Public Safety Committee on Feb. 3rd, 2011

[Andrew Kania, Liberal, Brampton West, ON]

Yes, just briefly.

I support the comments of Mr. Davies. Obviously he's correct. It's a very lucid analysis.

Mr. Rathgeber, as a fellow lawyer, I must say I'm surprised by what you just indicated. It's quite obvious that a judge, when looking at this, can consider whether the minister has considered these factors. If there is no evidence, if there's nothing relevant for a particular point of the legislation, it doesn't mean the minister is in trouble. It simply means the minister has put his or her head to whether that factor was in play, and they can make the decision that there was no evidence--nothing relevant to it--but they still considered it. I don't understand your analysis whatsoever.

I think one of the problems is that we had witnesses admit during the hearings that one of the reasons for these amendments is to avoid court cases that say “the minister didn't follow the law”, so therefore they send them back and say there's a problem. The whole problem with these amendments...and I think you're right in terms of what they were trying to accomplish. They're trying to avoid the court cases. They're trying to avoid judicial review in circumstances where it's quite clear that the minister is not following the law.

So from my particular analysis, the point of order is a different issue, but on the amendment, we need to have the amendment in order to be fair and have responsible legislation.

[The Chair, Conservative, Kevin Sorenson]

We have a number of amendments here and we are not going to rule on all the amendments. But on the admissibility of this amendment, after listening to all sides discuss this and listening to counsel at the table, not just from the clerk's side but also from the legislative side, I am persuaded that they are in order.

It may even change some of the spirit of the bill. That may be your argument: that it's changing in too vast a way the spirit of the bill. Certainly, clause-by-clause does give the opportunity to do it. We also have the opportunity to debate the amendment and continue, but as for whether or not this amendment is in order, I'm persuaded that it is in order, so we'll go back to.... That's the chair's decision, so unless there's a challenge, we'll now continue with the debate on the amendment.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, just so the committee perhaps understands the original legislation and how it functions, I think it would be instructive for all of us to hear from the officials who in fact make recommendations on these matters to the minister. Just so everyone understands, the minister doesn't sit at his desk saying yes or no without having some directives from and consultation with officials. I think they're certainly cognizant of the whole group of factors and what they mean. So making the changes may not enhance....

[The Chair, Conservative, Kevin Sorenson]

I will ask the department or the experts here to discuss this amendment a little and what impact it would have on this legislation.

Ms. Campbell.

[Mary Campbell, Director General, Corrections and Criminal Justice Directorate, Department of Public Safety and Emergency Preparedness]

Thank you, Mr. Chair.

I will be very brief and then turn it over to Mr. Laprade, who is legal counsel, to speak specifically to “may” versus “shall”. Obviously this is a list of factors that is longer than what appears in the current act. In part, this was an effort to reflect the case law that has developed and to reflect the scope of the minister's discretion that has been accepted or validated by the courts.

One of the challenges with this longer list is that if it becomes “shall”, the very last factor is “(l) any other factor that the Minister considers relevant”. That, I would suggest, becomes a bit problematic if you're saying that he “shall” consider any other factor when it is an open clause or, as is commonly referred to, a “basket clause”. I appreciate that is also the subject of a motion to amend before the committee.

On the nature of this list, I think the intention was to reflect the case law and outline the factors that may be pertinent, but not to establish a rigid and rather lengthy checklist. But on the issue, more legally speaking, of “may” versus “shall”, I would ask if Mr. Laprade has anything to add.

[Michel Laprade, Senior Counsel, Legal Services, Correctional Service of Canada]

Mr. Chairman, as Mary pointed out, the question of drafting and adding “may” instead of “shall” in the drafting of that clause was influenced greatly because of the last paragraph that is included in proposed section 10, which basically provides the minister the ability to consider any other factors.

Having a clause that would say “shall” in there would be nonsensical. You can't draft legislation in a way such that you're saying that you shall consider any factor you shall consider relevant. It makes no sense. That's why we needed to add this language in the clause the way it is.

I would like to point out something about the existing language, because what's being suggested is that we apply the existing language as if the word “shall”, in the language we have right now, directs the minister to a certain conclusion where an offender meets a criteria, and that is not the case.

Just on February 2, there was a series of decisions of the Federal Court in which Justice Phelan, in the case of Holmes, made a statement. I think I'll read it for you. It basically tells us how the court reads the word “shall” right now. He stated:

Further, none of the factors to be considered, including s. 10(2)(a), are determinative of the result. They are simply factors to be weighed by the Minister in a reasonable and transparent way.

So they are not determinative of a conclusion; they're simply factors the minister considers. So when we added the last paragraph to say and “any other factor that the Minister considers relevant”, the word “may” was added to the clause because we needed that. But it still is the same approach that will be taken in interpreting how the minister makes his decision. It's always going to be based on those considerations.

And none of the considerations is determinative. They won't be determinative after we change the legislation to a “may”, and they are not right now, while we have “shall”. It doesn't indicate that if a person, an applicant, meets one of those factors, the minister will inevitably say yea or no to a particular application. That's not what it means.

