National Defence Committee on Feb. 27th, 2013

[Col Michael R. Gibson]

Mr. Chair, subsection 142(2) of the act currently provides that:

If a non-commissioned member above the rank of private is sentenced to detention, that person is deemed, for the period of the detention, to be reduced to the rank of private.

That's the law as it currently stands. It applies equally to both regular force and reserve members.

The answer to the question, as I understand it to be, is that for the period the person is serving the sentence of detention, they are deemed to be reduced to the rank of private.

[Jean-François Larose, NDP, Repentigny, QC]

Okay. Let's say he chooses to do only the weekends because he needs to stay with his kids during the week. He goes back to being a sergeant when he's going to work, and on the weekends, while he's incarcerated, he's a private. Correct?

[Col Michael R. Gibson]

No, that's not correct, sir.

What clause 20 would provide is that the person would be reduced to the rank of private until the sentence of detention is completed. If the person requests to serve a sentence intermittently, one of the consequences they have to factor in when making their request is that they would be a private for the period of detention.

[Jean-François Larose, NDP, Repentigny, QC]

As a reservist in the past, I can understand it. For reservists only working on the weekends, I understand why they would choose such a possibility, considering that during the week they're working elsewhere anyway and they wouldn't want to lose their employment. But as a full-time NCO...I have a little bit of difficulty understanding this.

What would be the advantage, other than for family reasons, of doing this? He's being punished during the week under the pretense that it would cause confusion.... I don't know why there would be confusion. I can understand if you're a private in the cell. Having worked in civilian prisons, I can understand the relationship that needs to exist, the punishment being that time they spend in jail. But I don't understand why he would still be a soldier during the week. Wouldn't that be like a sentence that would be added, simply giving him the opportunity to be spending time with his family?

[Col Michael R. Gibson]

Mr. Chair, with respect, I don't agree with that proposition. The logic behind it is that this person is an offender. They've been sentenced to a period of detention, to a custodial sentence, because they've been found guilty of an offence in which the person giving the sentence considered that it required a custodial sentence. It is at their option, their convenience; they asked to serve it intermittently.

But you can't have a derogation of discipline or any confusion in the chain of command about what that person's status is. In fact, our assessment, which I think is very well grounded, is that it would likely cause dissension or a lot of concern amongst the members of the unit if the person suddenly showed up wearing their regular rank during the week and was only a private during the period of detention.

[Jean-François Larose, NDP, Repentigny, QC]

So it is punitive. For example, an individual who has been given a 10-day sentence serves it over the weekends. Instead of the sentence taking 10 consecutive days to complete, it takes 5 weeks. During the week, the individual continues to be a private, with reduced wages.

I would like to know what happens in their unit. Since the responsibilities of someone like a sergeant must be maintained, is that person replaced? What happens in their unit? There may not be any confusion, since that person is not in detention. Someone being a simple private in detention is understandable, but once that person returns to their unit, they have a sergeant's responsibilities. Are they replaced, or do they continue to be a private who carries out a sergeant's responsibilities?

I think this principle leads to more confusion. The sentence handed down by the court is 10 days, not 5 weeks.

[Col Michael R. Gibson]

I think the answer is that it's up to the unit to make its assessment of what its operational needs require. The substantive provision is found in clause 24 of the bill, which would amend section 148. That provides that there has to be an agreement between both the offender, the person making the application, and the unit to agree to allow him or her to serve the sentence intermittently, so the needs of the unit would have to be factored in before the commanding officer made his or her decision about whether or not they were going to approve that.

[Jean-François Larose, NDP, Repentigny, QC]

That's all for me.

Thank you.

[The Chair, Conservative, James Bezan]

Madame Moore.

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

I would just like a clarification.

Let's take the example of a reservist—a non-commissioned member—who has very specific duties or job within a unit. For instance, there is often only one quartermaster in the reserve. Does that person ever go to work in between their detention periods to carry out other duties because the unit really needs them, or are they usually not allowed to return to their normal employment in the unit until the sentence has been completed?

[Col Michael R. Gibson]

I'm sorry, I didn't really understand the question. Could you repeat it, please?

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

I will give you an example where a reservist is sentenced to 14 days of detention. He serves his sentence on the weekends, so it stretches out over seven weekends. Could that person ask to work normal shifts between the weekends? Will he be able to carry out his usual duties even if he has not completed his detention period?

[Col Michael R. Gibson]

Mr. Chair, again, the answer to that would be determined by the unit, and ultimately by the commanding officer, as to what he or she considered would be required for the efficiency of the unit.

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

For instance, the commanding officer could ask someone to perform their normal duties, but with the rank of private. It may at times be strange to see a private giving orders to other people with a higher rank, even if that person would have done it normally as part of their work.

I am a bit confused about that. I am trying to get a concrete picture of what that means. I find that the result may be a bit strange. Could you explain by giving some concrete examples?

