The first thing that I want to do is acknowledge the interest and the concerns that are being expressed and that the committee has heard. Certainly the information that I want to provide to the committee is truly to inform the committee's understanding of the law and to be as fair as possible.
The first thing I would like to specify here is that paragraph 98(c) of the National Defence Act addresses a situation where a member deliberately causes injury to themself with the very specific intent of avoiding service. Classic examples that we can all be familiar with would be a soldier who shoots themself in the foot or cuts a finger specifically in order not to be sent to the front. That's how the Canadian military law jurisprudence has been dealing with this section of the National Defence Act.
To my understanding, at least, and I would certainly leave it to Professor Rotunda to comment, contrary to the uniform code of military justice, which does not require proof of an intention to avoid service, our code of service discipline specifically in paragraph 98(c) requires that element.
I would also like to say that there certainly has been a recognition by different allies of the requirement to address these circumstances in order to ensure that their force will be ready and available to fight or to come to the assistance of their population in times of need. The U.S., the U.K., Australia, New Zealand, Denmark, Spain, Italy, Germany and France, to name but a few, have very comparable provisions in their own codes of service discipline.
What I think could help here is not, perhaps, to get away entirely from paragraph 98(c) and what it seeks to address, but perhaps, as is done for other offences in the code of service discipline, to insert a note in the Queen's regulations and orders that would specifically indicate the intent. I'm thinking here of something that could read like, “attempts to die by suicide or when self-harm is committed for a purpose other than avoiding service is not covered by this offence”. That would clearly indicate the intent of the legislator and what the paragraph is not meant to address, and could appease some of the concerns, I think.