[The Chair, Conservative, Kevin Sorenson]

Mr. Kania, and then Mr. Davies.

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Laprade, I agree with you, obviously, that the enumerated factors are something that the minister is currently required to take into account. They don't lead, by definition, to a particular result. The court would just want to know that the minister has put his or her mind to the factors. That was part of what I was just saying last time.

Now, when you keep saying “the last paragraph”, I just want to make sure, for the record, that everybody's clear what that means. That's proposed paragraph 10(1)(l), which says “any other factor that the Minister considers relevant”, correct?

[Michel Laprade]

Yes.

[Andrew Kania, Liberal, Brampton West, ON]

Did anybody at the table recommend the addition of that paragraph to this legislation? Did any of you identify a problem and say that for some particular reason we need to add that paragraph?

[Mary Campbell]

I can't recall, and I wouldn't be in a position to discuss advice that was provided to the minister or cabinet.

[Andrew Kania, Liberal, Brampton West, ON]

I'll take your comment about “can't recall”, because I would be very surprised if any of you actually recommended that. I see that as a nonsensical paragraph. Certainly by the way it's worded, in saying “that the Minister considers relevant”, that could be anything, whether it's the colour of the person's eyes. It's really quite ridiculous—

[Mary Campbell]

With respect, Mr. Kania, I might just jump in. It is circumscribed by the case law, and the case law has been quite clear that in fact decisions have to be made considering relevant factors and, indeed, not completely irrelevant or factors such as hair colour or eye colour.

[Andrew Kania, Liberal, Brampton West, ON]

But that would be under the old legislation. This legislation would say “any other factor that the Minister considers relevant". We don't have a court interpretation on that, because this would be the minister's determination of what's relevant.

Here's my question to you. You're saying that the problem with “may” and “shall”, in terms of the first proposed subsection, is because of this last paragraph, 10(1)(l). In circumstances where I don't know anybody who's identified this as a problem, I don't know anybody who says we need this paragraph, I would suggest to you that we can solve the problem in terms of “may” and “shall” quite easily, by simply deleting proposed paragraph 10(1)(l). Then you would really have no problems with keeping it as “shall”, would you?

[Mary Campbell]

Well, the only comment I think I can make is that, from an adviser's perspective, basket clauses are not unusual. It's not at all strange to have such a clause, and it is always circumscribed by rational connections, relevant connections. I think really, just to emphasize Mr. Laprade's point, with an expanded list that reflects the case law to date and the provision of a clause that allows potentially for new factors that perhaps have not yet arisen, and every case presents something slightly different that is beyond imagination--

[Andrew Kania, Liberal, Brampton West, ON]

But you added a point there that didn't respond to my question. My question was, if we eliminated paragraph (l), you would then have no problem with keeping the initial wording as “shall” as opposed to “may”, because that takes away everything you've just been saying about what the problem is. Correct?

[Mary Campbell]

I'm not sure that I can answer that. I think it is more of a legal question at this point.

[Andrew Kania, Liberal, Brampton West, ON]

Then maybe Mr. Laprade can answer.

But I also want to comment on what you just said about basket clauses. I agree with you that it's not unusual to have a basket clause, but it depends upon what the wording of the basket clause is. This is not a typical one that says “and any other relevant factor”, because then a judge could actually see what was considered and make a determination about whether that factor was relevant or not.

So if the minister decided that the person's eyes were blue, and therefore yes or no, a judge would obviously say that's not relevant. But the way this is worded--“any other factor that the Minister considers relevant”--that is absolute discretion for the minister, absolute discretion to decide what the factor might be. This is a clause that in my view is attempting to circumvent and get around judicial review, which is exactly the reason other witnesses said we had this legislation: to avoid those court cases that told the minister he was not doing his job and couldn't get away with it.

[Mary Campbell]

I would just point out that the other provisions of the act continue to apply. If the minister were to deny a case using (l) and using a factor that others considered questionable, the minister would be obligated to provide written reasons to an applicant where a denial is issued. Those reasons would be on the record and of course would then be subject to judicial review if the applicant felt so inclined.

[Andrew Kania, Liberal, Brampton West, ON]

Sure, but this is the ultimate power clause. This is the clause that says, “I'm the minister, look at this”. It's any factor “that the Minister considers relevant”. “I'm the minister, I think this is relevant, no judicial review”: that's what this clause is about.

[Mary Campbell]

If I may say this, if in making a decision, the minister considers--very hypothetically--hair colour, and that was the basis for denying a transfer, that would be communicated openly and transparently to the individual, and the individual can take whatever action they choose to take. Based on the court decisions so far, the courts have provided quite a bit of guidance as to what is relevant in the exercise of ministerial discretion.

[The Chair, Conservative, Kevin Sorenson]

Mr. Laprade.

[Michel Laprade]

The courts have said the factors are not exhaustive. The courts have also said that if the minister is to consider a factor that's not enumerated in legislation, that factor still has to be in relation to or relevant for the purpose of the ITOA.

[Andrew Kania, Liberal, Brampton West, ON]

[Inaudible--Editor]...this clause?

[Michel Laprade]

Even with this clause, it would be exactly the same thing, because--