National Defence Committee on March 4th, 2013

[Col Michael R. Gibson]

Parliament can prescribe different elements to the offence, including different mens rea for different modes of commission of the offence, one of which is wilfully, one of which is by negligence. In prescribing what would constitute negligence, one would rely on judicial interpretation. In this case, contrary to what was suggested earlier, it would be a marked departure from the norm.

In any event, one doesn't convict or sustain a conviction of anyone of a criminal offence, including offences for the service offences, without all the essential elements being made out beyond a reasonable doubt.

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

All right.

If a procedure indicates what must be done to check that the prisoner is in fact locked down, but the employee does not do things properly, the latter may be charged with negligently helping the prisoner to escape. Is that correct?

[Col Michael R. Gibson]

I don't see the relevance of the question once again. We're not, as I understand it, here to comment on whether Parliament got the objective gravity of the offence correct. We're here to avoid ad hoc application of this exemption.

[The Chair, Conservative, James Bezan]

I agree that we want to make sure our discussion isn't based on hypotheticals and that we're dealing with the subamendment that is before us. Rules of relevance apply. We have to make sure that we're very concise. Also, we don't want to be repetitious in our comments. Rules and orders of decorum in O'Brien and Bosc are quite clear on this. So let's make sure that we stay very focused on the subamendment.

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

I know we have to stay focused on the subamendment. However, the actual cases will help us understand whether this should apply. Actual cases help determine how it can apply. I am talking about examples or descriptions to determine whether section 100 applies in such cases. All that is related to the subamendment. The purpose of a bill is, as it were, to express in legal terms the images we have in mind. Those images reflect actual cases.

We are talking about actual cases in which individuals might attract a criminal record. It is therefore important to know and to determine a logical limit so that people who do not deserve a criminal record have one. Consequently, Mr. Chair, when we use specific examples to determine whether section 100 applies, I believe that is entirely relevant.

[The Chair, Conservative, James Bezan]

I'm just saying, though, that we have to remember that our witnesses are here specifically to help with the technical background on Bill C-15 and to provide us with the background information we need as to how these amendments are affecting the National Defence Act. They aren't here to provide hypothetical information. That's where we come in, as members, to determine what might possibly occur because of the bill.

Are you done, Madam Moore? Mr. Toone wants the floor.

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

Yes, that is fine.

[The Chair, Conservative, James Bezan]

Mr. Toone.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you, Mr. Chair, and thank you, witnesses, for indulging us.

Regarding this particular section regarding releasing without authority, I wasn't here for the beginning of the discussion, so I'll ask your indulgence.

Could you please describe for me what kind of examples you have? Has this ever happened? What kinds of examples can you bring forward that would illustrate for me what kind of impact this section would have?

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

On a point of order, Mr. Chair, I think, given that we are bringing in substitutes to deal with the longer meeting today, we can't expect the witnesses to recount the testimony we have heard over the last number of weeks. To do so obviously would be disrespectful to the witnesses and to the other members of the committee as well. If we want to continue.... I understand the tactic, but frankly, the transcripts are available, if Mr. Toone wants to bring himself up to speed.

[An hon. member]

On that point of order—

[The Chair, Conservative, James Bezan]

I have Mr. Toone first on that point of order, and then you, Mr. Harris.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

First of all, I resent the supposition that this is a tactic.

[Some hon. members]

Oh, oh!

[The Chair, Conservative, James Bezan]

Order.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

The simple fact is that this witness is testifying now. I'm not asking him to repeat what any other witness has presented to this committee. I'm asking a question regarding the section that is on the table right now, and in order to go forward with the line of questioning, I'm asking him for illustrations from his experience. I don't think this has been testified about. I don't think there are any such examples in the record.

[The Chair, Conservative, James Bezan]

Mr. Harris.

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

Mr. Toone is absolutely right. We haven't had debate about section 100. He's asking for examples from his experience as to the application of this law.

We were discussing before he came the consequences of not including section 100 in amendment G-2. I think it's a fair question to ask for examples of actual cases in which section 100 has been applied. What we're trying to figure out here is whether or not it's fair to insist that in every case of a breach of section 100 there ought to be a criminal record. We know that the maximum sentence is life in prison, but we also know that any other lesser sentence can be applied, and so he's looking for examples.

I think it's a fair question.

[The Chair, Conservative, James Bezan]

I have Mr. Alexander, then Mr. Norlock, on the same point of order.

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

Chair, asking our witnesses, who have extended their hours to be here with us, to give examples of cases in which section 100 has been applied is not fair to them and it is not relevant to the amendment we are discussing. If the opposition wishes to prolong this discussion this evening, let them do it under their own steam and not use our witnesses, to whom we have a duty to be courteous, as props in their technical exercise.

[The Chair, Conservative, James Bezan]

I'll hear Mr. Norlock on that same point.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

My comment is very similar, but I'll make it to the point.

I don't know why we're putting these witnesses through this charade that's simply designed to slow this piece of legislation down. This is a public hearing and I think my constituents need to know that the government has a responsibility. This piece of legislation has been around for 10 years—

[An. hon. member]

No, it hasn't.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

—or for quite some time. It's obvious that the opposition wants to slow it down. I don't know why we are doing this. These fellows are soldiers. They'll stay here until the rest of us rot in here or until they can no longer do it. I think it's wrong what we're doing with them.

If you want to filibuster this, fill your boots. Go ahead. We'll play the parliamentary game, but don't insult these people. They're here to advise us on this piece of legislation, not to go through every possible case that could have ever come up in the Criminal Code. My god, this place would never function if we did that sort of thing.

So please, let's respect the witnesses. If you have a technical question, ask it, and I beg the chair to take that into consideration when we begin down this road of frivolous questions and frivolity, because that's just exactly what it is.

[The Chair, Conservative, James Bezan]

A last comment to you, Mr. Toone.