THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 10, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to consider the subject matter of Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures).
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening, honourable senators. My name is David Arnot. I am a senator from Saskatchewan, and I am the chair of this committee.
I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne, Quebec.
[English]
Senator LaBoucane-Benson: Senator Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Tannas: Scott Tannas from Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec. Welcome, minister.
Senator Clement: Bernadette Clement from Ontario.
Senator Dalphond: Pierre J. Dalphond. I represent the Quebec division of De Lorimier.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory. We represent today.
Senator Dhillon: Baltej Dhillon, British Columbia.
The Chair: Thank you, colleagues.
Honourable senators, we are here to begin our study of the subject matter of Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures).
For our first panel, we are welcoming back — in his usual chair — the Honourable Sean Fraser, P.C., M.P, Minister of Justice and Attorney General of Canada and Minister responsible for the Atlantic Canada Opportunities Agency.
He is joined by officials from the Department of Justice, Mr. Owen Ripley, Senior Assistant Deputy Minister, Policy Sector; Mr. Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section; and Ms. Nathalie Levman, Senior Counsel. Welcome to all of you. Thank you for joining us today.
Minister, we will begin with your opening remarks, and we ask that you keep them in the order of seven minutes or so. Thank you.
Hon. Sean Fraser, P.C., M.P., Minister of Justice and Attorney General of Canada and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you, chair. I will endeavour to do much better than seven minutes for you.
The main message I want to deliver in my opening remarks is a message of gratitude. Thank you sincerely to all of you. It is not lost on me that you have been working overtime, sitting outside of your usual hours in some instances, and I have repeated this before. Different committees are sitting during non‑sitting weeks in order to advance important legislation. You have my sincere gratitude. We are asking a lot of you. That is not lost on me. I want you to know that your efforts are sincerely appreciated for the time that you have been putting in.
The second thing I want to warn you about in advance is that the bells have started ringing in the House of Commons. Within a half hour, there will be a vote called. I intend to vote from the table here if we have the consent of the members of the committee. I would be happy to take the few seconds it takes to vote and continue on.
Mr. Chair, beyond that, I don’t intend to offer remarks because I hope to save the time for questions that senators may have on this bill, with the exception of one final point: There are two bills going through Parliament right now that are of sincere importance to the scourge of intimate partner violence. One, of course, is Bill C-16, which this committee is seized with, and the other is Bill C-225, “Bailey’s Law.” The Senate is working tremendously to advance both bills expeditiously.
Know that “Bailey’s Law” has my full and unequivocal support. I know that there are family members in attendance today who will be testifying before the Standing Senate Committee on Social Affairs, Science and Technology. These issues are so important, and to the extent that we can offer protection to families who are at risk of violence and to people who will benefit from the provisions in either or both of these bills, know that we have an opportunity to make a meaningful difference.
I will cut my comments there to save time for senators’ questions. Thank you, chair.
The Chair: Thank you, minister, for your comments, and thank you for the recognition of the work that the Senate is doing. I am honoured to be the chair of this committee. It is a very hard-working committee, and we have worked very hard on all the legislation that we have, and we hope to do so with Bill C-16 as well.
Colleagues, as chair, I will keep questions and answers to four minutes per member to ensure that all senators have a turn to ask questions. I thank members in advance for their courtesy and cooperation in observing this time limit.
We will start with the deputy chair, Senator Batters.
Senator Batters: Minister, I was quite surprised to not even hear you deliver remarks to kick off this pre-study, being as we are doing a pre-study. Because of that, we haven’t had one speech delivered in the Senate by the sponsor of the bill, the critic of the bill or the government, which typically happens, and now we don’t have any remarks from you. That puts us in a tough spot when we are trying to analyze a complicated bill like this.
With that in mind, I will say your government’s Bill C-16 proposes to introduce what you call a safety valve on mandatory minimum sentences. But since this would allow judges to ignore Parliament’s will and give inappropriately light sentences to serious criminals, I think it is more accurate to call this an escape hatch. There is nothing safe about this for victims of many horrific crimes.
Minister, your Bill C-16 would allow judges to ignore almost all mandatory prison sentences in the Criminal Code, including on convictions for aggravated sexual assault with a firearm, human trafficking, extortion with a firearm, drive-by shootings and multiple other firearms offences.
How can you possibly look at victims of those terrible crimes in the eye and tell them that your escape hatch keeps them safe?
Mr. Fraser: Mr. Chair, thank you to the senator for her question.
If senators so desire, I would be happy to take five to seven minutes to deliver a set of opening remarks to summarize the bill.
I trust members of the committee are well aware of the issues. I have put my position on record in the House and before the Senate during Question Period, though not specifically on this bill, including on this bill, amongst other items.
I fundamentally disagree with the characterization of mandatory minimum penalties, or MMPs, as discussed by the senator and the characterization of the provisions that exist in the bill. Obviously, the provisions that do not include some residual discretion in the form of the safety valve envisioned by Bill C-16 have been deemed routinely unconstitutional by the Supreme Court of Canada.
If we want to feel good about the words that are included in the code, knowing they have no legal force and effect, the Constitution, or rather the laws that have no constitutional validity, would not be worth the paper on which they are written.
The measures that we’re putting in place restore mandatory minimums but respect the constitutionality as outlined by the Supreme Court of Canada. This residual discretion, I would remind senators, only applies in circumstances where the proposed mandatory minimum would be grossly disproportionate.
In addition to taking guidance from the Supreme Court’s decision, this mirrors the position that was put on record by the Conservatives’ public safety critic, Mr. Caputo; it reflects the perspective of my Bloc Québécois critic, Mr. Fortin, and it seemingly has a broad base of support across not only parliamentary representation but from the direction of the Supreme Court as well.
My view is that the laws that we adopt should be constitutional and that they should have the force and effect of law. We have corrected a constitutional challenge that the courts have routinely pointed out as rendering existing mandatory minimums of no force and effect.
Senator Batters: Minister, that comment you made does not accurately reflect the position of Mr. Caputo, actually, but I will move on.
Saskatchewan’s Minister of Justice Tim McLeod provided our Legal Committee with a substantial brief on Bill C-14. In it, he stated:
While Saskatchewan acknowledges the proposed restatement of some struck-down MMPs in Bill C-16, that bill does not address MMPs that were repealed outright. Saskatchewan is particularly disappointed that MMPs for drug trafficking — many of which were upheld as constitutional by the courts — were not reinstated.
How do you respond to that?
Mr. Fraser: Certainly. First, my counterpart has been a tremendous partner on a range of different bills. You referred to Bill C-14 in your question. I assume you mean Bill C-16. Uniquely, he has been helpful on Bill C-14 as well.
The strategy that we’ve chosen to adopt when it comes to restoring mandatory minimums was to look at those that have been struck down by the court and to protect those that were still on the book.
You referred to the will of Parliament in your previous question. We decided to respect the will expressed by the previous Parliament when certain decisions were taken to remove some — but not all — mandatory minimums within the Code.
We sought to respond distinctly to the Senneville decision but came to understand quickly that there were a number of other provisions that were not removed through a democratic process in Parliament but, instead, through a legal process that is democratically recognized, of course, in the courts.
Seeing that we had an opportunity to reverse the effect of having those mandatory minimums struck down that were not determined through democratically elected representatives of communities across Canada, we limited the scope of the restoration of those mandatory minimums to those that have been struck down and those that remained on the books today.
The Chair: Senator Oudar is the sponsor of the bill. Senator Oudar?
[Translation]
Senator Oudar: Minister, thank you for your message of thanks, which I fully share. Thank you for opening with those words of gratitude. I wholeheartedly endorse them.
I would also like to take this opportunity to thank the chair, and all the committee members, for the work we are about to undertake. Thank you for the hours we will spend together, because many observers feel this bill is a major step forward — I should also specify female observers, because several women’s rights groups support this bill. As I was saying, this is a significant step forward for long-awaited substantive rights.
Minister, I do not wish to presuppose the work that will be done in Parliament, but could you tell us how the swift implementation of this bill in its entirety will benefit all those affected by the various categories of offences and provisions it contains?
Mr. Fraser: Yes. To begin with, not a day goes that I don’t read a new story in the newspaper about violence against women across our country. When the year began, there were many cases of femicide in Quebec early in the year. In my province, Nova Scotia, I’ve read articles that examined how AI is involved in these issues.
[English]
There are pressing and urgent needs that we need to address when it comes to femicide, coercive control, violence against women, criminal harassment, the use of AI “deepfakes” being shared online without a person’s consent and the exploitation of children in the real world and online environment. The harms that we are talking about are not some passing and transitory inconvenience in a person’s life; they fundamentally change a person’s life experience every day, sometimes for the rest of their lives. They have a severe and detrimental impact on a person’s well-being and their family’s well-being.
We are seeing women who are fleeing violence and do not have a place to go, who are leaving an abusive home, trying to find a place to keep a roof over their heads and the heads of their children. The issues that we’re dealing with could not be more serious.
