National Defence Committee on March 4th, 2013

[The Chair, Conservative, James Bezan]

So you're speaking again to the subamendment—

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

Yes, to the subamendment.

[The Chair, Conservative, James Bezan]

—and it's very specific to portion (iii).

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

It's very specific.

[The Chair, Conservative, James Bezan]

You're taking out “not exceeding basic pay for one month”.

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

That's correct.

I'll let everybody have a copy of it.

[The Chair, Conservative, James Bezan]

It's being circulated. You can begin.

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

Okay. I think it's a pretty simple amendment. The current amendment includes four sentencing options that would preclude a criminal record: a severe reprimand, a reprimand, a fine not exceeding basic pay for one month, or a minor punishment.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

On a point of order, Mr. Chairman, we are not here to debate the relevant punishments for every offence. We're not here to discuss the subjective or objective gravity of the situation or the sentencing applied. We're here to discuss amending Bill C-15. This is totally out of order.

[The Chair, Conservative, James Bezan]

No, I'd rule this in order. It is making an amendment to the existing amendment. The subamendment is amending the amendment. It's strictly wordsmithing, in my opinion, and it is relevant, so I'm going to allow it to stand.

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

Thank you, Chair.

What we're trying to do here, is we've seen already a change from the existing clause 75 in the bill, which had as a part of the threshold a fine of $500. That's now been changed to “a fine not exceeding basic pay for one month”.

The reason for removing that is to say that any fine ought to be the threshold, not the fine of “basic pay for one month”. I can see why someone would choose a number like that. It's an attempt to be more fair, in the sense that $500 might be arbitrary. For somebody who's got all kinds of money, a fine of $500 would mean a lot less than to someone who depends on every dollar they get in order to support themselves.

I can see the intent here is to try to make it more proportionate. But if I look at the scale of punishment that's found in chapter 104 of the Queen's Regulations and Orders, which I think we passed out a little earlier in both official languages, it's clear that when we've got the scale of punishment going from “imprisonment for life”, which is (a), to “minor punishments”, which is (l), when we get to “fine”, which is (k), it doesn't give any amount of the fine at all. The fact that it doesn't do that—and this is from section 139 of the National Defence Act—is that any fine is greater than any minor punishment, according to the definition here, because it says that “each of those punishments is a punishment less than every punishment preceding it”. In other words, this goes in descending order from “imprisonment for life” down to “minor punishments”, and any fine is considered to be less than a severe reprimand or certainly less than any of the other ones listed above it.

I think it's very logical and very reasonable to say that if your basic pay happens to be $3,000 a month and you're fined $3,500, you end up with a criminal record, and if you're fined $2,500, you're not. Yet a reprimand would be considered a more severe punishment than a $3,500 fine in those very same circumstances, or a severe reprimand as well. In fact, you have to go to three levels higher than a fine to get a sentence that's more severe to put you into the category where you'd get a criminal record.

While I recognize that the intention was certainly honourable, to try to have something that's a little less arbitrary than a fine of $500, I think we ought to go further and say that the four categories that establish the threshold above which a punishment that includes a criminal record ought to be any fine at all. It's easier to administer. You don't have a circumstance where a person giving the sentence has to consider the actual amount of the fine and someone's basic pay to determine whether or not a criminal record applies. You don't want a criminal record to apply just because it happens to be...it could even be an unintended consequence of a sentence, if it turns out that the basic pay is less than the fine that's given.

I think it makes sense, even under the scheme of the act, as contemplated by amendment G-2, that not specifying any amount of the fine makes more sense, is more fair, is more reasonable, and is more in keeping with the scheme that's proposed here of having (i), (ii), (iii) and (iv) as the possibilities.

[The Chair, Conservative, James Bezan]

Madam Moore.

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

Following Mr. Harris's comment, when you look at the scale of punishments, you see very clearly that it does not simply increase the fine constantly. Consequently, establishing the amount is not all that relevant. It is logical that, at some point, beyond a certain amount, we will move on to higher levels in the scale of punishments. We thought it more or less relevant to add an amount after a fine because there are very large differences in salaries. I have the pay scales in front of me. Let us take the basic pay for one month, for example. For a private, one month's basic pay is $2,751. For a major who is a medical specialist, it can be as much as $19,638. So you see the range is quite broad, depending on specialization and rank.

As I previously said, there is a scale of punishments for when you want to punish someone. Logically, the amount cannot be increased to infinity, and harsher punishments will be imposed instead. Preference will be given to reduction in rank or detention, for example. From that point, the amendments to clause 75 would no longer apply because there would be other punishments in addition to the fine. I believe that would be entirely appropriate. It would avoid certain ambiguities. Consequently, what is considered basic monthly pay for a reservist? Is it the salary he earns with the unit or the one he earns in his full-time job?

