THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Tuesday, June 16, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 9:01 a.m. [ET] for clause-by-clause consideration 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 morning, honourable senators, and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot. I’m a senator from Saskatchewan and the chair of this committee. I now invite my colleagues to introduce themselves.
Senator Housakos: Senator Housakos, Quebec.
[Translation]
Senator Poirier: Rose-May Poirier from New Brunswick.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Tannas: Scott Tannas from Alberta.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
[Translation]
Senator Dalphond: Pierre Dalphond representing the De Lorimier division of Quebec.
[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.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered, unreturned territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Dhillon: Good morning. Baltej Dhillon, British Columbia.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
The Chair: Honourable senators, we’re meeting to conduct clause-by-clause consideration 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).
To assist us with our examination, we’re joined by officials from the Department of Justice Canada: Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section; Nathalie Levman, Senior Counsel, Criminal Law Policy Section; and other members of Justice Canada here to assist us, as well. Welcome to all of you, and thank you for joining us today.
Before we begin our clause-by-clause consideration, I’d like to remind senators of several points. First, if at any point a senator is unclear where we are in the process, please ask for clarification so that we can ensure a shared understanding. When more than one amendment is proposed to modify the same clause, they should be moved and considered in the order of the lines of the clause. If a senator opposes an entire clause, the proper process is to vote against the clause standing as part of the bill rather than moving a motion to delete it.
Some amendments may affect other parts of the bill; senators moving amendments should identify any related clauses to help ensure consistency in the committee’s decisions. Since no notice is required to move amendments, they may not have been reviewed in advance to identify related or conflicting proposals.
If members have questions or disagree about the process or the proceedings, they may raise a point of order. As chair, I will hear the arguments, determine when there has been sufficient discussion and rule accordingly. Any ruling of the chair may be appealed to the committee by asking whether it shall be sustained.
When proposing an amendment to a clause under consideration, members should move the motion and read it in full. The chair will then open the floor to debate. After debate, the committee will vote on the amendment. If there are no further amendments, the committee will vote on the clause, either as amended or as originally drafted.
I remind senators that, if there’s any uncertainty about the result of a voice vote, they may request a recorded vote to obtain a clear result. A tie vote defeats the motion.
Are there any questions about any of this so far? Seeing none, colleagues, we’ll now proceed to clause by clause.
Is it agreed that the committee proceed to clause-by-clause consideration 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)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, that the remaining clauses be considered in groups of 10?
Hon. Senators: Agreed.
The Chair: Colleagues, shall clauses 2 to 10 carry?
Carried, on division.
The next group is 11 to 20. There is a proposed amendment on clause 15, so I’m going to deal with that first; we’ll deal with any amendments there, and then I’ll go back to the 10 clauses — 11 to 20 inclusive. That’s how I’ll handle it, just so everybody knows.
In this group of 10, clauses 11 to 20, we’ll first deal with an amendment proposed by Senator Simons.
Senator Simons: I move:
That Bill C-16 be amended in clause 15, on page 8, by replacing lines 1 and 2 with the following:
“plicit sexual activity.”.
We’re looking at subclause 15(2) on pages 7 and 8 — the proposed paragraph 162.1(2)(b). For the purposes of the offence under proposed paragraph 162.1 and 162.1(1.1), considering the unlawful distribution of intimate images and threatening to do so respectively, proposed paragraph 162.1(2)(b) defines “intimate image” as being:
. . . a visual representation that is made by any electronic or mechanical means, including by means of artificial intelligence software, and that shows an identifiable person who is depicted as nude, as nearly nude, as exposing their sexual organs or as engaged in explicit sexual activity, if the depiction is likely to be mistaken for a visual recording of that person.
As noted in the submission to this committee made jointly by the Barbra Schlifer Commemorative Clinic and Women’s Legal Education and Action Fund, LEAF, the qualifier found at the end of this description serves to limit the types of intimate “deepfake” images and videos that will be captured to those that so closely resemble the targeted individual that they may be indistinguishable from reality. As the submission from LEAF stated:
We have seen deepfakes that may not be realistic enough to be mistaken for the people depicted, yet still cause significant harm through overt sexualization and degradation. In other cases, deepfakes may be highly realistic but incorporate a single element that makes it clear that it is not a real visual recording (e.g., the person has a unicorn horn or is engaged in sexual activity with a celebrity that they have never met.
Similarly, the Canadian Bar Association wrote in its submission that this provision:
. . . would not capture some “impossible or unrealistic images” that could nonetheless be considered distressing and harmful to the identifiable person, and society at large. . . . The definition as presently worded would also exclude graphic cartoons or drawings of identifiable persons. . . .
So, requiring that a “deepfake” must be effectively indistinguishable from a photograph or a recorded video narrows the scope of these offences in a way which would continue to leave individuals exposed to invasive, harmful, humiliating and degrading sexual depictions, even though those representations will be clearly meant to have an air of fantasy to them. This sort of intentional surreality is now a common hallmark in the creation of unauthorized sexualized “deepfake” representations of real people.
Whenever a sexualized fabricated image is shared publicly and depicts a clearly identifiable person, the harm is equally worthy of condemnation, regardless of whether it’s indistinguishable from a real photo or video or obviously surreal or fantastical. As stated by Rosel Kim, representing LEAF:
. . . even if the depiction is so clearly not your body — or that it might not be so realistic as to look like you — the harm still is that somebody has taken your image, without your consent, and they have chosen to sexualize that and also create an image that’s meant to humiliate.
Therefore, I propose that the description of a “deepfake” representation in Bill C-16 be amended to remove the qualifier that it must likely be mistaken for a visual recording of the individual.
I went through the Charter Statement, and in the Charter Statement it suggests that the reason that the qualifier was put on there was to not infringe on freedom of speech, but I would put it to you that there’s not a significant difference for the purposes of the right to freedom of speech between prohibiting the unauthorized sharing of an authentic intimate image that is either photorealistic or one that is obviously fake, where the subject is a clearly identifiable person.