We have identified a range of gaps that exist in Canada’s laws that we need to address.
To drive home the urgency behind some of these changes, I cited during my last appearance before the Senate at Question Period a decision by a judge in my home province of Nova Scotia pointing out that a person can’t be convicted today for non-consensually sharing intimate images that are created with AI “deepfake” technology, despite the fact that we know it’s happening, and drawing attention to the need for Parliament to take action.
When I got home a few days later, I saw a news story about somebody facing 79 charges impacting a few dozen women on very similar issues, with the Ottawa Police who were helping investigate speaking to the media about the challenges that the lack of a provision, including Bill C-16, is causing for investigations of this regard.
We have an opportunity to cure injustices. We have an opportunity to do it now. If we fail to listen to the people who have dedicated their lives and careers to identifying the solutions, I know it will not sit well with me.
These are very serious and pressing issues that don’t just impact a person’s property but sometimes violate their bodily integrity. There are not more serious crimes than femicide and sexual violence. We have an opportunity to have a profound impact and have Canada’s criminal laws reflect the seriousness and gravity of these instances, which are preventable. Part of the response needs to be a strengthening of Canada’s criminal laws.
[Translation]
Senator Miville-Dechêne: Minister, since you are addressing the issue of femicide, I would like to note that this term is not defined in the main body of the bill, whereas the summary of Bill C-16 states that the Criminal Code is being amended, in particular, to “provide that, in the following circumstances, murder — known as femicide when committed against a female person — is murder in the first degree”.
That is a rather brief definition, but what is written in the summary — as you know far better than I do — does not have the force of law. Clause 25 refers to femicide without, however, defining the term.
Minister, are we to understand that a man could be the victim of femicide resulting from coercive control? Obviously, that would make no sense, since femicide is essentially the murder of a woman simply because she is a woman?
[English]
Mr. Fraser: From my point of view, the provision, as drafted, creates a functional definition by identifying the different circumstances that would be considered femicide for the purpose of a constructive first-degree murder charge. For example, one such factor, which is common to the two bills that I cited, includes the fact that the motivation for the murder was hatred toward the person because they are a woman, murder that’s committed during the commission of a sexual offence —
Senator Miville-Dechêne: But it doesn’t say that in the bill. At clause 25, it doesn’t say that.
Mr. Fraser: I think one of our officials are trying to jump in to provide clarity.
Nathalie Levman, Senior Counsel, Department of Justice Canada: Thank you for the question.
In clause 25, the fourth circumstance, aggravated circumstance — perhaps we can pull it up and look at it.
Senator Miville-Dechêne: Yes, I have it here.
Ms. Levman: Great. I will follow along with you, if that’s okay.
It says that, basically, a murder is a murder in the first degree if it is motivated by hate based on all of the enumerated grounds, including sex, gender identity or gender expression. That’s the aspect that targets murders that are motivated by misogyny.
Mr. Fraser: If I can provide additional clarity, I think the issue you are focusing on points out correctly that the hate-motivated provision is broader than simply applying to women. It is inclusive of the murder of someone motivated by the fact that they are a woman. It could, in fact, be broader to include hate-motivated murder that applies to others. There are other distinct provisions within the section, including murder committed during the commission of a sexual offence, murder committed during human trafficking, murder that takes place following a pattern of coercive and controlling behaviour.
From my point of view, functionally, when you have a person who is murdered because of their identity as a woman, it would fall into one or more of those categories. It is possible that these would have a broader application, but I would hold the view that that broader application would still promote justice and is a good law for the protection and well-being of people in Canada.
[Translation]
Senator Miville-Dechêne: I do feel, however, that this definition doesn’t make it very clear that femicide relates solely to women; it isn’t explained in those terms, but thank you for your reply.
[English]
Senator Prosper: Thank you, honourable minister, for being here.
Minister, when a stay of proceedings was introduced as a remedy for trial delays, it was envisioned as a minimum remedy. Later decisions like R. v. Jordan and R. v. Jacques-Taylor clarified the framework for judges when contemplating issuing a stay. However, this bill requires judges to consider other factors before issuing a stay of proceedings, seemingly inverting this to a maximum remedy.
The Canadian Civil Liberties Association has flagged this as a potential Charter violation. Certainly, this committee’s report in 2017 entitled Delaying Justice is Denying Justice made the following recommendation:
. . . that the remedy for unreasonable trial delay be found in sentencing and costs and that a reference to the Supreme Court of Canada be made by the Attorney General of Canada to ensure constitutionality of the proposed changes to the Criminal Code to give effect to the remedy.
Minister, given the history of judges at times disagreeing with Charter Statements and their positions on the constitutionality of proposed legislation over the past decade, would it not be prudent to make a reference case to the Supreme Court of Canada on these proposed changes first?
Mr. Fraser: Maybe you’ll allow me before I very specifically deal with the nature of stay as a remedy: Delays serve no one’s interest in justice, not the victim, not the accused and not society. Before we get to the provision that you’ve drawn attention to, which would direct courts to consider — not to mandate that they don’t issue a statement — other remedies before staying, there are provisions in this bill that are designed to address the underlying problem of delays. At the same time that we ramp up the pace of appointments, we are reducing the procedural burdens when it comes to streamlining how evidence can be introduced. It will have a positive impact.
However, we do still recognize that, as those measures take time to fully realize the benefits that they will have, there will be cases that could be dismissed for delay. We’re not talking about one or two that will allow the court to make a point. We’ve seen public reports of nearly 10,000 cases that have been dismissed for delay. I’ve spoken to people who have communicated to me what feels like an injustice when they’re forced to live in a community with a perpetrator who is living freely in the community despite the fact that the case has never actually gone to trial.
Thankfully, we have recent jurisprudence from the Supreme Court in the Vrbanic decision from a matter of weeks ago that is consistent with the proposals included in Bill C-16. It wasn’t necessarily the main point at issue, but they indicated the courts can consider these other potential remedies.
We’re not directing that the court must issue some other remedy, but they must consider other remedies before making a determination to move forward with a stay.
In my view, this strikes an appropriate balance by recognizing the injustices caused by delays to both the accused and the victim. Nevertheless, it would allow for a potential outcome that would cure the injustice that I hear about when I meet with victims and their advocates.
Senator Prosper: Thank you.
Minister, according to the study conducted by Women and Gender Equality Canada, or WAGE, from the Government of Canada, “From 2018 to 2023, intimate partner violence increased by 36% for seniors aged 65 years and older.”
Do you agree that this current legislation would not cover an instance where an adult child exerts coercive control over their aging relative?
Mr. Fraser: That is something that this bill doesn’t address. It’s an issue that I’ve thought deeply about in response to concerns that have been raised by parliamentarians.
What we’ve decided to do — because there is policy work that hasn’t been done, and I don’t think we can simply copy and paste the concept of coercive control as it applies in an intimate partner violence context to other kinds of controlling behaviour that may result in elder abuse, for example. However, I do think we should do that policy work and come back with an appropriate plan.
The bill specifically contemplates a five-year review period. Keep in mind that the coercive control provisions, at the request of provinces and others who have a responsibility for the administration of justice, have a two-year delay in the coming into effect.
The five-year clock starts to run upon the adoption of the bill. During that window, I hope that we can identify the appropriate solution and find the right path to address the challenges that you see in an analogous set of behaviours that would result in elder abuse. This bill was focused more squarely on issues tied to intimate partner violence and the exploitation of kids.
To the extent that this or other committees would seek to give guidance on future legislative efforts to address that issue, I’d be open to considering it, but it is a different, though related, issue. For that reason, we’ve chosen to scope it into the review process rather than simply assuming that we can copy and paste the policy work from one context to another without consequence.
Senator Simons: Thank you very much, minister. I want to come back to where Senator Miville-Dechêne left off.
My reading of this and the reading of my legal advisers is that femicide, because it is not defined and because it comes as a heading, and then all the conditions underneath — there’s nothing that makes them gender-specific. So if I’m a man in an intimate partner relationship with another man and I kill my partner under one of those conditions, am I potentially charged with femicide? What if I’m a woman, and I have coercively controlled my husband and I murder him? Is that a femicide?
Mr. Fraser: Thank you, senator.
I would suggest that is not a femicide. Let me explain how the structure of the bill differentiates those circumstances.
As I explained in response to a previous question, this particular provision could result in a constructive first-degree murder charge for a broader range of offences. I actually think that’s a good thing because that broader range of offences is serious enough to warrant those consequences, in my view.
Hate-motivated murder, by virtue of the offence being committed against someone on the basis of their identity, is extremely serious and should be scoped into the application of that bill.
Senator Simons: What if I’m a gay or trans man walking down the street and I am killed?
Mr. Fraser: That would be hate-motivated murder but not femicide, obviously, because that refers to a murder of a woman.
Senator Simons: Would it be constructive first-degree murder?
Mr. Fraser: If you can prove the elements of the offence outlined in that regard, yes, it would.
