Justice Committee on March 23rd, 2026

[Joanna Wells]

That is correct.

[Roman Baber, Conservative, York Centre, ON]

In practice, that means the mandatory minimums that are prescribed by Parliament are no longer mandatory if a judge feels they should not be applicable in any given case.

I submit that this is outright crazy. This will erode mandatory minimum sentences. It will result in lighter sentences for serious offenders. The Liberals are doing precisely the opposite of what is now required. Am I wrong?

[Joanna Wells]

There are two things I would say in response to that. Currently, without an escape clause, what is happening, as the minister indicated, is that courts are striking the MMP down so they apply in no situations. The proposed approach in Bill C-16 is adding the structured judicial discretion clause to restore the mandatory minimum penalties that have been struck down so they apply to the majority of offenders, except in those very narrow cases for which it may be grossly disproportionate for that offender.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Baber. You're out of time. In fact, you're over time.

Ms. Lattanzio, we'll go over to you.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you to the officials for being here this morning.

Bill C-16 proposes a new offence related to coercive and controlling behaviour in intimate partner relationships. Can you explain the legal elements of this offence? What would need to be proven in the courts for a conviction to occur?

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you. That's an excellent question.

The offence has been carefully crafted to criminalize engaging in a pattern of coercive or controlling conduct, either with the intent to cause the accused's intimate partner to believe their physical or psychological safety is threatened or with recklessness as to whether that pattern of conduct could have this effect. That is the mental element of the offence. The act element is, as I've said, engaging in a pattern of coercive or controlling conduct.

The offence would define a pattern of coercive or controlling conduct as any combination or repeated instances of three types of conduct: violent conduct, including any attempted or threatened violence towards the intimate partner, the intimate partner's child, their animal or anyone known to them; coercing or attempting to coerce the intimate partner to engage in sexual activity; or conduct that could, in all the circumstances, reasonably be expected to cause the intimate partner to believe their physical or psychological safety is threatened. We refer to that as conduct that threatens safety.

The first two types of conduct are criminal in and of themselves. The third type of conduct addresses all forms of subtle coercive conduct that could be engaged in by an abuser, provided that a reasonable person in the victim's position would believe their physical or psychological safety was threatened. In order to give that provision life, the legislation includes a non-exhaustive, illustrative list of different types of coercive conduct. That list is taken from the lived experiences of survivors of coercive control.

The approach is consistent with Scotland's approach. Stakeholders have told us that this is the gold standard, because it doesn't require the victim to testify that they actually feared for their safety. That is the critical element.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you.

Some comments or suggestions have been made that allowing judges to depart from a mandatory minimum in very limited circumstances would weaken penalties. Can you explain how the safety valve actually helps ensure that these mandatory minimum sentences remain constitutionally sound while still requiring a term of imprisonment for serious offences and offenders?

[Joanna Wells]

I think the minister also made this point when he was here earlier. What the escape clause does is create a situation whereby MMPs currently in the statute book that have been struck down by the Supreme Court of Canada or held to be inapplicable by other courts at other levels are reanimated.

They apply again, but this provides a small window of judicial discretion to allow judges to depart from a mandatory sentence in situations where they may otherwise have to strike it down or not apply it in a particular case because it would offend section 12 of the charter, the right to be free from “cruel and unusual treatment or punishment”. In that respect, it reanimates MMPs that are not currently at issue while allowing for judicial discretion.

I would also like to clarify that the exception for the MMP doesn't impact a judge's ability otherwise to impose a just and appropriate sentence.

[Patricia Lattanzio, Liberal, Saint-Léonard—Saint-Michel, QC]

Moving on to the portion of Bill C-16 on the online protection of children, several amendments of the bill focus on protecting children online, including changes related to child luring and sextortion. Can you describe how these changes expand the tools available to law enforcement?

[Nathalie Levman]

There is a bunch of different amendments in Bill C-16 that would directly address sextortion, including sextortion of children, which we know to be a significant problem. The first is an offence that would prohibit threatening to distribute child sexual abuse and exploitation material. That's intended to assist with proving sextortion cases, because the extortion offence requires not just threatening behaviour, but also inducing the other person to do something, whereas this offence would apply to a person who threatens, let's say, a child to distribute CSAM without requiring proof of the purpose. The same new offence would apply to threatening to distribute intimate images in the world of sextorting adults.

