National Defence Committee on March 4th, 2013

[Col Michael R. Gibson]

Mr. Chair, if I may briefly respond, I'm not trying at all to be pedantic, but this is a really important point to understand.

The Criminal Records Act is really misnamed. It's not about criminal records. The term “criminal record” is not defined in the Criminal Records Act. If one is “convicted of an offence under an Act of Parliament”, which is the language in the Criminal Records Act, clearly that captures an offence created by Parliament in the National Defence Act.

That's what we're really talking about, but it means that if one has that record.... It can be a notional record. It doesn't mean a concrete actual piece of paper or electronic record; one has, in a legal sense, a record that one can apply for a record suspension for. But that's different from an actual entry on CPIC.

The way our system is structured now, you should only end up on CPIC if you're convicted at court martial, first of all, and second, if it's a designated offence that's listed in section 196.26.

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

That summary trial can give or...?

[Col Michael R. Gibson]

No, absolutely not.

The practical reason, Mr. Chair, is that you're not supposed to get on one of the four relevant CPIC databases, the identification data bank, without fingerprint records to support that. What section 196.27 in the act already says—the law says this now—is that if fingerprints are taken and you're tried by summary trial, they have to be destroyed without delay. There's no practical mechanism in the law that stands now that a summary trial conviction should get you an entry on CPIC.

I'm not saying that it would never ever happen, because mistakes happen, but what the law provides right now is that it should not happen.

I hope that's of assistance, Mr. Chair.

[The Chair, Conservative, James Bezan]

Mr. Harris, please.

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

I think that debate may be for another amendment. We have provisions, for example, in the Criminal Records Act that suggest that even with an absolute discharge or conditional discharge there is instruction to remove criminal records from the CPIC computer. As I say, we'll get to that argument, and when we get there we'll be talking about the retroactive effect of this and whether the Criminal Records Act...whether there needs to be a further amendment. I won't address that right now.

But I'm not sure, Mr. McKay, you are seeing—

[John McKay, Liberal, Scarborough—Guildwood, ON]

The light?

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

I'm not trying to enlighten you, I'm just hoping that you understand at least my argument. Amendment G-2 in that section of clause 75 that is being amended provides that there would be no criminal record whether it's a court martial or a summary trial for the offences listed in that section if the penalty is one of those four that are listed there. That's why, despite that, we have our other amendment that says that any matter brought by summary trial should not attract a criminal record. That's a second category, or a second set.

Our aim in adding section 83 to this government amendment is to say that in addition to all of these other ones—and you'd have to go through what they are, it could be AWOL or even escaping lawful custody, all sorts of offences that are there, which you might think in other contexts.... They're listed as service offences, but they won't attract a criminal record no matter what the mode of trial is, as long as the penalty is one of those prescribed there—severe reprimand, reprimand, fine of a particular type, or minor punishment.

I think your questions about whether he chooses a court martial or not aren't particularly relevant to this subamendment or this government amendment, because regardless of whether you're in a court martial or you're not in a court martial, if the offence for which you're being tried is one of those listed there—and they cover a lot of things that sound criminal, like falsifying records, etc.—they don't attract a criminal record if the punishment is one of those four listed.

I wasn't sure where you were going with the questions about choosing a court martial or having an election. None of that would have any effect on whether an offence of disobeying a lawful order attracted a criminal record. What would matter is the nature of the punishment, whether it met that threshold or whether it was below that threshold that's spelled out there for all of the offences set out in the amendment.

[The Chair, Conservative, James Bezan]

Mr. McKay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I'm trying to understand this a little better. What I understand you're saying, Colonel Gibson, is that the Criminal Records Act is not really criminal records. You shouldn't be calling it “criminal records”, you should simply call it the “records act”.

[Col Michael R. Gibson]

I think in my very humble opinion it might be better described as the “pardons act” or a “record suspension act”, because what it's about is how you go about getting a record suspension. It's not how you create a record.

[John McKay, Liberal, Scarborough—Guildwood, ON]

So you and I can agree on amendment. We'll call it a “record suspension act”. Okay.

Disaggregating Mr. Harris's argument for a second, in the event that the soldier under section 83 chooses to go the summary route, there can be two consequences to a conviction. The first consequence is that there will be no entry under the records act if it's a severe reprimand, reprimand, fine, or minor punishment. The other route is that there will be a record if it's a forfeiture, a reduction in rank, dismissal, etc.