Senator Simons: This is what I find confusing. It’s all headed “Femicide . . .,” but you are also talking about violence between male domestic partners, between female domestic partners, violence committed against somebody because of their race or religion that has nothing to do with being in a domestic relationship.
Mr. Fraser: This bill is broad enough to capture instances of femicide, but it also captures other offences that we believe warrant a constructive first-degree murder charge. The strategy we have chosen, rather than saying there is a new offence specifically called femicide, we have decided to create a set of circumstances that deserve a constructive first-degree murder charge and define it functionally in a way that captures the instances of femicide that are of concern to the public. The legislation, in my view — though perhaps it doesn’t have the label attached in a way that would have cured the challenge you are putting to me — will capture those behaviours, but it will capture a broader range of horrific murders as well that I believe are deserving of a constructive first-degree charge.
Senator Simons: That’s a separate question. We’ve just passed Bill C-9, which redefines hatred. Are there changes that need to be made to ensure Bill C-9 and Bill C-16 are in coordination if hate is defined differently?
Mr. Fraser: I do not think they are in conflict now. I don’t think amendments are needed.
Senator Simons: It’s not the same definition because this still implies the Keegstra and Whatcott, as opposed to the more nuanced definition we have just passed in Bill C-9.
Mr. Fraser: The nuanced definition has been amended to reflect and codify the jurisprudence from the Supreme Court. This was an issue that played out in the House of Commons because the initial draft of the legislation did not reflect verbatim some of the definitions included in the case law. The House very purposely amended the definition of hate to reflect the common law definition as expressed by the Supreme Court.
Senator Simons: In which bill?
Mr. Fraser: In Bill C-9.
Senator Simons: Right. So now we have Bill C-16, which has a different definition.
Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice Canada: To supplement what Minister Fraser has said, the Bill C-9 definition is the codification of the Supreme Court jurisprudence. The concept and terms are meant to be interpreted in a consistent way. Rules of statutory interpretation would inform the way the court would interpret this provision were it enacted, and they would look to other provisions in the Criminal Code, as well as common law jurisprudence. My assessment, to pick up on what Minister Fraser said, is they would interpret it in a consistent way.
Senator Simons: Because, chronologically, Bill C-9 came before Bill C-16?
Mr. Fraser: No. It doesn’t have to do with the chronology. It has to do with what the law says, and the law includes what exists in statute. It includes what exists in the jurisprudence, including the jurisprudence of the Supreme Court. We don’t need to repeat or redefine the concept of hate in each provision that engages the concept of hate because the court has the ability and, in fact, the obligation to understand the definition as it exists in the law more broadly.
Senator Simons: Thank you very much.
Senator Dalphond: Minister, could you inform the committee about the consultation process that led to the conclusion that we needed an offence related to coercive control and the experience elsewhere in the world that you looked at, perhaps Scotland, for example?
Mr. Fraser: Thank you, senator. This process has been playing out for years. There are champions of women’s rights who have been fighting against gender-based violence for the entirety of their lives and careers who have been advocating for political actors to take a step. We have seen a number of jurisdictions — Scotland, perhaps, being one of the most notable as an early mover in this space who has also agreed to undertake a review to determine whether it should be expanded — demonstrate that you can actually address behaviours that we know are predictive of violence.
This is one of the most important provisions in this bill. When we talked to the experts who have been working over the duration of their careers for organizations promoting these outcomes, we learned that most criminal laws are backward-looking in nature and punishing a bad thing after it has taken place. While that is also true of coercive control, it has the opportunity to prevent violence by intervening in a relationship before it becomes violence and intervening in a violent set of circumstances before it becomes fatal.
This is based upon not only the consultation but the experience of other nations that have gone down this path. We will be equipping our courts and our law enforcement with the ability to recognize violence that is predictive of murder, at risk of taking it to the logical end. We should take opportunities to focus on prevention, certainly with programs that go upstream. But in the code itself, we have an opportunity right now.
There is very limited debate on the other side of the ledger that would suggest the kinds of behaviours that are included among those that we would consider appropriate for the purpose of this offence are not predictive of potential future violence in relationships. They are harmful and wrong in their own right. The consultation revealed that harm can befall a person who finds himself in such a relationship, but we also know the predictive value of coercive and controlling behaviour is something we can use to prevent violence from escalating or becoming deadly.
Senator Dalphond: Will there be some budget available for training police officers and Crown officers? We are dealing with a new concept: a type of crime which is based on behaviour. You have to understand behaviours and the control of that. I read it is certainly a sign of dangerous criminality that may follow, like murder, but we need people to be experts in these matters.
Mr. Fraser: The short answer is yes, but I owe you a more nuanced response. The Government of Canada routinely funds programs, including training, through provincial systems. I recently shared that this year we will be supporting initiatives with a nearly $50-million investment, including — correct me if I’m wrong — $8.9 million, going from memory, specifically for provincial initiatives that deal with primarily gender-based violence and victims’ rights that disproportionately fall in areas of provincial responsibility. Some of the funding in that $50‑million envelope also goes to community organizations that are providing services on the ground that are adjacent to these issues but not necessarily training within the system. Those are equally important, in my view.
We will work with provinces through these funds, which continue more or less annually with reliable supports that go to the sector, including the provinces seeking to develop training opportunities. The details of those training opportunities have not yet been finalized in terms of how we may partner, because the offence does not exist yet. When we have an understanding of what the law is and will be — upon the adoption of this bill, I hope — we will be in a position to have conversations with our provincial counterparts about how we can use some of those resources, which we continue to use to support provinces. I don’t want to prejudge what they will tell me in those conversations, but this is a live conversation among justice departments across Canada, not just within the Government of Canada.
The Chair: Thank you.
Mr. Fraser: Mr. Chair, the vote is under way. If you don’t mind, I will take a few seconds to do my democratic duty.
The Chair: We will not suspend. We will just wait for it to happen.
Mr. Fraser: Thank you.
My vote has been submitted. Thank you for your indulgence.
Senator Clement: That never gets old. Voting is always so good. I’m glad your face ID worked there.
Hello, minister, and hello to the officials whom we know and appreciate every time you come here, very much so.
You can be sure the Legal Affairs Committee will be studying this bill and putting in the hours required. Thank you for noting that in your opening remarks, and for noting the presence of “Bailey’s Law” and the family supporting that bill.
I have a question about mandatory minimums. It has been raised, but I want to come back to that. Currently, 9 out of 10 women in federal prisons are survivors of violence against women, an injustice which has been amplified by mandatory minimums. That data is from the Correctional Investigator’s report that states, “Their life histories of trauma cannot easily be separated from their conflict with the law.”
Will the government consider amendments that might ensure that in a bill dedicated to protecting victims, survivors of violence against women do not continue to be jailed as a result of mandatory minimum penalties?
Mr. Fraser: I’m never going to tell a parliamentarian what they can or cannot do; that is not my role. If I told people what their role was, they would be well within their rights to tell me to buzz off.
That said, I want to explain where this particular piece came from, because there are very serious constitutional risks if you do it the wrong way. And there are very serious practical risks that we learned through the engagement process if you do it the wrong way.
We considered a range of different options when identifying the right path forward on this particular issue. You could choose to more tightly ring-fence the scope of the offence to protect against the over-breadth that the Supreme Court has found to be a violation of our Constitution.
But we heard from stakeholders, particularly in child protection, that should you change the nature of the underlying offence to which a mandatory minimum is subject to, you run the risk of upsetting generations of jurisprudence, which has provided certainty that allows law enforcement and the Crown to prosecute and convict very serious crimes; in that instance it was about the exploitation of children. And certainty is something we want to jealously guard, so we chose not to scale down the scope of the offence to which the mandatory minimums apply.
The other strategy we sought was to take guidance from the decisions of the Supreme Court, which used language around the grossly disproportionate consequences that would befall a person who is convicted. They’ve cited certain examples that, I think, demonstrate that some provisions could involve facts beyond the contemplation of the drafters at the time the mandatory minimums were first considered.
We have made a decision, as a government, in response to the Senneville decision, that we do want to restore the mandatory minimums that have been struck down. But we want to respect the fact that courts will run into circumstances where the penalty contemplated would be grossly disproportionate. And in those instances, we don’t want the court to have unreasonable sentences not fit for the crime committed.
As we go forward, I would say on this particular issue, given the constitutional concerns rampant throughout this analysis, I would tread carefully and ensure any proposals you are contemplating are informed by those with deep expertise in constitutional law and the issue of mandatory minimums specifically.
Senator Clement: I hear you. What is the government doing then about overrepresentation? That has to be part of this conversation every single time you are here.
Mr. Fraser: Certainly. It is a pressing problem that needs to be addressed. I don’t think anybody should feel good about the fact that Black and Indigenous Canadians and other marginalized groups in Canada are disproportionately represented in the criminal justice system; also disproportionately represented amongst victims of crime.
