Military Justice System - Pardons for NDA offences

[Tibbson]

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.

 

[Tibbson]

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.

 

[rocksteady]

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

 

[McG]

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.

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.

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).

 

[Bzzliteyr]

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?

 

[Brasidas]

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?

 

[dangerboy]

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.

 

[McG]

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.

 

[Blackadder1916]

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.

 

[Tibbson]

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?

 

[rocksteady]

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 ******* 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.

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