Justice Committee on April 29th, 2026

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

With all due respect to my colleague, Mr. Housefather, I could not disagree more with his analysis.

Members of the Liberal Party of Canada stand on their soapbox and claim that they're the party of the charter, yet they completely dismiss the utility and application of section 33, which is the notwithstanding clause.

Let us not forget that the charter would not be in existence but for section 33. That is a fact.

What we're dealing with here is not a simple, willy-nilly application of the notwithstanding clause. It reflects the abhorrence that I would think every parliamentarian should have with respect to child sexual abuse material.

I want to comment on my colleague Mr. Lawton's intervention, when he spoke briefly about the sentencing judges in the Senneville case, who essentially—I think this was Mr. Lawton's comment—undercut the mandatory minimum penalty.

He didn't provide specifics, but I have the actual decision before me. I want to remind all of my colleagues here what the nature of the collection was for both Senneville and Naud. Senneville admitted to possessing “475 files, including 317 images of children.... Of those images, 90 percent were of young girls between 3 and 6 years of age” having sexual relations with adults and minors. The sexual relations depicted involved “penetration and sodomy”. He admitted that he had possessed this filth for over a year.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I have a point of order.

[The Chair, Liberal, James Maloney]

I'm sorry, but you don't have rights to raise a point of order here.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I'll just say that because this is live, it might be triggering for people who have experienced this violence. Maybe we should do a warning for people online whom this might be triggering.

[The Chair, Liberal, James Maloney]

Thank you, Ms. Gazan.

Technically, you're able to speak only when you're introducing—

[Leah Gazan, NDP, Winnipeg Centre, MB]

I apologize, but I'm just concerned.

[The Chair, Liberal, James Maloney]

Thank you.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Notwithstanding, Senneville pleaded guilty, co-operated with the authorities and had no previous criminal record and no outstanding charges.

The sentencing judge—and this reflects the problem we have with a lack of consistency across this country at all levels of court in every province and territory when it comes to the appropriate sentencing provisions for this type of filth—imposed a sentence on Senneville for the possession count of 90 days of imprisonment. Get this. They were not to be served consecutively but intermittently. He got a weekend sentence for possessing this vile filth. On the count of accessing, there was another 90-day sentence of imprisonment to be served intermittently, and the two sentences were to be served concurrently.

This animal got the benefit of a weekend sentence for this filth, followed by two years of probation. It is no small wonder that the Crown of jurisdiction decided to appeal it.

We all know that the Supreme Court of Canada issued a decision that found that the possession and accessing penalties of one year were contrary to section 12. It was a five-four split. That dissenting opinion was shared by Chief Justice Wagner, Justice Côté, Justice Rowe and Justice O'Bonsawin.

I want to read into the record various passages of that dissent. It reads:

Child pornography has unquestionably become a scourge both nationally and internationally. It destroys countless innocent lives. Each pornographic photograph, video or audio recording that involves a child is an act of exploitation that will leave the child with deep and lasting scars.

Whether it depicts real or fictional children, child pornography normalizes the exploitation of minors and trivializes their objectification. By promoting the dissemination and acceptance of sexualized representations of children, the consumption of child pornography—in all its forms—encourages attitudes and behaviour that lead to irreversible harm.

The message sent by this Court’s decision in R. v. Friesen...could not be any clearer: the sentencing process must convey the profound wrongfulness and harmfulness of offences against children.

On Sheppard, again from the Supreme Court of Canada, they said:

The censure of society and the law must be reflected consistently and rigorously in the sentences imposed on offenders who are guilty of sexual offences against minors...A fit and proportionate sentence is one that is consistent with the teachings of Friesen and that gives effect to Parliament’s intention that sexual offences against children be punished more heavily.

I wanted to bring that to everyone's attention because, to Mr. Baber's point and the use of hypotheticals, I want to hear from one of the Justice officials about whether or not they agree with one of the principles espoused in the dissent that talked about the use of hypotheticals. I'll quote this passage, and I'd like to know what the position of the Department of Justice is. It reads:

When a constitutional challenge under s. 12 is based on a hypothetical scenario, as here, the hypothetical scenario chosen must still be “reasonable”.

This is reference to the Supreme Court's decision in Goltz from 1991. Although it is a dissenting opinion, is that a position that is shared by Canada's Department of Justice?

[Leah Burt]

The premise that a hypothetical needs to be reasonable is one we would share, yes.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

We all know the so-called “reasonable” hypothetical used by our learned justices just down the street had absolutely nothing remotely similar to the activities of Senneville and Naud.

