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Oldgateboatdriver said:Here is what our Criminal code, art 46(2)(b) states, Milnews:
46 (2) Every one commits treason who, in Canada,
(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;
When someone who has been found guilty of an infraction/crime wishes to enter Canada, the Customs/Immigration officer at the border has to determine admissibility by determining what is the Canadian equivalent infraction. Then, depending on the Canadian equivalent and it's maximum punishment, a determination is made: Admissible (if it was just equivalent to one of our summary conviction offence), inadmissible without first obtaining "permission" from the Canadian Embassy/consulate (usually, criminal acts punishable by a max of ten years), forever inadmissible, for crimes with more than ten years penalty.
In the present case, the officer at the border did his job properly. The document you see is NOT a determination by the Minister, it is the Border services officer's report TO the Minister of the exclusion order he/she issued and the reason for his/her determination, in case of further appeal to the said Minister.
milnews.ca said:Barring any future court/administrative fracas, that's a pretty good fit, then. Thanks!
As they say, the devil is in the details (or the exacting wording in the case of law). Should Ms (former Pvt) Manning appeal this finding (if she can) by a Border Services Officer (BSO?), she may have a case in overturning that specific determination of inadmissibility based on the specific item of Canadian law that the officer chose to use as the "equivalent" to the convictions that Manning received in the USA.
That article of the Criminal Code specifically deals with "communicating to an agent of a state other than Canada", thus that element of the offence must be present for it to be "treason". Choosing that article and associating Manning's offence with treason seems (to me) to be (or have the potential to have been) a deliberate move on the part of the BSO to make a statement as to their opinion on Manning's action and to potentially remove any possibility of her entry to Canada. With the exception of child sex crimes there is probably no crime that would stir greater disapprobation. Or, it may have been a simple error on the part of the BSO. However, in the facts of her case, Manning did not provide information or communicate with "an agent of an other state". The US Army's prosecution of her did not prove so, nor did they contend it so. If this article of the Criminal Code was not equivalent, then what should have been the item that justified inadmissibility to Canada?
Remember, (former) Pvt Manning was charged and convicted of multiple violations of the Uniform Code of Military Justice (UCMJ). While the UCMJ is roughly equivalent to our Code of Service Discipline (CSD), there are (or so it seems to me) significant differences. The attached PDF is the US Army's press release that itemized the charges and specifications and the determination (verdict) of each; it can also be found at this link.
In a nutshell, Manning was charged with:
I. Violation of UCMJ, Article 104 NOT GUILTY (Article 104 deals with "Aiding the enemy" and was the one charge that had a maximum penalty of death).
There was one specification to this charge. It would have been roughly equivalent to some CSD offences in NDA 74 or 75
Though these CSD offences would have a maximum sentence of life imprisonment, it is moot for inadmissibility since she was found not guilty.
II. Violation of UCMJ, Article 134 GUILTY (Article 134 is the "General article")
Article 134 seems to roughly equivalent to Sect 129 of the NDA, though since the UCMJ does not have a separate, specific article that address violations of other US laws this article also seems to be used as we would Sect 130
There were sixteen (16) specifications to this charge. Three (3) of the specifications were stated as actions "prejudicial to good order and discipline" only and the other thirteen (13) referenced violations of other US codes as the basis for actions that were "prejudicial to good order . . .". The other US codes referenced were:
18 US Sect. 793(e) (Gathering, transmitting or losing defense information) Seven of the specs referenced this, and she was found guilty on six of the specs and not guilty on one.
18 US Sect. 641 (EMBEZZLEMENT AND THEFT - Public money, property or records) There were five specifications under Charge II that referenced this other US law and the value amount specified in each instance was in excess of $1000. She was found guilty in all five of these specifications.
18 US Sect. 1030(a)(1) (Fraud and related activity in connection with computers) There was one specification under Charge II that referenced this other US law and which was a guilty.
III. Violation of the UCMJ, Article 92 GUILTY (Article 92 deals with "Failure to obey order or regulation") The rough equivalent in the CSD would be a mix of Sect 83 (Disobediance of a lawful command) and Sect 129 which specifically lists failing to follow regulations. The three specifications to this charge all referenced Army Regulations as the violations.
If the Canadian Criminal Code offence of Treason is not an appropriate equivalent to the US convictions, what would be. Should the BSO's report to the Minister have referenced NDA 129 that prescribes punishment as "dismissal with disgrace from Her Majesty’s service or to less punishment" or NDA 130 which prescribes the punishment as that which would be
Without getting any deeper into the weeds about what Canadian law (criminal or otherwise) that might be the best equivalency, I'll look at the most prominent action of Manning, i.e. providing information that she wasn't supposed to. In that case, my opinion is that the BSO should have referenced the Security of Information Act as the Canadian law (specifically Sect 4(1)) that, had Manning been subject to Canadian law when he committed these acts. would likely have been the offence that he would be charged with. The punishment prescribed is that, unless otherwise stated (there are some offences lighter and some that go to life), "a person who commits an offence under this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years". That would have been sufficient to reach the same result of denying admission without opening up a potential path to appeal and overturn.
And as an example of application of the Security of Information Act, we can look to R. v. Delisle, whose offences relating to providing information was dealt with through Section 16(1) of that act, though most here (including me) would probably believe that the treason offence of the Criminal Code would have been more appropriate.
As it is apparent that Ms. Manning is not someone who will likely avoid the spotlight in the future (either by choice or circumstance), we can probably expect that this is not the last we'll hear on this latest wrinkle in her life. And, (IMO) there is probably quite a bit for the lawyers to grab onto concerning this and make it last for some time to come.