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 toward 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 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 in the commission of which violence was used, threatened or attempted 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 in the commission of which violence was used, threatened or attempted 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.

Protecting Victims Act

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

Mr. Speaker, since January 1, there have been four femicides in Quebec, and nine in total in Canada. It is unacceptable that we live in a country where women and girls experience this violence. It has been proven and studied: There are several stages leading up to femicide. Ultimately, there is a kind of inner anger for which no solution has been found.

Since my colleague asked me the question, I would like to know whether the Bloc Québécois will support making coercive control a criminal offence. This will allow for much earlier intervention in cases of intimate partner violence.

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

Mr. Speaker, the member has been a very powerful advocate through the women's caucus, and I applaud that.

In terms of femicide being elevated to first-degree murder, that is something relatively unique here in Canada. Could the member provide her thoughts on how Canada could play an important role, setting an example?

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I thank my colleague for his question, and I am very pleased to be back here in the House with my colleagues.

Elevating femicide to first-degree murder also allows us to set an international example, particularly for democratic countries with justice systems similar to ours. I will say it again: it is unacceptable for this to be considered an ordinary murder. The victims' families must also be supported during the process. This is important if we want them to be able to find some semblance of peace in their lives.

I will continue if there is time.

[Arielle Kayabaga, Liberal, London West, ON]

Mr. Speaker, it is a pleasure to rise in the House again as the member of Parliament for London West. I want to wish all members a happy new year and wish my colleagues a very successful session as they return to represent those who sent them here.

It is a great honour and opportunity for me to speak to Bill C-16, the protecting victims act, and the government's ongoing efforts to protect children and ensure that child sexual exploitation is unequivocally denounced, deterred and prevented. Protecting children and standing firmly with victims are among the most fundamental responsibilities of Parliament. Canadians expect a justice system that sends a clear message that sexual exploitation will not be tolerated, that victims will be protected, and that those who cause serious harm will face serious consequences. Bill C-16, the protecting victims act, reflects the government's commitment to ensuring our criminal law is strong, principled and capable of meeting this responsibility.

In particular, I will focus on Bill C-16's proposed reforms that address mandatory minimum penalties, or MMPs, in the Criminal Code.

To set the stage, when an offence is punishable by an MMP, it means that, absent an explicit statutory exception, a judge cannot impose a sentence that is lower than the prescribed minimum penalty, regardless of the circumstances. They can impose a longer sentence, but not a shorter one, so MMPs are the subject of a fierce debate. Some stakeholders support them for offering a clear denunciation for serious offences. Others, in other circumstances, have criticized them as potentially being an unfair limit on judicial discretion in sentencing, which can result in significantly harsher sentences for some offenders.

In particular, MMPs have raised the most concerns when they are attached to offences that apply to a wide range of conduct or circumstances. In such a scenario, a lengthy MMP can apply to conduct that involves relatively little risk to the public or lower moral blameworthiness. Because of this, MMPs are constitutionally vulnerable under section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual treatment or punishment, because they can result in what are called “grossly disproportionate sentences”. Gross disproportionality is a high threshold and has been described by the courts as being “merely excessive” or “disproportionate”. It must outrage our society's sense of decency, such that Canadians would find it abhorrent and intolerable.

Over the years, MMPs have been declared unconstitutional by the courts across Canada on this basis. Most of the MMPs invalidated to date are for child sexual offences, including those struck down by the Supreme Court of Canada in the Senneville case or the Bertrand Marchand case. In both of these cases I just mentioned, the Supreme Court struck the MMPs down on the basis of a reasonably foreseeable scenario, meaning that the court considers whether the penalty is unconstitutional because of its effect on hypothetical offenders, not the actual offender before the court. In many cases, the court finds that proportionate sentences for the offender before them should be equal to or more than the MMP, but many MMPs are struck on the basis of a hypothetical offender whose conduct is captured by a broad offence but falls at the low end of risk regarding public moral fault. Because of this potential for a grossly disproportionate sentence, the court must find these penalties to be of no force or no effect.

Most recently, following the Senate bill decision, significant concerns have been raised by stakeholders across Canada and the public about the inability of Parliament to denounce and deter some of these more serious offences using MMPs. The government agrees, which is why we are taking decisive and immediate action by proposing reforms to Bill C-16. These changes are going to address this issue by amending the Criminal Code to restore the MMPs that have been found unconstitutional by the courts.

