Evidence of meeting #69 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was record.
A recording is available from Parliament.
Conservative
The Chair Conservative James Bezan
Good afternoon, everyone. We're going to continue on with our study on Bill C-15. This is meeting number 69.
When we last met we finished with carrying clause 67. We are starting at clause 68.
(On clause 68)
Are there any questions or comments on clause 68? It starts on page 43 and continues right through to the top of page 46.
Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
I have a general question. Perhaps Colonel Gibson can elaborate a little bit.
This is a rather long and elaborate provision that mostly deals with the sentence of imprisonment for life.
Colonel, how often has such a sentence been contemplated or carried out in the military, using the system of military justice as opposed to the ordinary courts? Treason is obviously a pretty serious offence, and there were circumstances up until 1998 where the sentence of death was in the National Defence Act, even though it was removed from the Criminal Code.
Why is it necessary to have such an elaborate provision here for the sentence of life imprisonment and the possibilities of parole? Wouldn't a serious crime, as we recently saw with Sub-Lieutenant Delisle, be tried in the civil courts as opposed to being reserved for court martial?
Colonel Michael R. Gibson Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence
The answer to that question is no. The military justice system requires the full panoply of sentencing options to deal with the cases that come before it.
The answer to the question of how frequently would one see a sentence of life imprisonment would be “very rarely”.
Lastly, I would add that clause 68 doesn't really introduce anything new. It just shifts it from one portion of the act, where it already is, to another, for the purpose of greater clarity and better flow in the structure of the act.
Conservative
The Chair Conservative James Bezan
Are there any other questions or comments?
(Clause 68 agreed to)
(Clauses 69 and 70 agreed to)
(On clause 71)
Shall clause 71 carry?
Liberal
John McKay Liberal Scarborough—Guildwood, ON
This clause is directed to the director of defence counsel services. Is there a director of Crown counsel services? Is there a parallel section? Does it bring this in line?
Col Michael R. Gibson
The answer is yes. There already is an existing provision in the act respecting the director of military prosecutions.
This clause is actually in furtherance of the Lamer recommendation to introduce symmetry between the security of tenure provisions for the director of defence counsel services and the DMP.
That's the intended purpose of the clause.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Thank you.
(Clause 71 agreed to)
(Clauses 72 to 74 agreed to)
(On clause 75)
Conservative
The Chair Conservative James Bezan
We have a few amendments for clause 75.
The first one is G-2 from the government, reference number 5973364.
Mr. Alexander, could you move it on to the floor, please.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
I so move, Mr. Chair.
Would you like me to say a few things?
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
This one doesn't require too much introduction, because we heard about it in previous Parliaments. We heard about it from the minister on the floor of the House of Commons.
With this amendment we're making good on a commitment of the government to change the range of service offences that would result in a record under the Criminal Records Act for convictions that are at the lower end of the scale of punishments, such as a minor punishment, a relatively small fine, a reprimand, or a severe reprimand.
As well, where the person is convicted of an offence that would be a contravention under the Contraventions Act, this provision will allow that there no longer be a record generated within the meaning of the Criminal Records Act. That would free the person who is convicted of this offence of having to apply for a record suspension, what we used to refer to as a pardon.
This would increase the number of service offences for which, if the offender is sentenced to one or more of the specified punishments, the offence would be deemed not to constitute an offence for the purposes of the Criminal Records Act.
Let's be very clear that there are still service offences at the higher end of the scale, such as assault, or assault causing bodily harm. I think members are aware of the full panoply of those violent offences that would still result in a record for the purposes of the Criminal Records Act. That mirrors the situation in the civilian system much more closely, and therefore represents an important modernization update of the military justice system.
It would literally remove up to 95% of the service offences in recent years that have generated criminal records for the purposes of the Criminal Records Act from that category. That's quite a dramatic change. It's a welcome change in our view. It was something we were prepared to do in the last Parliament and didn't manage it, for reasons that are well known around this table. It's time to do it now.
