Mr. Chair, I think we as a committee of mostly non-lawyers are missing what could happen if in fact we changed the word “may” to “shall”. There seems to be an assumption here that if we use the word “shall”, we're going to achieve all those objectives Mr. Carrier, Mr. Laframboise, Mr. McGuinty, and Mr. Hubbard have enumerated. I don't believe that's so.
If you had a minister who did not want to pass regulations, he could comply with the letter of the law by simply passing a benign regulation, and he could say “I've done my job”. What it does is something much more dangerous. By changing the word “may” to “shall”, it introduces ambiguity into the section. It raises the distinct possibility, as has already been mentioned by Mr. Jean and by Mr. Langlois, that we are going to be attracting litigation that none of us had anticipated or expected. It may raise expectations of the public that none of us really wanted to meet.
On the suggestion that we should be regulating the whole area of fees and how they're advertised, I think you're going to find unanimity at this table. That's why the section is even in here. But the moment we introduce the word “shall”, those of us who have done drafting in the past know that it's an invitation to attract litigation that is spurious or that may actually impose costs on government that we never expected. l'm looking at the wording that was used in the initial draft, which is “the agency may on the recommendation of the minister”.
My guess is that if you asked Mr. Langlois, he would probably tell you that it's one of the most common phrases used in statutory drafting because it's been interpreted. It does provide discretion. It doesn't compel a minister to do something non-specific. This does. If we use the word “shall”, a member of the public could come forward, as has been suggested, and could say “Well, there's a compulsion to regulate. You haven't regulated the way I'd like to see it done, and I believe there should be an order of mandamus issued to compel you to act in my favour.”
We're asking for litigation. We're introducing ambiguity, and we're not achieving what Mr. McGuinty had hoped to achieve, which is to compel the minister to regulate in a specific way. It's not going to happen.