Justice Committee on May 4th, 2026

[The Chair, Liberal, James Maloney]

I call this meeting to order. Welcome to meeting number 28 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of February 2, the committee is meeting to continue its clause-by-clause study of Bill C-16, an act to amend certain acts in relation to criminal and correctional matters, including child protection, gender-based violence, delays and other measures.

Today's meeting is taking place in hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely by using the Zoom application.

I'd like to confirm that the sound tests were done.

I'd like to make a few comments for the benefit of witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mic. Please mute yourself when you're not speaking. For those on Zoom, at the bottom of your screen, you can select the appropriate channel for interpretation: floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

This is a reminder that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

Welcome back to our witnesses. They're here to answer technical questions you may have.

From the Department of Justice, we have Matthew Taylor, senior general counsel and director of the general criminal law section; Nathalie Levman, senior counsel at the criminal law policy section; and Michael Ellison, who is counsel at the criminal law policy section. Thank you all for being here.

We have a long day scheduled ahead. If anybody needs a break, just give me the look. I'm happy to suspend for a few moments to accommodate people.

(On clause 32)

We left off having just completed NDP-11, which carried, so we are now on G-15.

I will start by asking, shall G-15 carry?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 32 as amended agreed to)

(Clause 33 agreed to)

(On clause 34)

We will start with NDP-12.

I will start by welcoming Ms. Kwan.

I'll turn the floor over to you.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair.

I'm standing in for my colleague Leah Gazan, who was here previously, to add some comments on these amendments.

Amendment NDP-12 would change the bill such that the accused must make an application for production, where possible, to the judge before whom the accused is to be or is being tried so that having the same judge is not mandatory. Legal experts have shared with us that this requirement may not be realistic in all jurisdictions, given different capacities and resources, and it could lead to unnecessary stays.

That's the motivation behind this amendment, Mr. Chair.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Brock.

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

Thank you, Chair.

While I don't disagree in principle, I'm wondering if it's redundant. I'm going to turn to the officials on this issue. My understanding has always been that any reference to a justice also includes provincial court judges, superior courts, courts of King's bench or, I guess, the supreme court in British Columbia.

My interpretation, with decades' worth of work in the legal field, is that the application is already within the code. Would this amendment be redundant in the circumstances?

[Michael Ellison, Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

Thank you, Chair.

I thank the member for the question.

Since the O'Connor decision that first laid out the groundwork for these types of production applications, guidance from the Supreme Court of Canada has stated that it is highly desirable for the trial judge to be the one to hear this type of application. That's something that over the past 31 years or so—hopefully my math is correct—jurisdictions across the country have strived to achieve. They ensure that the trial judge is the one hearing it. There are a couple of reasons outlined in O'Connor for that. It's mostly to ensure consistency between decisions and to ensure that these are heard at the appropriate time in the process.

In terms of redundancy, what I would speak to is that with respect to NDP-12, the main concern would be that if there is an expansion beyond the trial judge hearing these types of applications, we could open up the door to a greater possibility of inconsistent decisions. One example would be if a justice of the peace who is also considered a justice were to make an order for production at a bail hearing, and months down the line, the trial judge hears or has the evidence before them and disagrees with that assessment.

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

Thank you for that. However, amendment NDP-12 does not speak specifically to a trial judge. It makes reference to a provincial court judge. On the surface of this, I thought it was redundant because the use of “judge” includes both levels.

To be specific to your point, Mr. Ellison, do you think there's value in offering up a friendly amendment to the NDP to make reference to a trial judge as opposed to a provincial court judge?

[Michael Ellison]

My response to that would be that while it's friendly and the intention would be friendly, it would actually introduce redundancy, because we're already very clear in the Criminal Code. Bill C-16 would carry over the requirement that a trial judge hears this type of application. At that point, if we were to add that clarity, we would simply be reconfirming the state of the law.

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

Okay. Thank you.

[The Chair, Liberal, James Maloney]

Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

I want to understand this, because I understand it the same way Mr. Brock does. Were this to be limited to a trial judge, it would become redundant. The issue here is that there would be an expansion to, potentially, pretrial judges with very limited evidentiary basis.

What I would understand is that the accused could then seek victims' private information at an earlier stage from somebody who doesn't even have the evidentiary basis to determine that. There may have been an inadvertent way of drafting it that has actually created a privacy issue for the victim in this amendment.

Would I be right in that?

[Michael Ellison]

Yes, I would agree with this. Currently, the restriction here is very intentional to ensure that we are better protecting the dignity and privacy interests of a complainant and that access is not granted too early to a more limited evidentiary record.

There's a very well-intentioned amendment here, I imagine, to expand this, because there are times, especially in remote and northern communities, when it is difficult to get that trial judge assigned, but jurisdictions across the country have found appropriate workarounds to ensure that trial judges can be assigned earlier, in some cases, to make these rulings.

[The Chair, Liberal, James Maloney]

Shall NDP-12 carry?

(Amendment negatived [See Minutes of Proceedings])

We're on G-16.

Ms. Lattanzio.

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

Thank you, Mr. Chair.

This is , once again, a technical amendment. This amendment would expand the application of the regime governing the production of private and therapeutic records in the possession of a third party in sexual offence trials to cases involving an offence under “any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose”, and not to just a Criminal Code offence that is of a sexual nature or committed for a sexual purpose.

[The Chair, Liberal, James Maloney]

Thank you.

Shall G-16 carry?

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

I have a question.

[The Chair, Liberal, James Maloney]

I'm sorry, Mr. Brock. Go ahead.

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

I need some clarification from the officials.

Is the expansion to all acts of Parliament, in your view, designed to capture these types of applications, perhaps in the military context? That's one example for the expansion.

[Michael Ellison]

The intent here is really to capture.... My colleague Ms. Levman, at the previous meeting, mentioned in reference to G-8, which is a very similar amendment to the sexual history regime, that this would clarify that this also applies to other federal statutes, particularly the Immigration and Refugee Protection Act. It's to ensure that when the trafficking and smuggling offences that are contained within that act are committed for a sexual purpose, these protections apply then as well.

I'll allow my colleagues later on to speak to the National Defence Act, but there are also amendments in Bill C-16 that would apply these principles within the National Defence Act as well.

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

Thank you.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Liberal, James Maloney]

We're on G-17.

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

This motion would clarify that victims or witnesses who are protected by automatic publication bans and can apply to hearings to determine the admissibility or production of highly sensitive evidence in sexual offence trials may disclose information about the hearing, including to a legal professional, health care professional or person in relationship of trust with them, provided that they do not “intentionally or recklessly reveal” the identity of any other person protected by the publication ban.

[The Chair, Liberal, James Maloney]

Thank you.

Mr. Baber.

[Roman Baber, Conservative, York Centre, ON]

Ms. Lattanzio, does that include the recipient? When you say “they”, do you mean the recipient of the information?

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

I believe so.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Liberal, James Maloney]

We're on G-18.