I think notwithstanding the comments of my colleague, Mr. McKay, and the colonel, the offence itself can attract a maximum sentence of life imprisonment, but if I could refer you to the commentary in the text Canadian Military Law Annotated, by Justice Létourneau and Colonel Michel Drapeau, they said:
The offence of disobedience of a lawful command covers a wide variety of behaviours, acts, or omissions ranging from very serious to petty offences.
They refer to the 1983 case of Lucas v. the Queen. The court martial appeal court, CMAC, heard the case:
The accused was ordered to report the following day dressed in his S-2s, with name tag and medals. He was found guilty of disobeying a lawful command and sentenced to detention because his collar insignia were improperly installed. The CMAC noted at p. 250, “nothing in the appellant's service record explains the matter escalating to the disciplinary level that it did”.
I take it from this that they changed the sentence.
The point is if that's an offence that can be charged for something as petty as that, then there ought to be some threshold, and I guess the threshold is what the government has chosen to put in this legislation, as to whether it's something deserving of having a criminal record for not having your insignia on properly, for example, in this particular case.
There's another case where someone was accused of disobedience for which the accused received a sentence of severe reprimand and a fine of $3,000. This is a 2004 case that consisted of his refusal to remove headdress at a division parade where at one point a short prayer was pronounced. In this case the conviction was overturned on appeal. This guy was fined $3,000.
The commentary goes on to say of course that is a very important aspect of military justice, and in fact lawful commands can justify the giving of many orders that might otherwise result in charter breaches, such as an order to advance under fire. So someone who is ordered to advance under fire and refuses to go is in breach of a lawful order. That's a rather severe circumstance. That comes under what we've been talking about here, the distinction between military justice and the ordinary law, and that's to be recognized. But when we have an offence that in its statement is so broad as to attract both the pettiness and the most severe type of particular order such as that, then there's clearly a range not only of disobedience, or a range of severity, but also a range of punishment as reflected in the range and the scope of sentencing going from life imprisonment to some of these minor offences, such as confinement to barracks.
I think what we're trying to do here with respect to the scheme proposed by the government in G-2, there are some offences regardless of how they're tried that ought not to attract penalties of a criminal record, and sorting them out, as the amendment does, by the severity of the punishment. As the scheme shows—and I'll say more when we get to another amendment—there is a hierarchy of penalties in the military that is spelled out in the National Defence Act. They determine which ones are lesser penalties or more serious penalties. It's our submission that if you're going to have a scheme which says there are two aspects of it, one is the offence itself, and the other is the nature of the penalty that is given for a breach of that, then someone who is convicted of a breach of that section, of disobeying a lawful order, if it's obviously a serious breach, there's going to be a serious consequence. The consequence would result in a criminal record if it in fact is of the serious type. If it's a petty offence, even though it involves disobeying an order, then it ought to be included in the scope of the amendment that's proposed.