National Defence Committee on March 4th, 2013

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

I would like to return to section 100 and discuss it in a general way. The question arises as to what the basis was for determining which sections should be included in the amendment moved by the government party and which should not.

I believe that, at the outset, that party relied solely on sentences. We have been told that, if a situation might involve a serious sentence, it would not be included. I believe there is something logical in that. Ultimately, the amendment was moved to determine who should not attract a criminal record on the basis of the offences that would not attract a criminal record in the civilian system. In the civilian world, a person who helped a terrorist escape from prison would be convicted. However, if an individual improperly locked down the system as a result of fatigue or negligence—we agree that some prisoners can be real Houdinis, real experts, and that all procedures must be properly followed—I believe there would be a problem.

Coming back to what we said earlier, it is illogical for an individual who escapes not to attract a criminal record. A military member could escape without being penalized but would be punished if he improperly locked the door out of negligence. That is absolutely illogical. We have to agree on that in the context of this clause.

You said that the percentage of people who would not attract a criminal record for the same offences committed in the civilian world was currently about 95%, but I believe it is reasonable to consider increasing that figure. So the idea is to avoid all that. I think we can contemplate a better objective. With regard to the sections I have identified, including section 100, no criminal charges would be laid in civilian court in certain cases. As regards the sentence imposed by the authority responsible for trying the case, by either summary trial or court martial, a sentence is provided for under clause 75. This discrimination is therefore already in effect.

For example, if an individual who deliberately released a terrorist who had killed a number of people was sentenced only to a fine, I believe that would really constitute a problem. That would definitely call into question the way in which sentences are imposed, the logic of the process and the way in which people design the justice system. It would not be normal for that individual not to be reduced in rank or imprisoned. That would indicate that something is not working in the justice system.

Since these sentences are part of a graduated scale, the relative seriousness of the offences has already been determined. In the context of the amendment, the four most lenient sentences are the only ones that have been selected. In my opinion, the logic behind all that is to distinguish what is more serious from what is less so.

I have taken the time to reread all the sections of the National Defence Act. I have not presented those offences that attract a criminal record in the civilian system. Theft, for example, attracts a criminal record in both the civilian and military systems. Sincerely, the offences I have presented here concern cases in which individuals convicted under these sections would not be given a criminal record in the civilian system. So there is a logic in this. I did not do it for fun. I really targeted those sections that did not apply.

As I have already said, I find it hard to understand why an individual who has escaped from prison should receive a more lenient sentence—or at least one that will have a less harsh impact on his or her life—than another individual who failed to check to see whether the lock was properly closed, not out of gross negligence but because he or she failed to comply with certain procedures, for example.

That makes no sense to me. I think we have to find a way to correct this. We do not have to do much. We need only add section 100 to the amendment, and that will be enough.

In any case, if someone did that deliberately, he would receive a sentence harsh enough—I hope so, in any case; otherwise there would be a problem—that the provisions contained in section 75 could not apply because a sentence harsher than a reprimand has been imposed.

Thank you, Mr. Chair.

[The Chair, Conservative, James Bezan]

Thank you.

Mr. Harris.

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

Chair, I was intrigued by my colleague Mr. Alexander's somewhat innocent question to Colonel Gibson as to whether this would apply to allowing a terrorist to escape. Now, I guess that's sort of known....

I was intrigued by it. I guess I'm not surprised by it, because it's the kind of thing that—

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

Or the enemy.

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

Or the enemy, or terrorist, or whoever. Does it apply to anyone? Yes, of course it applies to anyone, because that's what it says, “anyone”.

This is sort of the bogeyman argument, I suppose, right? We have to make sure to take all possibilities that could possibly be interpreted as saying, “Oh, the opposition wants to let people who allow terrorists and enemies to escape to go unpunished, and to be treated—”

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

Sometimes you do, though.

[The Chair, Conservative, James Bezan]

Order.

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

“—with kid gloves.” That's the kind of argument we hear in the House all the time. It seems to be part of the talking points that we hear from the government.

