# Military Justice System - Pardons for NDA offences



## rocksteady (15 May 2015)

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.


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## Tibbson (15 May 2015)

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.


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## rocksteady (1 Jun 2015)

Schindler's Lift said:
			
		

> 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...


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## CountDC (1 Jun 2015)

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.


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## Haggis (1 Jun 2015)

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.


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## Tibbson (1 Jun 2015)

rocksteady said:
			
		

> 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.


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## Haggis (2 Jun 2015)

Schindler's Lift said:
			
		

> 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.  



			
				Schindler's Lift said:
			
		

> 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?


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## rocksteady (2 Jun 2015)

CountDC said:
			
		

> 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.


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## rocksteady (2 Jun 2015)

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


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## Haggis (2 Jun 2015)

rocksteady said:
			
		

> 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.


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## hammond (2 Jun 2015)

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


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## Tibbson (2 Jun 2015)




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## Haggis (3 Jun 2015)

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


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## brihard (3 Jun 2015)

IslandTrooper said:
			
		

> 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
> 
> ...



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.


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## dapaterson (3 Jun 2015)

Brihard said:
			
		

> 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.


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## Bzzliteyr (3 Jun 2015)

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"?


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## Haggis (3 Jun 2015)

Bzzliteyr said:
			
		

> So anything not numbered there



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



			
				Bzzliteyr said:
			
		

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





			
				Bzzliteyr said:
			
		

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



Yes.


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## Bzzliteyr (3 Jun 2015)

But what if nothing shows in CPIC?


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## Haggis (3 Jun 2015)

Bzzliteyr said:
			
		

> 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.


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## RedcapCrusader (3 Jun 2015)

Bzzliteyr said:
			
		

> 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.


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## Tibbson (4 Jun 2015)

Brihard said:
			
		

> 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.



Negative.  The only convictions that go on CPIC are those through CM for the noted offences.  If the member has the option to elect CM and they choose to do so then they ride that risk.  Personally, if I knew I was guilty and had the option to elect then I'd take my chances with a commander to avoid the possibility of a criminal record.


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## Tibbson (4 Jun 2015)

In the case of the CAF, after a CM the MPs are notified of the conviction and it's entered in the MP reporting database.  A notice is then sent to the MP National Records Center who post the info about the conviction and sentence to CPIC.  They also enter any info required in the national sex offender databank or any firearms databanks as well if required.  If the conviction does not meet the threshold for a CPIC entry, perhaps someone was convicted of a lesser offence, than the MPNRC would not enter that on CPIC.

What many people also don't realise is that if you are charged with an offence for which you must provide prints and pictures, those prints and pics stay on file whether someone is convicted or not.  Even if the charges were dropped or a person was found not guilty.  Now, under the Identification of Criminals Act, if no conviction results from the charges the individual can request the prints be purged from the system.  If they don't request it, they stay on file.  Even if requested though, the CPIC director can still deny the request if he/she has a reason such as the severity of the allegation, the fact the individual has prior convictions or other outstanding charges.  Most people though don't request the prints be purged even though they can.


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## rocksteady (5 Jun 2015)

Seems like a bit much for someone to have to get a record suspension just to have it removed from their conduct sheet.


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## McG (5 Jun 2015)

IslandTrooper said:
			
		

> 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
> 
> ...





			
				Brihard said:
			
		

> 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 said:
			
		

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


Not all correct.  An individual cannot get a criminal record from a summary trial presided over by the Coy OC.  

The legal threshold described could be met from a summary trial presided over by the unit CO provided that a court martial election was given and the punishment then included reduction in rank or detention (ie. Club Ed).


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## Bzzliteyr (8 Jun 2015)

MCG said:
			
		

> Not all correct.  An individual cannot get a criminal record from a summary trial presided over by the Coy OC.
> 
> The legal threshold described could be met from a summary trial presided over by the unit CO provided that a court martial election was given and the punishment then included reduction in rank or detention (ie. Club Ed).



Hypothetical situation: Member is charged with 83 - disobeying a lawful command, elects summary trial, found guilty, fine of $2500 and reprimand...criminal record that needs a pardon or not?


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## Brasidas (8 Jun 2015)

Bzzliteyr said:
			
		

> Hypothetical situation: Member is charged with 83 - disobeying a lawful command, elects summary trial, found guilty, fine of $2500 and reprimand...criminal record that needs a pardon or not?



Since even a class B private makes more than that in a month, wouldn't that clearly stay under the threshold criteria listed?


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## dangerboy (8 Jun 2015)

Brasidas said:
			
		

> Since even a class B private makes more than that in a month, wouldn't that clearly stay under the threshold criteria listed?



Under the powers of punishment, the Commanding Officer can fine a maximum of 60% of the monthly pay and a delicated officer can fine up to 25% of monthly pay.  So looking at the current pay scales a Pte incentive 3 makes  $115.14 / day so figuring 31 days they make $3,569.34.  So the maximum a CO can fine him would be $2,141.60 and the max a deligated officer can fine is $892.34. So a class B private is under the $2,500 criteria.


