That is fine; I will come back to it.
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.
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.
3:45 p.m.
Conservative
3:45 p.m.
NDP
Jack Harris NDP St. John's East, NL
On a point of order, Mr. Chair, to make it formalized, I would then move—
3:45 p.m.
Conservative
The Chair Conservative James Bezan
I think it was moved by Madam Moore already, and we'll circulate it.
3:45 p.m.
NDP
Jack Harris NDP St. John's East, NL
She's already moved it? If she's moved it, then we can give it a number. The suggestion has been to call it amendment G-2.1. Is that okay?
3:45 p.m.
Conservative
The Chair Conservative James Bezan
Okay, whatever. That's just for internal use. The legislative clerk will stay on top of it. We'll take care of the numbering at our end. We'll talk about the rest of it. We'll deal with the subamendment.
So we're speaking to the subamendment, adding section 83.
I have Mr. McKay, then Monsieur Larose, and then Mr. Harris.
3:45 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
On a point of order, could someone remind us on which page section 83 is detailed?
3:45 p.m.
NDP
3:45 p.m.
Conservative
3:45 p.m.
Conservative
The Chair Conservative James Bezan
What's the reading of section 83? If you could pass it here I'll read it, please.
Can we get a copy of the act into the interpretation booth? Does anyone have an extra one kicking around? Thank you.
So we're on page 43, section 83, and our interpreter has a copy. There you go.
Section 83 says:
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.
That's how section 83 reads.
Mr. McKay you have the floor.
3:45 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I'm just absorbing that. If you disobey a lawful command of a superior officer, you're potentially subject to life in prison?
3:45 p.m.
Conservative
3:45 p.m.
Col Michael R. Gibson
Yes, Mr. Chair. Just for the committee to understand the ordering principle in clause 75, as I briefly explained before, it's on the basis of both the objective gravity of the enumerated offences and the subjective gravity.
Objective gravity refers to the maximum punishment that Parliament prescribes when it creates the offence. In relation to section 83 Parliament has prescribed, in respect of that offence, that the maximum punishment is life imprisonment. In other words, it belongs to the class of offences that are the most serious offences under law that Parliament can create. That is the reason it was not included in the original list.
3:45 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Well, section 83 just doesn't strike me as summary conviction material. That's my quick reaction without trying to contextualize it. Maybe Mr. Harris could tell me.
3:45 p.m.
Conservative
The Chair Conservative James Bezan
I've got Monsieur Larose, then Mr. Harris, and then Mr. Alexander.
3:45 p.m.
NDP
Jean-François Larose NDP Repentigny, QC
I want to make a few comments about the 95%.
I worked in a corrections for eight and a half years. In that context, I realized that mistakes unfortunately occurred, although not really frequently. When people have a criminal record, there are exhaustive and complex offsetting mechanisms.
When I was a Canadian Forces reservist, we were often told that we could not make mistakes because there were consequences if we did so. Now there are two systems: courts martial and summary trials. When we were part of the civilian correctional service—a few of us were military members—and talked about the military system, we emphasized how efficient the JAG was. Compared to the summary trial system, it was quick, exhaustive and detailed. However, some things should nevertheless be improved.
I find it hard to understand why we have reached only 95%. The mechanisms in effect in the case of a summary trial are far from perfect. Does that mean the JAG is effective and a summary trial is not? Why not delete everything and make sure the right people and the right mechanisms are in place? The judgment could have serious consequences and, in particular, generate a criminal record. Why are any still outstanding?
Does the government feel—although I doubt that is the case—that summary trials will henceforth be acceptable at all levels and that it will no longer be necessary to use the system of lawyers and judges to adjudicate cases properly and to go into detail? I assume errors can occur. In the case of summary trials, the number of cases in which people wind up with a criminal record is very small. There is therefore no reason not to direct those cases systematically to courts martial.
3:50 p.m.
NDP
Jack Harris NDP St. John's East, NL
I think notwithstanding the comments of my colleague, Mr. McKay, and the colonel, the offence itself can attract a maximum sentence of life imprisonment, but if I could refer you to the commentary in the text Canadian Military Law Annotated, by Justice Létourneau and Colonel Michel Drapeau, they said:
The offence of disobedience of a lawful command covers a wide variety of behaviours, acts, or omissions ranging from very serious to petty offences.
They refer to the 1983 case of Lucas v. the Queen. The court martial appeal court, CMAC, heard the case:
The accused was ordered to report the following day dressed in his S-2s, with name tag and medals. He was found guilty of disobeying a lawful command and sentenced to detention because his collar insignia were improperly installed. The CMAC noted at p. 250, “nothing in the appellant's service record explains the matter escalating to the disciplinary level that it did”.
I take it from this that they changed the sentence.
The point is if that's an offence that can be charged for something as petty as that, then there ought to be some threshold, and I guess the threshold is what the government has chosen to put in this legislation, as to whether it's something deserving of having a criminal record for not having your insignia on properly, for example, in this particular case.
There's another case where someone was accused of disobedience for which the accused received a sentence of severe reprimand and a fine of $3,000. This is a 2004 case that consisted of his refusal to remove headdress at a division parade where at one point a short prayer was pronounced. In this case the conviction was overturned on appeal. This guy was fined $3,000.
The commentary goes on to say of course that is a very important aspect of military justice, and in fact lawful commands can justify the giving of many orders that might otherwise result in charter breaches, such as an order to advance under fire. So someone who is ordered to advance under fire and refuses to go is in breach of a lawful order. That's a rather severe circumstance. That comes under what we've been talking about here, the distinction between military justice and the ordinary law, and that's to be recognized. But when we have an offence that in its statement is so broad as to attract both the pettiness and the most severe type of particular order such as that, then there's clearly a range not only of disobedience, or a range of severity, but also a range of punishment as reflected in the range and the scope of sentencing going from life imprisonment to some of these minor offences, such as confinement to barracks.
I think what we're trying to do here with respect to the scheme proposed by the government in G-2, there are some offences regardless of how they're tried that ought not to attract penalties of a criminal record, and sorting them out, as the amendment does, by the severity of the punishment. As the scheme shows—and I'll say more when we get to another amendment—there is a hierarchy of penalties in the military that is spelled out in the National Defence Act. They determine which ones are lesser penalties or more serious penalties. It's our submission that if you're going to have a scheme which says there are two aspects of it, one is the offence itself, and the other is the nature of the penalty that is given for a breach of that, then someone who is convicted of a breach of that section, of disobeying a lawful order, if it's obviously a serious breach, there's going to be a serious consequence. The consequence would result in a criminal record if it in fact is of the serious type. If it's a petty offence, even though it involves disobeying an order, then it ought to be included in the scope of the amendment that's proposed.