National Defence Committee on March 4th, 2013

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

Yes.

[The Chair, Conservative, James Bezan]

Could you please have it circulated?

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

Of course.

[The Chair, Conservative, James Bezan]

It's subamendment number 4.

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

I didn't underline section 113.

[The Chair, Conservative, James Bezan]

It's section 113 that we're dealing with in this subamendment.

Madam Moore, you have the floor.

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

The problem here is the same once again. We are talking about cases of negligence and violation of regulations, orders and instructions.

For example, I remember an event that occurred at the time of my recruit course. No, it was not my own recruit course. Sorry. It was the recruit course of someone with whom I subsequently entered into a professional relationship in the armed forces. Whatever the case may be, here is what happened, and I believe that the person did not really do it wilfully. That person put kerosene in a camp stove instead of naphtha, and that caused a fire since it was not the proper fuel. It was not a wilful act or anything like that. I would consider it excessive if someone who caused such a fire, out of ignorance or whatever, were liable to acquire a criminal record as a result.

Once again, no distinction is being drawn between someone who commits an act as a result of a failure to comply with regulations and someone who commits that act in a wilful manner. I believe that serious military discipline problems arise when someone wilfully causes a fire.

I believe this section of the act should be included in the Conservative amendment. In that way, we would be able to draw that distinction and to avoid unjustly punishing someone who made quite a minor mistake. That is why I believe this section should be added to the amendment presented by the Conservatives.

[The Chair, Conservative, James Bezan]

Are there any comments?

Mr. Harris.

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

Thank you, Mr. Chair.

Given the comments, particularly those of Mr. Norlock and others opposite, about the length of this meeting, I'm assuming unless told otherwise that we came here, along with Colonel Gibson and Colonel Dufour, and anybody else who's here, for a meeting from 3:30 to 5:30 today. We came here prepared for that. We had other plans. That's why some people actually had to leave; they couldn't change their other plans. We came for a civilized meeting of the committee from 3:30 to 5:30, as per the notice that was provided.

The people who are here now are here because nobody made any arrangements to go beyond 5:30. There was no consultation, no suggestion, no question, no seeking of cooperation, no attempt to do things in an ordinary, civilized, and reasonable manner. It was just, “No, it's 5:30, but we're going to carry on.”

I want it on the record that this is what happened here, and that's why we're here, because there's been no attempt to do anything in a reasonable, civilized way. I also want it on the record that when this happened, the Liberal member of the committee voted with the government to continue the meeting, yet the Liberal member was the first one to leave.

[The Chair, Conservative, James Bezan]

As you know, it is in the rules of the House and the Standing Orders not to recognize anyone for being absent in the House, so I'd ask that you—

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

I apologize for that, sir, but there's no rule that's stopping me from mentioning it outside this committee.

[The Chair, Conservative, James Bezan]

Yes, go ahead outside, but in the House and in this committee, we live and die by the rules.

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

We have here another subamendment to G-2, which adds the sentence in section 113. In fact, this one is even more so a case where this ought to be added because, as my colleague has pointed out, causing fires normally is associated with arson, which sounds pretty bad. But when you look at the provision itself, again, we've got this maximum of life imprisonment, but only in the case of wilfully causing fires. In any other case than wilfully, the maximum penalty is two years or to less punishment.

We've got a situation where, and I'll read out the section:

Every person who wilfully or negligently or by neglect of—

I'm not sure what the difference is.

—or contrary to regulations,—

So you neglect to carry out a duty contrary to regulations.

—orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

Now, this could be a serious offence or it could be something done in violation of a regulation. If some regulation or some rule or some instruction requires a certain thing to be done, or suggests you ought not to do something, then you can find yourself with a criminal record if it causes or is likely to cause a fire.

So, if somebody tosses a cigarette butt on the ground and it's contrary to a regulation to do that—if the ground happens to be near dry grass or something like that—but doesn't do anything, doesn't cause a fire, but may be likely to cause a fire to occur in any materiel, defence establishment or work for defence, so on a base somewhere, then that's enough to make you guilty of an offence.

Or there may be other kinds of technical rules or instructions, or regulations that are avoided that will make you liable for an offence. But if it attracts something less, again, than the list and the scope of punishments, starting with minor punishments, fines, reprimands, severe reprimands, any of those four particular punishments for wilfully or negligently causing or likely to cause a fire in any defence establishment...well, it doesn't have to cause a fire to anything in particular, it just has to cause a fire in a defence establishment. A defence establishment is a pretty broad place. That could be in any part of any base in the country.

Again, I don't know what examples there are of this in actual practice. I don't know whether or not the experience of the military is such that this is something that ought to attract a criminal record in every case. Somehow I doubt it, if we're looking at a list here of things that have far more serious consequences than something that may cause a danger or even be likely to cause a danger of causing a fire by failing to follow instructions.

I'm looking here at the list of things that are contained in amendment G-2 and seeing all sorts of things that are apparently serious, that are included in the list of things that would not attract a criminal record. Yet here there is no exception for something that might be a very minor breach of a regulation but that could give rise to an accidental fire. I think once again we're seeing a situation where we're trying to make amendment G-2 more complete, more fair, and have it treat similar types of seriousness similarly.

