National Defence Committee on Feb. 27th, 2013

[The Chair, Conservative, James Bezan]

We have Colonel Gibson.

Then we'll get back to you, Mr. Harris.

[Col Michael R. Gibson]

Mr. Chair, just to respond briefly to those observations, first to Mr. McKay's question, no. The relevant day is the day on which the service offence is alleged to have been committed. The intention—and we consider that the drafting of the provision is fairly clear—is that the first limitation period is that the charge has to be laid within six months of that day—

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

Of the offence date.

[Col Michael R. Gibson]

Yes, the offence date—

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

Okay.

[Col Michael R. Gibson]

—and the trial has to commence within one year of that day. It's not an 18-month thing. It's six months to lay the charge, a year to start the trial.

Just in response to—

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

Sorry to interrupt, but do you have an intervening date of the charge...? Is it one year from the charge date or is it one year from the offence date?

[Col Michael R. Gibson]

The offence date.

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

The offence date: so I'm not reading it correctly.

What's the difference between—

[Col Michael R. Gibson]

Sorry, but just to respond briefly to Mr. Harris' observation, there are two things.

Bill C-15 was introduced in Parliament on October 7, 2011. The LeSage report was not tabled until June of 2012. I would ask you to just bear that in mind.

The second point is that it's a matter of legislative drafting and interpretation. In this case, we consulted with our friends, the legislative drafters at the Department of Justice, who actually draft the bills, and we asked them what they thought of this. They were fairly adamant that actually, no, it was good as it stood.

In fact the amendment suggested—with the greatest of respect to Justice LeSage—in their view was not technically appropriate and would not actually contribute to clarity or be consistent with their drafting of protocols.

That's why it is the way it is.

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

Well, sir, I thank you for your opinion.

I guess Mr. McKay's comment actually proves my point, that he read this...and Mr. McKay is a lawyer of very long standing, I believe one of Her Majesty's counsel learned in the law. He thought—

[A voice]

[Inaudible—Editor]

[The Chair, Conservative, James Bezan]

Order.

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

—the amendment was designed to shorten the limitation period from 18 months to 12 months. Now we have it confirmed, of course, by Colonel Gibson, that the intention here of the government in this amendment is that when an offence is alleged to have been committed on a certain day, a charge has to be laid within six months, and the trial has to commence—it doesn't have to end, but to commence—within 12 months of the date of the offence. But if you look at “after that day”, Justice LeSage also was concerned with the interpretation of that.

Now, there are legislative drafters, which is fine. They have their opinions, and they are very experienced people. But with all due respect, the legislative drafter is not the person who is sitting down and interpreting the law in court. Lawyers like Mr. McKay and others are arguing about the possible interpretations of the act. A judge may decide, yes, it is confusing here; we're not sure what this is all about.

You know, we keep hearing about the LeSage report having been tabled in the House in June of 2012, but it was presented to the government in December of 2011. He was commenting on a clause in Bill C-41—not on this, but this is an identical clause—and he said that if this is being brought in, it should be clearer.

Now, the legislative drafters may think it's clear. Mr. McKay doesn't think it's clear. Justice LeSage doesn't think it's clear. I don't think we're doing any harm to the universe if we make it clearer.

So I would see this as...I wouldn't call it a friendly amendment. There's no such thing, perhaps, as a friendly amendment.

[The Chair, Conservative, James Bezan]

You're right, there is none.

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

This is actually an amendment. There's no such thing as a friendly amendment, but this is not a contentious amendment. It's not one that's changing policy. It's not one that's changing the intention of the law. It is actually designed to make clear the law.

It seems to me that this amendment would be for the benefit of justice and the military justice.

[Col Michael R. Gibson]

Mr. Chair, I would make just one observation.

Of course, it's a fundamental principle of statutory interpretation that Canada is a bilingual, bijural country. In interpreting legislation, one has to read both the English and French versions together. One can be an aid to the interpretation of the other.

I think it's quite clear on the French side what the intention is. I've already indicated the assessment. Ultimately it's a matter for decision by members of Parliament as to what to make of that assessment, but we take the technical advice of the legislative drafters in terms of drafting issues.

Thank you.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Far be it from me, Chair, to call into question the faculties of the intentions of my learned lawyer friends opposite, but to my mind it's perfectly clear, and I think to most Canadians reading it.

The word “day” is mentioned twice in the paragraph. The second time, there is reference to “that day” in the English version, which can only refer, in my reading, to the first reference to “day”. That reference is clearly to the day of the alleged offence.

[The Chair, Conservative, James Bezan]

Madame Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

I would like to clarify something. I want to talk about offences committed over an extended period of time. If memory serves me right, section 98 of the National Defence Act talks about simulation. If someone were to feign back pain for three months, what date would be taken into account—the first day when the person began feigning that back pain or the last day? Is that implied? That should be specified in the case of offences committed over a prolonged period of time.

[Col Michael R. Gibson]

Mr. Chair, perhaps Colonel Dufour could respond to that.

[LCol André Dufour]

I will answer in French.

In the case of an ongoing offence, it is often said that the offence is committed over a certain period of time. If there is conclusive evidence that the offence was committed during that period, and the evidence confirms it, the offence can begin at any point during the period in question.

I am not sure if I am explaining it properly, but I think there is some flexibility when it comes to that.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

If, for instance, the person stops feigning their back pain after 5 months and 28 days, they can still be tried under a summary trial. That's my understanding.

[LCol André Dufour]

That's exactly right.