Public Safety committee  Subsection 11(2) of the act requires the minister, when he refuses the transfer, to provide reasons. The fact that a clause provides for the minister to consider any other factor relevant cannot be read in isolation from the other provisions of the act, especially the purpose of

Public Safety committee  --has to be related in reality with the purpose and principle of the act.

Public Safety committee  It is the same as always existed since the first Transfer of Offenders Act.

Public Safety committee  It has always been a ministerial decision. The fact is that we help by guiding the minister in taking into account certain factors or considerations. As a matter of fact, when these considerations are laid out in the act, they're not laid out in such a fashion where it is to gu

Public Safety committee  The minister would have the discretionary authority to approve, or deny, a transfer. The bill lists a series of factors and we've tried to move away from criteria as such. We've tried not to have a list of criteria that the minister must comply with or select from when deciding t

Public Safety committee  I'm not telling you what happens now. The bill merely sets out a number of factors that may be considered, and that's why...

Public Safety committee  I'd like to focus on the concept of “shall“ versus “may“ in the context of legislation. As for a criterion and a factor, there is a difference between the two. When certain criteria must be respected, theoretically this leads to a positive, or negative, decision. That's not the c

Public Safety committee  In any event, when dealing with words like “may“, “shall“ or “will“, we have to...In the decision-making process, the minister will consider a number of factors listed, or other any other factor, for that matter. The amended section 10 clearly states that the minister may conside

Public Safety committee  The courts have already said that. In Kozarov, the court has already said that the factors listed in the act do not lend themselves to a positive or negative decision by the minister and that the minister can take into account any other factors that are relevant in the context, a

Public Safety committee  Yes, but even if he does not list or use one of those factors in making a negative decision on a transfer, for example, what the minister is obligated to do--and this is what the courts have said--is that there has to be a decision that is provided with rational reasons. You have

Public Safety committee  --this is within the context of the existing legislation right now.

Public Safety committee  I believe that it is correct.

Public Safety committee  If I may, the fact that the information is available doesn't make it a criminal record in Canada. All it does is provide information of a foreign record of some sort. When an offender transfers to Canada, while it doesn't create a conviction in Canada, it is recorded in our file

Public Safety committee  Yes.

Public Safety committee  I'll limit my comments to the court cases and the direction of the court in these matters. The courts have emphasized greatly that they have to give great deference to ministerial decisions and discretionary decisions. That's administrative law in Canada; that's the way it is.