Now, we've heard from Colonel Gibson before that the characterization of these groups have to do with the scheme that I believe was referred to as the objective gravity and the subjective gravity. I disagree with that characterization because it's not objective gravity versus subjective gravity. I think the maximum sentence gives rise to Parliament saying that yes, there are circumstances where, if this offence is committed, it could be so grave as to attract a large sentence of life imprisonment.

But in the case of the threshold for sentencing, that's not about the subjective gravity of the offence. Surely sentencing has to be objective as well. It's about the objective gravity of the particular offence that the individual is being sentenced for, the circumstances of the offence and the offender. So in fact it's an objective assessment of the punishment that's due to an individual.

He says that the two conditions that have to be met are the objective gravity of the offence and the subjective gravity of the offence. But the objective gravity of an offence by virtue of saying what the maximum sentence is only indicates what the maximum seriousness of the punishment can be in the worst possible event under that particular definition of the offence.

What we're dealing with in clause 75 is a list of offences that are objectively determined by the sentencing court, whether it be a court martial or whether it be a commanding officer, the one who determines in a judicial manner how serious it is. So we know we're dealing with how serious an offence is in relation to the actual offence that was committed, the actual circumstances of the offence, what the offender did, what the consequences were, what the state of mind of the individual was. It's related to the individual and that's not subjective; that's just different. That's different from the general notion of the offence itself.

Even using the understanding we have from Colonel Gibson as to how serious Parliament has taken the offence, it is very clear in relation to section 113 that when Parliament looked at that offence and designated a penalty for that offence in terms of the potential gravity of the offence, it actually has two separate understandings of how serious the offence is.

If someone wilfully did an act, and is convicted of this offence, the one in 113, and if that person acted wilfully, he is liable to imprisonment for life or less punishment, and in any other case, in other words, either negligently, or by neglect of, or contrary to regulations, orders or instructions.

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

Chair, on a point of order, I'd like to ask, through you, whether anyone in this room thinks that Mr. Harris's comments are relevant to the amendment at hand.

[The Chair, Conservative, James Bezan]

I'll ask Mr. Harris to make sure that his comments are to the subamendment, which is the addition of section 113 as it relates to an offence to property under the National Defence Act.

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

Thank you, Chair.

Perhaps I need to explain to Mr. Alexander how it is relevant because we're talking about whether or not we should add section 113 to the amendment proposed by the government. Consideration of that has to do with whether or not the circumstances of a person convicted of section 113 are such that they ought to be included. We've got the scheme suggested—I don't mean scheme in a negative way, but a scheme of understanding—suggested by Colonel Gibson that you look at the objective gravity of the offence as determined by Parliament, and it's the maximum sentence, and then you look at what he calls the subjective gravity of the offence, based on what the sentence is.

Well, I don't think that is what we're talking about.

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

Point of order, Mr. Chair.

Mr. Chairman, our colleague opposite continues to repeat what he has already said. These pontifications and hypotheticals have gone beyond absurd. He has even stated that Colonel Gibson has explained objective and subjective gravity offences and how they apply to sentencing.

You have referred to the rules of order, and yet you continue to allow the opposition to abuse these witnesses, and I respectfully request that you exercise and apply the rules of relevance.

[The Chair, Conservative, James Bezan]

Relevance and repetition.... As you know, as I stated earlier, Mr. Harris, relevance has to be at the core of our debate, so I ask that you make sure that you are relevant and that you do not repeat yourself.

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

Thank you.

Well, first of all, I resent any suggestion that my actions or words are abusing the witnesses. That's totally—

[A voice]

They are.

[The Chair, Conservative, James Bezan]

Order.

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

—unfounded.

[The Chair, Conservative, James Bezan]

Let's get back to the amendment.

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

I won't repeat that again, but they're totally unfounded.

What we're dealing with here is trying to make the argument that when you look at section 113, when you look at the ways of committing the offence, there are more than two ways spelled out there, but it's only in the case of wilfully setting a fire—or wilfully causing a fire, let's call it—by your actions that it attracts the potential of a life imprisonment sentence. In all other cases, punishment is two years or less.

That's the category of offences that are included—that and less than that—in all of the numbers that are listed. I'm suggesting that makes it clear that whatever arguments can and have been made about the other ones ought not to apply here, because section 113 clearly recognizes that there are two categories of seriousness, one that involves wilfully committing an offence, and the other that involves any other way of committing the offence.

So it can easily be seen, I submit, that the kind of penalty we see in amendment G-2 involving a severe reprimand, reprimand and fine, or minor punishments could apply. What are we talking about here? We're talking about a situation in which there's a possible danger to property. This seems to be more interested in property, but there is the potential damage to military materiel or a defence establishment or work. That's important. Obviously, you don't want to have your buildings burnt down or your equipment damaged by fire. If someone does it because they fail to follow a regulation, if they didn't properly handle a spark suppressor and that caused a fire—some regulations say you have to do that—or is likely to cause a fire, they're going to get charged. So-and-so gets charged because they have neglected to follow a regulation. The maximum sentence is two years. The person gets a reprimand or gets a fine, or whatever—

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

On a point of order, Chair, we heard exactly these remarks five minutes ago—