Mr. Alexander.
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.
3:55 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Mr. Chair, we don't agree with that analysis. The nature of military operations and the imperative that military justice has to strengthen discipline and allow for the operational capacity to do difficult things under difficult circumstances doesn't allow us to detail different categories of sentences for different categories of commands not followed. That is why this provision is at the very core of the military justice system, not just our military justice system but those of our allies as well.
I think we're much more inclined to agree with Mr. McKay—and let me repeat that, Mr. Chair, we agree with the Liberal Party of Canada representative on this committee—that this provision can represent a very serious spectrum of criminal acts that need to be punished accordingly and where there needs to be flexibility in the sentencing. Of course in wartime, in combat, the gravity of the offence can be much greater than the same offence in peacetime because it can have such an effect on people's lives.
This concept of a lawful command is really central to our system of justice. That is why we cannot limit sentences that go as far as life imprisonment, but that are imposed solely in exceptional circumstances in which the situation is very serious.
Mr. Larose discussed the need to retain subsection 2(2) and to ensure that none of these offences can attract a criminal record. We are not prepared to accept that either because there are various serious crimes such as assault, for example. Threats of assault and attempted murder may be considered this way by the military justice system. This must reflect what goes on in the civilian system, where they will attract a criminal record because this class of crime involves a serious degree of violence.
3:55 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I just have what are points of clarification more than anything else.
There's quite a range of offences between wearing your hat backwards and refusing to advance under fire. If a soldier is charged with disobeying a lawful order, whose election is it to proceed either summarily or by court martial? Whose choice is that?
3:55 p.m.
Col Michael R. Gibson
Mr. Chair, the answer to that question is found in a combination of reading of articles 108.07 and 108.17 of the Queen's regulations and orders, and the short answer is this. Except for five minor offences for which the accused is not entitled to an election, for every other charge in respect of an offence over which the summary trial has jurisdiction, and that list is set out in 108.07, the accused must be offered an election. Even if, in respect of the five most minor offences, the presiding officer considers that he or she would be likely to impose a punishment beyond a certain threshold in the event that they were to find the person guilty on the facts as alleged, then they must offer the person an election as well. That threshold really has regard to the concept the Supreme Court of Canada elaborated in the Wigglesworth case of what's called the “true penal consequence”. In other words, to make a long story short, except in respect of the most minor offences that are punishable by the most minor punishments, the accused is always offered an election.
4 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
So if a soldier is wearing his hat backwards and refuses to turn it around, presumably he's going to elect to go under a summary conviction process?
4 p.m.
Col Michael R. Gibson
Mr. Chair, that election is up to the accused person taking advice from his assisting officer and DDCS counsel. That's their choice.
4 p.m.
Liberal
4 p.m.
Col Michael R. Gibson
When one has a choice, one is entitled to make a choice on the criteria one considers appropriate, Mr. Chair.
4 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I want to clarify. Now we know it's a soldier's election, and if the soldier chooses foolishly, that's another issue altogether. If that's true, then it still strikes me the inclusion of section 83 in the government's amendment is unnecessary.
4 p.m.
Col Michael R. Gibson
That's ultimately a judgment for Parliament, but I've explained the ordering principle that was on the basis of objective gravity.
4 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Yes. I'm just trying to arrive at some set of circumstances under which a soldier may end up in a bizarre situation of having a court martial for wearing his or her hat backwards.
4 p.m.
Col Michael R. Gibson
Mr. Chair, very briefly, in the case that was actually cited, the accused wanted a court martial because he considered he had a charter argument. In fact, he was ultimately successful on that. That's one of the primary purposes of the election, to provide a safety valve from the summary trial system in the event the accused considers they have a charter argument or there is some aspect of their case for which they want to have the full panoply of procedural protections and access to an appeal.
It's there as a safety valve.
4 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
The final question is this. Is there some set of precedents as to what constitutes a minor punishment?
It seems to me you're quite precise with respect to severe reprimand, or reprimand, a fine. All of those are relatively calculable, but we're arguing here as to whether somebody should or shouldn't have a criminal record. A minor punishment to me may be quite a bit different from a minor punishment to someone else.
4 p.m.
Col Michael R. Gibson
Mr. Chair, I think the answer basically is that it is tied, in large part, to the threshold for our offering an election in article 108.17, which provides that when the presiding officer is considering this question of whether to offer an election, if I may quote:
the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction of rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused were found guilty of the offence.
Those criteria are essentially tied to the assessment of what constitutes a true penal consequence.
4 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
So they tie in what you're going to get paid and the potential exposure you have to a reduction in rank.
4 p.m.
Col Michael R. Gibson
Yes. In terms of principle, it goes back to what the Supreme Court said in the Wigglesworth decision, in terms of, to put it extremely colloquially, what constitutes really getting whacked and what doesn't.
4 p.m.
NDP
Christine Moore NDP Abitibi—Témiscamingue, QC
I would like to go back to the Conservatives' amendment and to what I requested with regard to section 83.
Generally speaking, it is being stated that no criminal record will be generated for a minor punishment such as a fine, reprimand or severe reprimand. It must be understood, however, that it will be impossible to enjoy the exemption from a criminal record even though provisions are already included in the amendment, as in the case of a prison term or reduction in rank, for example.
I thought it would be a good idea to include section 83 in the amendments for that reason. I believe it is impossible for a person who has seriously disobeyed a lawful command not to be reduced in rank or detained.
I would like to know your opinion on that point.
4:05 p.m.
Col Michael R. Gibson
Mr. Chair, clearly, as has been indicated already, it's possible to commit an objectively grave offence in a very broad set of circumstances. You may have a garden-variety disobedience in which the corporal tells his sergeant to take a hike. Clearly one would not expect to be reduced in rank or given a sentence of detention for that. That would be something that would attract a fine or a minor punishment.
4:05 p.m.
Conservative
4:05 p.m.
NDP
Jack Harris NDP St. John's East, NL
I think it might be helpful, Chair, if members had before them a copy of chapter 104 of the Queen's Regulations and Orders. I have copies in both English and French for everybody. It quotes subsection 139(1) of the National Defence Act, which reads as follows:
The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
Then it lists them from (a) to (l), starting off with “imprisonment for life“ and ending with “minor punishments”.
Interestingly, (i), (j), (k), and (l) are the four that are set out in amendment G-2, those being “severe reprimand”, “reprimand”, “fine”, and “minor punishments”, although the fine is qualified in amendment G-2 by saying “a fine not exceeding basic pay for one month”.
What is important here is that the definition in subsection 139(2) of the National Defence Act says:
Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression “less punishment” means any one or more of the punishments lower in the scale of punishments than the specified punishment.