The Supreme Court of Canada, in my opinion—and whether it's shared by colleagues at this table or not, this is my opinion—was not reasonable. It was completely remote. It had no factual nexus to the offending type of behaviour by Senneville and Naud. It involved two young men, one of whom took an intimate image of his girlfriend and shared that image with the other friend. In those circumstances, the Supreme Court of Canada in its majority opinion felt the application of a one-year MMP would be contrary to section 12. As a former justice participant, I couldn't agree more.

I want to ask the Justice officials this question. During the consultation phase of the creation of this particular bill—this has been a concern of mine for some time—did you get any feedback from any active police services, police associations, Crown attorney associations and/or provincial or territorial attorneys general with respect to the built-in discretion that currently exists between policing and the Crown's office, such that if this particular scenario were ever to find itself in a real-life situation...? I can't imagine any Crown in this country, in those circumstances, agreeing to take a criminal charge initiated by a police service, proceeding by indictment in those unique circumstances and asking for a one-year mandatory minimum penalty.

The reason I say that is that it is not only my opinion but the opinion of several Supreme Court justices, including the famous retired, learned Supreme Court justice—the dean of criminal law, in my view—Michael Moldaver. He often opined in many of his decisions about the built-in residual discretion that already exists so that these crazy, whacked out hypotheticals used by judges across this country never see the light of day.

To the Justice officials, did you receive that input?

[Matthew Taylor]

We would be happy to provide a list of the partners and stakeholders we had an opportunity to speak with in the development of the legislation. I think we may have provided that previously, but if not, we're happy to do so.

Offhand, I cannot remember Crown associations specifically, but there were certainly provincial prosecutors, law enforcement and civil society organizations, like the Canadian Civil Liberties Association. We had an opportunity to speak with all of them.

The issue of the built-in discretion you talked about in terms of police discretion or Crown discretion, to my recollection, was not specifically discussed, but I recall—and I believe it is the newer decision, albeit in slightly different circumstances—that the court talked about the role of discretion in saving constitutionally invalid provisions, and that it cannot be used as a way of safeguarding against—

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

That was the majority decision, not the minority.

[Matthew Taylor]

Yes. For the example you gave, whereby a police officer or prosecutor doesn't bring a specific case before the courts in respect of that specific individual, the risks don't arise.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

I appreciate that. Thank you, Mr. Taylor.

This is the problem. This is a glaring omission in Bill C-16. We know there is a limit. There's an exception that any particular judge—on their own or by the application of the accused with their counsel—who decides that the application of a mandatory minimum penalty would result in cruel and unusual punishment, has the ability to undercut that mandatory minimum penalty. With the exception of murder and treason, you have to impose a jail sentence.

There is nothing in Bill C-16 that creates a threshold for how low a sentencing judge could go. Hypothetically, you'd agree with me that a one-day sentence for the possession of child sexual abuse material in the “most vile ways”, as Mr. Senneville's collection was described, could result in a one-day sentence followed by probation. Bill C-16 would not prevent a particular judge in this country from doing that after this bill receives royal assent. Answer yes or no.

[Matthew Taylor]

That's correct. There would be no specific guardrails in the legislation.

[Larry Brock, Conservative, Brantford—Brant South—Six Nations, ON]

Thank you, Chair.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Brock.

Mr. Gill.

[Amarjeet Gill, Conservative, Brampton West, ON]

Thank you, Chair.

This amendment is about one thing, and that one thing is protecting our children. We need to safeguard mandatory minimum penalties to protect our kids and our next generations.

Child pornography is not a minor offence. It is exploitation, it is abuse and it destroys lives. Those who possess it are fuelling that abuse. Those who access it are creating a demand for more victims. Canadians expect Parliament to stand with children, not with offenders.

This amendment makes it clear that for offences under subsections 163.1(4) and 163.1(4.1), there will be no loopholes and no easy constitutional challenges under section 7 or section 12 while this law is enforced. It also removes Bill C-16's safety valve for these offenders. That is the right decision.

Conservatives believe serious crimes, especially crimes against children, need serious consequences. The Liberals often talk about protecting the vulnerable. Here is their chance to prove it. Will they stand with victims and families? Will they stand with law enforcement trying to stop predators, or will they protect offenders with more legal escape routes?

This amendment sends a strong message that if you exploit children, there will be consequences. We need to safeguard mandatory minimum penalties to protect our kids. I disagree with Mr. Housefather's saying we bring in a notwithstanding clause every single time. We are protecting our kids and sending a strong message to the predators that they cannot get away with these heinous crimes.

