Colonel Gibson, can you speak to that?
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.
9:15 p.m.
Col Michael R. Gibson
Yes, Mr. Chair.
Solely from a technical point of view—and I understand I'm not here to make an argument—there are a number of significant concerns with this proposed amendment which I would summarize by saying I think it would be premature.
To address the point that was just raised, it's very important to appreciate the difference between a record within the meaning of the Criminal Records Act and an entry on CPIC. As I've said before, the purpose of the Criminal Records Act is to regulate the granting of record suspensions. In other words, it expresses society's view about, in essence, how long one has to wait and what should be captured. That is the purpose of clause 75.
An entry on CPIC is a different matter. In essence, it's a practical matter that does have profound consequences for an individual. The point is under division 6.2 of the National Defence Act—in other words it's already law—under section 196.27, if fingerprints are taken in respect of a matter that is tried by summary trial, they must be destroyed without delay. The reason that matters is that you shouldn't get on to one of the databases on CPIC without those fingerprints. So I think there's a significant misapprehension there.
The point I think it's very important for the committee to appreciate, and why I would have considerable concern with the way that proposed paragraph 249.27(2)(b) is drafted, it says “...all references to those offences from the automated criminal records retrieval system”. All of them? There are four data banks on the CPIC system. One is the information data bank, which contains criminal records data. That would be the one that a court, for example, would refer to to confirm a conviction, but there's also an investigative data bank, an intelligence data bank, and an ancillary data bank that deals with a variety of stuff.
Is it the case that to accomplish the policy intent here that every reference to these things should be taken out of the investigative data bank? Maybe the answer is yes, but the problem is that hasn't been consulted. It's fine to make a recommendation if you're not responsible for running the system, but I would respectfully suggest that the appropriate way for Parliament to make law here is to be absolutely sure that the Commissioner of the RCMP and the Minister of Public Safety, who are responsible for running this system, have been consulted. There may very well be aspects of this that haven't been considered in the very short and sustained consideration this committee has given.
So I respectfully say I think it would be premature, verging on dangerous, to enact the amendment as it's drafted without the consultation and without the process that needs to be gone through to make sure that this is legislatively sound.
With respect to proposed paragraph 249.27(2)(a), I would respectfully suggest that it is probably redundant. But, again, this issue of consultation with the Department of Public Safety, Minister of Public Safety, officials of the RCMP, would need to take place so we understand all of this.
Please understand I'm not saying no way, no how, that it would always be a bad idea. I have significant concerns with how it's drafted and that it's premature, as an official would have to implement this as policy.
9:20 p.m.
Conservative
9:20 p.m.
Conservative
9:20 p.m.
Conservative
Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON
Further to that point of order, then, given what our witness has just explained, it would appear that the amendment goes beyond the scope of this committee, that it would go to the public safety committee to delve this far, I believe the amendment should be ruled out of order.
9:20 p.m.
NDP
Jack Harris NDP St. John's East, NL
Mr. Chair, on that point of order, the fact that there may be, in policy, arguments why it should not be adopted, which Colonel Gibson has argued—
9:20 p.m.
Conservative
9:20 p.m.
NDP
Jack Harris NDP St. John's East, NL
—is not sufficient to rule it out of order. I think it should be debated and should be considered.
We do have this very issue referenced by Justice LeSage. There's very similar existing wording that in effect deals with the actual computer itself. There's an amendment reference to the Criminal Records Act that we're just expanding on in subsection (2) and it's designed to give effect. An amendment that is designed to give effect to a provision that's there is within the scope of the act. It hasn't been ruled outside the scope of the act.
While what are raised in the point of order may be good arguments one way or the other, or against the passage of this, they're not sufficient to rule it out of order for consideration, that we're not allowed to consider it because it hasn't been considered by somebody else first. In fact, the amendment has been on the table since whenever we put these in place, two weeks ago, so there's a lot of time for consideration of it and to have arguments against it if you wish. It has been deemed to be in order, and to say that because Colonel Gibson has made some comments here today it suddenly becomes out of order, I think is wrong.
9:20 p.m.
Conservative
The Chair Conservative James Bezan
Although as chair I can rule anything out of order at any time during debate upon any motion, I am going to call this in order because we are dealing with the Criminal Records Act in this part of clause 75. Whether or not it's redundant, or whether or not it's properly drafted from the standpoint of context and consultation, that's for the committee to decide, not the chair.
With that, Mr. Alexander, do you want to go on?