That is the amendment. I understand, of course, that we are in a time window that makes it challenging to accept amendments, but I wanted to put this on the record because it was brought to our attention by a number of witnesses, and I think they raise a legitimate point about the curtailing of the description.
[Translation]
Senator Oudar: First I want to thank Senator Simons for the amendment. It’ll be an opportunity for us to discuss the whole issue she just brought up around freedom of expression. As a former journalist, she’s very attuned to the freedom of expression that this section, as drafted in the bill, seeks to protect. I’m no expert, but in our view, the amendment risks infringing on the freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms.
I’d like departmental officials to offer more guidance before we begin the debate. That way, we would better know how to navigate the constitutional acts that we all strive to uphold. To address some of my concerns regarding a potential infringement on freedom of expression — an issue close to Senator Simons’ heart — I’d like to hear from departmental officials at this stage of the debate.
[English]
The Chair: That’s a very good point. Officials, can you help explain the motivation, the context of this issue and any opinion you might have about its validity?
Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, chair, for the opportunity to respond to this important question.
As the senator has explained, her amendment would remove the phrase “. . . if the depiction is likely to be mistaken for a visual recording of that person.” First, I will explain what that means and what it would require in law. It would require that the depiction of the person appeared to be a real image of that person to a reasonable observer. This is an objective standard, not quite as exacting as maybe some have come to think.
I would like to stress that fantastical backgrounds, et cetera, are irrelevant. The question is really whether the depiction of the person appears to be real. That’s because this offence is based on the premise that “deepfakes” cause the same type of injury to the depicted person as intimate images do. So the definition is very carefully targeted to that harm, which, as we know, is very important from a constitutional perspective when courts are assessing offences, whether that’s from the perspective of section 2(b) or other Charter rights.
On the issue of section 2(b), if that phrase is removed, there is definitely a chance that the definition without it could be interpreted to apply to things like satirical cartoons, which, while some may find offensive, are considered to appropriately fall within the freedom of expression articulated in section 2(b). I hope that helps the committee with its deliberations.
Thank you.
The Chair: Are there any further comments on debate?
Senator Batters: Actually, it was not on debate. I would like the officials to explain. I also wondered if this could potentially go into the section 1 analysis of having necessary limitations that if a section 2(b) violation of freedom of expression was found, that having that clause in there would help to ensure that the right is not unduly infringed upon and has the necessary limitations on it. Is that part of the equation in the Charter calculation as well?
Ms. Levman: Thank you for that comment. Yes, I think that, especially when we’re talking about section 2(b), it’s very easy to infringe the freedom of expression. Most of the legal activity does happen under section 1, so you’re right to point that out. Thank you.
Senator Simons: As Senator Oudar noted, I spent 30 years as a journalist, and the defence of freedom of speech is an issue close to my heart.
“Deepfake” technology is evolving so quickly, and I’m not quite certain what the test is, because usually, when I see AI fake material, I flatter myself by thinking that I’m pretty good at telling the difference, but not everyone is. So, if the depiction is likely to be mistaken for a visual recording of that person, I know you said it’s objective, but that seems to me to be a fairly subjective question. Mistaken by whom?
Ms. Levman: That’s a fair question. It’s the reasonable observer. This is also from the Supreme Court of Canada case law on similar expressions, Sharpe, for example, on whether or not a child is depicted in a particular way in the context of child sexual abuse and exploitation material. So there is sufficient case law from the Supreme Court and other appellate courts to assist them with applying this. I hope this discussion assists as well.
Senator Simons: Does it apply to the Grok kind of situation we had, where the software just took women’s clothes off? Would that be captured by this?
Ms. Levman: That is the intention, yes.
Senator Simons: Okay. So even though that’s clearly not realistic — I mean the machine is “guessing” what they think your body would look like?
Ms. Levman: As long as it would appear to be a depiction of that person to a reasonable observer, it would be caught. Some of the examples that were given, such as somebody in outer space or somebody having sexual relations with a fantastical animal, et cetera — all of that is irrelevant. The focus is on the depiction of the person and whether or not that depiction appears to be real.
Senator Simons: So this applies even if it’s a fantastical, surreal setting, as long as the image looks like it’s a real image of me that they’ve played around with. Okay.
The Chair: Are there any other comments on debate on this issue?
[Translation]
Senator Saint-Germain: While I understand the intentions as they relate to freedom of expression, I believe that adding the word “explicit” creates an interpretation problem.
In my opinion, the proposed definition is unclear. My main concern is that it could open the door to broader defences by perpetrators or assailants. I’d like to hear from Department of Justice officials on the impact of including the word “explicit” next to the words “sexual activity” in the bill.
[English]
Ms. Levman: Thank you for the question, chair. I would point out that this language already exists in the intimate images offence, the voyeurism offence, and we haven’t been struggling with that in the courts, meaning the jurisprudence is fairly clear. I think we went over this the last time we appeared.
What are the nature and characteristics of one of these images and what does it have to entail to be caught by the definition? What it needs to do is depict a person who is nude, nearly nude — because that was added by the Justice Committee and is reflected in appellate case law, as well as Supreme Court jurisprudence — exposing their sexual organs, which is defined non-exhaustively, or engaged in explicit sexual activity.
Like I said, that is a consistent approach through these very similar sexual offences in Part V of the code, and we haven’t encountered problems so far with that definition.
Senator Saint-Germain: Thank you.
The Chair: Any other comments or questions?
Senators, are you ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “nays” have it. Do you want a recorded vote? Okay. The motion is defeated.
Senators, I’ll go back to clauses 11 to 20, that block of 10. Are clauses 11 to 20 carried?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
With respect to the next block, we have a proposal for amendment on clause 28 from Senator Prosper, so we’ll deal with that.