If you consume these materials, there will be accountability. We must put our children first. Their safety matters more than the comfort of criminals. Conservatives will always fight to stop crime of any kind. We will always defend victims, and we will always stand up for our children.

I support this amendment, and I urge all the members to support this amendment as well.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Gill.

Go ahead, Mr. Baber.

[Roman Baber, Conservative, York Centre, ON]

Thank you, Chair.

I have been listening to the debate, and I have been listening intently to my friend Mr. Housefather. I would like to make a couple of comments in response, specifically with respect to the notwithstanding clause.

I often urge this committee to consider the unique opportunity and, therefore, the obligation we have to consider legislation before us. I truly believe that many lives will turn on the work that this committee does, and not just the lives of the accused or law enforcement but also those of victims. I wish that we would remember why we're here, which is primarily the protection of the public.

The other thing I'd like to say is that, if there is one thing I often find absent from politics and, indeed, from this building, it's nuance. The notwithstanding clause is a very nuanced proposition. I agree with my friend from Montreal.

The first principle we have to agree on is that the Westminster parliamentary system is designed in a way so that Parliament is supreme, unlike the way it works for our neighbours to the south, where the constitution is supreme. The charter would not have been adopted if it had not been for section 33. It was the deal breaker to make sure that provinces were comfortable and, of course, the federal government would be able to avail itself of the same tool. That cannot be as grotesque as Mr. Housefather describes it if it is itself, as Mr. Lawton said, in the Constitution. The charter cannot limit or prohibit something that it explicitly prescribes.

The way to approach this legal question, just as with all statutory interpretation, is to look at the legislative intent, Mr. Housefather.

We discussed former attorney general Jean Chrétien. You spoke about former prime minister Jean Chrétien, but I was speaking about former attorney general Jean Chrétien.

I thank one of our capable colleagues, who sent me this quote. In the words of then attorney general Jean Chrétien, if a judge were to strike down a law against child pornography on the basis of freedom of expression, the notwithstanding clause would be there to allow Parliament to fix such an absurdity.

I very much take exception to the fact that Mr. Housefather is suggesting that this amendment is not responsible. This amendment is precisely in keeping with the spirit of section 33.

Mr. Housefather is correct in that in the last couple of years, we have seen the exercise of section 33 again and again. He's also correct to refer to prime minister Brian Mulroney, who said that the charter may not be “worth the paper it's written on” because of section 33, but I disagree with that very much, because there was an overriding principle to the framers of the charter. I've been asked that question multiple times by students. The question would always be, “But Mr. Baber, what would prevent a government from exercising the notwithstanding clause and invoking the notwithstanding clause every time it desired to do so?”

The answer to that, I believe, is twofold: political accountability and decency. Political accountability and decency are the mechanisms by which the notwithstanding clause would not be used. Political accountability is specifically factored into the notwithstanding clause, in that there is a sunset clause, as Ms. Lattanzio correctly pointed out.

If I'm incorrect to suggest that we should safeguard the mandatory minimum penalties for folks who hold in their possession 250 videos of children being raped, then I may pay that political price.

At the same time, it's decency. It's that slippery slope that maybe my Liberal friends refer to that would prevent a responsible government from invoking the notwithstanding clause. We have the legislative intent framework, but we also have the reference to the rationale behind the existence of the clause.

When Mr. Housefather says that he's been hearing the Conservatives talk about the notwithstanding clause a lot, well, in this committee, it's been spoken about only with respect to Senneville. I point to Mr. Brock, who said it's interesting that the safety valve does not apply to treason or to murder. It looks to me as if the Liberals have decided that on the scale of moral turpitude and offences for which the courts should really throw the book at the accused, murder and treason should not be offences from which judges are able to deviate, but child pornography—access to and possession of child pornography—can be.

It's actually very instructive, Mr. Brock, because maybe what we're hearing from the Liberals on the safety valve—that it's supposed to safeguard mandatory minimum penalties while not introducing the safety valve for treason and murder—teaches us something. Maybe it's not there to safeguard mandatory minimum penalties but specifically to be excluded from the application of the safety valve that can potentially undermine it.

Think about the use of the notwithstanding clause in the last couple of years. I was looking forward to seeing my friend Ms. Begum today, who I thought had been added to the committee. She and I served at Queen's Park for a number of years, and I was looking forward to reminding her about a number of debates we had about the notwithstanding clause in the Ontario government, and how you can differentiate what is appropriate from what is not appropriate.

