When the minority Liberal government introduced Bill C-16 on Dec. 9, during the Commons’ last week before a Christmas break, it described the multipronged 169-page bill as “one of the most consequential updates in generations to protect victims and survivors of sexual violence, gender-based violence, and intimate partner violence, and to keep our kids safe from predators.”
“We have heard directly from victims, survivors, and loved ones who were left carrying the weight of a system that asked too much of them and did too little to keep them safe,” Justice Minister Sean Fraser said in a statement. “That cannot continue. These reforms confront the rise in coercive control, respond to the growing violence women are facing, and keep our kids safe from predators. They will make sure people who commit these horrific crimes face real consequences under the law.”
Federal Justice Minister Sean Fraser
Notably, the government said that if Bill C-16 is enacted, it would “restore” for future cases all MMPs that have been struck down thus far as cruel and unusual punishment (there are more than 60 MMPs, both existing and moribund, in the Criminal Code). The revival of the defunct MMPs in future cases would occur via the mechanism of a new general judicial safety valve, whereby judges would be permitted to impose lesser jail time for offences punishable by MMPs (except for murder and high treason convictions), but only if the application of the MMP would amount to cruel and unusual punishment in the case of the particular offender who is actually in front of the court.
Ostensibly, this would be a departure from the current Supreme Court-mandated common law that has resulted in many MMPs being struck down based on the “reasonable hypotheticals” posited by judges at various levels, who have struck down MMPs on the basis that they would result in grossly disproportionate punishment for an imagined offender in reasonable hypothetical circumstances.
The federal government said Bill C-16 “respects” the Supreme Court’s guidance as to how MMPs can be applied and be Charter-compliant “because it would prevent those penalties from applying in circumstances that would violate the Charter.”
(Faced with the explosion of MMPs in recent years, the Canadian Bar Association and the Uniform Law Conference (composed mostly of Crowns and senior Justice officials) and defence bar members have called for the addition of a general safety valve of judicial sentencing discretion into the Criminal Code. The Supreme Court of Canada advised nearly a decade ago, in R. v. Lloyd, 2016 SCC 13, that if Parliament built a safety valve “that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries.”)
Department of Justice (DOJ) officials did not answer Law360 Canada’s request to identify which — and how many — MMPs, would be “restored” going forward, if Bill C-16 becomes law; however, a DOJ backgrounder cites examples, including weapons, sexual and prostitution offences.
Bill C-16 addresses the speedy trial right protected by Charter s. 11(b), including the analysis, time limits and remedies for unreasonable trial delay set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and by Jordan’s progeny. A DOJ official, speaking on background to reporters during a Dec. 9 technical briefing, said Bill C-16 would reduce stays of proceedings and court delays, as well as increase efficiency, by providing guidance to courts in their assessments of cases’ complexity.
Notably, the bill would exclude “certain applications brought for sexual, organized crime and national security offences, among others, from the Jordan calculation” of unreasonable trial delay, the DOJ said.
Bill C-16 provides “specific guidance to courts in terms of factors to consider in determining what types of cases may require additional time to go through the system,” the government said. The factors would focus on cases involving pretrial and mid-trial applications, which are known to increase complexity.
Courts would also be required to consider alternatives to ordering a stay of proceedings as a remedy when s. 11(b) is breached.
The government said Bill C-16 would encourage diversion and restorative justice “where appropriate and where public safety is not a concern.”
With respect to defence motions for the production of complainants’ private records in sexual offence prosecutions, the DOJ said Bill C-16 would exempt communications between the accused and the victim from the private records production regime.
Importantly, Bill C-16 would also: raise the threshold for both the production and admissibility of the complainant’s private “therapeutic records” to circumstances where the accused can demonstrate that their innocence is at stake; increase the notice period for admissibility of sexual history evidence and private records to 60 days from seven days; and “streamline and simplify the process for when the prosecutor uses evidence of the complainant’s prior sexual activity as part of its case,” the DOJ said.
(At press time, the Department of Justice had not yet unveiled the mandatory Charter statement for Bill C-16, wherein the government must set out at least some of the potential impacts of the bill on Charter rights and freedoms that it sees, and explain why it considers these impacts to be reasonable and justified.)
