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.