Evidence of meeting #119 for National Defence in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
It's traditionally extremely well defined. It may not be in the bill, but everybody in the legal world knows what balance of probabilities means.
Conservative
Col Stephen Strickey
More likely than not, 51%.... I don't have the case law in front of me, but as was stated, generally in the administrative regime, the balance of probabilities is just that. On a balance of probability, it is more likely than not that x occurred, whereas we contrast that with the criminal standard, which is beyond a reasonable doubt.
Just to clarify for the purposes of the committee and for you, ma'am, F.H. v. McDougall, 2008, a Supreme Court of Canada case, clarified that there are two standards of proof in Canada. The criminal standard is that of beyond a reasonable doubt, the standard applicable by a court martial and currently at the summary trial. The civil standard, the administrative standard as was discussed throughout this committee hearing today, is the standard that we would submit is applicable to service infractions, should this legislation go forward.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Chair, I do think in common language the balance of probabilities is often understood as “most likely” but obviously there is an enormous amount of case law that prevents us from using such a simple summary.
My concern here is something that the Conservatives have raised in subsection (2) and that's the requirement to give reasons for his or her finding. It's impossible for anyone to feel they've been dealt with fairly if they aren't given the reasons for the finding. I know that's not required now. To me, the important part of this amendment is that they be required to give reasons for that finding. How else can those who are subject to that finding decide whether they've been fairly treated? They have no reasons given for that.
I know it's a change from the current practice, but I think it would be an important one so I will be supporting this amendment.
Liberal
The Chair Liberal Stephen Fuhr
Is there any further discussion on CPC-5?
(Amendment negatived)
(Clause 25 as amended agreed to on division)
(Clause 26 agreed to on division)
(On clause 27)
Liberal
Darren Fisher Liberal Dartmouth—Cole Harbour, NS
Mr. Chair, this is another housekeeping amendment.
I move that Bill C-77, in clause 27, be amended by replacing, in the English version, line 4 on page 28 with the following:
the record is in the prosecutor' s possession or control, but, in doing
(Amendment agreed to on division)
(Clause 27 as amended agreed to on division)
(Clause 28 agreed to on division)
(On clause 29)
Liberal
Darren Fisher Liberal Dartmouth—Cole Harbour, NS
This will be a fun one and a bit of a challenge:
I move that Bill C-77, in clause 29, be amended by (a) replacing in the French version, line 23 on page 44 with the following:
fraction d'ordre militaire dont il est accusé, s'avoue cou-
(b) replacing, in the French version, line 28 on page 44 with the following:
dont il est accusé, déclarer l'accusé coupable de l'infrac-
(c) replacing, in the French version, line 32 on page 44 with the following:
(8) Dans le cas où l'accusé est accusé d'une infraction
(d) replacing, in the French version, line 37 on page 44 with the following:
il est accusé ou, tout en niant sa culpabilité à l'égard de
(e) replacing, in the French version, line 4 on page 45 with the following:
(9) Dans le cas où l'accusé est accusé d'une infraction
Sorry about that to any of the French speakers in the room, but it will look fine in the blues.
(Amendment agreed to)
(Clause 29 as amended agreed to on division)
(Clauses 30 to 36 inclusive agreed to on division)
(On clause 37)
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Mr. Chair, I move that Bill C-77, in clause 37, be amended by replacing line 3 on page 48 with the following:
“37 Section 230 of the Act is amended by adding the following after paragraph (a): (a.01) if the sanction imposed on a person found to have committed a service infraction is detention, reduction in rank or a fine exceeding 25% of basic pay and that finding has been reviewed in accordance with section 163.6, the legality of that finding and the severity of the sanction; (2) Section 230 of the Act is amended by striking”
We've been discussing quite a bit here that certain punishments can be penal in nature but there's no real avenue for appeal to a higher authority. This amendment would allow that appeal to a judge of the Court Martial Appeal Court in the case of a sentence arising from a summary hearing that is penal in nature.
The Quebec bar association had a similar concern. They said that even though there are minor sanctions, which are not defined in the bill, as we discussed, but will come out in future regulations, they wondered whether these minor sanctions will simply continue the minor punishments under the current system, and if so, this could pose a problem. They said that in addition, these minor punishments could include confinement to ship or barracks—we've already talked about that—and that confinement could be for up to 21 days. They said that in certain cases, the deprivation of freedom is very restrictive, similar to a suspended prison sentence under section 742.1 of the Criminal Code.
