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.