Senator Prosper: I move:
That Bill C-16 be amended in clause 28,
(a) on page 17,
(i) by replacing line 1 with the following:
“ner or relative to believe that the intimate partner’s or relative’s safety is threat-”,
(ii) by replacing lines 4 and 5 with the following:
“their intimate partner or relative to believe that the intimate partner’s or relative’s safety is threatened.”,
(iii) by replacing line 11 with the following:
“(i) the intimate partner or relative,”,
(iv) by replacing lines 13 and 14 with the following:
“mate partner’s or relative’s child or who is in the intimate partner’s or relative’s lawful care or charge,”,
(v) by replacing line 16 with the following:
“ner or relative, or”,
(vi) by replacing line 18 with the following:
“ner or relative;”,
(vii) by replacing line 20 with the following:
“ner or relative to engage in sexual activity;”,
(viii) by replacing lines 24 and 25 with the following:
“be expected to cause the intimate partner or relative to believe that the intimate partner’s or relative’s safety, or the safety of any-”,
(ix) by replacing line 28 with the following:
“the intimate partner’s or relative’s location, movements, actions”,
(x) by replacing line 32 with the following:
“in which the intimate partner or relative cares for any person”,
(xi) by replacing line 37 with the following:
“related to the intimate partner’s or relative’s employment or ed-”,
(xii) by replacing line 40 with the following:
“mate partner’s or relative’s finances or other property or moni-”,
(xiii) by replacing line 43 with the following:
“mate partner’s or relative’s expression of gender, physical ap-”;
(b) on page 18,
(i) by replacing line 4 with the following:
“mate partner’s or relative’s expression of their thoughts, their”,
(ii) by replacing line 6 of the English version with the following:
“or their culture, including the intimate partner’s or relative’s”,
(iii) by replacing line 12 with the following:
“damage, the intimate partner’s or relative’s property or the”,
(iv) by replacing lines 16 and 17 with the following:
“and the intimate partner or relative, in particular whether the intimate partner or relative is in a position of vulnerability in relation to”,
(v) by replacing line 19 with the following:
“timate partner or relative by targeting their vulnerabilities.”.
Colleagues, this amendment follows the testimony from Ms. Heather Campbell Pope, who represented a coalition of 17 different advocacy groups that work to protect older Canadians. On the other side, they also heard from Ms. Joanne Blinco, Executive Director of the Alberta Elder Abuse Awareness Council. She explained that:
Currently, if an older adult has been abused by a son, daughter or other family member, it often doesn’t fit under the Criminal Code. However, if we could see this ahead with a definition of coercive control, that would allow us, as service providers across the province, to step in and report those incidents, and to talk about what is happening. . . .
It would be certainly a “prevention piece” in this regard, in her words.
I don’t think we should wait to protect Canadians, colleagues. On July 7, 2022, Statistics Canada published a report titled Violence against seniors and their perceptions of safety in Canada. That report showed that approximately 128,000 seniors were victims of violence in 2019. The report said:
Among senior women who were homicide victims, two‑thirds (67%) were killed by either an intimate partner (32%) or family member (35%), while one in eight (13%) . . . were killed by a stranger.
The wording also captures siblings and other relatives, who, for a variety of reasons, for example, intellectual disabilities, may be prone to violence or coercive control by a family member.
I feel that testimony and statistics compel us to act. Evidence from the Alberta Elder Abuse Awareness Council provides that since 2018, family violence against older persons in Canada has increased 49%, according to Statistics Canada. Several jurisdictions have criminalized coercive control beyond intimate partners, for example, in England and Wales. The offence extends to family relationships where the parties are personally connected.
International experience highlights key lessons. Jurisdictions that restricted coercive control offences to intimate partners are now acknowledging the need to broaden their scope.
Seniors First BC found in 2025 that intake workers responded to over 7,500 calls related to issues affecting seniors’ well-being, which had been steadily increasing each year. Between May 2021 and December 2025, Seniors First BC received nearly 3,700 calls involving the exploitation of older adults for money or shelter. Concerning the misuse of powers of attorney, there were nearly 1,500 calls involving pressure to make loans or gifts or changes to a will. There were over 2,200 calls involving insults or humiliation. Family members accounted for 64% of these identified abuses. The most commonly identified abuser was an adult child, accounting for about 63% of such cases.
As mentioned as well, England and Wales extend coercive control to family relationships and persons who are personally connected. Queensland and Australia go further by applying the offence to family members and informal caregivers.
Just to conclude, colleagues, currently, if an older adult has been abused by a son, daughter or other family member, it often doesn’t fit under the Criminal Code. I believe that elderly people deserve protection within this law, and it is supported by the evidence. Thank you.
The Chair: Thank you, Senator Prosper.
[Translation]
Senator Oudar: Thank you, Senator Prosper. Please know that I will always stand by your side to defend seniors and all vulnerable groups.
I will divide my remarks into two parts, simply to ensure we’re on the same page. As for the pattern of coercive control, no one is excluded, and older adults are indeed included when they are partners. Given that a pattern of coercive control can sometimes span many years, this unfortunately affects people of my generation just as much as it does very young people.
Incidentally, I’d like to digress briefly to discuss the situation in Spain. Spain has enacted certain legislation, as Canada is preparing to do, to punish femicide much more severely. This provision they’ve included in their law stems from a very tragic event in Spain’s history. In 1997, a woman named Ana Orantes described on television the pattern of coercive behaviour she had been enduring for years. Unfortunately, when she spoke out on television, her partner heard her. Two weeks later, she was found burned alive. This is what led Spain to begin making changes in 1997 that ultimately resulted in the provisions we’re now, hopefully, about to adopt.
I’m sorry to digress, but this seems important to me. People often wonder whether the laws on femicide have had a deterrent effect; Spain is a good example, as the rate of femicide has dropped significantly, but that country took a lot of steps and invested quite a bit.
I’d like to return to the topic of the bill to say that when we talk about an intimate partner, that includes everyone. What Senator Prosper wants to do is broaden the scope and extend it further to include the family in the broadest sense.