After the election of the Ford government, in Bill 5, the Ontario government sought to reduce the size of Toronto City Council, because it had campaigned on the fact that government is too big and too inefficient. Because there was a good probability that the courts may have struck down the Ford government's attempt to rewrite municipal structure and law in the midst of a municipal campaign, the Ford government elected to preserve the legislation with the notwithstanding clause.

I would say that if it's a stated priority and I campaign on the fact that it is my legislative priority and get that mandate from the electorate, then it is within my purview to safeguard that priority. If it were not within my mandate, then the voters would tell me before the sunset clause expires. The Ford government won on appeal, in that it was concluded that the legislation was itself constitutional and invocation of the clause was not required.

What happened a couple of years later is that Ontario did invoke the notwithstanding clause, and to anyone who doesn't remember the circumstances surrounding that, it was on election legislation. It was the safe elections act, or something like that, because everything had to be safe at the time. I'm on the record; I debated that.

The suggestion was that we had to prohibit large, third party foreigners from interfering in our elections. Realistically, what that legislation did was preclude anyone who wanted to spend $500 on posters about their MPP not responding to phone calls from putting up posters and spending more than $500, which would require $400 in compliance.

On that legislation, the Ford government decided to invoke the notwithstanding clause; that was self-serving election legislation, and that would be politically indecent.

I take exception to Mr. Housefather's suggestion that the amendment I proposed to protect Canadian children—and, in fact, children all around the world—is irresponsible. I would say, with respect, it would be irresponsible not to adopt my amendment knowing that it could protect children. To rely on a safety valve that would allow a judge to disregard a mandatory minimum penalty, and to lean on a safety valve that we decide should not be applicable to murders and treason—it was probably for good reason the Liberals decided that—leads to the precise opposite interpretation.

Let's not miss this opportunity. Let's protect children. Let's celebrate Canadian heritage. Let's celebrate the charter.

This is what I'm trying to do here, Mr. Housefather.

[The Chair, Liberal, James Maloney]

Go ahead, Mr. Baber.

[Roman Baber, Conservative, York Centre, ON]

Actually, I want to add one last point. I appreciate the chair's allowing me to take a breath and think.

I was very proud during the last election campaign when the leader of my party, Pierre Poilievre, said he would use the notwithstanding clause in connection with the bail and sentencing legislation in some very discrete cases.

If you have an absurd situation where a violent repeat offender is out again and again, a scenario we have contemplated in this committee repeatedly, that would precisely be the type of absurdity that responsible government should address and prevent. It's entirely consistent, intellectually, historically and legally, to say that it's not willy-nilly. It's when it's government priority, when it's essential, when there's absurdity and when it's politically responsible, and there will be accountability. In all of that, decency will be maintained.

It's very regrettable that we can't agree on the use of the notwithstanding clause because we can no longer agree on decency in politics. That is a new thing, which maybe is even worse than all of this.

Thank you.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Baber.

Shall CPC-13 carry?

(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])

(Clause 17 agreed to)

(Clause 18 agreed to)

(On clause 19)

This takes us to CPC-14 in clause 19.

Who's going to speak to that?

Mr. Lawton, go ahead.

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

Thank you, Mr. Chair.

I am moving CPC-14, which amends the bill in clause 19 by adding after line 39 the following:

(5.1) If the illicit material is an intimate image, as defined in subsection 162.1(2), in relation to which an offence was committed under section 162.1, the court must order the custodian of the computer system to delete the material within 48 hours after the order is made.

If I can very briefly add some context, this is also an amendment that came about from witness testimony. While Bill C-16 is focused on criminal penalties, among other things, we have to acknowledge that we are trying to serve victims in what we're doing.

One of the testimonies in particular I'd like to highlight was from Madam Suzanne Zaccour. I asked her about whether civil remedies might be more suitable than criminal remedies for some of what she wanted to do in removing intimate images from the Internet, and Ms. Zaccour said, “What victims most want is a remedy to remove the photo from the Internet.”

I think that's something we're trying to achieve here. It's certainly what I was thinking of when putting the amendment together. It isn't just about sending a strong signal and penalty, which is important. To Ms. Gazan's point, it's also about ensuring that tech companies are aware they have a responsibility here and trying to minimize as much as possible the harm these images will, and often do, cause victims by being available online.

That's what we're hoping to do here, and I hope we'll have full support from the committee for this.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Lawton.

Is there anybody else?

Ms. Gladu.