Bill C-16 proposes as well to amend the Criminal Code to, among other things:
- create a new offence that prohibits engaging in a pattern of “coercive or controlling conduct” toward an intimate partner;
- classify as “femicide,” and as first-degree murder, murder that is committed: against an intimate partner in the context of “a pattern of coercive or controlling conduct”; in the context of sexual violence; in the context of human trafficking; or when “motivated by hate.” If an offender commits manslaughter in these circumstances, the court would be required to: consider imposing a life sentence and, if it is imposed, sentence an adult offender to parole ineligibility for 10 to 25 years;
- remove from the criminal harassment offence the Crown’s requirement to prove that the victim subjectively feared for their safety, replacing it with an objective requirement, i.e., to prove that the harassing conduct could reasonably be expected to cause the victim to believe that someone’s safety is threatened. Criminal harassment would be amended to “ensure the offence captures harassing conduct committed through modern technology (e.g., electronic monitoring),” the DOJ’s backgrounder states;
- increase the maximum penalty for sexual assault on summary conviction to two years less a day from 18 months;
- amend the extortion provision to add as an aggravating factor, “where that offence is used in sextortion cases”;
- create a new offence that prohibits threatening to distribute child sexual abuse and exploitation material, and ensure that the child luring offence references extortion so that it applies to sextortion cases;
- amend the offence of non-consensual distribution of an intimate image to ensure that it applies to non-consensual deepfakes, i.e., 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;
- ensure that the Criminal Code makes it illegal to threaten to distribute intimate images, including sexually explicit deepfakes, without the consent of the person depicted and double the maximum penalty to 10 years imprisonment, on indictment;
- amend some existing child sexual offences to include prohibiting a person from inviting a child to expose their own sexual organs for a sexual purpose;
- create a new hybrid offence that prohibits distributing bestiality depictions, including deepfakes, with a maximum penalty of five years on indictment and clarify that the offence prohibiting making sexually explicit material available to a child includes sexually explicit material that involves bestiality;
- create a new offence relating to the recruitment of a person under 18 years of age to be a party to an offence;
- provide that victims of certain offences, such as offences in the commission of which violence was used, threatened or attempted against an intimate partner, or adult victims of sexual offences, human trafficking and criminal harassment are entitled to testimonial aids, such as a support person or support animal;
- prosecute Canadians and permanent residents who are alleged to have committed sexual assault in Canada against children abroad (i.e., in addition to existing sexual offences committed abroad against children).
The Protecting Victims Act proposes the following maximum sentences for its proposed new offences: 10 years on indictment for coercive control of an intimate partner; five years on indictment for distributing bestiality depictions; five years on indictment of youth recruitment into criminality; 10 years on indictment for threatening to distribute child sexual abuse and exploitation material; and 10 years on indictment for threatening to distribute non-consensual intimate images, including sexual deepfakes.
Maximum punishments for existing offences would change to: 10 years, up from five years, on indictment for voyeurism and for non-consensual distribution of intimate images; 14 years, up from 10 years, on indictment, for obtaining sexual services of a person under age 18; and 10 years, up from two years, on indictment for exposure, and on summary conviction, to two years less a day from six months.
In respect of victims’ rights, Bill C-16 would create a right to be treated with respect under the Canadian Victims Bill of Rights and to have their interests “considered in the timely resolution of matters under the Canadian Victims Bill of Rights.”
Amendments proposed in Bill C-16 to the federal Mandatory Reporting Act — which requires internet service providers to report to the authorities when they learn of an internet address where child sexual abuse and exploitation material may be available to the public or when they have reasonable grounds to believe that their internet service is being, or has been, used to commit a child sexual abuse and exploitation material offence — include:
- increasing the data preservation requirements for computer data related to reports of child sexual abuse and exploitation material offences made to the designated law enforcement body to 12 months from 21 days;
- changing the limitation period for prosecution to five years from two years;
- clarifying that the Act applies to all types of internet services in Canada, including online platforms, social media and other application-based services;
- clarifying that persons providing internet services with a connection to Canada must report child sexual abuse and exploitation material offences to law enforcement;
- enabling regulations to centralize the mandatory notification to a designated law enforcement body and increase transparency with new annual reporting requirements for the designated law enforcement body;
- requiring internet service providers to include transmission data when reporting material that is obvious child sexual abuse and exploitation material to the designated law enforcement body.
The Canadian Civil Liberties Association issued a statement stating it “strongly opposes Bill C-16.”
“The legislation would overturn nearly 40 years of Supreme Court precedent holding that a stay of proceedings is the remedy for unconstitutional trial delay, removing the strongest constraint requiring the justice system to run on time,” the CCLA said. “The federal government’s proposal to gut the s. 11(b) Charter right to be tried in a reasonable time is unconstitutional and punts the hard work of resolving delay.”
The CCLA remarked that “governments have been on notice of the Jordan decision for a decade, [y]et they have failed to ensure the justice system is properly funded and run to ensure timely trials. The solution to that is not to water down our Charter rights, but for governments to step up and do their job.”
The CCLA remarked that Jordan already allows the state 18 months in provincial court or 30 months in Superior Court to complete a prosecution. “Bill C-16 would keep the accused, complainants, and communities in legal limbo for even longer,” it stated. “The government is trying to legalize proceedings routinely running over two and a half years in length. Even a person who will be ultimately acquitted of their charges could spend years of their life behind bars with no end in sight.”
The CCLA called Bill C-16 “part of a troubling broader picture” whereby “governments are increasingly turning to legislating their way out of compliance with the Charter, instead of addressing the underlying causes of serious public policy problems. Every person in Canada should be alarmed by this cavalier approach toward their constitutional rights.”
The Canadian Centre for Child Protection welcomed the government’s proposed amendments “to strengthen online child protection,” stating “online sexual violence against Canadian children, including online luring, have reached unprecedented levels. Confronting this epidemic is not optional and there is an urgent need to take action.”
“These proposed changes to the Criminal Code will be an important additional tool for our collective efforts to end gender-based violence,” WomenatthecentrE said in a statement. “By including ‘femicide’ and recognizing coercive and controlling behaviours, it will help expand legal, political and societal understanding of the continuum of violence survivors continue to face.”
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