Family is a bit hard to define. I’m a mom in a blended family. I’ve raised seven children and love them as if they were my own, but, as I was saying, family can be hard to define.
First, being outside of the traditional family model can make things a bit more challenging. Second, this provision was reviewed by a committee in the other chamber, and they decided not to include it in the bill right away for implementation reasons, so as to allow for the phasing in of the legislation.
The law will take effect in two years to allow police officers to first receive training on the pattern of coercive control between partners. Then, we’ll be able to draw on this experience to potentially expand the law during the five-year review that will be required under the act.
I’d like to quote the experts from the Regroupement des maisons pour femmes victimes de violence conjugale, who appeared before the committee on June 11. Following their international fact-finding mission, they had some advice for us. We asked Karine Barrette, who was testifying before the committee, about this. As everyone will recall, she told us that we needed to take it one step at a time, because the law enforcement community will need time to familiarize itself with the new law.
She said this:
Ultimately, if we take on too much too early, we risk harming the people we are trying to protect.
She talked about the case of Queensland. It’s because of what she learned during her missions abroad that she recommended we not take on too much too early and that we allow for an orderly implementation of the act.
Thank you for allowing me to speak, and thank you to Senator Prosper.
[English]
Senator Batters: Thank you, Senator Prosper, for bringing this forward. I certainly acknowledge and appreciate the serious problem of elder abuse and how the current state of the law doesn’t adequately deal with it. This is a major issue, but this amendment I find to be too broad. I had a copy of the current Criminal Code brought to me, and I just checked in the interpretation section at the beginning, so it is possible it could be somewhere else, but there is no definition of “relative” in the Criminal Code in the interpretation section. I’m not sure whether it is somewhere else in the Criminal Code, but it is not there.
Given that there is no definition for this, we could be looking at an extremely broad category. A “relative” could be someone as distant as a third cousin once removed or someone as close as a child or sibling. It begs the question then, if you are going to have that broad of a definition, why limit it to a “relative” when the person abusing the elderly person — or whoever is unfortunately in this vulnerable state — could be a friend, acquaintance, neighbour, step-relative or someone of that nature. So I certainly appreciate the intention here, but it is much too broad, especially to go into the Criminal Code as it exists. So I do not support it.
[Translation]
Senator Clement: First I want to thank the bill’s sponsor for her remarks last night, which she delivered with great skill and appropriate emotion.
[English]
I would also like to say that it is increasingly challenging for me to sit here and make changes to the Criminal Code piecemeal, knowing, based on the evidence, that the impact is going to be great for the communities I represent. It is challenging because I’m feeling less and less hopeful that we will, as a society, review the Criminal Code in a way that brings it up to 2026 and beyond, that takes into consideration where Canada is now as a society. That being said, I do support this amendment.
I taught. Before becoming a politician, I taught at a local community college in Cornwall in the dementia studies program. As a lawyer, I was teaching about substitute decision making, so that’s when people step in to make decisions for people who are struggling with mental or physical capacity. The point of the course was to teach health care workers — nurses, other health care workers — to spot issues of elder abuse in their clients and in the patients they attended to. We had a whole module on elder abuse. It was excellent.
The worry I had was that, outside of the health care profession, there was a struggle for Canadians to spot those kinds of patterns, to understand that elder abuse was something that was not to be hidden out of shame in a family context but to be brought out and spoken of out loud.
I think this amendment is appropriate. I too was moved by Heather Campbell Pope’s testimony, and it certainly fit in the experience that I had as a teacher and an advocate. So, I’m going to support this amendment.
The Chair: Thank you.
Senator Pate: Thank you for that, Senator Clement. I agree.
I said to this sponsor last night that I thought she did an excellent bill. None of us wants to see the situation of intimate partner violence and violence generally continue.
I want to thank Senator Prosper for bringing forward this information and to Senator Clement for talking about the impact.
I also support this amendment. I have grave concerns about our continued willingness to amend the Criminal Code and offer criminal law responses to issues that require much greater intervention.
In terms of the submission that Senator Oudar made, in the countries where we are seeing the impact, it is not criminal law alone. Every one of those countries has also invested in health care, income supports, housing and many other supports. That isn’t part of this legislation. To conflate those and believe that this law will have the same result, I think, is to follow a path that is only folly at this stage.
That’s where we’re at. I appreciate the interventions, but I think it is vitally important we understand that those countries where we’re seeing movement are doing much more than just criminal law responses. So I would support the amendment as well. Thank you.
Senator LaBoucane-Benson: Thank you to Senator Prosper.
To begin, elder abuse is something that is prevalent in my, your and our collective community. It has to do with historical trauma and the effects of intergenerational trauma, in my experience, so the need to address it in meaningful ways exists.
I will note that when the Indigenous Bar Association was here and gave testimony, Ms. Perrie said:
This is something I have grappled with for some time in preparing my own submission. In the section, it says coercive control of the individual or “other persons,” and then delineates animals and children. So my understanding, and why I didn’t include that in my initial submission, was that elders would fall under “other persons.”
In the way that it is written, there is already the possibility that it could be used in court.
I would like to step back and look at the way that this bill has been crafted. Coercive control comes into effect in two years; then the review happens three years after. It gives an opportunity for three years for this to be tested in court. But those first two years are about training. That’s what I wanted to highlight right now.
In my previous life, I trained judges and Crown prosecutors on intergenerational historical trauma, in an effort to help breathe some life into the Gladue decision to help judges understand that it was brought up by a woman — it is about Jamie Gladue — but it is more about our intergenerational historical trauma factors and how those factors affect pre-sentence reports and sentencing.
This was my job for quite a long time, to do that kind of training. I see that only now can we see the fruits of that, like 15 years; and then Ipeelee and we still were not seeing a lot of movement on that.
The training of judges, Crown prosecutors and law students is absolutely vital. The training piece in the first two years has to be seen as important. The Crown prosecutors and judges need to understand what coercive control is, how they understand it when they are sitting hearing cases, and how this law works. Then, after that, in a phased way, the elder abuse — coercive control against elders and others — can be brought into it in a meaningful way.
