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.