9:20 p.m.
NDP
Jack Harris NDP St. John's East, NL
I was in the process of introducing it until we got clarifications and points of order.
Whatever can be said about it, it's pretty clear that we're trying to ensure that we give effect to what's clearly the intention here, which was confirmed by Colonel Gibson when he first appeared before this committee to talk about this. He certainly confirmed that the intention was to be retroactive. Whatever might happen now and in the future in terms of what gets on CPIC, Colonel Gibson referred earlier to some provisions regarding what does or doesn't go on as a criminal record.
My understanding is that these changes weren't made until 2002, so we have a whole area going back long before 2002 that could end up with people on there. We have a situation where hybrid offences, for example, are always there, whether or not fingerprints could be taken.
I think also there are two aspects to what Colonel Gibson said. There may well be three or four databases that are kept by the RCMP, and we agree with that, but the reference here is to the automated retrieval system, the one that's available to the police services across the country on an automated retrieval basis through their computers.
That's what section 6.1 of the Criminal Records Act deals with. It talks about purging CPIC and refers to the automated criminal conviction records retrieval system. That's the one that we were talking about, because they still keep records, obviously, of absolute discharges. They keep records of conditional discharges. They keep records of investigations, as you pointed out. But we're talking here about references to the conviction under the automated system, the one that's available to people across the country.
I want to quote from the report of the retired justice, the Honourable Patrick LeSage. He says:
It strikes me as unreasonable that a CF member charged, for example, with “absence without leave” (“AWOL”) for being late for work and who has a summary trial,—
—this is before we made these changes—
—could have this charge and perhaps even a subsequent conviction entered on the CPIC database. Such information is often shared with the Canadian Border Services Agency, which I have been informed has resulted in some members being denied entry into the United States because of the charge and/or conviction.
He talks about the related concern of having a criminal record:
A related concern is information regarding charges and convictions entered into CPIC.
He describes CPIC from their website as:
a computerized system that provides tactical information about crimes and criminals…it is the only national information-sharing system that links criminal justice and law enforcement partners across Canada and internationally.
CPIC is responsible for the storage, retrieval and communication of shared operational police information to all accredited criminal justice and other agencies involved with the detection, investigation and prevention of crime.
So the removal of these records from that automated access is important if we're going to give effect to what we're saying we're doing here: You don't have a criminal conviction, and if you are convicted of one of these offences in the future. you're not going to get one, and if you were convicted in the past, you're not going to have one.
We have done our due diligence in terms of finding out how we deal with this. We've consulted with the analyst. We received an opinion as to how it might be done. We prepared an amendment to conform to that and we've presented it for the consideration of this committee. If the committee has a better way of ensuring that people are not going to be stopped at the border and prevented from going to the United States because of something lingering on a police computer, then I would submit that it be produced, or if there is an amendment to the amendment, then it might be dealt with. If we need time to come up with one, then we can stand this down, and that will give us some time to amend it so that it effectively deals with what we're trying to effect here.
All law tries to remedy some particular mischief, and the mischief we see here is that the records that people have obtained in the past are available to any peace officer in this country, available to any border guard, available to any municipal police officer or RCMP officer who stops someone in a car. If we're going to get the full effect of this, then we have to do more than just leave it as it is.
That's the intention here; that's the attempt here. We submit it's necessary to pass this to give effect to this, otherwise we're not going to achieve what we're setting out to achieve.
March 4th, 2013 / 9:25 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Thanks, Chair.
We're talking here about criminal records. The amendment we've already passed will have the effect of ensuring that any of those service offences that do not meet the same threshold for generating a criminal record in the civil system will no longer generate a criminal record in the military system. But still, both before and after this amendment, they are not generating an entry in CPIC. This is the point that needs to be taken on board. Trials and summary convictions do not result, according to all the testimony and information we've heard, in the fingerprinting of the offender and transfer to the RCMP that would generate an entry in CPIC.
Trials at court martial for more serious offences have done so and will continue to do so. We have not discussed doing things differently on that front in our consideration of Bill C-15, but the effect of our amendment will be to bring the military justice system with regard to criminal records to the point of reflecting the modern Criminal Code of Canada.
If the person who has a criminal record from a summary trial wishes to have that record now expunged, removed, have that record suspended as we now call it rather than a pardon, they will approach, I'm given to understand, the Parole Board of Canada and go through whatever procedure is required because they will be considered to have a criminal record under the Criminal Records Act, which says that any violation of a federal law constitutes a criminal record.