I believe we had testimony from folks saying this is what we need to do. A phased approach makes a lot of sense. To me, it does because I understand the power of training in community, with the judges we see every day.
I worked at Native Counselling Services of Alberta, which was one of the first Indigenous court worker programs. It is 55 years old. For the 23 years I was there, we were all about training our court workers too on historic trauma, even though they were living it. How does it show up in our clients? How do we address it meaningfully? How do we represent those historical trauma factors to judges, because, as you know, not everybody gets a Gladue?
I’m just saying let’s not discount the importance of this training piece. Let’s make sure that training is being done, as the Legal Committee, or maybe the Indigenous Peoples Committee might want to do that. Somebody might want to do it, to check in and see how the training is going and how that might be applied to elders.
Thank you, chair.
Senator Dalphond: I want to refer to the comments that were made by Ms. Barrette when she testified before us. I think it is not maybe understood that the Regroupement des maisons pour femmes victimes de violence conjugale has been working on that issue for more than five years and invested a substantial amount of money to travel around the world and to go on the ground and see how it works. Then they were becoming the main initiator, I think I can say, for the amendment to the Criminal Code about coercive control that we have here.
They also went to Quebec to make sure that we have a bill in Quebec, which is about a list of people who are violent partners and about whom partners can call and ask, “Is the name of my partner on that list?” They have been movers and shakers in the field. They know the field.
Though I understand very much what Senator Prosper wants to do, I think he referred to statistics and numbers that are dramatic, impressive and need to be addressed at some point. But that’s where the problem is. He wants to add a layer of substantial source of problems to something which is really new that we have not experienced.
Australia tried to do that in two states, Queensland and New South Wales. The result? Queensland has major problems with the police, prosecutors, everybody else. What do we have next door? In New South Wales, where the thing is going smoothly, this year they are going to do a review to see if it should be expanded to include this type of situation that you ably described.
I will quote what Ms. Barrette said:
[Translation]
What we appreciate in New South Wales’s approach is that, although everyone agrees on the need to protect seniors in this context, they’ve decided to keep that in mind while focusing on intimate partners first . . . .
[English]
Then the question was put, I think, by Senator Wells, to the Federal Ombudsperson for Victims of Crime, Mr. Roebuck. The same question was put to him, and he said:
We have raised these risks to government, but I agree with my colleagues —
— He is speaking of Ms. Barrette —
— about the need to take a calculated and clear step and look at what is happening and learn, and then expand because some of the dynamics are different than the way that the law is currently formulated. We are in a very delicate position in Canada. At the moment, if we look at 2024 at the U.K., England and Wales, there were more than 45,000 reports of coercive control to police — only 5,000 prosecutions. . . .
It will take some time to have a situation where coercive control will be recognized as an effective offence. This is going to take years — years of training — two years to train police officers, Crown attorneys and judges. Experience has shown in England and elsewhere that, without the training, you go nowhere. The training will be difficult.
I meet every three months with groups where the police officers are present — and the Sûreté du Québec, which is the largest police force in Quebec — and they explain to us that police officers are now dealing with junkies and people having overdoses. They have to be trained for that and get the kits in the car. Now, they train also with social problems, and they bring people with mental issues back to the hospitals. They are being trained on all these things and becoming more of social interventionists than police officers, which is not necessarily bad; I’m not saying that.
What we are going to ask them to do now — to be involved in coercive control, in domestic violence, in intimate partner violence — also involves a lot of training. The Crown will also have to pick and choose the right places and make sure we come up with an evolution of case law that will be productive and conducive to an effective application. In French, we say:
[Translation]
The only way to eat an elephant is one bite at a time.
[English]
So we go one step at a time. We are asked to take a major step forward now. What is being proposed will double the scope of what is intended and will, quite frankly, jeopardize what we are trying to do.
It all starts with a good intent, but we should avoid speeding things up. Thank you.
Senator Batters: I go back to what the definition of “relative” is for this provision. No one has answered that here, so I’m assuming there is no definition, which is not a good way to amend the Criminal Code of Canada.
In debate about this amendment, Senators Clement and Pate both stated they do not want to see the continued piecemeal amending of the Criminal Code, but this amendment, as well intentioned as it may be, with no definition to explain its scope, is a further piecemeal amendment of the Criminal Code. Thank you.
Senator Pate: I want to thank everybody for their interventions.
I, too, have been involved in judicial training. In fact, part of the reason that I talk about section 718.2(e) is because many judges, lawyers and those involved in the criminal legal system did not understand even the basic injustices that Jamie Gladue experienced. Every add-on we have made to the Criminal Code that increases criminalization has actually led to a direct trajectory to increase the number of Indigenous people in prison, including all the reforms we have talked about.
The most recent information we received from Dr. Cunliffe indicates that the qualitative research out of Australia shows that those with sophisticated knowledge of the police and legal systems and who have participated in the training — there have been documented concerns about the new offence being misused by perpetrators. So, there are not the results that have necessarily been identified. I just want to leave that on the table, as well. Thank you.
The Chair: Are there any other senators on debate?
Senator Prosper: I want to take this opportunity to thank my colleagues for the great discussion. I certainly want to recognize Senator Oudar and her leadership on this issue.
I understand the points being brought forward with respect to the nature or the difference between intimate partners and those who are elders and the like. I take Senator Batters’ point.
I want to confirm with Justice officials that there is no definition within the Criminal Code for “relative.” Is that correct?
Ms. Levman: That is correct. Section 2 does not define it, and I’m not aware of it being defined elsewhere. It does define “intimate partner” in section 2, though, so that helps with the scope of the offence as currently drafted.
There are other technical and legal issues associated with the offence that the committee might be interested in, but I’ll just put that out there if you have questions about it.
Senator Prosper: Sure. You mentioned it, and it probably is not going to go toward me, but go ahead, please.