What I would wonder, I suppose, and I don't need to ask Colonel Gibson this, is that if someone were to wilfully let go the people in their custody who were enemies of Canada, who were prisoners of war, who were captured, who were soldiers, if they were just to say, “We're going to let them go”, would there be any reasonable expectation that such a person would be called before a superior officer and simply reprimanded? You know, “Don't do that. Don't do that. Sir, you shouldn't be doing that. You're hereby reprimanded. Don't let the enemy escape. You're not supposed to do that. We're at war.” Somehow I don't think so.

Mr. Opitz over there, who's spent considerable time in the Canadian Forces in command positions, would have to agree with that.

You know, the chances of them forfeiting seniority, having a reduction in rank, being put in detention, being dismissed from the service, being imprisoned, being dismissed with disgrace, any of these sentences that would be applied here would apply to any of these punishments.

[The Chair, Conservative, James Bezan]

Order over there.

Mr. Harris has the floor.

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

Any of these punishments that are within the scope of the scale of punishments set out in subsection 139(1) of the National Defence Act that are above the level of severe reprimand would no doubt obtain, if someone were guilty of allowing the enemy to escape either wilfully or through negligence, during wartime, or if one was charged with the defence or guarding of a known terrorist.

I do want to enlighten my colleagues as to what exactly is included if someone breaches section 100 of the National Defence Act. It's not simply someone who lets the enemy go after being charged with the requirement of retaining a prisoner of war, or retaining some known terrorist in order to prevent them from committing acts of terror or violence. That's not what this is specifically aimed at. This is a very broad offence, the purpose of which, according to Canadian Military Law Annotated, is to prohibit people from facilitating the unauthorized release or escape of a person in custody. Custody is not specifically defined in this act, so there is a very broad definition. It applies to anyone who is subject to the code of service discipline, in other words, the people who can be charged, or the people being charged under this, armed service people, or it could be civilians in certain circumstances, but the person whom the accused assists, sets free, or allows to escape, is not limited to a person subject to the code of service discipline nor must that person be a Canadian citizen.

So, yes, Mr. Alexander, you're right, as is indicated by this annotation as well as by Colonel Gibson. But in fact, not only is it limited to a particular jurisdiction, it could happen anywhere in the world. But the phrase “authorizes or otherwise facilitates the setting free”, indicates that the accused—

[Jean-François Larose, NDP, Repentigny, QC]

Mr. Chair, on a point of order, I'm having a hard time hearing.

[The Chair, Conservative, James Bezan]

Order. Keep the sidebar conversations down, please. I'm partially deaf myself.

Mr. Harris.

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

Thank you, Chair.

The word “facilitates” is very broad and it could include even such acts as providing information. You could provide information about certain things to someone who is in custody, or let them know or give them access to information, or let them look at some document that might assist them in escaping.

The Queen's regulations and orders uses the term “without authority”. That's broad enough as well to signify that the accused did or omitted to do something without the approval of his superior officer or without the sanction of law, practice, or custom. It could be something rather minor that they neglected to do, or actually did, but it wasn't authorized by either the approval of an officer, or with a legal sanction, or with a custom. Again, that's very broad and allows for all sorts of things to run one afoul of the law.

When you look at paragraph (b) of section 100 of the National Defence Act, where one “negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody”, that offence is committed when the person actually escapes as a result of the act or omission. So you not only have to do something, you have to be negligent or wilfully allow something to happen.

For example, if a person were in a cell and you failed to lock the cell, or if you left the keys on a hook next to the door and the person reached through the bars and took the keys, by being negligent you would have run afoul of this. Assisting anyone in custody also deals with someone who is attempting to escape custody, and if there is an attempt to escape, there has to be a definition of how that works. Even something such as diverting the attention of the person who had the custody of someone, thus enabling him to leave his room in the detention barracks in an attempt to escape, is an example of this offence. The same charge is suggested for leaving unlocked a cell door used to hold a person in custody, which constitutes an offence. Even if you divert somebody's attention while some guy who is confined to barracks is able to get out without being seen, that's considered to be assisting someone escape lawful custody.

When we talk about custody here, it doesn't have to be someone who is in detention. It doesn't have to be someone who is a prisoner of war. It doesn't have to be someone who is a known terrorist who has been arrested and is known to be about to commit an offence of some sort. It can be anyone who is... It's not defined, and it says here that, “A required element of this offence is that the person being assisted must be in custody.”