We need to work every day to improve these sets of circumstances. Some of the answers can be found in the Criminal Code. We can also adopt tools that can be applied when the code is being considered. I think about the support we are providing for the impact of race and culture assessments, the support we put in place to ensure there are people trained with Gladue reports.
We also know that the long-term solution, if it does not include upstream supports to cure social inequities — that we know are predictive of interaction with the justice system — then this will be a failed effort across a generation. So the strategy we have sought to adopt is, yes, we are going to strengthen Canada’s criminal laws, but we are also going to put tools in place for the justice system to help fairly apply those laws. And we are going to make investments in mental health and addictions, in affordable housing, investments that contemplate the unique circumstances of different populations in Canada, that target programs facing at-risk youth and, frankly, infrastructure that builds healthier and safer communities.
This is not one solution we can implement in the Criminal Code. We need to take a whole-of-society approach. I have been working with colleagues across a number of different portfolios to identify which programs we have now that could be better deployed to improve public safety over time and better deployed to achieve equity in the justice system. That is going to be a long-term project that I expect will need to be continued in perpetuity, but we can get better every day.
It’s a separate but related issue to the mandatory minimums, of course, but I think both aspects of that question are essential to tackle.
The Chair: Thank you.
Senator K. Wells: Minister, my question is related to what’s not in the bill, particularly when we’re looking at coercive control by adults over elderly parents or vulnerable people. I wonder why your government has chosen not to include that in this piece of legislation.
Mr. Fraser: Certainly. The scope of the bill, from inception, was focused more on gender-based and intimate partner violence and crimes committed against children, including specifically sexual exploitation of children. We thought about — after the parliamentary process got under way, and we heard from colleagues not only in the Senate but in the House — the challenges that are similar in nature facing seniors to those who may find themselves in a coercive and controlling relationship.
When we started to dig into the potential impact of applying the coercive control provisions in this bill to a different context, we realized that it doesn’t create a set of predictable results, and we realized there is already a need to delay the coming into force of the coercive control provisions, as written, to allow the justice systems and provinces across Canada to train their staff with a new and groundbreaking concept that has never been part of Canada’s criminal laws.
I don’t want to suggest that the issue you’re talking about is not worth doing — please don’t take my comments that way — but I think it needs to be better understood before we move into that space. There are unique circumstances that cannot be transposed from one policy area to another, even though there are similarities in the underlying concern about a controlling relationship.
The review period will give us the time to understand how coercive control is rolling out in the systems and to study how the concept could be applied in other sets of circumstances, including, particularly, the abuse of seniors in Canada.
If this committee or other committees in the House are looking for work that I personally would be interested in knowing the results of, this is an area of study I think would be an appropriate place to do that policy work. But at this point in time, I think it would unduly delay the adoption of the bill if it were to get to a place where I would be satisfied that we’ve done it the right way.
Senator K. Wells: I think all of us in Parliament would agree that protection of our vulnerable seniors is one of our highest obligations and priorities. I would certainly support any work that would expedite that and provide the appropriate legislative protections as soon as possible. We will engage in those conversations among our Senate colleagues and see how we can support you.
Mr. Fraser: And, senator, if I may, the victims’ ombudsperson, who supported the five-year review, would be a very helpful person to discuss this with.
Senator K. Wells: I appreciate that.
Given how comprehensive this bill is and the different important components it addresses, if it were to pass, how strong would you rank these protections, given our other Commonwealth partners? Is Canada showing great leadership here? Are we going to be at the front of the pack, or are we going to be catching up to the rest of the pack?
Mr. Fraser: We’re not at the front, but we’re not far behind. Scotland, for example, was three years in advance. There are many countries that have not yet taken this on.
One thing I also want to be careful about is that we can learn from other jurisdictions, but we can’t simply assume the experiences in those other jurisdictions will have equal application in Canada. We will be breaking ground in Canada. We will be on the forefront of this debate in a global way, but there are a few countries that have stepped out in advance of Canada.
I would not like to have us fall to the middle of the pack. Let’s do the thing that we believe is right, and let’s do it now.
Senator K. Wells: Thank you.
Senator Dhillon: Thank you, minister, for being here. Thank you for your work on this important bill.
One of the positions I’ve taken since arriving in this chamber from the beginning is that there have to be financial consequences for citizens who decide that they are going to offend a social contract that we all agree to. This is the most heinous of crimes when a partner decides to abuse that trust and care that has been afforded to them.
On May 15, 2026, the Supreme Court of Canada recognized the new tort of intimate partner violence in Ahluwalia v. Ahluwalia. How have you and your team reconciled that particular ruling with Bill C-16, and what do we have to look forward to as far as bringing about that type of consequence as well?
Mr. Fraser: Thank you for the question. Although technically it is outside the scope of the bill, obviously, it touches on very similar concepts. It is not for me to necessarily tell the court what to do, but I am personally supportive of the move that they’ve made in this direction.
One of the challenges when you deal with these kinds of crimes is — given the very high standard of proof in criminal proceedings — the experience is awful for people who go through it, particularly when they are dealing with a system that does not necessarily consistently have trauma-informed expertise from law enforcement to Crown prosecutors to the judges themselves. We are getting better as a society, but we are not where we need to be. When you see the very high threshold when it comes to demonstrating someone has committed a crime beyond a reasonable doubt, you very often have cases that fall off the radar before they go to trial and a surprisingly low conviction rate, given the nature of sexual crime, in particular, that could take place.
By allowing people to demonstrate on the evidence available the potential civil liability standard, I expect you are going to see different avenues for people to pursue justice, which I believe is a good thing. Courts will still have to hear evidence and be satisfied that the underlying facts justifying the newly recognized tort do exist, but in my view, this is a positive step that will have a disincentive in place for people to commit a violent act in the first place.
At the end of the day, it is, at least, a different and potentially more effective path toward liability, not necessarily relying on the standard of “beyond a reasonable doubt.”
Senator Dhillon: Thank you. To build on Senator Dalphond’s commentary earlier around training with law enforcement and those who are charged with this work, I think it would be useful for that particular component to also be included as you are gathering that evidence, whether it is for that civil purpose or that criminal outcome.
I want to take a moment also to recognize Ms. Debbie Henderson here, the aunt of the late Bailey McCourt.
We have two pieces of legislation that are moving through the chamber right now — Bill C-225 and Bill C-16. I am interested in understanding how we are reconciling the two. There are some similarities, but there are also some differences. If Bill C-225 goes first, will that cause any issues or impact to Bill C-16, and is that part of the thought process here?
Mr. Fraser: I see no problem with it going first.
This is heartbreaking. The anniversary of Bailey’s death is on July 4. It would be really meaningful if “Bailey’s Law” could be adopted in advance of that anniversary.
These bills are meant to be complementary. There are areas of common priorities, and there are unique things in each bill that are not included in the other. In particular, with “Bailey’s Law” — not just on the issue of femicide, by the way — extensive new protections against intimate partner violence more broadly that are not in Bill C-16 will be a serious added value in terms of Canada’s criminal response to gender-based violence. I do not care that Bill C-16 has to be the bill that includes a particular provision. I care that these are part of the laws of Canada.
To the extent that it provides an ounce of comfort to a grieving family upon the anniversary of such a tragic outcome, let’s do what we can to be good neighbours. Any protection that we can offer, where all parliamentarians in the House of Commons have indicated their support for that bill, if we can find a way to expedite it, I think we should. I think we must.
These bills are not in conflict. They are pursuing very similar outcomes. To the extent that we can offer protections — not only solace to the family who continues to live without their loved one but the potential to prevent such harm from coming to others, if there is some comfort we can take in that — I think we have an opportunity to do a very good thing, and we have an opportunity to do it this week.
Senator Dhillon: I deeply appreciate your comments, minister, and I expect the family does as well. Thank you.
The Chair: Minister, I would like you to explain a couple of things to help me on this: What distinguishes coercive control from non-criminal relationship conflict? In thinking of evidentiary thresholds and policy safeguards, how should police identify coercive control, and what kinds of evidence do you believe is required to support a conviction?
Mr. Fraser: Let’s dispense with the myth that I see sometimes circulating in the public commentary around this issue.
We are not talking about ordinary behaviours in a healthy family dynamic. We are talking about behaviours that would cause a person to reasonably fear for their physical or psychological safety. We are talking about people who are committing acts of violence. We are talking about people who are threatening to harm or kill family pets or children who live in a household. We are talking about people who are surveilling their partner in an intimate relationship that would cause them to fear for their safety.
The evidence will be unique to each case, as criminal law is inherently fact-based and specific to a given set of facts that are unique to an individual case, but the level of harm that you need to demonstrate separates this from any ordinary or even harmful behaviour that falls below the criminal standard.
From my perspective, we have an opportunity to realize that the level of harm and moral culpability that differentiates this from the civil standard in a new tort and that would demand that someone face potential incarceration — keep in mind — would demand a level of seriousness to the offence that really would cause that sincerely held and reasonably based fear for a person’s physical or psychological safety.
The Chair: Thank you, minister.