They would do this by enacting a provision that would give judges the discretion to order a sentence of imprisonment lower than the statutory MMP in very narrow situations. It is expected that, in most cases, the stated MMP would still be applied. However, if a court is sentencing an offender for whom the mandatory penalty would be a grossly disproportionate punishment, the court would not need to impose the stated MMP, nor would it have to find the MMP unconstitutional.

It is important to emphasize that even though an individual may not be subject to a specific MMP, it is only in exceptional cases. In every case, the judge will still be required to impose a sentence of imprisonment.

Some people have raised questions about this, arguing that it does not reflect the guidance of the Supreme Court of Canada. I respectfully disagree. Requiring the imposition of a jail sentence in all cases would not only, in my view, create a risk of grossly disproportionate sentences, for the reasons I discussed earlier, including the fact that this standard is significant. Maintaining this aspect does something important; it excludes the option of a conditional sentence order for these very serious offences.

In my view, the proposed approach aims to strike an essential balance. We are aiming to ensure that courts impose serious consequences for serious offences, particularly those that harm our children and our communities, and to also ensure that judicial discretion is available for those exceptional cases that warrant lower sentences. I would also add that this approach is responsive both to requests from stakeholders and to suggestions that have been repeatedly made by the courts, including the Supreme Court of Canada, which suggested that such a judicial discretion clause could resolve most of the constitutional challenges associated with MMPs.

In making these comments, the Supreme Court made it clear that there would be only one requirement for such provisions: that it allow for a lower sentence where a specific MMP would violate the charter. This guidance is clearly reflected in the proposed amendments, and I am confident that they are a sound approach to maintaining appropriate MMPs while offering flexibility.

I would like to spend the remainder of my time elaborating on how the enactment of the judicial discretion clause would apply to existing MMPs. If Bill C-16 comes into force, by operation of the common law, all MMPs that had been found unconstitutional but that remain on the federal statute book would be considered restored. This would include recently invalidated MMPs for the possession of child sexual abuse and exploitation material, among many others. In addition, to ensure that this point is clearly understood by the legal community and the public, clause 87 of the bill provides that, for greater certainty, following the enactment of the judicial discretion clause, the operation of the existing minimum punishments would also be affirmed.

In practice, as a result of the proposed amendments, the courts would once again be required to impose MMPs for all offences where that penalty has not been repealed from the law, except in the rarest of cases where the MMP would result in cruel and unusual punishment for the offender before the court. This would enable Parliament to ensure that serious offences resulting in significant harm to victims and communities continue to attract severe sentences, while allowing courts to avoid imposing disproportionate punishments in exceptional cases.

I firmly believe that all members of the House can agree that this approach represents a sound compromise to ensure that a vast majority of MMPs remain available and actionable by the courts. In my view, this approach represents a positive evolution of the law that ensures that our legal frameworks remain effective and responsive to the concerns of the day.

In closing, I would like to highlight that the approach of Bill C-16 would complement the sentencing reforms proposed by our government in Bill C-14, the bail and sentencing reform act. Taken together, Bill C-14 and Bill C-16 reflect a clear and deliberate choice by the government to strengthen sentencing laws, protecting children and ensuring that the people who commit serious sexual offences face real, meaningful consequences.

[Tako Van Popta, Conservative, Langley Township—Fraser Heights, BC]

Mr. Speaker, my hon. colleague talked quite a bit about mandatory minimums and addressing the concern that our courts have had, particularly the Supreme Court of Canada, in declaring mandatory minimum penalties to be unconstitutional, contrary to section 12 of the charter. The problem we are facing is that courts have recently come out with the concept of hypothetical fact scenarios. Rather than dealing with the facts in front of them, they conjure up a hypothetical fact scenario and judge the constitutionality of the legislation against that hypothetical fact scenario.

If Bill C-16 is an improvement, should it prohibit judges from being able to use hypothetical fact scenarios?

[Arielle Kayabaga, Liberal, London West, ON]

Mr. Speaker, I will comment on the fact that whether they are hypothetical or not, we should deal with them. This is what Bill C-16 is offering, which is that we deal with the issue at hand. It is a solution, and it is what I think the courts and Canadians would want us to do.

I would put a question back to the member opposite: What would he propose that we do better in this situation?

[Michael Coteau, Liberal, Scarborough—Woburn, ON]

Mr. Speaker, there is no question that crime and violence are changing all the time with the introduction of technology. We know that this bill embeds pieces around deepfakes and different online protections.

Has the member had conversations with people in her community about any of the provisions within this bill, and what were those conversations like?

