Everyone will agree with Deputy Cowan's argument in the case of the mixed party he mentions, where the soldier takes a chance on it. It would come within the section and would be severe. There is another case, where a man may go home to his wife and family and the wife may be nervous and may persuade her husband to stay at home for a few nights. Under the section, that is absence without leave and the good lady would be guilty of a serious offence.
However, a person might procure a soldier to be absent without leave at a critical time, for no such relatively common sense motive. It could arise in time of emergency or in other cases, or by virtue of an organisation, as the Minister suggests. That would be serous. Desertion does not cover it, as the word " desert " has a technical meaning and involves intention to return. If he were charged merely with procuring the man to desert and it was shown that he was not doing that but was persuading him to be absent without leave, the man would be acquitted, though it may be a case where it would be very proper to have control and where the man should be punished. I feel it hard to see how the section could be drafted to differentiate there and it brings us back to the commonsense interpretation of the law.
I admit that Deputy Cowan's case is stronger on this than on Section 249. Nevertheless, the borderline between the two types of case is so nebulous that if you are going to catch the case that should be caught I do not see how technically you can avoid catching the case that should not be caught. The danger of abuse is such that you cannot take the risk.
