bail only, so that conditions of release mean essentially bail.

Is that correct?

[Col Michael R. Gibson]

Mr. Chair, what this provision at clause 31 is meant to do is to fill a gap that currently exists in the scheme.

If a person is arrested and is retained in custody, there's an obligation to bring them before what's called the custody review officer at the unit. He or she makes a decision whether to retain them in custody or release them. They can release them with or without conditions.

If that custody review officer from the unit releases them with conditions, what clause 31 would provide, in furtherance of a Lamer report recommendation, is the ability to have those conditions reviewed by a military judge.

So yes, it has to do with conditions that apply when the person has been released from custody pending trial.

[The Chair, Conservative, James Bezan]

Are there any other comments or questions?

(Clause 31 agreed to)

(On clause 32)

Mr. Harris.

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

I think we're introducing a phrase here, Colonel Gibson, that is probably new to the act: the notion of public trust in the administration of military justice. That's a phrase that's used in the Criminal Code, of course, “trust in the administration of justice”. What is the peculiarity of the trust in the administration of military justice, as distinct from justice as a general affair? Are we talking about something different because we're talking about military justice?

That phrase appears in another context as well, but I wanted to give you an opportunity to talk about what exactly it might mean.

[Col Michael R. Gibson]

Very briefly, Mr. Chair, what this amendment is meant to do is harmonize the use of the phrase “military justice” throughout the act so that it will be used consistently. That's its primary intent.

If you're asking for a policy explanation or a philosophical explanation of military justice, it really goes back to the two purposes of military justice set out in clause 62 of the bill: in essence, to promote operational effectiveness and to do justice.

I would just point out that really, the primary intent of this particular provision is to be in consistency with the judgment of the Supreme Court of Canada, in the Hall case, about the tertiary ground. That's really the thrust of this amendment.

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

Do you think using the term “military justice”, as has been suggested in other contexts, may in fact be, and is, harsher in many respects than civilian justice? Concomitant with that, if the reasons for maintaining trust in the military justice system include the notion of discipline and operational effects, they would be included in that interpretation, in terms of trust in the administration of your regime inside the Canadian Forces. Am I right about that?

[Col Michael R. Gibson]

Mr. Chair, in general terms, yes. The thrust of the provision is to maintain public confidence in the administration of justice, be it military in a particular context or not.

[The Chair, Conservative, James Bezan]

Thank you.

Are there any other comments or questions?

(Clause 32 agreed to)

(On clause 33)

Is there a question?

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

This is one that I find surprising: that despite the fact that a person is directed to be retained in custody or that conditions be imposed upon them, that direction may be cancelled in circumstances prescribed by regulation made by the Governor in Council.

Is that a new provision, and why is it necessary? And what kind of regulations would be contemplated to be passed under the act? We haven't heard in any of the recommendations anything as to why this should be included.

[The Chair, Conservative, James Bezan]

Is this a new section, Mr. Gibson?

[Col Michael R. Gibson]

Mr. Chair, yes, it is.

What it is meant to relate to primarily is the circumstance in which there has been a direction to retain a person in custody or to impose conditions, and when the matter has been referred to the director of military prosecutions for his or her decision about preferral of charges for court martial, that office decides not to prefer the charge.

This is meant to be an elegantly simple way to deal with the circumstance in which the director of military prosecutions has decided not to prefer the charge, so that you won't have to go back and construct some sort of elaborate regime to say that the person should be released from custody or to direct that the condition should be cancelled.

In other words, this is what the regulation would essentially prescribe: that where the director of military prosecutions has issued a notice of non-preferral, then you have a simple and clean way to deal with the situation.

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

So this is not intended to implement any policy, other than an administrative way of allowing someone to be released from conditions or actual custody without having to go back before a tribunal or a court or—

[Col Michael R. Gibson]

That's essentially correct. It's meant to relieve the person dangling on the hook of uncertainty, if you want to put it that way, from the effect of the DMP's decision not to prefer.

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

And it is not intended to overrule a direction given by a court or by a tribunal.

[Col Michael R. Gibson]

No, Mr. Chair, it is not at all.

[The Chair, Conservative, James Bezan]

I have Mr. McKay, and then Mr. Alexander after that.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I accept the explanation. I'm not sure that is what this says, though.

It says it's prescribed in regulations made by the Governor in Council. What are these regulations going to say, then?

It seems to me you've created a fairly broad means by which release can be cancelled, and then you give an explanation that makes some sense, but then you leave a fairly wide open door for the purposes of getting people out of jail.

[Col Michael R. Gibson]

Mr. Chair, I would reiterate that the primary intent in respect of the regulations to be made pursuant to this proposed section relates to the circumstance I described. But it is possible that other circumstances might arise in which one might wish to have the ability to in essence not have to go through a protracted process to cancel the condition or to get the person out of custody. That's one reason for having chosen the instrument of doing it through regulations; it's to provide some degree of flexibility for the future.