Essentially what we're saying is that these appeals would only be available to the Court Martial Appeal Court where the service member has received a penal sentence. We're talking about detention. We're talking about huge fines, 25% of their basic pay. We're talking about reduction in rank. Therefore, some of these are penal in nature. If they're penal in nature, they should have the right of appeal to the Court Martial Appeal Court. This provides that opportunity.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Chair, I have a question about how service infractions work now, as opposed to how they're going to work after we make these changes and since our service infractions are now specified in regulation. Maybe our experts could tell us about that.
Do we have a regulation now that sets out all the service infractions, or are there a variety of ways that things end up as service infractions?
Col Stephen Strickey
Service offences are set forth in the NDA and they're further clarified in the regulation. As I alluded to before vis-à-vis a summary trial, if I, as a member of the Canadian Armed Forces, am charged with an offence and there is a summary trial, I am found guilty and I receive a punishment, I have a mechanism for review that is set forth in regulation. I spoke about that earlier. Ultimately, the penultimate recourse that I would have would be to judicially review that. Therefore, ab initio, there is no right, if you will, in the current system for a member to appeal a summary trial ruling to the Court Martial Appeal Court. The Court Martial Appeal Court deals only with courts martial.
As you know, the sanctions are set out in the proposed legislation. In proposed section 162.7, in the scale of sanctions, we have reduction in rank; severe reprimand, reprimand, deprivation of pay for not more than 18 days, and the minor sanctions which we talked about before and which will be set out by the Governor in Council.
Just to draw an analogy with the current summary trial system, the summary hearing system would envision a review authority as well, which is set out in proposed section 163.6, where the chief of the defence staff and other review authorities would have the ability to conduct a review of a summary finding.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
We're back to the question of what are classified as minor sanctions now. You were saying minor sanctions now are set in regulation.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Is it an exhaustive list of those minor sanctions or is it a sampling of minor sanctions?
Col Stephen Strickey
I can actually get that minor sanction for you. It would be, as we talked about, confinement to barracks, extra work in drill, stoppage of leave, reprimand, caution. I'm going a bit from memory here. I'm sure the chair, who was in the Canadian Armed Forces, might correct me.
Is there anything I'm missing?
I'm sorry; the reprimand is not in the minor sanctions, but the others are.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I'm just trying to establish a relationship between what you called minor sanctions and the things that are listed in this amendment.
Col Stephen Strickey
What I can say, sir, while not speaking to the amendment but perhaps in general, I think this may be of assistance to the committee because there was a lot of discussion by other witnesses and there's a lot of discussion here before the committee in terms of the penal and non-penal consequences vis-à-vis the minor sanctions, confinement to barracks being the key. As was stated before, and I just want to clarify that for the committee, the minor sanctions, as is clear in what I just mentioned, are in proposed paragraph 162.7(e), "minor sanctions prescribed in regulations made by the Governor in Council".
As I stated to Mr. Bezan, clearly after receiving all of the concerns from the various witnesses, from the committee, when the judge advocate general's military justice team, of which I'm a part, goes forward to develop these regulations, certainly we will take into account this debate, if you will, as to what is that line between a penal consequence, a penal sanction vis-à-vis Guindon, as Mr. Bezan noted, vis-à-vis Wigglesworth, which was the Supreme Court case before that, and what is not.
But certainly the hallmark of this system, the summary hearing, would be to create a non-penal, non-criminal, disciplinary, administrative disciplinary-type system that is, as I said before the committee before, loosely analogous to the RCMP disciplinary scheme, which has balance of probabilities, which has sanctions such as demotion, which one could loosely say is a reduction in rank.
We will look at all of these options when we move forward in regulations.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I would like to continue on this for a second. The problem all of us have had in trying to deal with this is going from a very extensive bill, set of amendments, and the National Defence Act, as well as regulations at the same time. We have four different things we're trying to look at at the same time.
I think what I see in this amendment is an attempt to specify some of those things that you are saying will be left to a decision later as subject to what would be perceived by rank-and-file members as fairer consideration. Mr. Bezan can correct me if I'm wrong, but it seems that we end up with what's in the act for summary, because we end up with minor infractions. We end up with several different lists, and this is an attempt, I think, to specify some of the things—I believe Mr. Bezan is correct on this—would be perceived by rank-and-file members as being severe.
Col Stephen Strickey
To assist the committee, what I would put forward is should this amendment move forward, the sanctions would presumably mirror the sanctions that are currently in the legislation. But on a principle basis, the Court Martial Appeal Court does not have jurisdiction to hear matters outside of the court martial. That's the first factual issue.
In terms of punishments—and to your point, Mr. Garrison, because you're quite correct that it's very confusing: summary hearing, summary trial, service offences, service infractions—what we're dealing with here would be the punishments at summary trial and not the sanctions that are dealt with in this bill. So you're right.
