National Defence Committee on March 4th, 2013

[The Chair, Conservative, James Bezan]

I'll just ask everyone to try to keep the background noise to a minimum.

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

Mr. Chair, that has a considerable impact on the principle that, in the armed forces or in any other professional body that has responsibility for a person, people are not motivated to be there by potential consequences. In this case, we are talking about the consequences for people who will be victims of the actions of the person for whom they have responsibility. What is more, this point is made after the fact, not before it.

I do not understand why the government is so bent on not including it. We are proving very clearly, with everything that has been put on the table today, my experience and that of other people, that there is a genuine danger in applying this in the field, from both a legal and practical standpoint. In fact, this sends a strange message. If a person for whom you are responsible escapes, he may or may not be punished, but, as the individual responsible for that person, you will definitely be punished, and very seriously. I do not see the point.

This is not a matter of troop motivation. Their actions are not shaped by the thought that they will wind up in prison if they do not act properly. I do not understand the logic behind this. We are all in favour of the Canadian Forces wanting to have an appropriate management tool. We all agree that certain actions are absolutely intolerable. In this case, it is much more a matter of the management principle or of negligence. There are other equally effective tools that can help. I would think that the attitude would be to help improve the way the troops function. There is the stick, but there is also the carrot. In this case, we are talking about a stick that is virtually a bazooka. It really sends a strange message.

I used to belong to the armed forces, and this is honestly the first time I have heard this point discussed. If I had known about it, I would definitely have had the opportunity to discuss it, particularly since I worked in intelligence. I would have made people understand that this has a direct impact on motivation. As I mentioned earlier, in the relationship between the incarcerated individual who is under your responsibility and you, the danger lies in knowing that you will be punished to a greater degree.

There are consequences even in the civilian correctional system, but there are other provisions. If an employee is negligent, his negligence will have consequences. He may receive an administrative sanction, which is virtually equivalent in the civil system, depending on the consequences. However, when events become very serious, investigations will often be conducted, and the individual will wind up with a criminal record and lose his job.

In this case, that will become automatic. This sends a strange message and has a direct impact on people's motivation. They are there for the right reasons. All the military members I have ever met, when I was a reservist and on other occasions, were all very proud of the work they did. They never did it so that they could be punished harshly.

I do not see why the government is prepared to add this. What is the cost, if it is only to improve this point? The arguments have been laid on the table.

Thank you.

[The Chair, Conservative, James Bezan]

I have Mr. Harris, and Madam Moore.

Before you start, I'd like everyone to know there is a light supper, for those who are hungry.

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

Thank you.

We're talking here about the will of Parliament. Well, the will of Parliament is being expressed in the legislation that we're passing now, whatever that will happens to be.

When the legislation was put before Parliament this time out, the only offences listed were ones that were “described in sections 85, 86, 90, 97 or 129”. Five offences were listed. The sentence was either “a minor punishment or a fine of $500 or less”.

If we look at the scale of punishments that we talked about before, where there's (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l), the only ones able to be dealt with are minor punishments. I don't have the list in front of me, but minor punishment includes confinement to barracks.... Does anyone have that list? Someone is going to get me that list of what constitutes minor punishment, but they're less than any of the ones that are here, by definition, and the fine was $500.

Now we have an amendment that says that in addition to 85, 86, 90, 97 and 129, we also have an additional list, and I don't have a count of the numbers, but the list includes, 87, 89, 91, 95, 96, 99, 101, 101.1, 102, 103, 108. All of these are added to that. I could carry on, but in the interest of time, I won't.

[The Chair, Conservative, James Bezan]

We are talking about the subamendment here, not the entire amendment. We're talking about the subamendment.

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

The subamendment merely seeks to add another to that list.

I don't know how we can get all caught up in principle here when what we're talking about is how to achieve a fair result in relation to section 100 as compared to sections 101 or 101.1, and the others that are included here.

There are various theories we can apply to it. Our application is based on fairness.

My colleague, Mr. Brahmi, talked about the need for mens rea, and he got an answer that yes, mens rea is needed, and it is the same. I would agree with Colonel Dufour that in either civilian criminal law or in the case of this kind of offence there is a mental element required.

But because it's either wilful or negligent.... And we're not talking about the kind of negligence that's called criminal negligence in criminal law, just ordinary negligence, which is made criminal here because the offence is to, in the case of allowing an escape, negligently or wilfully allow escape. The kind of negligence we're talking about here is not the criminal negligence. The word “negligently”, according to the commentary found in Canadian Military Law Annotated, signifies that “...the accused either did something or omitted to do something in a manner which would not have been adopted by a reasonable capable and careful person in his position in the Service under similar circumstances”, which is quite a lot of qualification.

