Bill C-16

Protecting Victims Act

An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)

This enactment amends various Acts in relation to criminal and correctional matters.
It amends the Criminal Code to, among other things,
(a) create a new offence that prohibits engaging in a pattern of coercive or controlling conduct towards an intimate partner;
(b) provide that, in the following circumstances, murder — known as femicide when committed against a female person — is murder in the first degree:
(i) the murder is committed against an intimate partner in the context of a pattern of coercive or controlling conduct,
(ii) the murder is committed in the context of sexual violence,
(iii) the murder is committed in the context of human trafficking, or
(iv) the murder is motivated by hate;
(c) provide that, if an offender commits manslaughter in those circumstances, the court must consider whether to impose a sentence of imprisonment for life on the offender and, if that sentence is imposed, an adult offender is ineligible for parole for 10 to 25 years;
(d) remove from the criminal harassment offence the requirement to prove that the victim subjectively feared for their safety and replace it with a requirement to prove that the harassing conduct could reasonably be expected to cause the victim to believe that someone’s safety is threatened;
(e) amend the offence of non-consensual distribution of an intimate image to include, among such images, a visual representation showing an identifiable person depicted as nude, as nearly nude, as exposing their sexual organs or as engaged in explicit sexual activity, if the depiction is likely to be mistaken for a visual recording of that person;
(f) amend certain existing child sexual offences to include prohibiting a person from inviting a child to expose their own sexual organs for a sexual purpose;
(g) criminalize the distribution of visual representations of bestiality;
(h) create a new offence relating to the recruitment of a person under 18 years of age to be a party to an offence;
(i) provide that victims of certain offences, such as offences committed against an intimate partner, are entitled to testimonial aids;
(j) permit courts to order that an offender serve a period of imprisonment below a mandatory minimum term of imprisonment, but only if the mandatory minimum term of imprisonment would amount to cruel and unusual punishment for that particular offender;
(k) create a new Part establishing a framework for applying alternative measures and restorative justice processes in appropriate cases;
(l) create a new Part in respect of unreasonable delay that requires a court to consider specific factors in relation to case complexity, directs a court to exclude time periods in respect of specific applications and requires that a stay of proceedings be ordered only if a court is satisfied, taking into account a list of factors, that no other remedy would be appropriate and just;
(m) streamline and strengthen the procedural rules in sexual offence trials that govern when evidence of a complainant’s past sexual activity can be adduced and when certain private records, including therapeutic records, can be produced or adduced; and
(n) allow the possibility of using affidavit evidence for certain cases involving identity theft and identity fraud.
The enactment also makes consequential amendments to other Acts.
The enactment also amends the Youth Criminal Justice Act to, among other things,
(a) ensure that it better reflects the Canadian Victims Bill of Rights with respect to the rights and interests of victims;
(b) modernize the principle requiring consideration of the needs of young persons, including by requiring particular attention to those of Aboriginal and Black young persons; and
(c) allow youth justice courts to order that a young person enter into a recognizance if there is a reasonable fear that the young person will commit a child sexual offence.
The enactment also amends the Canadian Victims Bill of Rights to
(a) modify the preamble to affirm the importance of victim-centred and trauma-informed approaches;
(b) provide victims with the right to be treated with respect, courtesy, compassion and fairness;
(c) enable victims to receive information without being required to make a request;
(d) provide that victims have the right to receive information about their rights under that Act and the protection measures that are available to them;
(e) broaden the information that victims have the right to receive about available restorative justice processes; and
(f) clarify the right of victims to present a victim impact statement at sentencing and a victim statement for consideration when decisions regarding parole or corrections are made about the offender who harmed them.
The enactment also amends the National Defence Act to, among other things,
(a) provide that victims of certain offences, such as offences committed against an intimate partner, are entitled to testimonial aids;
(b) create a new Division in respect of unreasonable delay that requires a court martial to consider specific factors in relation to case complexity, directs a court martial to exclude time periods in respect of specific applications and requires that a stay of proceedings be ordered only if a court martial is satisfied, taking into account a list of factors, that no other remedy would be appropriate and just;
(c) streamline and strengthen the procedural rules to align with the Criminal Code procedural rules in sexual offence trials that govern when evidence of a complainant’s past sexual activity can be adduced and when certain private records, including therapeutic records, can be produced or adduced;
(d) provide victims with the right to be treated with respect, courtesy, compassion and fairness;
(e) provide that victims have the right to receive information about their rights under the Division of the National Defence Act entitled “Declaration of Victims Rights” and information about the protection measures that are available to them; and
(f) enable victims to receive information from authorities in the military justice system without being required to make a request.
The enactment also amends An Act respecting the mandatory reporting of Internet child sexual abuse and exploitation material by persons who provide an Internet service to, among other things,
(a) clarify the types of Internet services covered by that Act;
(b) require that transmission data be provided with the mandatory notification in cases where the material is manifestly child sexual abuse and exploitation material;
(c) extend the period of preservation of data related to an offence; and
(d) extend the limitation period for the prosecution of an offence under that Act.
The enactment also amends the Firearms Act to clarify that an individual whose firearms licence or registration certificate has been revoked is required to deliver their firearm to a peace officer, firearms officer or chief firearms officer and to provide that an individual is not eligible to hold a licence under that Act if the chief firearms officer has reasonable grounds to suspect that the individual may have engaged in an act of domestic violence or stalking.
The enactment also amends the Corrections and Conditional Release Act to, among other things, enhance the disclosure of information to victims and other components of the criminal justice system and provide for the submission of victim statements in certain instances.
Finally, the enactment also amends the Mutual Legal Assistance in Criminal Matters Act to facilitate legal assistance between Canada and supranational bodies with responsibility for criminal investigations or prosecutions.