Ms. Levman: It is just an explanation of the offence and how it has really been carefully tailored to the intimate partner violence context, in particular with reference to the lived experiences of survivors of coercive control. It really does reflect the nature of intimate partner relationships, which are different qualitatively from other family relationships.
So, the offence may not be easily transferable from the intimate partner context to the contexts of other types of family relationships. That’s because other types of family relationships may have inherent power imbalances that intimate partner relationships don’t.
The committee might be very interested in paragraph 104 of the Ahluwalia case, which clarifies these issues for us. The Ahluwalia case is a significant one — I know it is a tort case — but it is significant, legally, including for criminal law purposes and for the interpretation of this offence. The court says that intimate partnerships are conjugal unions between equal partners and that they are “distinguishable from other personal or familial bonds, however meaningful.” They distinguish them by saying they involve “. . . mutual obligations to share a common life marked by intimacy, interdependence, and respect,” and that no one partner is subordinate to the other.
So, there is interdependence, but it is interdependence of two equals. Not all family relationships will have those hallmarks. It is wise to take that into account. I think that is why the Justice Committee added the amendment to require parliamentary review within five years of Royal Assent. It is also why these types of discussions are happening at the federal-provincial-territorial level, as well. You will know the offence was heavily informed by provincial and territorial inputs — because they obviously share a great burden in terms of the criminal justice system — as well as the views of stakeholders, which senators have already mentioned.
Thank you very much.
[Translation]
Senator Oudar: I’d like to revisit this definition of family, as well as Senator Batters’ comments. In addition, I’ll give you a very concrete example to explain why we need to revisit all of this and not rush things, so as not to exclude people.
There are 500,000 blended families in Canada. That’s a lot; there are probably some in your circle of friends and family, or perhaps you yourself are part of a blended family.
I know many families where one partner died after several years of shared life. The parent — in this case, the woman — raised the children as her own. A bond formed as a result, one that isn’t explicitly defined but must be taken into account. I believe the situation of blended families must be considered. Strong bonds are formed over the years. I’m reading the wording, and this situation is excluded because the intimate partner, or their parent, or the child . . . . I’m not sure which category they would fall under on the second page, when it refers to an “other person known.” I don’t think a child in this situation can be called an “other person known” to the intimate partner.
In short, I think the wording could be problematic, because it risks excluding all children who care for their non-biological parent when the intimate partner has died and so there’s no longer an intimate partner. I’m not sure if you follow me, Senator Prosper.
As for de facto situations, when we try to apply this to very specific cases, there are exclusions when it comes to non‑traditional family structures, particularly blended families.
I therefore urge us to take the time to analyze all of this.
I don’t disagree with the idea. However, certain observations support the same objectives. Let’s take the time needed to analyze them, and perhaps we’ll be able to make this kind of change later on. Let’s make sure we fully understand what kinds of families we have in Canada so that we don’t exclude anyone.
[English]
Senator Prosper: I appreciate your comments, colleagues. Just to add, the statistics speak quite compellingly with respect to the issue. It may be, as mentioned, a different situation, for example, Senator Oudar, with respect to blended families, but the fact of the matter is that these individuals need protection. Yes, we can include observations, but it’s a pressing issue that has to be addressed. The alternative is — it’s an issue now, and what we’re saying to this group of individuals is, “Wait five years, and then maybe we’ll take a look into that.”
With that, I’m ready to proceed, chair.
The Chair: Thank you, Senator Prosper. Any other interventions? Senators, are you ready for the question?
Hon. Senators: Yes.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
The Chair: I believe the “nos” have it. Do you want a recorded vote? I find that the motion is defeated.
Shall clauses 21 to 30 carry?
Some Hon. Senators: Yes.
The Chair: Carried on division.
Shall clauses 31 to 40 carry?
An Hon. Senator: On division.
The Chair: Carried on division.
The next proposed amendment is for section 46. Senator Prosper, please proceed.
Senator Prosper: Thank you, chair. I move that:
That Bill C-16 be amended in clause 46, on page 61, by adding the following after line 25:
“(c.1) the prejudice of unreasonable delay to the administration of justice;”.
Colleagues, this amendment comes as no surprise to many of you, given the focus of my questions to the minister and to some of the witnesses. The fundamental problem with this legislation is that it seeks to overrule a Supreme Court of Canada decision. The Supreme Court in Rahey held that a stay is the minimum remedy for a section 11(b) violation, and this falls under its exclusive jurisdiction to fashion Charter remedies under section 24(1).
That is why a previous report by the Senate on trial delay recommended a constitutional reference case to the Supreme Court of Canada for any proposed changes to the remedy for section 11(b) violations.
We heard testimony from Ms. Richards with the Criminal Lawyers’ Association and Ms. Webb with the Canadian Bar Association, who were of the opinion that Bill C-16, particularly with respect to the provisions that seek to invert a stay as a minimum remedy to one almost being a maximum remedy — so the last thing to be considered given other factors — wouldn’t withstand the scrutiny of a constitutional challenge.
As mentioned, a stay is a minimum default remedy. It has both a doctrinal component, in Rahey, and a practical component, in Jordan, with the Jordan framework. The idea that once the state has breached the constitutionally permissible — that is, reasonable — time to prosecute someone, it loses jurisdiction over them. Practically, in conjunction with the Jordan ceiling, a stay was the primary motivator to ensure that the state properly funded the justice system and expeditiously prosecuted trials.
We heard from Ms. Richards that most of the delays are not caused by defence; they’re caused by the Crown. They are also caused by the courts. Certainly, there was compelling testimony that, with the passage of Bill C-16, it will have the effect of delaying the courts even further because the operative thing to focus on when it comes to delays is, in fact, the investment in essential features within the criminal justice system, such as more prosecutors and more funds to help process evidence. There was evidence just with respect to body cams and the amount of consideration that had to be taken into account for disclosure.