Consider the example of a reservist who has a high-paying civilian job. He could be a private and earn $200,000 in his civilian life. In that case, the commanding officer would know he has the financial ability to pay a stiffer fine than, for example, a reservist who is a part-time student and is doing that to pay for his education. I believe that, logically, and to simplify everything, we absolutely do not need to include the words "fine not exceeding basic pay for one month". Simply specifying the word "fine" would be simply logical. It would permit a better interpretation and would avoid ambiguity with regard to reservists. We do not really know what regular basic pay is.

It must also be understood that, according to chapter 108 of the QR&Os, in summary trials, a commanding officer may not impose a fine of more than 60% of monthly basic pay. When someone replaces him and he delegates his authority, the figure falls to 25% of monthly pay. I do not really know what made the government party refer to basic pay for one month when we know that these limits exist. I imagine that is based on a court martial. I therefore believe that this amendment is entirely relevant and that it would simplify the interpretation of clause 75 as it would be amended. I believe this is an entirely relevant amendment and I encourage the government party to adopt it.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

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

Mr. Chair, we will not be supporting this amendment for the simple reason that fines awarded by courts martial or a summary trial can go to very high amounts, and they can also be combined with other forms of punishment. To have no limit placed on the fine that would have the effect of expunging criminal records of the traces of service events would be highly inappropriate, and it would serve to make an otherwise good bill that would modernize the military justice system incoherent and unbalanced.

In reply to Mr. Harris's earlier comments about why we're here—

[The Chair, Conservative, James Bezan]

Let's not go there. We're speaking to the subamendment; let's stick to the subamendment.

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

Mr. Chair, his remarks were in order; ours have to be in order as well.

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

That doesn't justify...[Inaudible—Editor]

[The Chair, Conservative, James Bezan]

Neither of you guys are justified. Let's not get into it. We're just going to be here longer if we keep putting stuff on the record, guys.

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

Mr. Chair, it's a public meeting. If we've been maligned, we have a right to reply, and we will do so simply by saying that Mr. Harris claims we're here because he was not given notice that we would be here.

We were on the last clause. We were well within range of passing that last clause—clause 75—to which he had agreed in an earlier period of debate. You welcomed the bringing forward of that amendment. Instead, he has chosen to discuss at great length, and indeed in a manner that we consider wasteful of this committee's time.... We'd like that to be on the record. The amendments he has proposed, for which we got no notice, would have made it impossible for people—malingerers, those disobeying orders, those allowing the enemy to escape, arsonists—to have their criminal records—

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

Mr. Chair, that's not a point of order.

[The Chair, Conservative, James Bezan]

Order.

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

—carried over into this system. That is absurd.

We had no notice of this. The Canadian Forces, and above all those responsible for military justice in the Canadian Forces, had no notice in recent years that there would be 70 speakers from the NDP on this matter, which was rehearsed in two earlier parliaments, or that we would be detaining the brain trust of our Judge Advocate General's office well into the night to discuss amendments that actually relate to an amendment proposed by the government, but which had the support of the NDP, and was indeed welcomed by the NDP, in the last Parliament. In fact, they're arguing and filibustering against their own position tonight, a practice that we find petulant, that we find cynical, and that we find extremely wasteful of this committee's time.

[The Chair, Conservative, James Bezan]

I'll just say that I don't find those types of comments are helpful to our overall debate, especially as we're working on the subamendments. As I told you guys and gals in the past, my power of censure is somewhat limited.

I think Colonel Gibson wishes to comment on the subamendment.

[Col Michael R. Gibson]

Mr. Chair, I have one point of fact that I think would be of assistance to the committee in light of the remarks that were just made. In fact, of course, for something as basic as how one computes the fine for a reservist, the Queen's regulations and orders prescribe that, and it's prescribed in subsection 203.065(6), which provides the formula for exactly how you calculate the fine for basic monthly pay for a reservist.

The second observation I would make is that there is some merit to what Mr. Harris has said, if one looks solely at the scale of punishments, but of course there's a bit more to it than that. As I mentioned earlier, the Supreme Court of Canada, in the Wigglesworth case, talked about the concept of a true penal consequence and said that a fine above a given amount—in other words, a really big fine—could certainly constitute a true penal consequence. The relevance of that in policy terms, in terms of our formulation of this, is indeed that a fine may be, and often very much is, combined with other punishments in the scale of punishment; they're not mutually exclusive. The point, one might say, of the Criminal Records Act thresholds for how long you have to wait and how big the punishment has to be is to express Parliament's judgment about societal disapprobation, and the denunciatory effect or degree of disapprobation is reflected in the quantum of a fine.

I think it is highly relevant to consider that the imposition of a very large fine by a court expresses a high degree of disapprobation. Conceptually, I think that's relevant to the consideration of where one would create an exemption under the Criminal Records Act or not. Where you should draw that line is very much a matter of policy, and very much, ultimately, a matter of judgment for Parliament to make, but I would just point out that conceptually those concepts are linked.

Thank you.