In other words, simply being careless is enough to attract a conviction under section 100, which is totally different from what in criminal law is called criminal negligence, where somebody has to be acting with wanton disregard for the life and safety of others. But to have this particular offence, the mental element is so minor in terms of carelessness or doing something in a manner that would not have been adopted by a reasonably capable and careful person in that position under similar circumstances.

It's not so egregious as to attract a criminal negligence charge, but it's something that's simply either wilful.... Well, wilful may be pretty obvious, but wilful indicates that the accused knew what he was doing, intended to do it, and wasn't acting under any compulsion. So that's the mental element. It's wilful: you wanted to let this guy out; you opened the door; you took him out or you attached a rope to the bars and rode your horse away—as in the cowboy movies—and you did it on purpose. Or it's the other sense of being careless or negligent. That is enough to attract this.

But it's not enough, and I submit that if the circumstances are such, and all of the sentencing provisions relate to the circumstances of the individual: the seriousness of the offence, yes, but also the seriousness of the consequences of the action, the degree of blameworthiness of an individual, and all of that....

If we had Clayton Ruby here, who is the guy who has written the book Sentencing, which is used throughout the country, he would tell us that. In fact, in Bill C-15 that we have before us today, we're putting a list of the purposes of sentencing.

All we're saying here is that if those purposes of sentencing can be achieved by the imposition of either a minor punishment or a fine, in this case a month's pay, or a reprimand or a severe reprimand, then that ought to apply.

On offences that are considered minor offences, by the way, with minor punishments—because that's in our list of the least of the punishments that can be granted—those minor punishments include confinement to a ship or to quarters or to barracks, so you're confined to your ship if you're in the navy, or to your barracks or quarters if you're in one of the other forces. The second thing that's included in minor punishment is work or extra exercises, which would be telling someone to jog around the military base five times or whatever. Prohibiting someone from taking a vacation and keeping him on duty is considered a minor punishment. The last of the four matters listed in minor punishments is a warning.

For any of these lesser punishments, if somebody did something that was so minor as to only require a warning, is that something we would want to see involving a criminal offence? What if it were so minor as to only attract a warning, or some disciplinary matter such as a work detail, or giving someone an order to perform extra exercises, or confinement to barracks for a weekend or whatever? For those kinds of punishments, if these were the consequence of violating this act, even though the maximum penalty is quite high, if the level or degree of culpability were so minor and the consequence so minor as to attract a punishment up to and including a severe reprimand, then there ought not to be a criminal record.

We must have some compassion for the individual who is affected by this and recognize that if we can start off here with a bill that only has five offences listed and only talks about minor punishments and a fine of $500, an amendment submitted by the government, obviously upon reconsideration, that lists perhaps another 15 or more—

[The Chair, Conservative, James Bezan]

I just want to warn you that you're getting outside of what the subamendment is.

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

No, no, but if we can have—

[The Chair, Conservative, James Bezan]

I just want to stick on topic here—

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

Well, I think we've been told, Mr. Chair, with respect, that it's all about the will of Parliament. The will of Parliament is being determined by the people who are here. If the will of Parliament is to move from clause 75, as submitted in the second reading version of the bill, to a proposal to the committee by the government in amendment G-2, then surely the will of Parliament can be expanded in an amendment to G-2 to add another section, and we're proposing section 100. Even though it potentially attracts a large punishment, the possibility is that any lesser punishment, including the four listed in G-2, ought not to result in a criminal record.

As Colonel Gibson has said, the will of Parliament has been expressed in the past by giving the maximum punishment. That's an objective gravity. Well, I can't imagine what circumstances would attract life imprisonment for an offence of this nature, but I suppose you could consider the most extreme circumstances. Almost an act of treason would be required to allow enough people to escape or to organize the escape of enough people in the wrong circumstances that it ended up causing a major disaster where people lost their lives.

You'd have to have something that you would have to pile on, detail after detail of aggravating factors to end up with the possibility of a life sentence for something like this. But if you wilfully let someone out who then committed an act of terror or an act of murder or caused that kind of mayhem, I can see that there might well be circumstances that could be strong enough to attract significant sentences beyond what we're talking about.

But it's the kind of offence that could have a small amount of actual harm being done. It could be a very minor escape. If someone is not in custody for a few minutes because he got out of one room and was grabbed by the fellow officer and returned to his cell, that wouldn't necessarily be serious. It might well involve someone being negligent in the performance of his duties. As Mr. Larose said, quite often there can be an administrative response to something like this that wouldn't require someone having a criminal record.

I like the fact that Mr. Larose is here to provide us with the reality of life for soldiers. He helped us out by saying that they don't always think of all of these things. They're thinking in the moment. There was the idea that the best thing to do was to try to get to Mexico to avoid the consequences. I'm assuming they never made it to Mexico. But that gives you an idea of the state of mind of people who end up being confronted with the kind of law we're making here today. I'm asking that we try to make that law as fair as possible, and one of the ways of doing that is by adding section 100.