We also have an amendment in Bill C-16 that would expand the child luring offence to ensure that police can use that offence when an accused communicates with children in order to sextort them. We call those preparatory offences. They address conduct that occurs before the actual offence occurs, and that provides greater protection for children. There would be—

[The Chair, Liberal, James Maloney]

I'll have to ask you to wrap up, please.

[Nathalie Levman]

—an aggravating factor on the extortion offence in the case where it's sexual in nature.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Brunelle-Duceppe, welcome to the justice committee. You have six minutes.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Thank you, Mr. Chair.

My colleague seems to be very interested in mandatory minimum sentences.

On the whole, Bill C‑16 would introduce a so-called safety valve for judicial sentencing discretion that would have the effect of reinstating, in future cases, mandatory minimum sentences that the courts have found unconstitutional. A new provision would allow the courts to sentence an offender to less than the minimum term of imprisonment, but only if the minimum sentence would constitute cruel and unusual punishment for that offender.

Could you explain why this approach was chosen?

[Joanna Wells]

On the MMP question, I think the objective of the change, of the proposal, is to allow judicial discretion in the case before a judge—that is, the case they're hearing. In that situation, the mandatory minimum penalty would be unconstitutional. It would amount to cruel and unusual punishment.

What's happening now is that often the case before the courts would not fall under that situation, but when the court does its section 12 analysis, it looks to a reasonable hypothetical. That is a case that often falls at the lower end of the moral blameworthiness spectrum, for which an MMP might not be appropriate or for which it would be cruel and unusual. On that basis, they strike it down.

The proposed approach in the bill is intended to focus the analysis on the offender before the court and protect the MMP by moving the analysis to the specific offender.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Which country did you look to as a model, and how does this approach differ from what other countries are doing, if at all?

[Joanna Wells]

The model that has been put forward as part of Bill C-16 is responsive to Canada's legal landscape and our jurisprudential framework. This type of structured judicial discretion, or the fact that it is needed in the criminal space, has long been called for by criminal law experts and sentencing experts in Canada.

The Supreme Court has suggested that this type of structured discretion would be a way of preserving the mandatory minimum penalties in the Criminal Code. That's the model we based it on, as opposed to looking internationally. It was very much a made-in-Canada approach for the specific issues we've been facing.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Which mandatory minimum sentencing provisions that were found to be unconstitutional would be restored if this measure is passed?

I would appreciate it if you could provide specific examples.

[Joanna Wells]

The best example to provide is the mandatory minimum penalty of one year that was recently struck down by the Supreme Court in the Senneville case in October of last year. In that case, the court held that the mandatory minimum penalty was unconstitutional and could not apply. It did not apply. It struck it down across the country.

By enacting the structured judicial discretion in Bill C-16, that MMP, because it remains in the statute books, would be reanimated. It would apply again going forward, but offenders who are charged would be evaluated under the judicial discretion clause.

The MMP would apply, and it's expected to apply in the vast majority of cases.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Thank you.

Another major issue I believe my colleagues are concerned about, when it comes to Bill C‑16, are the court delays. They remain a major concern, especially since the Jordan decision.

Practically speaking, how will the measures proposed in the bill help to reduce delays in criminal proceedings?

[Chelsea Moore, Team Lead and Legal Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for your question.

It's important to recognize that the bill would maintain the incentives established by the Jordan decision, but would create new incentives by simplifying sexual offence proceedings, for instance, which are known to be a problem in terms of the Jordan time limits. The bill would also set time frames for the filing of applications, which are also known to be a problem. The approach really targets the proceedings.

The bill also contains measures to simplify the presentation of evidence and provides more guidance on complex cases, so that they are recognized as such in accordance with the Jordan decision.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Proceedings involving offences against children are known to be especially lengthy in many cases.

Is there anything specific in the bill to speed up the handling of those cases, so that child victims don't have to wait years for the trial to end?

[The Chair, Liberal, James Maloney]

You have time for a very brief answer.

[Chelsea Moore]

All of the court delay measures in the bill will address cases where the victims are children. Those cases are among the most complex and will be recognized as such under the bill.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Gill, you have five minutes.