Evidence of meeting #69 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was record.
A recording is available from Parliament.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Mr. Chair, on a point of order, I don't want to interrupt my friend, but it's hard to follow his argument unless we have the document in front of us.
NDP
Jack Harris NDP St. John's East, NL
Okay, well let's wait until everybody gets it and then we can be on the same page here.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Is it just that there aren't enough copies? Is that the problem?
Conservative
Conservative
NDP
Conservative
NDP
Jack Harris NDP St. John's East, NL
The point being, when you look at section 83, which we just talked about, it says that the punishment for section 83 is—
Conservative
NDP
Jack Harris NDP St. John's East, NL
It says “imprisonment for life or to less punishment”, and that means any punishment on the list that's lower than imprisonment for life. So if someone is sentenced to imprisonment for two years or more, or dismissal with pay, or reduction in rank, or forfeiture of seniority, etc., all of these things are lesser punishments than what's provided for in the code.
As Colonel Gibson said, while there is an objective severity here because it can attract life imprisonment, it also can attract lesser punishment. We're looking at a scheme of suggesting that those offences that attract the lesser punishments specified here, “severe reprimand”, “reprimand”, “fine not exceeding basic pay” and “minor punishments” don't attract a criminal record in the list of offences stated.
Our argument is basically that when we recognize that disobedience of lawful order can be very severe or it can be petty, then for those petty ones or those ones that don't attract any higher discipline or penalty than that of a severe reprimand ought not to attract a criminal record.
That's what helps explain it.
In this particular case all those offences listed in amendment G-2 don't attract a criminal record, whether they elect to go to court martial or whether they stay with the commanding officer. In amendment G-2 the government is recognizing that these listed offences, regardless of the mode of trial, whether it's commanding officer, superior officer or court martial, will not attract a criminal record if the penalty is severe reprimand or less.
What we're suggesting is that the scope of that be broadened to include disobedience of a lawful order, which is considered less serious. I don't like the word “petty” because not all offences that could be called“disobedience, which might attract a severe reprimand or a reprimand, might not fall under the petty category but might not lead to a reduction in rank or “dismissal with disgrace from Her Majesty’s service”, as specified in (c).
That's essentially the argument. I think it has merit and it's quite in keeping with amendment G-2 itself, which is designed to set forth a scheme of including all of these offences where the penalty is a severe reprimand or less and should not attract a criminal record.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Just let me follow the logic through with Colonel Gibson and see whether I understand it here.
If a soldier is charged with a failure to obey under section 83 and he or she, for whatever reasons, good, bad, or otherwise, chooses to proceed by way of a court martial court, then that's not part of this discussion. That's over there. But if he or she chooses to go summary and is convicted, don't they therefore still expose themselves to a Criminal Code conviction?
Where you're going with this thing is that this person doesn't want to have a criminal record. Are you therefore differentially treated when you elect to get into the summary trial system as opposed to being in under sections 87, 89, or whatever?
Col Michael R. Gibson
Mr. Chair, if I may briefly respond, I think there's perhaps a fundamental misapprehension that's underlying this discussion that I'd like to address in a moment. But the point of departure for the analysis is yes, section 139 of the National Defence Act prescribes what is called the scale of punishments, and it is indeed hierarchical, as Mr. Harris has pointed out, and that's amplified in regulations.
When a punishment provision that Parliament has created specifies it's punishable by up to life imprisonment or less punishment, then you can go down the list, and that's the task of sentencing, for the court to determine the appropriate sentence.
The fundamental misapprehension that I perceive here that I hope I can assist the committee with understanding, perhaps, is this. What clause 75 is about is not creating a record within the meaning of the Criminal Records Act. That is distinct—it's linked, but it's distinct logically—from an entry on CPIC, and I have the sense that not everybody appreciates that.
In practical terms, when one speaks about the adverse consequences of a “criminal record”, really what that means is there is an entry on the Canadian Police Information Centre data bank—in fact, on one of the four data banks, because that's an important point too—that is accessible by a court, by police, by CBSA officials at the border, by other people. The National Defence Act already provides, in essence, at section 196.27 that if a person is convicted at summary trial, it doesn't go on CPIC, and I have the sense that not everybody appreciated that.
What we're really talking about here, the policy intent of clause 75, is to alleviate the consequence of persons having to apply for a record suspension if they wish to seek civil employment afterwards and they have to fill out the normal questionnaire, the question which almost always reads, “Have you been convicted of an offence under an act of Parliament for which you have not received a record dispension?” It's record dispension now; it used to be a pardon. What clause 75 will provide is, if you fall within that threshold of the objective gravity of the enumerated offences and—it's a conjunctive requirement—the subjective gravity, you don't have to go through that.
If you're tried by summary trial, the effect of section 196.27 is you don't get on the relevant CPIC database, which is the identification database, unless that's supported by fingerprints. What section 196.27 provides is they're only supposed to have fingerprints taken, and there's a list of what are called designated offences, and even if fingerprints were taken, they're destroyed. So the dire consequences that have been suggested as flowing from conviction at summary trial shouldn't actually occur.
I had the sense that perhaps not everybody appreciated that because it's not the same thing. They're two different concepts: a record within the meaning of the Criminal Records Act, which is really relevant for applying for a record suspension, or getting put on CPIC.
One last point that I think is relevant for the committee to understand is that Parliament already, at section 4 in the Criminal Records Act, when it sets out the procedure for applying for a record suspension, prescribes a waiting period of either ten years or five years, and in the civilian context it does that by category. If it's an indictable offence, you have to wait ten years, and if it's a summary conviction offence, five years.
I would suggest Parliament has already legislated to the same effect, in terms of categorization by the gravity of the offence, in that case, distinguishing between indictable and summary conviction. So the concept of distinguishing by basis of objective gravity the offence that's in clause 75, I suggest, is analogous.
I hope that's of assistance to the committee in understanding. Thank you.
Conservative
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I'm not sure it is, but I'll take your word for it. I appreciate the distinction you're trying to draw here. To be candid about it, frankly, I just assumed that if you were under the Criminal Records Act, you were automatically on CPIC. That's helpful in that respect.
Having said that, the fact that I can respond to “Do you have a criminal offence?” and an employer actually can't check me out because I'm not on CPIC, as opposed to actually having a criminal record, may be one for lawyers, but not entirely for the rest of us.
Col Michael R. Gibson
May I briefly respond, Mr. Chair?
I think the rubber hits the road here very practically. What this provision would do is it would not punish honest people.
Right now, if you get out of the forces and you're filling out that employment questionnaire, and you're asked, “Have you ever been convicted of an offence under an act of Parliament for which you haven't received a record suspension?”, the odds are that if it's tried by summary trial, there won't be and shouldn't be a record on CPIC. But if you were honest, what you would actually have to do is get a document from the forces to prove to the national Parole Board that you had been convicted so they could give you a pardon, which is almost an absurdity.
Col Michael R. Gibson
It's a practical absurdity that happens to our people all the time. That's what we were trying to relieve.
NDP
Jean-François Larose NDP Repentigny, QC
I am trying to understand what you said.
If a person is charged with an offence that is tried by summary trial and that attracts a criminal record, it will not be in the CPIC system. Is that what you are telling me? I am trying to understand.