Senator Batters: Thank you very much. Minister, I really appreciate the support that you are giving to “Bailey’s Law.” It is such a good cause, and I really appreciate your heartfelt comments about that. It is obvious that that is very sincere.
I, too, have been honoured to meet Bailey’s aunt prior to this, and then to see her again today was great. I have expressed support for this important bill in Senate chamber speeches that I’ve made about this topic.
Yes, with that one-year anniversary of Bailey McCourt’s murder on July 4 fast approaching, I want to be extra clear. Mr. Caputo introduced his private member’s bill last September. Your Bill C-16 was introduced last December. I appreciate you saying that it is your view that these laws can run in parallel, so I want to get clarification. In the event that both bills are successful and receive Royal Assent, would you be fine with Royal Assent for “Bailey’s Law” occurring before that tragic July 4 anniversary and prior to potential Royal Assent for Bill C-16? You think that’s absolutely correct?
Mr. Fraser: Yes. First of all, I know there are things that you and I may not agree on. This is something we agree on, and I thank you for your comments in that regard.
It is of no consequence to me if “Bailey’s Law” receives Royal Assent before Bill C-16. These two are not in conflict. Despite the fact that Bill C-225 was advanced first, there was a common campaign commitment that we had met. I met with Mr. Caputo and with family members. We worked very closely in preparing the amendments to the initial draft with our office. It has been deeply considered by officials within the Department of Justice. From the moment we understood there was an opportunity to have an impact, we wanted to get this right and have it move forward.
It does not matter to me, and I don’t think Canadians watch which bill goes first, but it means something to the family. If that’s something that we can accommodate, it is of no consequence to me if one bill precedes the other. If it’s a nice gesture that we can offer in response to such a horrific tragedy, please know, from the government’s perspective or my office’s perspective, there is no effort to have Bill C-16 go forward for political reasons. If the Senate has an opportunity to achieve that outcome — I’m not in control of your process — that causes me no problem.
Senator Batters: As someone who understands the importance of legacy for the death of a loved one, that will absolutely be a meaningful gesture and an important change to the law. Thank you.
Senator Simons: I want to come to the back to the larger philosophical issue of constructive murder itself. Traditionally, first-degree murder is the most serious charge, and we charge it when the murder is planned and premeditated. There are exceptions to that for the murder of a police officer, a prison guard or a murder committed in the course of a hijacking. Organized crime was more recently added.
I am just a little concerned about the legacy of Martineau from 1990, which strongly stresses that if you didn’t plan to commit murder, it can’t be charged as a murder. Martineau has very different fact circumstances, but I just wondered if you could speak about the constitutionality of adding so many new different kinds of murder to a situation where it becomes an automatic first-degree murder charge without any ability by the Crown to charge it as second degree.
Mr. Fraser: Thank you. This is a deep and philosophical question upon which reasonable people may hold different perspectives.
You correctly pointed out that, beyond the traditional concept of first-degree murder involving the premeditated nature of the offence, there have been new constructive first-degree murder charges added where society has expressed their will through Parliament as recognizing the moral culpability of certain other harms. The murder of a police officer provides a good example.
I would suggest that hate-motivated murder, which not only impacts the victim of the murder but has the message reverberate through an entire community that you are not welcome, that you too must live in fear on a go-forward basis, that you may be attacked not because of choices you make or behaviours that you adopt but because of your identity — we need to take that more seriously, in my view, than the law currently recognizes, including, specifically, when you see so often femicide dominating the headlines when it comes to criminal justice in Canada, or when you see crimes of a sexual nature, keeping in mind this is not just crimes of a sexual nature but murder committed during the commission of a sexual offence.
I would invite Senate colleagues to openly consider whether these kinds of murders are of such a heinous degree where their moral culpability would bring a murder on par with someone who has premeditated a murder. In my view, when you are carrying hatred toward an entire class of people and commit a murder following potentially a lifetime of hate, you may not have been planning to murder that individual person, but the hate almost always pre-existed before the act.
In my view, the items included in the constructive first-degree murder charge do raise the level of moral culpability that justifies a constructive first-degree murder charge.
Senator Simons: As a journalist, I covered too many cases of domestic homicide, not always men killing women but every variant. Very often, they were things that happened very much in the spur of the moment, in a moment of anger or in a moment when someone snapped.
I know that Bill C-16 doesn’t preclude someone being charged with manslaughter, but even with a manslaughter charge, you are giving the courts the option to sentence someone to life in prison. It just seems to me that there is a profound constitutional principle that has been upheld by the court — I guess Martineau was in 1990 — that you must have the mens rea in order for there to be a murder charge, especially a first-degree murder charge.
Although I share with everyone in this room the abhorrence of domestic homicide, I worry that elevating them all automatically to first-degree murder — or, if it’s manslaughter, leaving open the possibility of a sentence equivalent to first-degree murder, which then it might as well be first-degree murder — could backfire if women are charged with killing their abusive husbands.
It just seems that there is an open question of constitutional challenge. How do you respond to that? Can you tell us if there has been a Charter Statement that addresses that concern?
Mr. Fraser: You will still need to establish the elements of the crime, including the mens rea, before a conviction will result. I just want to make sure, for the record, that’s understood.
The principle when thinking about how to craft a provision that would actually achieve the intended outcome — hate‑motivated murder provides a good example. Although a person may have a reaction in a particular moment, it’s not as though they suddenly started hating an entire class of people immediately before the murder is committed.
Senator Simons: Well, you don’t know that.
Mr. Fraser: It would be very difficult to prove there was a hate motivation if, in fact, there was no evidence that hate motivated the murder. You would have to have some evidence that, before the murder was committed, there was motivation established in the person committing the murder of hatred, not just toward the individual, by the way, but toward the individual on the basis of their identity.
When I think about some of the horrific crimes in Canada’s history, such as École Polytechnique or the van attack or a series of attacks that have impacted Muslim Canadians in this country — there is no shortage of examples to draw from, and I hesitate to go through every marginalized group — I think the point is well taken that these instances are not as though someone has a moment of anger and acts out of character. A murder not only with hate motivation but a murder committed in the context of someone who is actively committing a sexual offence does not strike me as equivalent to someone who has a moment where they lose control of themselves; instead, they are committing a serious crime to begin with and decide to end the victim’s life after the crime has been committed. In my view, these are as or more serious than a murder that was planned in advance.
[Translation]
Senator Miville-Dechêne: I’d like to return to a slightly more pragmatic issue, namely the whole question of sexually explicit deep fakes. There is a related issue that appears to me to be unresolved in Bill C-16, namely that there is no provision for quickly removing such images; the procedures are very lengthy. However, as you know, Quebec is a pioneer in civil law and has established a procedure to have these images removed as a matter of urgency for anyone over the age of 14. This is important, because the fact that these sexual deep fakes remain online for a long time also traumatizes the victims. Why is there no faster mechanism at federal level to remove these images?
[English]
Mr. Fraser: First, thank you. In this bill, because it is criminal law in nature, it is about identifying when an offence has been committed and prosecuting that crime, leading to convictions. There are other opportunities — I’m checking the time, not knowing what has transpired in the House of Commons today — there are other measures that we are putting in place that touch on these issues that we’ve been considering over the last number of months about the right to control one’s presence on the internet.
I hesitate because I’m not sure if there are still issues of privilege to talk through detail on the government’s strategy to address these particular issues, but you should expect us to address a range of online behaviours through other, non-criminal pieces of legislation that very much touch on some of the same subjects that are considered in this bill.
One of our officials is asking to respond.
[Translation]
Owen Ripley, Senior Assistant Deputy Minister, Policy Sector, Department of Justice Canada: I would like to point out, senator, that one of the changes made by the House of Commons was, in fact, to require that images be removed within 48 hours. That was an amendment made by the House of Commons.
Senator Miville-Dechêne: That was my mistake; I wasn’t aware of that amendment.
May I ask a brief question? Minister, you have changed the terminology regarding coercive control between Bill C-332 — which was the first bill on this subject — and the current bill. At the time, the term used was “coercive control.” Now the bill is referring to “controlling or coercive behaviour.” Some people might say that this isn’t a major change, but the difference here is that there is an “or,” so it is either control or coercion. This issue has caused concern for several women’s groups. They are wondering whether controlling behaviour, on its own, should lead to a conviction. We know full well that, in intimate relationships, women are often accused of controlling the children’s timetable and the running of the household. You have inserted an “or” between “control” and “coercive,” rather than referring, as you have done throughout this presentation, to coercive control. That is my question.
[English]
Mr. Fraser: Sure. The actual piece that will define whether a crime has been committed depends upon the details of the entirety of the provision and the different facts that can actually be borne out. It is not so much to me whether there is coercive or controlling behaviour, but you can establish based on the totality of the facts — given the factors listed in the entirety of that provision — whether the elements of the crime have been proven.
To me, it is more of a semantic difference on how you talk about coercive control versus coercive or controlling behaviour. As a matter of law, the text of the provision is what is going to drive the courts’ analysis.