In this case they have violated the National Defence Act, so they will be applying for a suspension of that record. At no time will they need to go to the RCMP or will they need to have their record expunged from CPIC. That simply is not a relevant dimension of this particular issue. For that reason we think it's irrelevant to the policy goal we're trying to achieve. We would encourage all members to recognize that is the case and to conclude this debate as quickly as possible.
We will certainly be opposing this amendment.
9:30 p.m.
NDP
Jack Harris NDP St. John's East, NL
I'm going to ask Colonel Gibson to help us out here because he gave some comments earlier which would suggest that none of these offences ever, ever made it to CPIC in the first place.
The section you're referring to is a new section of the National Defence Act, is it not?
9:30 p.m.
Col Michael R. Gibson
Mr. Chair, I'd like the members of the committee to understand very clearly what I'm saying. I would never be so bold as to say that it's impossible and that there are never any on there from a summary trial, because life isn't like that. Mistakes get made. The point is that under the current provision of the NDA, under section 196.27, they shouldn't be there.
In terms of proceeding responsibly, what I would suggest will happen is that the Judge Advocate General in his statutory capacity as superintendent of the military justice system, if, and hopefully when, the blessed day arrives when Parliament has passed this act and it has received royal assent, will certainly communicate with the Commissioner of the RCMP and consult with the Minister of Public Safety to ascertain exactly what their understanding is of what's on there. We will then be in a position to take the most effective step once we've ascertained that. That goes back to my comment about this being premature. I'm not saying that it's a bad idea. I have grave concerns that it's phrased correctly or that it actually addresses the problems that may be there.
To get back to the point that I think Mr. Harris very aptly made, section 12 of the Interpretation Act says legislation is remedial. The mischief that clause 75 is meant to remedy, as I pointed out several times before, is actually the question of employment and not having to fill out a questionnaire, not having to seek a record suspension. It's conceptually linked to what's on CPIC, but it's not exactly the same thing. It may well be that there will be additional legislation required on this point, and that was certainly in furtherance of the second prong of Justice LeSage's recommendation about review. We will look at that. Absolutely we want to ensure that this provision is given effective application, but I'm just saying at this point I can't represent to you, in terms of my understanding, that it would necessarily accomplish that.
9:30 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you.
You may be right. Justice LeSage didn't seem to think so. In fact, in his report he's saying quite clearly that such information, the CPIC information, is often shared with the Canada Border Services Agency—I think they actually have access to CPIC—which I have been informed has resulted in members being denied entry into the United States because of the charge and/or conviction for being AWOL.
9:35 p.m.
Col Michael R. Gibson
May I respond to that, Mr. Chair?
9:35 p.m.
Col Michael R. Gibson
I understand that, Mr. Chair. I actually read that several times earlier today, that very passage. I just want to share with you my understanding of that. It's quite correct that CPIC entries are shared with CBSA. That's part of the purpose they're there for, for law enforcement.
The section 9 reference to the AWOL thing came from a submission from the director of defence counsel services, in which he was expressing a general concern that a relatively minor offence could have that effect. The part that I am quite uncertain about here is this reference to having been informed it resulted in being denied entry, and whether that flowed from a summary trial. It may very well have flowed from a conviction from court martial, in which case absolutely it would be on CPIC. I can't speak to what Justice LeSage was told or the reliability of it; all I can suggest is our view of the most effective way forward to address this concern.
9:35 p.m.
NDP
Jack Harris NDP St. John's East, NL
Again in response to that, clause 75 as amended by amendment G-2 doesn't say anything about the mode of trial; it says if a person is convicted of either of these offences.... If someone ends up on CPIC as a result of, say, a court martial, then it's there despite the fact that this legislation says there's no criminal record, the person hasn't been convicted of a criminal offence and it's not an offence for purposes of the Criminal Records Act, and yet it's on CPIC for whatever reason. How we get it off CPIC is the question. That's the purpose of the amendment. You're not going to have to remove them; if you're right and the summary convictions aren't there, then an order saying to remove them is not going to do any harm, it just may not do any good. But if those particular offences were saying to the Commissioner of the RCMP that you remove reference to those offences from the retrieval system, the CPIC system, by saying that, then you're actually giving effect to it if it happens to be there because it is was done by court martial.
However it got there, if you're saying it doesn't get there if someone is AWOL, then that's fine.
9:35 p.m.
Col Michael R. Gibson
That's not what I'm saying, sir.