[Arielle Kayabaga, Liberal, London West, ON]

Mr. Speaker, this is something that a lot of people are talking about, especially parents. I am a mother. I have a teenage son who is navigating online. Many people want to talk about how this affects younger women and the conversations and education that are needed when we have our kids online.

One of the questions the member asked was about what our stakeholders were saying. As I mentioned earlier, there is a bit of a divide. We can never have a bill where all parties agree, but the life of this bill is that we want to make sure we are dealing with the important issues that harm our communities and harm our children and, as was mentioned, deepfakes. We saw recently on X that it is unable to address the issues that are affecting young women on the platform. This is an important issue that we continue to have in our communities.

Maybe the House can pass Bill C-16 and Bill C-14 quickly, things that Canadians sent us here to do.

[Tako Van Popta, Conservative, Langley Township—Fraser Heights, BC]

Mr. Speaker, I thank the member for asking me a question, and I am going to answer it now.

What would I do? We are talking about mandatory minimum sentences and a judge's inclination to conjure up hypothetical fact situations. I was reading section 63 of the proposed act, which would introduce proposed section 718.4 to the Criminal Code. It says that courts may steer around a minimum sentence if the minimum punishment would “amount to cruel and unusual punishment for that offender.”

I was optimistic and thinking that “for that offender” would rule out hypotheticals. Is that what that section means, just for clarification?

[Arielle Kayabaga, Liberal, London West, ON]

Mr. Speaker, I do not know the specific member's riding name, but the member does have a colleague who agrees with the scenario where mandatory minimum penalties, or MMPs, would be unconstitutional. That member said, “Conservatives have faced push-back because we want mandatory minimums for an offence for which the victim is serving a psychological life sentence. People will say that it failed in the Harper era. It failed in the Harper era because all we needed was a safety valve to say 'except in exceptional circumstances'. That is what one of the member's colleagues said. They agreed with this bill, and I hope the member also gets on board.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I too join my voice to the debate around Bill C-16. This bill comes in the wake of a decade of the Liberal soft-on-crime agenda. Now the Liberals seem to want to be the solution to the problems they have caused.

Over the last decade, we have seen crime across the country. If violent crime in Canada were to be plotted on a graph, we would see that it was steadily going up until about 2010. Then it declined until about 2014, when it started to go up again. It is interesting to lay over that the elections and the election results of that time.

That is entirely what this comes down to, which is the enforcement of the law and the general sentiment the Liberals project when it comes to law enforcement. A number of years back we heard of some tacit support from the Liberal Party for the movement to defund the police. We have seen legalized drugs across the country. We have seen exemptions to the Criminal Code in certain jurisdictions. Over the last decade, we have watched crime climb clear across the country.

I remember when I came to Ottawa back in 2007. The people of Ottawa were very proud of how clean their city was. That is no longer the case. Crime and chaos have come to Ottawa. Drug use is a big problem, particularly in the downtown core. As well, murders are up 45% this year. This is right here in Ottawa, our capital city. That speaks to the challenges of our country.

I will be sharing my time with the member for Niagara South, although I am certain that will be on another day.

In my neck of the woods, auto theft has been a major challenge for a long time. I am pleased the Liberal government seems to have taken action on that, but that was only after Toronto and Montreal started to complain about it aggressively.

Now, the other thing I wanted to talk about with this bill is how we got here. We got here after a decade of Liberals being soft on crime. We also got here because of a specific Supreme Court decision. My colleague from Langley Township—Fraser Heights touched on this just before I spoke, and this is the kind of thing that really galls me.

The court did not deal with the case that was in front of them. It dealt with a hypothetical situation, and I highly doubt that particular hypothetical situation would ever make it to court. The police would never lay charges in that case. Even if the police did lay charges, the prosecutor would say there was not really a case. Even if the prosecutor said that they probably did have a case, his supervisor would say that it was crazy.

The hypothetical case the Supreme Court judged a mandatory minimum sentence to be too egregious for was not the case that was in front of the court. It was a totally made-up case. The individuals in that case do not even exist. Here we are, with the Supreme Court striking down the law based on a severely hypothetical case.

It comes down to the fact that these courts do not like mandatory minimum sentences, and these are political decisions. Whether we like them or not is a political decision. The court wants to run around and say that it does not get involved in politics and that the government cannot interfere with the court's decisions. The courts are making a political decision by saying that they do not like mandatory minimum sentences, after mandatory minimum sentences have been duly debated and passed in this place. It should not be the judges' opinions on these things that matter. That goes to the hypothetical situation that it struck down.