I understand your point. I don’t mean to be dismissive when I discuss the semantics.
Senator Miville-Dechêne: Obviously, women’s groups are wondering if this could be a problem because the reverse, the idea of —
Mr. Fraser: Bingo.
Senator Miville-Dechêne: — women being accused of this crime can be —
Mr. Fraser: We were acutely aware of that concern. Done the wrong way, there is extraordinary potential that we learned during the consultation that we referred to earlier that this could be used and, in fact, is constantly used when there are allegations of family violence.
There is a back and forth. You often have a set of circumstances where, in the moment, everyone is charged to quiet the situation and you sort it out later. Those charges can cause very serious inconveniences for people. We took care when crafting the actual text of the offences to try to mitigate against that concern.
Again, we’re dealing with the kinds of harms that would cause a person to reasonably fear for their physical and psychological safety. The kinds of facts that we look at are if there are acts of violence or threats of violence in the home, if there are harms against children or pets in the home. These different factors will determine the outcome of the analysis rather than the way we refer to it as coercive control versus coercive or controlling behaviour.
[Translation]
Senator Miville-Dechêne: Thank you, minister.
Mr. Fraser: Thank you.
[English]
The Chair: Senator Oudar, the sponsoring senator, will get the last question.
[Translation]
Senator Oudar: I do not wish to take up my colleagues’ time, but I raised my hand earlier when we were discussing Bill C-225. I simply wanted to reassure the senators that half of the bill consists of coordination provisions. I think the parliamentarians have done a very good job, because everything is provided for at the end of Bill C-225; if one bill is passed before the other, what will happen? More than half of the bill contains coordination provisions; it is quite possible that the bill will be passed first and everything will slot together like pieces of a jigsaw puzzle.
I would like to commend the work that has been done in the House of Commons. In cases such as these, I often say that we must work across party lines, because these issues are important to society as a whole. I am reassured by the answers you have given, and I thank you for them. I sense a great deal of empathy in what you said, and I would like to reassure the public and my fellow senators about the parliamentary work currently being carried out with our colleagues on the social affairs committee. The provisions of the legislation will ensure that Bill C-225 is passed before Bill C-16. Neither bill will suffer any negative consequences. Thank you for the answers you provided earlier. I don’t want to take up any more time. I have questions of my own, but I will cede the floor to my colleagues, given the time constraints.
[English]
The Chair: There is no time. We are going to suspend if you don’t have any more questions.
Mr. Fraser: Mr. Chair?
The Chair: Yes.
Mr. Fraser: If I may take one minute to conclude, before I came into this portfolio, I never had the opportunity to lead an individual piece of legislation. I took part in many others.
It has been a unique privilege to appear before the Senate and this committee on multiple occasions. A message I’m going to be taking back to my colleagues on the House side is that I think we have work to do to improve the way that we work together. But to the extent that it provides you any comfort, my message will be that there is a group of hard-working people who are dedicated to advancing the interests of this country. I’ve been thoroughly impressed with the rigour that you put in and the non‑partisan nature of your questions.
I feel sometimes — at risk of being critical of my colleagues on the House side — we know what the questions are going to be ahead of time, and we know the audience is not necessarily anyone in the room.
I feel uniquely like the work of the Senate has been aimed at improving the laws of this country. I am grateful for the opportunity to work alongside you. To the extent that we can, in the spirit of partnership, adopt good laws, know that I have been impressed by your work and hope to take that message to my colleagues at the House.
Thank you.
The Chair: On behalf of the committee, I want to thank you, minister, for appearing before us here today. Thank you for your words of cooperation, collaboration and recognition of the hard work that this committee does; it is very appropriate, in my opinion.
To the other witnesses who came with the minister, thank you for your attendance as well.
Honourable senators, for our second panel, we are pleased to have officials from the Department of Justice Canada: Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section; Nathalie Levman, Senior Counsel; Chelsea Moore, Acting Team Lead and Legal Counsel; Leah Burt, Counsel; and Sandra Couture, Counsel.
Thank you for staying with us. There will be no opening statement; we will move to questions immediately.
Senator Batters: Thank you very much to all of you for being here. I would like to ask about the safety valve, the escape hatch — whatever you call it — in the proposed section 718.4(1). It says:
When imposing a sentence for an offence that has a minimum punishment of a specified term of imprisonment, a court shall impose a shorter term of imprisonment than the specified term if, in the circumstances, the minimum punishment would amount to cruel and unusual punishment for that offender.
As we have heard, that is the part where a judge can use their discretion to decide about that.
Subsection 718.4(4) says:
A court that imposes a shorter term of imprisonment under subsection (1) shall include in the record a statement of its reasons for doing so.
There is only one exception, that being:
Subsection (1) does not apply with respect to an offence for which the minimum punishment is imprisonment for life.
On that point, my understanding is that murder and treason would be the only two offences included in that exception. Am I correct in that, or is there any other offence that has imprisonment for life?
Leah Burt, Counsel, Department of Justice Canada: Yes, that is correct. Those are the only two offences that carry a sentence of life imprisonment.
Senator Batters: So every other Criminal Code offence that has these types of serious things would be potentially subject to having a much shorter term of imprisonment given by a judge.
Given that it says there are no criteria for defining it, just simply the judge’s discretion as to whether that minimum punishment “. . . would amount to cruel and unusual punishment,” it says that, yes, the judge, if so ordered, is to include in the record a statement of the court’s reasons for doing that. Is that subject to appeal? Would an appeal court be able to decide that, no, that was not reasonable to consider that that particular exercise of judicial discretion would amount to cruel and unusual punishment? Or is that finding by the judge that it would amount to cruel and unusual punishment other than to have a shorter sentence unassailable by appeal?
Ms. Burt: Thank you for the question. Yes, it would be open to either the offender or the Crown to appeal a decision made under section 718.4. The right to appeal a sentence is set out in section 675(1)(b) of the Criminal Code. Where the court applies a mandatory minimum penalty and does not engage the safety valve in 718.4, an offender could appeal and would have to show that there was an error in principle or that the sentence is manifestly unfit to be successful on appeal, and, similarly, the Crown could also appeal where a judge applies the provision.
Senator Batters: What would the standard be? I’m not talking about the offender part, but if a judge thinks that in his or her discretion this should receive a shorter sentence, what is the standard for determining that particular sentence? Is it just a reasonable judge could have found that? What is the standard for determining that? It could be very important in this situation.
Ms. Burt: The standard of appeal on sentence is an error in principle, which would be that the sentence is manifestly unfit. That is the standard that has to be demonstrated on appeal of a sentence.
Senator Batters: It has to be shown to be manifestly unfit, not just that a different judge would have decided differently. That is a high standard, isn’t it, to determine that it is manifestly unfit?
Ms. Burt: Yes, it is a high standard.
Senator Batters: So there is quite a bit of judicial discretion awarded there. Thank you.
Another question I have is there is also a new part of the bill dealing with unreasonable delay. The bill opens the door to remedies other than a stay of proceedings for that. Our committee determined about nine years ago that this should be something that happens. What other specific types of remedies did the government have in mind on this? Why were they not more clearly defined in the text of the bill?
Chelsea Moore, Acting Team Lead and Legal Counsel, Department of Justice Canada: Thank you for the question. You are correct that the bill does not codify specific remedies. It leaves broad discretion for judges to consider any remedy that is just and appropriate. That really tracks the language under section 24(1) of the Charter to support consistency with the Charter. The courts would have broad discretion to consider what remedy would be appropriate in each case.
But some remedies that could be ordered include things like an order to expedite proceedings, an order to sever cases with multiple accused, a change of venue application, an order to exclude evidence that could be impacted by a delay or an order to change the mode of trial from a jury trial to a judge-alone trial with the consent of the accused. Post-verdict, there could be a remedy of reducing the sentence as well.
Senator Batters: I guess I’m thinking post-verdict because what I would be substantially concerned about is having cases thrown out for delay. Please tell us how those remedies could be used to avoid those very extreme consequences, say, if somebody would be otherwise found guilty of murder or sexual assault or very serious crimes like that. What sorts of remedies is the government proposing? And how will that be defined — just completely open-ended?
Ms. Moore: Thank you. Currently, under the law, the courts have indicated that the only remedy for breach of an accused’s rights under section 11(b) of the Charter, if the trial goes on past the Jordan limits that have been set, the minimum remedy right now is a stay of proceedings. Right now, there is no other remedy that is available to the courts to impose. This bill would ensure that this stay is imposed only as a last resort after other remedies have been considered.
Senator Batters: What other remedies would be available? That’s what I’m really trying to get at here. In those cases, what sorts of remedies are available?
Ms. Moore: It would really depend on the facts of the case and the stage of proceedings. Most of the time, these applications are heard far in advance of the trial actually occurring because the applications take place when the trial date is set, early on in the proceeding. At that point, the remedies that I mentioned, like expediting proceedings, severing the charges and things like that, can be done to help speed up the process.