It is very easy to see how the person who is actually doing the escaping is far more culpable than the person who is actually found guilty of carelessly allowing them to escape or admitting to doing something that ended up in somebody getting out. That seems to me to be wrong and we should try to fix it. If the circumstances are such that that's the case, then this law should allow that the person who, through some omission, maybe a minor omission, ends up being guilty of this offence should not get a criminal record.

When we're talking about punishment, especially when we are having a scheme like this, where certain offences with certain levels of punishment attract a criminal record and some do not, we have to regard the criminal record as part of the punishment.

So, in case A your punishment is a severe reprimand and in case B your punishment is a severe reprimand plus a criminal record. If that's the consequence, if it's possible that there can be an A and a B, then there must be a level of fairness associated with that.

If we have a situation, as we're talking about here, particularly with section 100, where offender A, who commits an offence and gets a severe reprimand, has no criminal record, and offender B, who instead of a severe reprimand just gets an ordinary reprimand, or who gets a fine, but also gets a criminal record in a related circumstance—it could even be the same incident, where the escapee gets a severe reprimand and the person who is found guilty of assisting in the escape or facilitating the escape negligently ends up with a criminal record—then that's wrong.

This is why we're opposing this, Mr. Chairman. We think that this particular provision ought to be included and that we ought to add section 100 to G-2, as proposed.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Moore, you have the floor.

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

First I would like Colonel Gibson to clarify two points.

Someone may be charged with accidental discharge, even if it involves a blank round. That is often under section 129.

With regard to section 100, could someone be charged with negligently helping to set a prisoner free, even if it was done as part of a training exercise?

[Col Michael R. Gibson]

I'm sorry, the question wasn't very clear, Mr. Chair. I wonder if I could ask it to be clarified.

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

That is not a problem. It will be a pleasure.

When I was a reservist, 2,000 people took part in a major medical exercise at the end of every year. Everyone was there. Often there were prisoners, but they were in fact false prisoners since it was simply a training exercise. The military police had to monitor them.

If a military police officer did a poor job and those false prisoners escaped as a result, would the police officer be charged under section 100?

[Col Michael R. Gibson]

Again, Mr. Chair, it's hard to see the relevance of that. But since this section hasn't been judicially interpreted, I would say, given it's a mens rea offence, the circumstances would be such that the court, in order to convict, would have to be persuaded that the relevant mens rea applied.

[The Chair, Conservative, James Bezan]

Thank you.

Madam Moore.

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

Pardon me, but I am not sure I understood the answer.

I would really like to know whether this applies only to real prisoners or whether it can also apply in the context of a training exercise. If someone can be convicted under section 100 of having negligently assisted in setting free a person who was in fact a false prisoner in a training exercise, I believe it is even more serious that this section not be included in the amendment. That is why I would like to know whether it applies solely to individuals who have actually committed an offence or whether it can also apply in the context of a training exercise.

[Col Michael R. Gibson]

I think again it's not a very clear question, but by definition one only convicts somebody of an offence involving a potential penal sanction if the relevant actus reus, that is the guilty act, and the mens rea have been made out.

What that would constitute, since it hasn't been judicially interpreted, is in the realm of speculation. But what isn't in speculation is that clearly Parliament has envisaged circumstances in which an offence could be committed that would warrant a punishment of up to seven years.

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

In short, you have never heard of people being charged under this section for acts committed during a training exercise.

[Col Michael R. Gibson]

I'm not aware of that, but I don't purport to have comprehensive knowledge on that point.

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

All right.

Section 100 reads in part as follows:

100. Every person who...is guilty of an offence and on conviction, if he acted wilfully, is liable to imprisonment for a term not exceeding seven years or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.

If my understanding is correct, to decide what sentence applies, the person who renders judgment, whether it be a military judge or a commanding officer in the case of a summary trial, will really have to determine whether the accused acted wilfully.

[Col Michael R. Gibson]

Parliament, in structuring the essential elements of the offence, has specified certain such elements, one of which is, if one is going to apply the full potential for seven years, whether the person acted wilfully. So that would be an essential element of that particular mode of charging the offence.

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

I see.

Consequently, to be able to sentence the accused, the person trying him under section 100 will always have to determine whether he acted intentionally.

I wonder whether it would not have been simpler to refer to section 100 in the cases of individuals who did not act wilfully. Would that not make it possible to rule out the most serious cases in which people might be exempted under clause 75?

[Col Michael R. Gibson]

We don't convict people of offences who don't have the requisite mens rea, which would include voluntariness. If you're suggesting that there's a defence of duress, then that could be pleaded.

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

From what you say, you do not charge people if there has not been a conviction. However, paragraph 100(b) clearly states "negligently or wilfully". If something was done negligently, it is automatically not done wilfully. In other words, the person never intended to set the prisoner free. There may be something that I do not understand about the way the act is enforced.

Can you give me some details on that subject?