Justice Committee on April 29th, 2026

[Leah Gazan, NDP, Winnipeg Centre, MB]

It follows the same suggestion as my previous amendment, and it was also submitted by LEAF.

We want to reiterate the importance of ensuring that this legislation does not remain soft on big tech giants that are profiting from the endangerment and sexual humiliation of women and gender-diverse people, and to include the creation of sexual deepfakes in this offence. We're not really dealing with the problem. We're not dealing with the actual source and the companies that are disseminating this information or these photographs. They're let totally off the hook, and there is concern within women's organizations that the root of it is not being dealt with.

I just reiterate what I said before.

[The Chair, Liberal, James Maloney]

Thank you very much.

Shall NDP-3 carry?

(Amendment negatived)

Next is CPC-11.

Mr. Lawton.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

I have to give partial credit for the work on this one to my colleague, Michelle Rempel Garner, who tackled a lot of the issues long before the government did in her Bill C-216. This was also something that came about through some testimony that we heard from witnesses.

It adds an escalating penalty for the material at issue here. If we're talking about material that depicts sexual assault, it increases the maximum penalty. It's putting in some graduated sentencing, which is making this very serious, as it deserves to be.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Lawton.

Ms. Lattanzio? No. Is there anybody else?

Shall CPC-11 carry?

(Amendment agreed to [See Minutes of Proceedings])

We are on NDP-4.

I'll give you the floor in a moment, Ms. Gazan.

If NDP-4 is adopted, CPC-12 cannot be moved, due to a line conflict. Just bear that in mind.

Ms. Gazan.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you.

Again, similar to my last amendments, this amendment concerns the urgent problem of sexually explicit deepfake images. Legal experts have shared with us that the bill as currently drafted does not capture all offences that are taking place on such online platforms as X. This was submitted by NAWL. It includes the depiction of women and children in contexts where they are not fully nude but are clearly in sexualized positions, including being depicted in sexualized or revealing clothing, such as transparent bathing suits, or in humiliating conditions, such as being covered in blood or bruises.

These acts of violence are meant to humiliate the images they depict. We cannot leave open loopholes in this legislation that perpetrators can exploit to evade justice. I urge my colleagues to vote in favour of this amendment to close this loophole.

In good faith, Mr. Chair, I don't see any sort of shift happening in terms of protecting victims of this crime unless we are dealing with the companies that are allowing the dissemination of this material. This was submitted by NAWL.

Thank you, Mr. Chair.

[The Chair, Liberal, James Maloney]

Thank you, Ms. Gazan.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

I have a point of order.

If I could, Mr. Chair, would you agree that there is a line conflict between NDP-4 and CPC-12? The reason I say that—

[The Chair, Liberal, James Maloney]

I don't want to interrupt, but I did say at the start that there was a line conflict.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Oh, did you? I was already looking ahead, then. I apologize.

[The Chair, Liberal, James Maloney]

We're on the same page here.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

I'll speak to it, then.

I have a great deal of appreciation for what Ms. Gazan has tried to do here, but I'm inclined to vote no, because I feel that CPC-12, which I will be moving right after, achieves the same things but actually goes a bit further. Specifically, it captures artificial intelligence. That's the only reason I'm inclined to say no to NDP-4.

If there is an opportunity, or if Ms. Gazan feels that a subamendment on CPC-12 might be necessary...but I think it captures what she's trying to do here and more.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Lawton.

Shall NDP-4 carry?

(Amendment negatived [See Minutes of Proceedings])

That takes us to CPC-12.

Mr. Lawton, I assume that's you.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Yes. Thank you very much.

Very briefly, with CPC-12 we're trying to ensure that we don't end up having to come back to the drawing board because this fails to capture the technologies we're dealing with here. We have to acknowledge the role that artificial intelligence is playing in a lot of the issues we're talking about, including deepfakes and deepnudes, as they're referred to.

My amendment specifically references it here:

including by means of artificial intelligence software, and that shows an identifiable person who is depicted as nude, as nearly nude, as exposing

It's just making sure that we're fully aware of what we're incorporating. In here, it isn't just photographs; it's also meeting head-on the technological challenges that are being used increasingly to victimize women, girls and all people.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Lawton.

Is there anybody else?

Shall CPC-12 carry?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 15 as amended agreed to)

(Clause 16 agreed to)

(On clause 17)

That takes us to CPC-13.

Mr. Baber.

[Roman Baber, Conservative, York Centre, ON]

I move CPC-13.

First of all, I'll explain very briefly what it does. It essentially adds the notwithstanding language for child pornography possession offences under subsections 163.1(4) and (4.1), therefore shielding them from the application of sections 7 and 12 of the charter. This also applies to Bill C-16's MMPs.

I had a very interesting exchange with the Attorney General a couple of weeks ago. I subsequently learned that the Attorney General discussed with a reporter in the National Post that he had considered this very amendment. He actually considered invoking the notwithstanding clause in response to the Senneville and Naud decision. As we recall, Senneville and Naud's case struck down mandatory minimum sentences for possession and access and, in Naud's case, distribution of child pornography.

I had an intellectual exchange with the Attorney General, in which I put it to him that the reason for section 33, the reason for the notwithstanding clause, was to prevent absurdity. That's how former attorney general Jean Chrétien was able to seal the deal on the charter. The example that Jean Chrétien used was, what happens if the Supreme Court comes back and says that possession of child pornography, God forbid, is now constitutional by virtue of freedom of expression?