My thinking here, following Mr. Rahim from the Canadian Civil Liberties Association, in providing this particular provision, is to allow it to at least reflect the current state of law, to allow this provision to at least be a little more Charter‑compliant, given that, inevitably, as we heard within testimony, this bill will likely be challenged through numerous cases.
If you were to look at individuals, even at bail, who are detained and don’t have an opportunity to really have their day and get a verdict of either innocent or guilty, they would again be subject to not having a stay if the Jordan framework is breached.
There has been good law most recently within the last couple of weeks in Vrbanic, which looked at the Jordan framework and found that to be certainly a good law within this context. With that, the focus should be rightfully put on the need for judges, judicial appointments, courthouse space and staff, efficient administration and scheduling of hearings — as mentioned — electronic records and things like video footage; that’s where the emphasis should be.
Again, this provision is sort of an attempt to make things a bit more Charter-compliant. Thank you.
[Translation]
Senator Oudar: I would need some clarification, because I thought that was already addressed in the bill.
Since the legislator doesn’t speak without reason — at least, that’s a principle of interpretation in Quebec — I believe this applies broadly and that spelling out a second time something that’s already in the law can be risky.
Under the bill’s proposed section 492.31, when the court has to order a stay of proceedings, there are still specific criteria set out. It must be satisfied, and I quote, “that no other remedy would be appropriate and just in the circumstances.” It must also consider certain factors. To determine whether a remedy other than a stay of proceedings is appropriate, it must examine the five following factors:
(a) the stage of the proceedings during which the finding of unreasonable delay is made or during which the delay became unreasonable;
That’s already on the books. It also needs to consider the impact on the victim.
Paragraph (c) is important, however. The court has to determine the following:
(c) the prejudice that has been or would be suffered by the accused or offender as a result of unreasonable delay;
Then there are the following two criteria:
(d) the public’s confidence in the administration of justice; and
(e) the interest that society has . . .
I’d like to get back to paragraph (c). I believe that’s already covered in that subsection. I struggle to understand what this amendment even does and I actually believe it could be risky to add something at this stage in the process that already appears elsewhere in the bill.
Then they’ll turn around and argue that it will be detrimental to interpretation if other provisions aren’t clarified as well. With all due respect, I believe the issue’s already covered in the bill. I share Senator Prosper’s goals, but I believe they’ve already been met by the wording of proposed paragraph 492.31(2)(c).
[English]
The Chair: Does anyone from the Department of Justice Canada have anything to add to the comments that have been made by these two senators?
[Translation]
Chelsea Moore, Acting Team Lead and Legal Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you very much for that.
[English]
The committee may want to consider the meaning of “prejudice to the administration of justice” and whether this factor could already be taken into account by some of the factors that are listed in the provision of the bill.
While “prejudice to the administration of justice” would not actually be defined by this motion, we can look to the Supreme Court of Canada case in Jordan because they refer specifically to that term in their decision. They refer to that term when referring to the harm that may be caused to the entire criminal justice system, including victims, witnesses and the public, by prolonged systemic trial delays.
When reading the decision as a whole, it appears to have significantly motivated the Supreme Court’s creation of the ceilings in the Jordan decision, and the fact that those incentives are necessary to encourage timely trials for all those who may be impacted by delays. I just want to clarify that this bill does not displace those Jordan ceilings, and those Jordan ceilings would remain intact.
What this bill does is address — once a finding has been made that there has been a breach, so you’ve exceeded the timelines — what the appropriate remedy is to give to the accused whose rights have been violated at that stage. On the issue of remedy, we’re focusing on the harm that has been caused as a result of the breach of the accused’s rights. It does tend to focus on the prejudice to the accused and the factors that are listed. But broader harms, such as what the Supreme Court refers to in Jordan, may also be taken into account by some of the other factors listed there. For example, public confidence in the administration of justice was added to capture the fact that prolonged delays impacting an accused who is presumed innocent may undermine the public’s confidence in the administration of justice and ought to be taken into account when determining what remedy is appropriate to impose.
On the flip side, imposing a particular remedy, such as a stay of proceedings, could have a devastating impact on a victim who has gone through the whole process. So, the term sort of flips both ways. That is why the criteria that have been added are very flexibly worded to allow the court to use their discretion to determine what the appropriate remedy would be, depending on the facts that are before them.
The Chair: Thank you, Ms. Moore.
Senator Prosper: Thank you for that clarity.
Given what you just said, are you saying that if we were to consider this section, the prejudice of unreasonable delay within the administration of justice, is it the case, almost consistent with Senator Oudar, that you’re saying these provisions within this particular section account for that particular addition; therefore, it’s considered redundant?
Ms. Moore: It would depend on how the courts interpret it, but, certainly, the term “confidence in the administration of justice” gives the court very broad discretion to consider the harms caused by delays that are mentioned in the Supreme Court decision of Jordan.
Senator Prosper: Then I would ask in what instances you think the court may go beyond these enumerated factors and consider this provision and other factors not necessarily already existing within the factors to be considered within the bill.
Ms. Moore: The list is exhaustive, so they wouldn’t be able to consider other factors that are not in this list, but the factors have been broadly worded to account for a broad spectrum of harms that could be caused as a result of delays.
Senator Prosper: But do you not think that’s still an issue that has yet to be litigated? You talk to a lawyer, to another lawyer, to another lawyer — and with the Department of Justice, it’s the thinking that this would potentially align and already be accounted for, but I could see another lawyer, like Mr. Rahim or someone else, thinking that these sections don’t really reflect the true substance of the law as it relates to stays in section 11(b) Charter violations and hence the need to have more of a general provision such as this.
I see your point, but I still think it’s an issue that could be further litigated.
Ms. Moore: I wanted to point out for the committee that if this motion is passed, a similar amendment would be needed to clause 160 of the bill, on page 139, both in English and French, because that clause makes the same changes here to the National Defence Act. It mirrors the changes in the Criminal Code and the National Defence Act. So, if the committee were to adopt this motion, similar changes would need to be made there.
