Military Justice System - Pardons for NDA offences

[rocksteady]

Here is a situation regarding the military justice system and application for pardons.  What do people think about having a mechanism under the military justice system for pardons?  As it stands one does not exist and all pardon applications must be put through the Parole Board of Canada that is part of the criminal justice system. 

An active member of the Canadian Forces was charged under Section 129 of the National Defence Act (NDA) for falling asleep while on duty in Afghanistan.  The member was found responsible through a military summary trial by a CF military officer and was given a fine of $750 dollars.

As of November 2016 member will be eligible to apply for a pardon from the Parole Board of Canada as there is no mechanism within the military justice system for them to apply for a pardon.

The problem is this, if they were found responsible for a military offence through the military justice system (not the criminal justice system) under the National Defence Act, was given a military summary trial conducted by a military officer, on a military base, than they should not have to apply to the “criminal justice system” (Parole Board of Canada) in order to receive a pardon.

The military justice system has asserted itself in saying that it is separate and necessarily so in order to enforce discipline.  This has also been backed up by the Supreme Court of Canada in fairly recent rulings.  If the military justice system is truly separate than a mechanism to grant pardons should exist within the military justice system.  As it stands anyone who wants to apply for a pardon must apply to an external board (Parole Board of Canada), pay a fee and then have people evaluate the application when they do not have experience with military justice and the uniqueness of it.  When the person then receives the pardon they take it back to the military and it is sent up their chain of command in order to have all the information pertaining removed from their Conduct Sheet and personnel file.

It only seems fair that the military justice system have a mechanism for granting pardons that is internal, and not borrowing from the criminal justice system which is completely separate and external.

If you go on the National Parole Board website, the first sentence you read says the Parole Board of a Canada is part of the criminal justice system.  The member was not found guilty of an offence in the criminal justice system, was not tried in the criminal justice system and therefore should not have to apply to the criminal justice system to receive a pardon for that offence.

Issue has already been sent the issue to the Military Ombudsman’s Office for review and their investigator brought it to their legal team who agreed with this standpoint.  However, as it deals with military law and policy, they don’t have jurisdiction over the matter. 

 

[Tibbson]

It really is a non issue when you break it down.  Pardons only matter for those offences that give you a criminal record.  That is why one must go through the Parole Board since they are the national agency mandated to handle all pardon requests.

In your post you mention someone having been charged under NDA Sec 129 however that is not an NDA charge that gets entered on CPIC, and therefore does not give someone a criminal record.  As you noted, it can be used for everything from falling asleep on duty to not having shiny boots to an ND.  You also note the member would be eligible to apply for a pardon as of November 2016 but based on the previous I ask, what's the point because there is nothing to be pardoned from?  Its only a Sec 129 charge and as I noted earlier it does not give someone a criminal record for which they need a pardon.  Nobody outside the military is ever going to know about it unless the member tells them. 

Now, someone could be charged, for example, for an assault under NDA Sec 130 pursuant to Criminal Code Sec 265 and that WOULD give someone a criminal record if convicted.  In such a case I still agree with the member having to go through the Parole Board if they eventually seek a pardon though because it's not just about the member, it's also about protecting the interests of Canadian society.  Someone seeking a pardon needs to show they are rehabilitated and that they truly deserve to be forgiven for the offence(s) they committed and it really has nothing to do with the circumstances around which system they were charged and prosecuted under.  Yes the Supreme Court has recognized the necessity of the Military Justice System and in so doing they also recognized the legitimacy of such a system including its procedures and sentences. 

 

[rocksteady]

It really is a non issue when you break it down.  Pardons only matter for those offences that give you a criminal record.  That is why one must go through the Parole Board since they are the national agency mandated to handle all pardon requests.

In your post you mention someone having been charged under NDA Sec 129 however that is not an NDA charge that gets entered on CPIC, and therefore does not give someone a criminal record.  As you noted, it can be used for everything from falling asleep on duty to not having shiny boots to an ND.  You also note the member would be eligible to apply for a pardon as of November 2016 but based on the previous I ask, what's the point because there is nothing to be pardoned from?  Its only a Sec 129 charge and as I noted earlier it does not give someone a criminal record for which they need a pardon.  Nobody outside the military is ever going to know about it unless the member tells them. 