That's not what we had in Senneville. We had a similar decision where essentially the court, using a “reasonable hypothetical”, decided that a one-year sentence could be cruel and unusual in the case of Mr. Senneville and Mr. Naud. What's important is that the court did not consider the facts before them to amount to cruel and unusual. The court did not say, “You, Mr. Naud, holding 250 videos of children being raped, should qualify for the mandatory minimum of one year.” What the court did instead was abuse the reasonable hypothetical of two teenagers sending each other a picture, a case that no Crown and no police officer would ever prosecute.

I put it to Attorney General Sean Fraser that, if he's not going to use the notwithstanding clause on this scenario, where we maintain the one-year mandatory minimum sentence for possession of child pornography and distribution or accessing such material, then there will never be a scenario where this government will invoke the notwithstanding clause.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank goodness.

[Roman Baber, Conservative, York Centre, ON]

I hear my friend from Montreal saying, “Thank goodness.” I wish he would say, “Thank goodness,” in response to my amendment, which looks to protect these children. I wish he'd say thank goodness that this amendment allows this committee to take a necessary crack at this disgusting industry.

Of course we waive the rights of the accused. Can we for a second waive the rights of the 250 children who were raped in the videos that Naud was holding? The notwithstanding clause was inserted for a reason. I submit that this is the precise reason.

I would now like to go to the officials and seek clarification on something.

Let's take the Supreme Court in Senneville. The Supreme Court strikes down the mandatory minimum penalty. We heard reference to the Attorney General saying that what this bill might do is restore some of those minimums. We heard the member from Winnipeg, the deputy to the government House leader, suggest that Bill C-16 resurrect some of those mandatory minimum penalties. I would like to understand the legal framework from the officials.

Do you understand that the mandatory minimum penalty for accessing or possessing child pornography is now in effect, or has it been struck down by the Supreme Court? What would hypothetically happen if such a case were to be brought to trial next week?

[Leah Burt, Counsel, Criminal Law Policy Section, Department of Justice]

To answer your first question, the mandatory minimum penalty for accessing and possessing has been struck down. That's its status. Therefore, courts would not be able to apply those mandatory minimum penalties.

If Bill C-16 were to be enacted, it would permit courts to order a penalty below a mandatory minimum penalty because we have the new structured judicial discretion clause. We also have a “for greater certainty” clause that would essentially revive any mandatory minimum penalties that were previously struck down and that are still on the statute books. The result of those amendments would be that those two MMPs would once again be available to courts.

[Roman Baber, Conservative, York Centre, ON]

Ms. Burt, I'm not sure I understood your answer. I understand that there is an attempt by the Liberal government to suggest that giving judges an out to consider every case before them to be cruel and unusual would somehow strengthen mandatory minimum penalties. I get it. I'm not sure that it would necessarily have the courts deviate from reasonable hypotheticals.

Your first answer was that the mandatory minimum penalty for accessing or possessing child pornography has been struck down. Therefore, it no longer applies. Am I correct?

[Leah Burt]

That's the state of the law now, yes.

[Roman Baber, Conservative, York Centre, ON]

When Attorney General Sean Fraser sat exactly where you're sitting and said that this bill would resurrect those mandatory minimum penalties, he was wrong.

[Leah Burt]

My understanding would be the same as the minister's. We have a clause that states, for greater certainty, that all mandatory minimum penalties in federal statutes are once again in effect. We also have a new structured judicial discretion clause that would provide that courts can consider whether a mandatory minimum penalty would result in cruel and unusual punishment for the offender before the court, without resorting to reasonable hypotheticals. Therefore, our view is that it would mean those MMPs are once again available.

[Roman Baber, Conservative, York Centre, ON]

I apologize, Ms. Burt, but you said two different things in your answer. If it has been struck down and is no longer applicable, simply because a court would be free to.... Perhaps, for other offences that have not been struck down, you'd be able to do that.

Mr. Taylor, you might have something to say. Clarify it, please.

[Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice]

I'll try to build on what Ms. Burt said.

Regarding the MMPs we're talking about, and other MMPs that have been found unconstitutional by the courts but haven't been removed from the Criminal Code and are still on the statute book, those are not enforceable, as Ms. Burt said. With the enactment of Bill C-16, due to the rules of stare decisis, when and if Parliament enacted Bill C-16, there would be material changes in the state of the criminal law. One of those material changes, as Ms. Burt described, is that courts would be able to depart from the imposition of a mandatory minimum penalty where it would result in a grossly disproportionate outcome for the offender before the court.

[Roman Baber, Conservative, York Centre, ON]

I apologize, Mr. Taylor. What you're saying is that the courts may refer, essentially, to the existing MMP, even though, by virtue of stare decisis, it's no longer binding. However, now you're saying that the court will have, potentially, some sort of a plank to look at and say that previously there was an MMP, but it was struck down. They might choose to guide themselves by virtue of the previous MMP, but they're not bound by the MMP. Is that correct?

In other words, before the Senneville decision, the court was bound by the MMP, subject to a charter application that would potentially find the penalty to be cruel and unusual. Are you saying—and please, maybe tell me yes or no—that this bill does not restore the MMP and that it does not make it binding on the court?