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## McG (8 Jun 2015)

Max fine that a CO can give is 60% of a month's basic pay.  Going back to the previously quoted reference, you do not gain a criminal record from either a reprimand or a fine not exceeding basic pay for one month.  So, not a criminal record.


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## Blackadder1916 (8 Jun 2015)

This is an interesting thread.  While there has been much discussion about the what, when and how a conviction by a military tribunal is (or is not) entered on a criminal record and the process by which that record can be subsequently suspended, the underlying essence of the  problem (IMO) mentioned in the opening post has not been reached.  

Whether the OP is the naughty little bugger who fell asleep on guard duty is neither here nor there.  He relates a situation in which a soldier has been summarily tried and convicted of a purely military offence and for which the punishment given exceeds the threshold that would trigger the automatic removal of the entry from the member's conduct sheet IAW DAOD 7006-1 and concurrent destruction of any related disciplinary documents.  Since the punishment (a fine) given was not great enough to put this conviction in the realm of a "criminal record" for which he could eventually obtain a record suspension (pardon), he falls within limbo.  If he had been treated much more leniently there is a mechanism that ensures this does not follow him around forever (well, at least while still in the military), and if he had been treated much more severely there is a mechanism to eventually remove that entry from his records.

As I understand, one of the reasons behind a criminal records suspension (pardon) is so that it no longer reflects adversely on the character of an individual who has completed a sentence and now demonstrates good conduct.  Some may say that it doesn't matter since it remains in-house, and the military keeps a record of an individual's entire career performance (good and bad) from beginning to end.  But the primary element of that record is the PER and previous one's are not available for casual review by a member's immediate chain of command and thus precludes them from pre-judging an individual.  However a member's conduct sheet, though controlled, is available for local review and entries could be held against the member.

The days of "march the guilty bastard in" may be long gone and there is a much more professional approach to the military judicial process.  Maybe that approach should also include a updated process to remove (or suspend) entries from conduct sheets.  Though it has been many decades since I last did a hatless dance (I did a couple in my youth - not uncommon back then), the criteria for automatic removal (particularly amount of fine) has not changed (at least I don't think so to my best recollection).  A fine of $200 in the 1970s was a significant hit on a young soldier's wallet, today not so much; maybe (at a minimum) it should be adjusted for inflation.


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## Tibbson (8 Jun 2015)

I see your point but I still don't see it as an issue.

A criminal record is only generated for convictions related to certain offences tried by CM and one system exists in Canada to apply to clear such convictions regardless of the Act that was violated or the mechanism by which the individual was tried.

The legal system deems any other offences as being minor in nature and not worthy of entry on someone's criminal record because they are not criminal convictions.  This includes HTA offences for speeding (traffic tickets) which are recorded on someone's driving record, violations of municipal bylaws for which tickets are issued and are recorded on municipal records of some sort or even violations of employment safety standards which are also recorded, just not on someone's criminal record.  

Personally I see summary offences in the CAF as being no different than any of these.  There is no mechanism for pardons because they are not serious enough to warrant such a system.  A members conduct sheet is no different in my mind then a driver's record or a list of bylaw infractions for an individual.  Authorities track these but they only have impact if someone is a repeat offender.  If they have a "one of" on the conduct sheet then it's a non-issue unless there are further entries.  Such further entries can be used as factors if administrative action is being considered and in such cases a pardon would be counterproductive to the process.  

Owing to all of that I believe the original posters question was addressed.  He identified something that is a non-issue since no criminal record would result from the offence type he used as his example.  Further, the want a pardon system for matters that have no long lasting repercussions unless the individual reoffends is pointless just because a member may want the satisfaction of having a clean conduct sheet.  Its a conduct sheet, used to record deficiencies in conduct not criminal activities.  What next?  Do we develop a system to purge div notes or expunge areas for improvement on past PDRs?


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## rocksteady (9 Jun 2015)

Blackadder1916 said:
			
		

> This is an interesting thread.  While there has been much discussion about the what, when and how a conviction by a military tribunal is (or is not) entered on a criminal record and the process by which that record can be subsequently suspended, the underlying essence of the  problem (IMO) mentioned in the opening post has not been reached.
> 
> Whether the OP is the naughty little bugger who fell asleep on guard duty is neither here nor there.  He relates a situation in which a soldier has been summarily tried and convicted of a purely military offence and for which the punishment given exceeds the threshold that would trigger the automatic removal of the entry from the member's conduct sheet IAW DAOD 7006-1 and concurrent destruction of any related disciplinary documents.  Since the punishment (a fine) given was not great enough to put this conviction in the realm of a "criminal record" for which he could eventually obtain a record suspension (pardon), he falls within limbo.  If he had been treated much more leniently there is a mechanism that ensures this does not follow him around forever (well, at least while still in the military), and if he had been treated much more severely there is a mechanism to eventually remove that entry from his records.
> 
> ...



These are all very good points.  Thanks for contributing to the discussion.


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