The definition of custody is essential in order to determine the scope of the offence, so the broader it's defined, the broader the offence. There being no definition of “custody” in section 100 or elsewhere, it then goes to the Oxford English Dictionary , which defines it as “protection”, “care”, “guardianship“, or “imprisonment”. It could be any one of those that could be talked about here.

Again, the reason for the custody would itself reflect on the significance of what kind of punishment one would get. If someone is in protective care or guardianship and some careless act occurs and they wander out of the place where they are, and then they wander out of a barracks into the parade grounds, and somebody says, “Hey, what's he doing out here? He's supposed to be in his room for his own good.”... If he's brought back there five minutes later and somebody has carelessly allowed him to escape—“escape” is not necessarily the word, but “wander off”. If someone is there and they say, “Look, keep an eye on so-and-so, and don't let him go out”, he's in custody.

[An hon. member]

How do you know all these tricks?

[The Chair, Conservative, James Bezan]

Mr. Harris has the floor.

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

I guess one might wonder how I do know all these tricks. I'm not thinking of tricks. I did practise law for 30 years and I saw a few tricks in my time. I've been inside many prisons as a visitor and in my capacity as a lawyer, and obviously you learn a lot of things.

But in terms of what we're doing here, we're talking about an offence that has many ways of being committed, particularly when we're talking about the possibility of many different kinds of custody, as I just pointed out. The degree of moral turpitude, which is a word that gets used in law—someone whose offence has a high degree of either moral turpitude, moral responsibility, or consequences, and consequences even though they may not be intended. Someone who is driving carelessly and doesn't have an accident attracts a sentence by law. Someone who's driving carelessly and kills someone attracts a much more serious penalty.

[The Chair, Conservative, James Bezan]

Let's keep the focus on the amendment to section 100.

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

What we're talking about, Chair, with respect, is how it is that certain offences are treated more seriously by the law, and in this particular case we're talking about what sounds like a significant offence, because it does have a maximum penalty or a range of sentences broader than some other offences. We're talking about this in the context of a scheme that has been devised, which says, “Okay, we have this offence here”, and we just list them. There's no principle put in place; there's no principle guiding this law.

If we look at clause 75, it doesn't say “less serious offences”, or anything like that. It says, “the following” listed “offences”. It simply provides a list. It provides no articulation of any principle. It's a list using numbers, which suggests that if a person is convicted of any of the following offences and a list is then produced and they receive a punishment of those four particular types of penalty, that person won't have a criminal record. I don't disagree with that—I think that's fine—but we're just adding to the list. If we add to the list something that can be petty, or, as we pointed out with disobeying an order, something that can be a very minor thing, then why should it attract a punishment in another context?

[The Chair, Conservative, James Bezan]

I'm just going to interrupt you for a minute, Mr. Harris, because I want to make sure you're staying relevant to the subamendment. You're talking about section 100 of the National Defence Act, falling under the government's amendment.

As well, just so you know, there are other speakers who want to get on the floor.

Out of kindness, as I'm not hearing any questions being put to our witnesses, I think we should allow Colonel Gibson and Lieutenant-Colonel Dufour to leave. Or do you feel that we need them at the table?

Do you have a question, Madam Moore?

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

Yes, we are talking—

[The Chair, Conservative, James Bezan]

Just a question on what I'm saying here.

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

We are talking about section 100, but if we look further on I will have another amendment respecting section 113, and I will therefore need them. If they have to leave, I believe we should adjourn the meeting because we will not be able to continue. I will need them to clarify a number of points.

[The Chair, Conservative, James Bezan]

I have a feeling that we're not going to get the adjournment, but, Colonel, are you available?

[Col Michael R. Gibson]

Mr. Chair, Colonel Dufour and I will be here for as long as it takes to assist the committee to come to an appropriate conclusion. Thank you.

[The Chair, Conservative, James Bezan]

Thank you very much.

Just for the committee's information, we have ordered some sandwiches and salad from catering. I know that some wished to have other food, but we're going to stick with what's simple.

Mr. Harris, you have the floor, but you have Monsieur Larose waiting for the floor.