Now, someone could be charged, for example, for an assault under NDA Sec 130 pursuant to Criminal Code Sec 265 and that WOULD give someone a criminal record if convicted.  In such a case I still agree with the member having to go through the Parole Board if they eventually seek a pardon though because it's not just about the member, it's also about protecting the interests of Canadian society.  Someone seeking a pardon needs to show they are rehabilitated and that they truly deserve to be forgiven for the offence(s) they committed and it really has nothing to do with the circumstances around which system they were charged and prosecuted under.  Yes the Supreme Court has recognized the necessity of the Military Justice System and in so doing they also recognized the legitimacy of such a system including its procedures and sentences.

The charge will remain on your conduct sheet unless you get a pardon if the fine is over $200.  In order to have it removed you need a pardon.  So you are incorrect in saying that pardons only matter to things that give you a criminal record.  If you get out of the military and a potential employer asks you if you have ever been convicted under an act of parliament you must answer yes unless you have a pardon...

 

[CountDC]

DAOD 7016-1 date of Issue:  1998-08-31 supersedes CFAO 19-33, Pardons - Criminal Records Act

Think you are a bit out of date with "As of November 2016 member will be eligible to apply for a pardon from the Parole Board of Canada".  That has been in effect for a long time and I see no issue with the system. 

 

[Haggis]

Rocksteady:  Firstly, pardons no longer exist. The process is now called "Record Suspension".  (http://pbc-clcc.gc.ca/prdons/servic-eng.shtml)

From their website:  "Under the Criminal Records Act (CRA), the Parole Board of Canada (PBC) may order, refuse to order, or revoke record suspensions for convictions under federal acts or regulations of Canada."  This includes the NDA.  The member referred to needs to follow this process.  It is the ONLY way for the member to have the NDA 129 conviction removed from their conduct sheet.  However, s/he should also have a close read of DAOD 7016-1, particularly the parts regarding what does and, more importantly, what does not get removed from your pers file following a record suspension.

 

[Tibbson]

The charge will remain on your conduct sheet unless you get a pardon if the fine is over $200.  In order to have it removed you need a pardon.  So you are incorrect in saying that pardons only matter to things that give you a criminal record.  If you get out of the military and a potential employer asks you if you have ever been convicted under an act of parliament you must answer yes unless you have a pardon...

The question normally asked is something along the lines of "Have you ever been convicted of an offence for which a pardon has not been granted" and it refers to any conviction that gets entered onto CPIC.  By your rational anyone who has ever challenged a speeding or seatbelt ticket would need to get a pardon or would otherwise have to answer "yes" to the question about convictions. 

When one reads through the Criminal Records Act it states at Sec 4(3) "A person who has been convicted of an offence referred to in Schedule 1 may apply for a record suspension if the Board is satisfied that..."  Schedule 1, Sec C, clearly lists only those offences punishable under Section 130 of the NDA (offences punishable under ordinary law which occur inside or outside of Canada) while Sec D captures only those offences punishable under Sec 120 of the NDA (offences in relation to billeting). 

The original poster asked about a minor offence under NDA Sec 129 for falling asleep on duty in Afghanistan which hardly qualifies as a pardonable offence under the Criminal Records Act.  I still maintain that summary offences are viewed as nothing more then provincial offences tickets or similar minor offences.  Anything for which the punishment is greater goes to CM. 

 

[Haggis]

The original poster asked about a minor offence under NDA Sec 129 for falling asleep on duty in Afghanistan which hardly qualifies as a pardonable offence under the Criminal Records Act. 

If you look at Annex C to the Decision-Making Policy Manual for Board Members (http://pbc-clcc.gc.ca/infocntr/policym/polman-eng.shtml#a420) it shows the eligibility period for record suspension applications.  In that annex it generally refers to all offences under the NDA "where the applicant was fined $2,000 or less, or detained or imprisoned for six months or less" as five years. 

I still maintain that summary offences are viewed as nothing more then provincial offences tickets or similar minor offences.