Conservative
NDP
Jack Harris NDP St. John's East, NL
Mr. Chair, we recognized that this amendment was coming forward. Obviously, it involves some changes from the bill we have before us.
We have a number of subamendments to that, so I'm assuming that we—
NDP
Jack Harris NDP St. John's East, NL
We'll deal with them one at a time, but I am just letting you know by way of introduction how we see amendment G-2. I wanted to inform you that we have a number of subamendments.
We see amendment G-2 creating a circumstance where, regardless of the mode of trial, whether it's by summary trial or by court martial, anybody convicted of these particular service offences whose sentence is beneath the threshold here would not attract a criminal record. We have amendments that would add to that list, one at a time.
We have a second amendment that would seek to modify the provision in proposed new subparagraph 249.27(1)(a)(iii), which reads, “a fine not exceeding basic pay for one month, or” to eliminate the words after “fine”. There is a good explanation, and we'll get to that.
We have an amendment that is before you for consideration, amendment NDP-20 or NDP-21—I'm not sure as I don't have the numbers here.
We have another amendment having to do with ensuring there is a practical method to see that the criminal records, particularly of past offenders, are actually given effect to by removal from the Canadian Police Information Centre computer.
Those are some suggestions to add to these offences: changing the threshold with respect to a fine; adding our amendment, which effectively says that anything tried by summary trial should not lead to a criminal record; and dealing with the issue of retroactivity and how we ensure that the criminal records are actually removed.
That's just by way of introduction, Mr. Chair, and my colleague, Ms. Moore, has some specifics to speak to.
NDP
Christine Moore NDP Abitibi—Témiscamingue, QC
I wonder about the sections of the National Defence Act that have not been included in the amendment moved by the Conservative Party. If my understanding is correct, there is a logical progression in the sentences. We start with minimum sentences, fines, reprimands and severe reprimands, and then it goes further and includes forfeiture of seniority, reduction in rank, detention and so on.
I suppose that someone who has done something very serious will receive a sentence or sanction that goes beyond what is contained in the amendment in clause 75. There is a risk that a person may be sentenced, for example, to detention or reduction in rank. Clause 75 cannot apply to that, even if the section has been included in the amendment.
Section 83 of the National Defence Act reads as follows:
Every person who disobeys a lawful command of a superior officer is guilty of an offence and on conviction is liable to imprisonment for life or to less punishment.
Although this section may apply to a broad range of situations, it nevertheless concerns disobedience of a command. Yes, that must be punished, but it is possible that the person concerned did not pose a security threat and that the act may not have constituted a serious disobedience of a command.
In my opinion, section 83 should be included in the Conservatives' amendment because we can have a broad spectrum. If we start with the idea that, if the person has committed something serious, the penalty he or she receives will not be on the list of those that may be exempted in any case. This lets us divide this clause somewhat.
In addition, section 98 of the National Defence Act reads as follows:
98. Every person who (a) malingers or feigns or produces disease or infirmity, (b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or (c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty's Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service, is guilty of an offence...
So this is still the same thing. It may be quite serious. Someone may deliberately cut an arm or do something more moderate.
I believe this should also be included in the Conservatives' amendment. It refers to malingering and failure to comply with medical orders. We often see people in the armed forces who, for example, will march with a sprained ankle, contrary to medical advice, because they are training and do not want to have to start over. These are things that happen.
I understand that person must be punished, but I do not believe that individual deserves a criminal record because he thought that he had been taking a course for three months—the toughest course in his life—and that, if he did not walk on his ankle he would be removed from the course and would have to start it over from the beginning. That is why he decided to walk on his injured ankle. I believe some judgment must be exercised.
Section 100 of the National Defence Act reads as follows: "Every person who...is guilty of an offence and on conviction—
Conservative
The Chair Conservative James Bezan
You're moving section 83. Let's make sure we're talking only to the subamendment, and so the subamendment is on section 83?
NDP
Christine Moore NDP Abitibi—Témiscamingue, QC
I want section 83 to be added. I want to move another subamendment respecting section 98.
Conservative