We could have gotten around this mandatory minimum sentence challenge had the government just invoked the notwithstanding clause. The Liberals say that is an undermining of the Constitution. They say that all the time, that using the notwithstanding clause undermines the Constitution.

The reality is that the notwithstanding clause is in the Constitution. It is the Constitution. There is no undermining of the Constitution by using the notwithstanding clause. The Constitution would never have become the Constitution had the notwithstanding clause been put into it.

The other thing is that the court can get it wrong sometimes, and that this place gets to then be the arbiter of whether the court got it wrong. That is why the notwithstanding clause exists, and particularly in this case, I think the court got it wrong in terms of whether mandatory minimums for heinous crimes, such as they are, should stand. They got it wrong in the fact that they used a hypothetical situation to strike down the mandatory minimum sentence. If they were prepared to strike down the mandatory minimum sentence, they should have done it on the merits of the case that was before them and on the merits of the individuals who were standing there before them to be tried.

However, they did not do that. They knew that the public would never stand for the striking down of that mandatory minimum sentence given the heinous crimes of these individuals, so they came up with another hypothetical situation, and that is not appropriate. That is beyond the scope of our entire system.

A constituent came by the other day, and he pointed out to me an interesting thing. I think I will leave it here today. He said that it feels to him like the system no longer defends the interests of the citizen. He said that when his stuff goes missing, there is a half-hearted attempt to find it and charge somebody, but on the flip side, the system is very keen to defend itself and to defend the interests of the system.

We see this over and over again. When the system is under threat, suddenly the Liberals spring into action and say to not use the notwithstanding clause, to arrest that protester or to go after an organized group of folks. When the interests of the system are being threatened, suddenly there is action taking place, but when a private individual citizen's stuff goes missing, then the system seems unable to find the stolen stuff, to bring the perpetrator to justice, to go after a trespasser, or any of these kinds of things. The system seems quite lethargic, but when it comes to the interest of defending the system, suddenly the system seems to be able to spring into action.

I thought that was a profound insight. When we go forward to the next bill that we deal with, I am going to see if it is a defence of the system or a defence of the interests of the citizen that we are debating here today. I think we are debating the defence of the system.

The House resumed from January 26 consideration of the motion that Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures), be read the second time and referred to a committee.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, it is quite something that after 10 years of tearing down our criminal justice system and throwing victims of crime under the bus, suddenly the Liberals want to appear to be the heroes of their own story.

One crime I regularly speak about is human trafficking. It is a heinous and growing crime right here in Canada, and it is having an impact on victims all across Canada. Non-government organizations and law enforcement have been devastated by the changes the Liberals have made over the last number of years.

In December a trafficker was arrested in Lethbridge, Alberta, after the police responded to a girl in medical distress. They found a 14-year-old girl, along with two other girls, ages 15 and 16. All had been confined for days, and the youngest had been drugged and exploited by other men. At his court hearing, Skye Atoa was released on bail thanks to the Liberal bail system. Thankfully the police were waiting and rearrested him 30 minutes after his court hearing, for breaching the conditions of his bail.

More recently the Alberta RCMP arrested a man from Brooks, Chad Jensen, for sex trafficking offences. He is facing eight charges, including two counts of sexual assault and two counts of trafficking, and the police believe there are more victims. Guess what happened. He was immediately given bail.

I do not think it is too much to ask that we could live in a country that does not release child traffickers on bail. A Conservative government would fix these bail problems and ensure that human traffickers face justice.

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

Mr. Speaker, at the end of the day, what we have witnessed from the Conservatives is their not responding to what Canadians are asking them to do, including Canadians in Conservative ridings. What we have witnessed over the last number of months is a Conservative Party that continues to want to filibuster. Interestingly enough, they finally say they are going to pass Bill C-14, the bail reform legislation, which is a very important part of the government's agenda. We could have passed it in December. Fingers are crossed; hopefully they will pass it.

Does the member not recognize this as an important part of the whole crime package? Canadians want it. Can he give his personal assurance that he would like the legislation to pass before the end of February?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Mr. Speaker, I find that incredibly rich coming from the member, who adamantly defended Bill C-5 and Bill C-75 in previous Parliaments and also defended the carbon tax. Now, with a new leader in front of the Liberal Party, suddenly he and the Liberals are going to do a complete 180° on all these things and change them.

The reality is that the Liberals had the opportunity to pass Bill C-14, the bail reform bill that would fix their own problems, in the last Parliament. They did not bring it forward at committee; therefore, there was no opportunity to pass it in the last Parliament.