Senator Batters: Okay. But I am talking about ones where — there have been a lot of terrible cases that have been noted in the media where murderers have gone free, and it is because a case has taken too long to get to trial for different reasons. So in that sort of case, what avenues would be available to the court?
Ms. Moore: It would really depend on the specific facts and circumstances of the case before the court, but there are some factors in the bill that the court could consider in determining what remedy would be appropriate, such as, as I mentioned, the stage of proceedings, the impact that a stay of proceedings could have on the victim of a crime or the impact a stay of proceedings could have on public confidence in the administration of justice. These are the types of factors the court would have to consider in determining what remedy to impose and whether a stay would be an appropriate remedy given all those factors.
Senator Batters: I’m sorry to go on, but this is quite important. In these cases of murderers or sexual assault perpetrators, and the case has already taken years — this is not an early-stage thing; this is years later. And yes, the public would have extreme lack of confidence in the system if that person goes free, as many have. What is this bill going to allow to happen in this case then?
Ms. Moore: If it is a case where there is a significant impact on the victim if a stay were to be ordered or a significant impact on public confidence in a murder case, for example, it could very well be that the court decides that a stay of proceedings is not an appropriate remedy in that case. Like I said, what they could impose is very dependent on the specific facts of the case. It could be that certain types of evidence get excluded to allow other charges to proceed but some charges to drop. It could be a reduction of sentence if it is post-verdict. That is already recognized in the case law. For murder, maybe a change of venue would help speed up the trial to ensure that it doesn’t go over the timeline. It would be impossible to predict exactly what a court would order in a specific case without knowing the specific circumstances and facts before the court.
Senator Batters: I’ll let my colleagues go on, and maybe I’ll follow up later.
[Translation]
Senator Oudar: Thank you to the civil servants for joining us this afternoon to inform our discussions, and thank you for the work and the hours put in leading up to this important bill.
I would like to return to the discussion we had earlier following a question from my colleague, Senator Miville-Dechêne, on the definition of the word “woman.” Personally, my understanding of the Criminal Code and the amendments the bill will introduce is that, when we talk about femicide . . . . I wanted to recap what we were discussing, because some members of the committee were not present earlier when we were considering whether this actually referred to women or whether it could be extended to any partner.
In the French version of the bill, clause 25 clearly states that we are referring to “femicide, including of intimate partner.” The French uses the feminine form, so it was very clear to me.
When Senator Miville-Dechêne asked her question, which I found to be very pertinent, I listened carefully to the exchange that happened with the minister, but I would very much like to clarify this point once again. I think there are still a few unresolved issues. Senator Simons asked another question afterwards, so I will allow you to answer the question that was asked earlier, in order to potentially reassure the members of the committee.
[English]
Ms. Levman: The proposed femicide provisions protect everyone who is killed in the listed circumstances. But those provisions target circumstances that disproportionately impact females, that we have evidence on. So they are coercive control. We know that femicides of intimate partners are almost invariably preceded by coercive and controlling behaviour. Sexual violence — we heard the minister speak to that. That would cover cases like, for example, the Pickton case or the Barton case, et cetera. And, of course, the minister referred to the tragedy at École Polytechnique in Montreal and the “incel” cases.
But it would protect everyone because anyone killed in these circumstances is being subjected to the most serious form of violence. That is why the marginal note says, “Femicide, including of intimate partner, and other aggravated circumstances.” I would also draw your attention to the summary of this provision, which says, “. . . provide that, in the following circumstances, murder — known as femicide when committed against a female person . . . .”
That is, I believe, what the minister was referring to when he said that it was a functional definition. It has also been referred to as an effective definition in the sense that it defines femicide as killing that takes place in any one of these four circumstances where the victim is female.
So I hope that answers or assuages some of the concerns, but I would be happy to follow up with anything further.
[Translation]
Senator Miville-Dechêne: Mr. Levman, I’d like to follow up on that, because I’m not quite following. Paragraph 26(2)(d) refers to “hate based on [. . .] sex”; once again, there is no mention of women. It refers to hate based on sex. There are two sexes: female and male. There may be more, but let’s say that, to begin with, there are two.
So there would be no way of knowing for certain — obviously, I’m no lawyer — that femicide is essentially the murder of a woman because she is a woman, which is, after all, a fairly precise definition. We’re muddying the issue of femicide, as referred to in the title, by including the word “sex” and lumping it in with a whole range of other forms of hate. I think there’s something really unclear about this definition. I am not trying to trip you up.
Femicide is at the heart of this bill and I do not see why it should not be defined, given that it is a relatively new word in our vocabulary. The subject has been studied by feminist scholars, but I’m still left feeling somewhat unsatisfied.
[English]
Ms. Levman: There has been a lot of work done, both internationally and within Canada through the Femicide Observatory, on the meaning of femicide. One of the problems that has come to fruition is the difficulty of identifying what that means — killing someone because she is a woman.
In the UN Office on Drugs and Crime documentation, you will see they delineate a lot of different types of circumstances. What Bill C-16 does is hone in on the instances of femicide that we know have occurred in our country. We have cases. We have evidence that shows that these four circumstances have disproportionately impacted women and girls. Therefore, calling femicide the murder, for example, or the killing of a woman in the context of coercive control, sexual violence, exploitation or misogyny is grounded in the evidence that we have in Canada and how it has manifested here.
I would just make a quick point, although, of course, this committee knows this: Criminal law has to be very precise. It cannot have vagueness in it. I’m not sure exactly what killing a person because they are a woman means, whereas in our view — meaning the department’s view — these are very clear circumstances that we know have impacted women and girls in our own country.
Nothing would stop Parliament in the future from adding another example if evidence should come to fruition that it would be required.
Senator Miville-Dechêne: Thank you.
Senator Prosper: Thank you to our witnesses. I would like to get into a factor of case complexity because it is one of the considerations that allows a court to consider options other than a stay.
I’m looking at the provisions, the proposed section 492.26(2). You do have an enumerated list there in terms of factors with respect to case complexity. Now, this is obviously a Charter right, protected by the Constitution. More specifically, when we are getting down to (h) here, “any factor that the court finds relevant in assessing the complexity of the applications or motions,” that is more discretion on a judge.
I get your earlier exchange, Ms. Moore, with Senator Batters where you mentioned that each case is specific to its own facts. But is it appropriate to really deny the application of a Charter right — a stay of proceedings — from a non-exhaustive list here with respect to the complexity of a case? Is that clear for you?
Ms. Moore: The factors I was speaking to earlier actually come later in the bill, under proposed section 492.31. Those are the factors relevant to whether another remedy other than a stay could be ordered in that particular case.
You are right, that is a closed list. However, the factors have been worded quite broadly to allow for significant judicial discretion in crafting the appropriate remedy to track the language under section 24(1) of the Charter and ensure consistency with the Charter.
The factors that you mention under case complexity, those are relevant to determining whether or not a case that goes beyond the ceiling — like if a case takes more than 18 months in provincial court, for example — whether or not the exceptional circumstance of case complexity applies so that the court can say, “Look, this case is really complex, so maybe it should have more time than 18 months.”
This bill is an open-ended list because the bill would maintain the criteria that the courts are already considering in determining whether a case is complex under the existing common law. It is not meant to disrupt the factors existing in the common law; it’s meant to emphasize certain factors that are relevant, particularly for applications or motions before the court, which the government would like to emphasize, since those cases are known to increase case complexity. For example, in sex assault cases, what we have seen is that the case time for sex assault cases has increased quite significantly over the last seven years. That is primarily due to more complicated procedures and motions before the court as a result of important privacy rights of victims that need to be considered, for example.
These factors are really trying to draw attention to the fact that sex assault proceedings have gotten more complex, and often these delays are unavoidable and inherent and ought to be considered by the court as complex when they’re looking at whether or not a case can exceed the Jordan timelines.
Senator Prosper: Thank you. That is very helpful.
Senator Simons: Ms. Levman, I wanted to clarify: A marginal note and a summary are not part of the law, right?
Ms. Levman: Correct.
Senator Simons: So it is nice that there are footnotes, but the court will not look at those.
Ms. Levman: The provisions are intended to play a broader role than just in court. They are also intended to assist law enforcement in identifying these cases and naming them appropriately.
Senator Simons: I think it would be better off if it were in the law then.
I have another couple of really technical questions, since you are the technical whizes. The definition of intimate image in the offence of unauthorized publication now includes — after an amendment on the House side — “nearly nude,” which sounds like the kind of nylons I like to wear. Is there a definition of “nearly nude”? Would that maybe be somebody in a bathing suit or somebody in their underwear? What does “nearly nude” mean? What would be captured by that new offence?
Ms. Levman: Thank you, chair. That is actually inspired by some case law, some jurisprudence, in particular a case from the Quebec Court of Appeal called Malogrosz, 2025. What we are seeing is the courts are already taking that into account.
In that case, I believe the depicted person was covering their breasts with their arm but was nude otherwise. We anticipate that the courts will do their usual case-by-case analysis and look at the whole picture or image to determine whether or not sexual organs are apparent or nudity is present or near nudity.