[Col Michael R. Gibson]

Mr. Chair, no, that's not accurate in terms of how the proposed amendment would operate, because you'll recall it's a conjunctive requirement for both the objective and subjective gravity. Right now, since 83 isn't on the list on the basis of objective gravity, then the person would, if they wished to obtain a record suspension, be obliged to apply for one. They wouldn't be exempted.

The thing to remember, I think, is the conjunctive requirement between both objective and subjective gravity.

Does that answer your question, Mr. McKay?

[John McKay, Liberal, Scarborough—Guildwood, ON]

It might. I'm not sure I understand it, but it may answer it.

I'm going back to the core argument as to the inclusion of 83 in this. The government rightly says that they've done 95% of the job, so what's the argument as to why you wouldn't do 100% of the job?

[Col Michael R. Gibson]

Mr. Chair, the argument really goes back again to recognize the distinction between the meaning of a record suspension and the obligation that Parliament has imposed for applying for a record suspension under the Criminal Records Act and putting something on CPIC. They're there for different purposes. Really, what the Criminal Records Act reflects is Parliament's judgment about the severity of offences and how long one must wait before acquiring the benefit of a record suspension.

CPIC is really a tool for law enforcement. It absolutely has collateral consequences for a person to be included in the identification data bank, but they're there for different purposes. One is meant to reflect Parliament's and society's judgment about offences and how long you have to wait to get a record suspension. The other one, in terms of CPIC, is a tool for law enforcement, so they're meant for different purposes.

[The Chair, Conservative, James Bezan]

Mr. Harris.

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

I do have to say this. The point is—and I guess we're asking if Mr. McKay is with us or not—regardless of whether or not someone chooses to go by court martial or by summary conviction, all those listed offences, and they include resisting arrest, escaping custody, connivance at desertion, false statement in respect of leave, making false accusations or statements or suppressing facts, setting free without authority or allowing or assisting escape—oh, I'm sorry, I read number 100, but I meant 101, which is escape from custody—regardless of how they're tried, as long as the sentence is one of those four, it doesn't attract a criminal record.

What we're simply saying is that we think the same condition should apply to disobeying an order if the sentence is regarded by the sentencing authority, whether it be court martial or whether it be the commanding officer, as one of these four sentences, because that would determine whether it was something petty or it was something that is so serious as to be considered a breach to attract more serious offences.

Part of the reason I say that is that you can have the same set of facts attract an insubordination charge and a disobeying a lawful order charge. For example, if some senior officer says “Come here”, and someone says “Shag you” or something else to that effect, the charge could be insubordination or refusing a lawful order. One attracts life imprisonment as a maximum, and the other one has a different offence, but the same set of facts exists.

What we're saying is that if you have that sort of circumstance and you have this threshold determined by whether you get a reprimand, whether you get a fine, or whether you get confinement to barracks, well, if it's one of those, then you don't attract a criminal record. If it's considered so serious that you end up in detention, say, or you end up losing your stripes or whatever, then that's considered a serious offence and it's treated differently. That's only in this section here. It has nothing to do with whether it's a court martial, whether it's a commanding officer, or whether it's a superior officer under other modes of trial.

I guess the question I'm asking is, are you with us on that or are you not? Initially the government liked your answer. I wasn't sure you understood what we were doing here, and I hope you do now.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I've never been more wanted in my life.

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

It's going to push us over the top. There's a weakling over there now.

[John McKay, Liberal, Scarborough—Guildwood, ON]

You mean, so that you can lose 6 to 5 as opposed to 6 to 4?

[The Chair, Conservative, James Bezan]

We're voting on subamendment 1 from Mr. Harris by adding section 83 to the government amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, James Bezan]

Mr. Harris, how many of these do you have?

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

I think there are four of them.

[The Chair, Conservative, James Bezan]

Since that took almost an hour just to do that one, in the interest of time let's stand clause 75 and the amendments and subamendments, and move on to the rest of the clauses. Then we'll come back to it.

Agreed?

[Some hon. members]

Agreed.

[The Chair, Conservative, James Bezan]

(Clause 75 allowed to stand)

(On clause 76)

Mr. Strahl.