It creates a window, or I should really say a door—quite an open, wide door—for judicial discretion. I am concerned that it doesn't cover the long record of the person or the breach of conditions, something that the government would like to retain, for sure. And frankly, I have some technical problems with it.
I think in part, Mr. Comartin, what you're trying to do here is expand upon the words that we chose to use in drafting the bill: “if the circumstances justify”. As you know, the more common expression in the Criminal Code is “in exceptional circumstances”, but we deliberately didn't use that here because the circumstances won't be that exceptional; they'll be fairly common and, in the case of the parole loss and the remission loss, will be universal.
I'm just not sure that trying to expand on this works, because you have conditions specified in the order for the person's detention, so the decision the JP makes isn't necessarily going to speak to conditions, other than that he'll be sending him to the remand centre or to a remand centre in his community.
The second element you have is “any negative impact on the person as a result of that detention”. Well, obviously for everyone detention has a negative impact. Also, you are making it personal to each individual offender. That's going to eat up a lot of court time. You're going to have to hear some kind of evidence as to what that impact was and whether it disproportionately affected a particular offender.
Then you have the basket clause, which is fine.
I can't really go further than that. It's really a policy decision.