Motions in Amendment

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I know my colleague is very serious about the concerns he has, as well as the rest of us, but when members are on the government side of the House and crafting legislation, we have to make sure that it is going to withstand charter challenges. We have seen too many times that we have reacted with our hearts, not necessarily with our heads, and brought in things that ended up being challenged, with court cases thrown out completely because the legislation we introduced reflected our emotions, not necessarily our responsibility, which is to make sure that the laws of the land are charter-proof.

[Gabriel Ste-Marie, Bloc, Joliette—Manawan, QC]

Mr. Speaker, we support Bill C-16, as does the Barreau du Québec. However, in a statement, it indicated that while it feels the bill's objectives are laudable, it believes that “incorporating them into a single piece of legislation creates regulatory complexity that will hinder the analysis, review and practical application of these provisions”.

What are my hon. colleague's thoughts on that?

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, different people have different opinions. We are very confident that Bill C-16 would accomplish exactly what we want it to do: protect victims, encourage more people to come forward, and look after our children and protect them from the many predators who unfortunately continue to be out there.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Mr. Speaker, my distinguished colleague has many years of service in the House. Perhaps she would reflect on the changes for women that she has seen in our legislation over that time.

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, a ton of changes have happened, but they have all been too slow. It seems that it takes a long time to start to really understand some of the difficulties different people, women in particular, are facing.

I am very proud of what has happened in the last 10 or 12 years as, really, women's rights have been getting the attention they need as we all move forward collectively to ensure that women's rights are protected. We will make sure that women such as those I met a couple of weeks ago know that their government is concerned about them and will continue to move forward legislation that will better protect them and better protect our children.

[Tony Baldinelli, Conservative, Niagara Falls—Niagara-on-the-Lake, ON]

Mr. Speaker, I was at the same meeting the member referred to, the heart-on-our-sleeve meeting with victims. I heard their gut-wrenching stories and witnessed their bravery in sharing their stories, so I wanted to ask this question: Why did the government vote against excluding child sexual offences from the safety valve? If mandatory minimum penalties can be ignored, what exactly is mandatory about them?

[Judy Sgro, Liberal, Humber River—Black Creek, ON]

Mr. Speaker, I remember that when I first heard about mandatory minimums, under former prime minister Harper, I thought they were a great idea. However, what is the use of bringing forward laws that are just going to get thrown out because there is the Canadian Charter of Rights and Freedoms that the government has to respect? We have to use more than our heart on our sleeve when we are crafting legislation. When someone is on this side of the House, they have to take that responsibility much more seriously.

