I'm just looking through section 113. One of the general points that I think it is important to make is that the offences that were identified certainly can occur in subjectively minor circumstances, but they are objectively serious offences and can encompass very significantly serious behaviour or conduct.
If we look at causing fires, section 113, it talks about a “person who wilfully or negligently or by neglect of or contrary to regulations, orders or instructions, does any act or omits to do anything, which act or omission causes or is likely to cause” a fire. Again, this type of offence is not unique to the code of service discipline. Civil society also prohibits that type of activity and seeks to punish it.
If we look at the offences in relation to vehicles, we can see again that they encompass what may be minor offences but also very serious conduct. Paragraph 111(1)(a), for example, says “drives a vehicle of the Canadian Forces recklessly or in a manner that is dangerous to any person or property having regard to all the circumstances...”. Paragraph (b) talks about driving a vehicle while your ability to do so “is impaired by alcohol or a drug”. Again, this is criminal conduct in civil society. This particular offence is punishable by a term not exceeding five years' imprisonment.
These are objectively serious offences that are within the jurisdiction of a summary trial officer because we recognize that they can also occur in very minor circumstances that are critical and important to discipline.
So when you look at the way clause 75 is drafted, it does not provide that you do not obtain a record within the meaning of the Criminal Records Act with respect to convictions at summary trial. It says that you shall not receive that record with respect to any service tribunal conviction. In other words, what we're looking at is the harshness of the Criminal Records Act effect, where these types of offences—the list of offences—occur in very minor circumstances. What we don't do is try to exempt one of the types of service tribunals from the Criminal Records Act structure or mechanism. The reason that is not done in this legislation is that the military justice system, with its two tiers of tribunal structures, needs to work as two parts of a machine that need to work together.
We've heard about the summary trial system and it has been noted that not all the procedural protections exist at summary trial that exist at court martial. We've explained why that occurs. But one of the key safety mechanisms in place to ensure that soldiers are fairly protected is that in all but the most minor of circumstances, a soldier always has the right to choose to be tried by court martial.
If we introduce a system that essentially includes a disincentive to exercise the right to go to court martial, the effect that will have, we believe, is to unfairly disadvantage the soldier in making a bona fide informed choice with respect to what type of tribunal he wants to appear before. If you tell a soldier that he will get a record within the meaning of the Criminal Records Act if he exercises his right to be tried by a court martial, our fear is that the soldier won't exercise that right and will feel compelled to have the matter dealt with at summary trial. That is the very fairness issue that I think many people have talked about within the context of the hearings around this issue.
The introduction of this type of amendment that makes a distinction based on tribunal we think does not serve the interests of the system, and it does not serve the interests of the people who are subject to the system.
Colonel Gibson, I don't know if you have anything you want to add to that, but if you do, please do so.