[Col Michael R. Gibson]

Mr. Chair, with respect, that seems not especially relevant to the question of what's proposed in the bill in terms of providing this option. It is remarkably very inconvenient for everybody, the unit and the person involved, when somebody commits an offence and is sentenced to detention, but the sentence has to be determined on the basis of what's required for the maintenance of discipline. The presiding officer will have to arrive at the appropriate sentence on that basis. Ultimately it is up to the commanding officer to run his or her unit in the way that he or she considers to be appropriate, having regard to their mission.

I don't think there's a lot more I can say on that point.

[The Chair, Conservative, James Bezan]

Thank you.

We do want to make sure that your comments stay to the technical nature of the bill.

Are there any other comments or questions?

(Clause 20 agreed to on division)

(Clause 21 agreed to)

(On clause 22)

You have comments on clause 22, Mr. Harris?

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

I wonder if we could have the rationale here for the second half of clause 22, proposed section 147.1, the prohibition order there with respect to crossbows, prohibitive weapons, etc. These prohibition orders can be made, and proposed subsection 147.1(3) of this says:

Unless it specifies otherwise, an order made under subsection (1) does not prohibit an officer or a non-commissioned member from possessing any thing necessary for the performance of their duties.

That leaves us with the circumstance where a soldier is prohibited from possessing or carrying or having a weapon at his house or in any of his belongings, his vehicle, etc., but when he shows up for duty he can carry and use a weapon in the performance of his duties. This would, to the ordinary member of the public, seem a little bit odd, that if someone is not trusted with a weapon he should be issued one. I'd like an explanation of that. I think there may well be a reasonable one. In fact, I know it's a difficulty in the United States, for example, where they have much more liberal gun laws and they seem to have trouble preventing soldiers from having weapons of all sorts in their homes or other places. It causes problems for them.

Can you explain that, Colonel Gibson, what the rationale behind this is, why it's required? Why is it reasonable for a person who is prohibited from having weapons—for good reasons obviously, and being permitted to have good reasons under proposed subsection 147.1(1)—to have a weapon while in the performance of their duty?

[The Chair, Conservative, James Bezan]

Just so that everybody knows, that currently is in the act. You're just adding the words “an offence”.

Colonel Gibson.

[Col Michael R. Gibson]

Mr. Chair, exactly, that provision is already in the act. But in brief response to Mr. Harris' question, note that it says “unless it specifies otherwise”. So the intent of the provision is not to automatically exclude the person from being able to perform his or her duties at work if it's considered within the discretion of the person imposing the sentence that they could properly do so. It doesn't presume that they can't, but of course it requires, as with other sorts of sentencing exercises, an exercise of discretion on the part of the person imposing the sentence as to whether or not in those particular circumstances it would be appropriate.

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

Sir, with respect, that doesn't quite answer the question, because in fact it clearly says that the prohibition order doesn't prevent a person from maintaining weapons in the performance of duty. The default position is that he's allowed to do so unless for some reason the court martial decides otherwise.

I wonder if you could provide a rationale as to why the default position is that in a circumstance where this occurs, it doesn't prevent an individual from doing that. By the way, there does appear to be some change here, particularly in section 3.

[Col Michael R. Gibson]

I would suggest that in respect of proposed subsection 147.1(3), with the header “Application of order”.... Ultimately, does it really make any difference? It requires an exercise of discretion on the part of the person imposing the prohibition order as to whether or not he or she considers that the person should be allowed to have a weapon. It could have been framed the other way around, but substantively I suggest it really doesn't make any difference. It still requires a judgment to be made, Mr. Chair.

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

Again, Chair, I don't think the substantive question is being answered, which is what kind of circumstances would give rise to a discretion being exercised either way in these circumstances.

[Col Michael R. Gibson]

Mr. Chair, to give an example, if one is an infantry man, your primary duty is to carry a rifle and to conduct exercises and operations as an infantry man. If you declare that the person cannot carry a weapon, you've significantly constrained his or her utility in the performance of their duties.

The purpose of this section is to allow an exercise of discretion on the basis of the circumstances of the case to be made, to determine whether or not it's appropriate that he or she should do so.

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

Chair, when you look at the wording of the section, the court martial is considering it desirable in the interests of the safety of an offender or of any other person. It's obviously a safety issue. If a court martial were to make such an order because of the safety of the offender or some other person, it seems, through common sense, to be potentially or likely inconsistent for an infantry officer, as you pointed out, who can't have a weapon on his own, to be issued one in the service of his duty.

I suspect there's some rationale here that may have to do with military chains of command and obedience to authority and all sorts of other things that might make this possible. But I'm giving you an opportunity to provide a rationale that would make sense to the ordinary Canadian.

As Mr. Norlock keeps saying, I'm asking the kind of question that my constituents might ask, who say, how is it—

[An hon. member]

[Inaudible—Editor]