[Michael Cooper, Conservative, St. Albert—Sturgeon River, AB]

Mr. Speaker, I rise in opposition to Bill C-16 because it is legislation that would completely eviscerate mandatory minimum penalties, virtually every one on the books, other than murder and treason. The bill would eviscerate them with a so-called safety valve that would give judges wide ambit to bypass virtually every mandatory minimum penalty set by Parliament, regard for Parliament's judgment that certain offences are sufficiently serious to impose a minimum sentencing floor, and regard for long-standing sentencing principles, including denunciation, blameworthiness and so on. It would give them the ability to instead apply a lesser sentence.

The Minister of Justice will claim that this is about saving mandatory minimum penalties in the face of certain recent jurisprudence. He has a point up to a certain point, which is that, yes, there has been some recent jurisprudence in which the courts have been more ready to strike down mandatory minimum penalties due to an expansive application of the reasonable hypotheticals doctrine following the Nur decision of 2015. In that decision, the court lowered the threshold in which the reasonable hypotheticals doctrine could be applied, to include hypotheticals that are not merely remote or far-fetched.

What that has led to in some cases is the courts' applying reasonable hypotheticals that are in fact remote, far-fetched and unreasonable. One clear example of that was the Supreme Court's Senneville decision. It was a divided, five-four, decision, but the majority, in its infinite wisdom, struck down the mandatory minimum penalty for the possession of child pornography. The facts in the Senneville case were grotesque. It involved two offenders: violent, sadistic sexual predators who had in their possession hundreds of images of child sexual abuse and torture.

The court applied a completely remote hypothetical, that of a 17-year-old boy who received a sexually explicit image from his 17-year-old girlfriend, which he then passed on to his 18-year-old friend. It is a completely remote hypothetical, but the court said that because it hypothetically could apply, the sentence was cruel and unusual punishment and violated section 12 of the charter, no matter how far removed that hypothetical was from reality and from the facts in the case.

In the face of a decision that constitutes, frankly, naked judicial activism, the only appropriate course of action for the government to take is to use the constitutional tool it has at its disposal, which is to invoke the notwithstanding clause to reassert parliamentary supremacy and Parliament's law-making powers, but the Liberals did not do that. Instead, they accepted the Senneville decision. Not only did they accept the Senneville decision, but they used the Senneville decision as a pretext to bring the so-called safety valve, which is an escape valve, into the bill.

What about the Nur decision and the cases that have followed? I say that, yes, it is an issue, but this is not the solution. The solution, when faced with decisions such as Senneville and Bissonnette, I restate, is to invoke the notwithstanding clause.

Seeing that the Liberals have absolutely no appetite to ever invoke the notwithstanding clause, there is another path, which is to introduce legislation to bring in new mandatory minimum penalties that would clarify and narrow the application of the offence as the mandatory minimum would apply to. However, that would take hard work, and the Liberals have not availed themselves of doing that. Instead what they offer is the broad escape valve. The Liberals have characterized it as a modest safeguard. They have claimed that it would, in effect, apply only in exceptional circumstances.

If that is the case, if it is not about totally eviscerating mandatory minimum penalties, which the Liberals are on the record as consistently opposing, by the way, over the past 10 years, then at the very least what is required is reasonable guardrails. Guardrails are completely missing from the legislation. There is no direction to the courts, no exceptional circumstances clause, no direction on how Parliament would demand or assert that the courts apply mandatory minimum penalties, and no direction with respect to the circumstances in which the escape valve could be used.

Conservatives brought forward at the justice committee multiple amendments to provide guardrails, including a guardrail that could apply only when the accused does not have a prior criminal record, a guardrail that the mandatory minimum penalty could be cut only by half, a guardrail that the escape valve would not apply in cases of child sexual offences, and a guardrail that the crime not include weapons trafficking, armed extortion or aggravated sexual assault. The Liberals voted against all those guardrails.

