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| His Honour Judge (ret) Gilles Letourneau |
Pursuant to the newly enacted, but not yet in force, s.249.27 of the Strengthening Military Justice in the Defence of Canada Act, S.C. 2013, ch.24, behaviours such as conduct prejudicial to good order and discipline, absence without leave, false statement in relation to an absence without leave, insubordination and drunkenness will generate a criminal record if the sentence imposed is higher than a severe reprimand, a reprimand, a minor punishment or if the fine exceeds basic pay for one month. While generally the existence of a record is linked to the nature of the offence and its objective gravity, here it depends on the severity of the sentence. As a result of Supreme Court of Canada decisions, the scope of review of the severity of sentences by the Court Martial Appeal Court of Canada is quite narrow and limited. Thus a soldier to whom a fine slightly higher than basic pay for one month has been imposed is unlikely to be successful in his attempt to reduce the fine and avoid the devastating effects of a criminal record such as the impossibility to work for or to obtain a contract from the Federal Government, restrictions on his travels, stigma, refusals of entry in other countries, etc.
The aim of the Code of Service Discipline is to enforce discipline and good behaviour in the profession of arms just like the aim of the lawyers' and doctors' Code of Ethics is to ensure good behaviour and discipline in the legal and medical profession.
Should convictions for disciplinary offences give rise to a criminal record when the accused is deprived of his constitutional right to a trial by jury? Is the provision overreaching and, as a result, unfair? Can it withstand a constitutional challenge?
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