Senator Simons: Would that be the test — if there were genitalia or breasts?
Ms. Levman: That’s one of them. The depicted person has to be either nude, nearly nude, exposing sexual organs — which is also defined quite broadly by the bill — or engaged in explicit sexual acts.
Senator Simons: Not that I would be happy if someone posted a picture of my 61-year-old body in a bathing suit, but that wouldn’t be captured?
Ms. Levman: I think it would depend on the context.
Senator Simons: We’ll stop there. Clause 19(2), which deals with the destruction of illicit material, specifically mandates the destruction of intimate images when the material is no longer necessary for trial. But there are other kinds of illicit material: bestiality, voyeuristic, obscene, child sexual abuse material. I’m wondering why it seems to be limited only to intimate images and not to all those other awful things.
Mr. Taylor: It is limited to intimate images. For the benefit of committee members, that was an amendment passed by the House of Commons Standing Committee on Justice and Human Rights, and it was specifically focused on that. There wasn’t much discussion as to why other types of prohibited material that you talked about, Senator Simons, were not included.
Senator Simons: Hypothetically, is that something that you might welcome an amendment on, to bring all of those into scope?
Mr. Taylor: I don’t have an opinion on that, of course, but it is a fair question, given the way that the provision currently operates and would operate vis-à-vis the changes in Bill C-16 in relation to different categories of prohibited material.
Senator Simons: Thank you very much.
Senator Dalphond: I have questions about the most substantial part of the bill, which is the admissibility of sexual activity evidence and records. As we know, the courts, over the years, have said the complainants were saying a trial about sexual assault is a trial about their sexual behaviour. The courts have reacted, and the Supreme Court has been teaching that it should not be the case. Over time, what was admissible became narrower and narrower. Since that covers 32 of the 94 pages that are amendments to the Criminal Code and another 30 pages in the National Defence Act — one third or even more of the bill is about that — can you tell us what has been changed in the rules of admissibility of evidence about sexual behaviour and records, including therapeutic records?
Ms. Levman: Thank you for that question. When one reads the bill, it does appear like a lot more changes are being made. Maybe I would start by explaining that.
Senator Dalphond: Surprisingly, there have been no questions so far about it, but I read it from page to page, so I am asking you.
Ms. Levman: We appreciate that, senator.
One of the main objectives is to streamline these provisions and not necessarily fundamentally change them but make them easier to use and read. One of the ways to do that, which is what Bill C-16 does, is by setting out procedures that apply depending on who wants to produce or adduce the evidence and what type of evidence is sought to be produced or adduced.
The procedures are actually substantially the same overall as the ones that are currently in the code. They just look different because they are sort of rejigged. There will be redundancies, but that was intentional so that if you are an accused and you want to introduce sexual history evidence, you know exactly where to go in the code to find the rules that apply to you.
You asked what the differences are. The first difference is that the bill would make the provisions apply to all offences of a sexual nature that are committed for a sexual purpose. An offence of a sexual nature means any offence that involves committing an act that is objectively sexual in nature — that’s from Chase, 1987, Supreme Court of Canada — so, for example, non-consensual distribution of intimate images and sexual services offences starting at section 286.1. An offence committed for a sexual purpose means any offence that is committed with the intent to facilitate the commission of an act that is of a sexual nature. Some examples are human trafficking in a sex trafficking case or extortion where the perpetrator threatens the victim to induce them to provide more sexual content or sexual activity.
That directly addresses some problems we’ve been seeing in court. There is ongoing litigation, in particular in the human trafficking context, as to whether or not the sexual history evidence rules apply in sex trafficking cases. We’ve had cases go both ways. Of course, that requires litigation prior to trial, which lengthens the process. It is anticipated that this reform would provide a level of clarity and also more protection for victims. Any time a sexual offence is being considered, there is always a risk that certain types of very sensitive evidence, like sexual history evidence or private records, might be sought to be used inappropriately, and this ensures court oversight in all of those types of cases.
That’s one major change that I would like to draw your attention to. The other major change is the joint applications procedures. Currently, where Crown and defence and the complainant all agree that certain types of evidence really must go in, they all agree you still have to follow the rules, you still have to have a hearing, et cetera, and, of course, that takes time. So, these provisions would ensure or offer the opportunity for a joint application in writing to the court so that if the court is satisfied, it can say, “I agree; you convinced me,” or if the court is concerned that the rules are not being appropriately followed, the court could require a hearing to determine that.
Another change is the increase of notice period from 7 to 60 days for admissibility hearings. It is already 60 days for production hearings. It would now be 60 days across the board, and that’s intended to avoid adjournments, which often happen when, say, seven days before trial the defence decides they want to adduce certain types of evidence and the complainant wants to have a say. They need time to consult lawyers. The 60-day requirement is intended to encourage these matters to be dealt with pretrial, which is also consistent, by the way, with the Supreme Court of Canada’s 2022 J.J. decision, which does stress the importance of that happening.
The other major change is how the bill would deal with therapeutic records. What we know about therapeutic records and the risk that they could be adduced or produced in the context of a sexual offence trial is that it deters sexual offence victims from either reporting to police or proceeding as a victim in a case to testify out of fear that some of the most highly sensitive, highly personal information might be accessed by defence, by the court, et cetera.
This bill would say to defence, “You can access them, but only if your innocence is at stake.” There is extensive jurisprudence on that from the Supreme Court of Canada. We have the McClure case from 2001, the Brown case from 2002 and the Fox case from 2026. These amendments follow the guidance that the Supreme Court has provided, and it would mean that the defence could only access therapeutic records where it could raise a reasonable doubt about the accused’s guilt and could only adduce them, use them as evidence in court, where the evidence is likely to raise a reasonable doubt as to the accused’s guilt and the evidence is not available from any other source. That’s consistent with the jurisprudence to which I have just referred.
It’s also consistent, importantly — this committee may be very interested to know — with the original objectives of the private records production provisions in former Bill C-46. This committee did a deep dive into those provisions more than 10 years ago now, and the admissibility of private records provisions responded to the report from this committee, and the preamble of Bill C-46 clearly states that one of the main objectives of the private records provisions is to encourage victims to come forward and receive the treatment that they need.
That’s the final main change that I wish to point out for this committee. Thank you very much.
Senator Dalphond: Thank you for covering one third of the bill already. Thank you.
Senator Clement: I’m looking at the Gender-based Analysis on this. It does say that:
. . . reforms are expected to contribute to improved safety outcomes and increased access to justice for women and girls in particular . . . .
But it also says:
New offences may have varying impacts on diverse groups of the population in Canada, including unintended negative impacts caused by the addition of new criminal offences on Indigenous, Black and other racialized communities . . . .
Could you comment on that? Is that an uncommon thing in a GBA Plus? What’s the solution?
During our conversations around Bill C-14, we kept talking about empirical evidence, right? What is the government using as evidence to legislate? So, I guess the question is what the government is relying on here. Because mandatory minimums are being affected and impacted. Do we have evidence that doing that will actually protect victims?
Mr. Taylor: Thank you for the questions. Just in the interest of time, we could provide you with some of our data sources that inform the GBA Plus analysis.
On your first question, Senator Clement, through you, Mr. Chair, unfortunately, no, I don’t think it is an uncommon observation to say that the creation of new criminal law offences or more stringent sentencing measures will have particular impacts on particular communities in Canada. You will all know that quite well. Minister Fraser has already talked about the impacts on Indigenous people and Black people in Canada. Notwithstanding efforts that are being made, there are still very high rates of incarceration and impact. The reasons for that are varied, and you know them quite well, I think, in terms of policing and disproportionate targeting of communities and the like.
On the other hand, GBA Plus speaks to, as did Minister Fraser, the particular impacts of crime on particular communities. We know that through some of the engagement we did as officials. Indigenous communities talked about the harms they were experiencing within their communities. It is a difficult balance to strike in terms of responding to those harms and the impacts that they have on communities while also not negatively impacting particular groups and the consequences that come with that.
You had a second question?
Senator Clement: I asked about the empirical evidence on limiting mandatory minimums.
Mr. Taylor: Mandatory minimum sentences, as is known at this committee and as the Supreme Court has affirmed, have a very strong denunciatory effect in terms of demonstrating Parliament’s disapproval or condemnation of particular types of crime. There is little evidence on their effectiveness in deterring crime, but denunciation is an appropriate sentencing objective. It is recognized in the Criminal Code. As I said, the Supreme Court has said that, with a mandatory minimum penalty, it is a very forceful expression in the area of sentencing of Parliament’s view of particular types of crime.
Senator Clement: Thank you, Mr. Taylor. If you could send your data sources and engagement that you conducted with the community, that would be good.
The Chair: Witnesses, on behalf of all the committee members here, I thank you for attending today. Your insights have been invaluable as we launch this study, and they will help guide our discussions in the future few days that we have with this bill.
(The committee adjourned.)