That begs the question as to why, in Annex C, above, NDA convictions with fines of $2K or less, or detention/imprisonment of six months or less are treated the same as CCC summary convictions (Less Schedule 1 of the CRA) for the purposes of determining record suspension eligibility?

 

[rocksteady]

DAOD 7016-1 date of Issue:  1998-08-31 supersedes CFAO 19-33, Pardons - Criminal Records Act

Think you are a bit out of date with "As of November 2016 member will be eligible to apply for a pardon from the Parole Board of Canada".  That has been in effect for a long time and I see no issue with the system.

Well we are talking "tomatoe/tomotoe" here.  Pardon and Record Suspension is/was the essentially the same thing.  The DAOD you are referring to states "Pardon".  Secondly the DAOD is out of date as it states the timeframe to apply for a "pardon" for that type of offence is 3 years after when it is now 5 years.

 

[rocksteady]

In fact, since the DAOD states "pardon" and not "record suspension" the CF does not currently have a method to deal with record suspensions.

 

[Haggis]

In fact, since the DAOD states "pardon" and not "record suspension" the CF does not currently have a method to deal with record suspensions.

A pardon and record suspension fill the same purpose:  to have the criminal record of the affected person kept separate and apart from all other records. A member who is granted a record suspension will be dealt with IAW DAOD 7016-1.

 

[hammond]

Bill C-15 (Strengthening Military Justice in the Defence of Canada Act) gained Royal Assent o  19 June 2013 and made a number of amendments to the NDA. In reference to Criminal Records (record suspensions/pardons)  this was amended:

Criminal Record

249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to
(i) a severe reprimand,
(ii) a reprimand,
(iii) a fine not exceeding basic pay for one month, or
(iv) a minor punishment;

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

https://openparliament.ca/bills/41-1/C-15/
Click  "Full Text of Bill" and then Criminal Records

 

[Tibbson]

 

[Haggis]

Thanks, Island Trooper.  Interesting that the Justice Canada website hasn't updated their on-line NDA with the amended article yet.

 

[brihard]

Bill C-15 (Strengthening Military Justice in the Defence of Canada Act) gained Royal Assent o  19 June 2013 and made a number of amendments to the NDA. In reference to Criminal Records (record suspensions/pardons)  this was amended:

Criminal Record

249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to
(i) a severe reprimand,
(ii) a reprimand,
(iii) a fine not exceeding basic pay for one month, or
(iv) a minor punishment;

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

https://openparliament.ca/bills/41-1/C-15/
Click  "Full Text of Bill" and then Criminal Records

The interesting part about this is that it still allows for the possibility that one may be charged and tried summarily by one's company commander and end up with a criminal record. I personally think that's right out to lunch.

 

[dapaterson]

The interesting part about this is that it still allows for the possibility that one may be charged and tried summarily by one's company commander and end up with a criminal record. I personally think that's right out to lunch.

However, the individual has the right to elect a court-martial in those cases.

 

[Bzzliteyr]

So anything not numbered there (section 83 perhaps?) has been convicted of a criminal offence and therefore should have something in CPIC?

If so, they need a "pardon/record suspension"?

 

[Haggis]

So anything not numbered there

... plus anything numbered there where the punishment exceeds the thresholds set in paras (i) to (iv)...

has been convicted of a criminal offence and therefore should have something in CPIC?

If so, they need a "pardon/record suspension"?

Yes.

 

[Bzzliteyr]

But what if nothing shows in CPIC?

 

[Haggis]

But what if nothing shows in CPIC?

Then, in all probability, the CAF has not provided the information on the conviction to the RCMP..... yet.  They may never provide it (for a variety of reasons), or they could tomorrow.

 

[RedcapCrusader]

But what if nothing shows in CPIC?

Different services also have different levels of access to CPIC. For instance, there are some Peace Officers in Alberta have Level 1 CPIC access, which only allows them to see that someone has convictions on record but does not state what for and does not divulge warrants. Some Municipal Police services also do not always run the national index, so anything done outside of their jurisdiction is invisible unless they request for a national query or unless they have a Canada-wide.

If someone is acquitted, charges stayed or even conditionally or absolute discharge - although not a conviction - remain visible on CPIC for only a prescribed period of time and then are removed.