If in fact this is a modest safeguard and would apply only in exceptional cases and circumstances, then why is it that the Liberals were so reticent to define what those exceptional circumstances would be? Could it be because this is the same Liberal government that has the dubious record of being the only government in Canadian history to bring in legislation, Bill C-5, that repealed mandatory minimum penalties, by choice, involving serious crimes, including serious gun crimes and drug offences? I am not talking about minor possession; I am talking about trafficking and producing schedule I drugs, such as fentanyl, that have killed tens of thousands of Canadians over the past 10 years.

Could that be the reason why they were so reticent, so opposed to defining safeguards or guardrails around the escape valve? Could it be that the bill is not as advertised but that, despite the protestations of the Minister of Justice that it is about saving mandatory minimum penalties, the true intent of the bill is to eviscerate them? Make no mistake about it; mandatory minimum penalties would be eviscerated. They would have no meaning. The floodgates of litigation would be opened.

It begs the question, what good are mandatory minimum penalties if they can be disregarded on an ad hoc basis? For that reason, I and my Conservative colleagues cannot support this soft-on-crime bill from the soft-on-crime Liberals.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, there are no floodgates here, but there is a lot of contrast between the Conservatives and the government on the issue.

There are laws in place that have been ruled as unconstitutional, in violation of the charter, so a lot of the minimum penalties have been thrown out. The current government and the Prime Minister would reinstate minimum sentences. Yes, there is the exceptional clause so the course could be stayed, we would be allowed to continue and things would not be struck down by the Supreme Court of Canada.

The Conservative approach is the notwithstanding clause. How many times is the member going to have to bring in the notwithstanding clause to deal with the legislation? Is it twelve times or 20 times? What is the limit?

[Michael Cooper, Conservative, St. Albert—Sturgeon River, AB]

Mr. Speaker, the solution is not to impose a blanket escape valve and leave it to judges to, at their discretion, disregard or bypass what Parliament has judged to be a minimum sentencing floor related to the seriousness of the offence. That is what the Liberals have done.

The Liberals have completely surrendered Parliament's law-making power as it relates to mandatory minimum penalties. They had many options, including the notwithstanding clause and including bringing in new mandatory minimums. At the very least, as we said, if the Liberals are insistent upon an escape valve, then there needs to be robust safeguards. We brought forward robust safeguards. They voted them down every step of the way at committee.

[Blaine Calkins, Conservative, Ponoka—Didsbury, AB]

Mr. Speaker, a few years ago, I stood up in this place and went through a bill that the then Liberal government had passed. It got rid of a number of mandatory minimum sentences. I think it was Bill C-5, if I remember correctly. It got rid of the mandatory minimums for extortion with a firearm. I said at the time, “Hey, that must be a lot of fun, having somebody shoot at your house or hold a gun to your head and extort money out of you.”

What has happened with extortion in Canada since then?

[Michael Cooper, Conservative, St. Albert—Sturgeon River, AB]

Mr. Speaker, extortion has increased significantly. I believe extortion is up more than 80%. The member is quite right that the Liberals removed mandatory minimum sentences for serious offences including armed extortion, robbery with a firearm and weapons trafficking. It was not because the courts instructed the government to do so or because they were found to be unconstitutional but because the Liberals ideologically opposed mandatory minimum penalties.

Over these past 10 years, they have a record of being soft on crime time and time again, and this bill is another example of it.

[Gabriel Ste-Marie, Bloc, Joliette—Manawan, QC]

Mr. Speaker, does my colleague believe that the Liberals improperly broadened the scope of the provisions on bail conditions and other procedural safeguards that are applicable to intimate partner offences? This raises serious concerns in our view.

The amendments I am referring to simply remove the violence criterion from the procedural safeguards for crimes committed between intimate partners, without replacing it with a targeted alternative criterion.

What does my colleague think?

[Michael Cooper, Conservative, St. Albert—Sturgeon River, AB]

In short, Mr. Speaker, the hon. member is quite right. For example, there was an opportunity to fix section 810 orders at committee. I believe there were amendments brought forward that would have done that. What did the Liberals do? They voted against those amendments, just like they voted against every amendment to put in place robust guardrails around this escape valve with respect to mandatory minimum penalties.

[The Deputy Speaker, Tom Kmiec]

We have time for a very short question from the hon. Secretary of State for Combatting Crime.