We have here another subamendment to G-2, which adds the sentence in section 113. In fact, this one is even more so a case where this ought to be added because, as my colleague has pointed out, causing fires normally is associated with arson, which sounds pretty bad. But when you look at the provision itself, again, we've got this maximum of life imprisonment, but only in the case of wilfully causing fires. In any other case than wilfully, the maximum penalty is two years or to less punishment.
We've got a situation where, and I'll read out the section:
Every person who wilfully or negligently or by neglect of—
I'm not sure what the difference is.
—or contrary to regulations,—
So you neglect to carry out a duty contrary to regulations.
—orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause fire to occur in any materiel, defence establishment or work for defence is guilty of an offence and on conviction, if the person acted wilfully, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for less than two years or to less punishment.
Now, this could be a serious offence or it could be something done in violation of a regulation. If some regulation or some rule or some instruction requires a certain thing to be done, or suggests you ought not to do something, then you can find yourself with a criminal record if it causes or is likely to cause a fire.
So, if somebody tosses a cigarette butt on the ground and it's contrary to a regulation to do that—if the ground happens to be near dry grass or something like that—but doesn't do anything, doesn't cause a fire, but may be likely to cause a fire to occur in any materiel, defence establishment or work for defence, so on a base somewhere, then that's enough to make you guilty of an offence.
Or there may be other kinds of technical rules or instructions, or regulations that are avoided that will make you liable for an offence. But if it attracts something less, again, than the list and the scope of punishments, starting with minor punishments, fines, reprimands, severe reprimands, any of those four particular punishments for wilfully or negligently causing or likely to cause a fire in any defence establishment...well, it doesn't have to cause a fire to anything in particular, it just has to cause a fire in a defence establishment. A defence establishment is a pretty broad place. That could be in any part of any base in the country.
Again, I don't know what examples there are of this in actual practice. I don't know whether or not the experience of the military is such that this is something that ought to attract a criminal record in every case. Somehow I doubt it, if we're looking at a list here of things that have far more serious consequences than something that may cause a danger or even be likely to cause a danger of causing a fire by failing to follow instructions.
I'm looking here at the list of things that are contained in amendment G-2 and seeing all sorts of things that are apparently serious, that are included in the list of things that would not attract a criminal record. Yet here there is no exception for something that might be a very minor breach of a regulation but that could give rise to an accidental fire. I think once again we're seeing a situation where we're trying to make amendment G-2 more complete, more fair, and have it treat similar types of seriousness similarly.
Now, we've heard from Colonel Gibson before that the characterization of these groups have to do with the scheme that I believe was referred to as the objective gravity and the subjective gravity. I disagree with that characterization because it's not objective gravity versus subjective gravity. I think the maximum sentence gives rise to Parliament saying that yes, there are circumstances where, if this offence is committed, it could be so grave as to attract a large sentence of life imprisonment.
But in the case of the threshold for sentencing, that's not about the subjective gravity of the offence. Surely sentencing has to be objective as well. It's about the objective gravity of the particular offence that the individual is being sentenced for, the circumstances of the offence and the offender. So in fact it's an objective assessment of the punishment that's due to an individual.
He says that the two conditions that have to be met are the objective gravity of the offence and the subjective gravity of the offence. But the objective gravity of an offence by virtue of saying what the maximum sentence is only indicates what the maximum seriousness of the punishment can be in the worst possible event under that particular definition of the offence.
What we're dealing with in clause 75 is a list of offences that are objectively determined by the sentencing court, whether it be a court martial or whether it be a commanding officer, the one who determines in a judicial manner how serious it is. So we know we're dealing with how serious an offence is in relation to the actual offence that was committed, the actual circumstances of the offence, what the offender did, what the consequences were, what the state of mind of the individual was. It's related to the individual and that's not subjective; that's just different. That's different from the general notion of the offence itself.
Even using the understanding we have from Colonel Gibson as to how serious Parliament has taken the offence, it is very clear in relation to section 113 that when Parliament looked at that offence and designated a penalty for that offence in terms of the potential gravity of the offence, it actually has two separate understandings of how serious the offence is.
If someone wilfully did an act, and is convicted of this offence, the one in 113, and if that person acted wilfully, he is liable to imprisonment for life or less punishment, and in any other case, in other words, either negligently, or by neglect of, or contrary to regulations, orders or instructions.