Senator Prosper: Okay. Thank you.
The Chair: Are there any other interventions?
Senator Dalphond: I have a question for the officials. You have listed five criteria here that judges will have to consider instead of blindly applying the principle that, “Well, we are over 18 months, so we have to stay,” or “We’re over 30 months, so we have to stay.” We’re telling them, “Yes, you may have to stay, but before you do that, consider the following factors.” The factor that Senator Prosper wants to introduce is the prejudice of unreasonable delay, which I suppose means the delay has to have been judged unreasonable already, which is different than only exceeding 18 months, and to the administration of justice.
What you have put in the bill is public confidence in the administration of justice. Am I right or wrong to believe that this concept, public confidence in the administration of justice, is not a new concept? For example, it’s the one used as one of the three conditions that a judge must check before making a bail order. So this is a well-known concept to the courts from the Supreme Court down, and that is not something that a lawyer can come along and argue one way or the other. We’re not dealing with a new concept.
Ms. Moore: That is correct. Even closer to where we are in this bill, the concept of public confidence in the administration of justice is a direct codification of that language used in other leading Supreme Court cases on stays of proceedings under section 24(1) of the Charter for other Charter breaches. There’s the Babos decision of 2014, the Regan decision of 2002 and the O’Connor decision of 1995. All three of those Supreme Court of Canada cases have referred to public confidence in the administration of justice when deciding what remedy would be appropriate under section 24(1) of the Charter.
It was added here to track that specific language from that Supreme Court of Canada jurisprudence that already exists on section 24(1) remedies.
Senator Dalphond: Thank you.
The Chair: Thank you, Ms. Moore.
Are there any other interventions on this issue? Senators, are you ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “nos” have it. Seeing no desire for a recorded vote, the amendment is defeated.
Senators, shall clauses 41 to 50 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Senator Miville-Dechêne had proposed an amendment to clause 48(1); she has withdrawn that amendment but wishes to bring some issues to the attention of the committee.
[Translation]
Senator Miville-Dechêne: I won’t be introducing my amendment. It’s not an easy decision, but I don’t want to be responsible for delaying the passage of Bill C-16, which is truly important to me. Unfortunately, given how little time is left in the session, I’ve been told that the government wouldn’t have time to get back to us on this matter.
I think that’s a shame, and I want to say so, because our role of sober second thought involves not only reviewing bills but also the ability to propose amendments. In my view, this bill was particularly important, because I find it completely unacceptable that administrative issues should prevent the justice system from warning victims of domestic violence or intimate partner violence when an alleged abuser is released on bail. The safety of the victims is at stake. The system must adapt. It cannot be so bogged down in bureaucracy that no one can call a victim the moment their alleged abuser is released.
Everyone knows that’s the most dangerous time for women. Following their arrest and indictment, alleged perpetrators feel a great deal of anger, and this threatens the victims’ safety. At the very least, if they were informed, they would have the option of leaving town or going into hiding. This is where we stand. That the system fails to take this into account seems completely unacceptable to me.
As I’ve already mentioned, Quebec has managed to work around the system through the CAVACs. Their members show up to the hearings and notify the victims. This should be automatic; it’s even a duty of transparency and prevention. In my view, this is too important an issue to justify not informing victims simply for administrative and bureaucratic reasons.
Thank you.
[English]
Senator Dhillon: I want to echo Senator Miville-Dechêne’s sentiments: This is an important topic, conversation and issue. Having served on the front lines and having had the opportunity to attend those calls — and I’ve shared this with the officials as well — two questions come to police officers: First, “What’s happening next?” Second, “Will I be told when he’s going to be released?” Undoubtedly, those are the fears and the concerns that become clear from those calls and from those victims.
It is a miss that, within this legislation, we don’t have mandatory notification to those victims. I just want it on record here for the government to be aware that it is not “if” but “when” a victim who does not have that information is harmed or injured or, God forbid, killed. We’ve seen it. This will land at the doorsteps of this government to answer that question.
With the runway we have in front of us of two years of training, I urge this government to heed the notice that this committee is putting in front of you to take the opportunity to ensure that the provinces, territories and this federal government take every measure available to them to ensure that mandatory notification is put in place through the framework, regulations or policy, and that training has all of this implemented within it.
As a final thought, I would hope — and I’m a new senator here; it has only been one year, and we’ve mused before that in Senate years I’m just a teenager. However, I’ve seen enough in the year I’ve been here that this type of cadence — where we’re asked to do incredibly serious work on incredibly important topics — requires some understanding on the part of the government that the voices of Canadians need to be heard and that these issues require time to be addressed and looked at in a meaningful way. And I’d ask to bring that advice back to government.
We are all interested in making sure we put our best foot forward. I don’t think there’s anyone here who thinks differently, but when lives are at stake, you’re going to have this reaction from senators, and you’ll certainly have it from me going forward, as well.
I appreciate the bill. I appreciate what we’re doing here and the support that we’re looking to put in front of those who suffer violence every day, but remember that the title of this bill is “Protecting Victims Act,” and the most basic protection we can give victims is letting them know when their abuser is about to be released.
Thank you.
Senator Batters: That was a very poignant reminder from Senator Dhillon — the “Protecting Victims Act” that doesn’t even have mandatory victim notification is frankly shameful. I find it extremely unfortunate. This is all the corollary of the government giving us this bill in such an absolutely truncated time frame. We had so many witnesses who were not able to attend because we had to tell them to come tomorrow or the next day. Of course, people can’t come in that kind of time frame. Thankfully, many witnesses were able to come and help us with helpful testimony within the short time frame, but many weren’t — many who would have added important voices to this conversation.
Then we had these victims — victims who have been through absolute hell — and they told us what they wanted to see. The Federal Ombudsperson for Victims of Crime came with concise and well-crafted amendments — and this is taken from that; I was looking forward to supporting this because it would have been an excellent addition to this bill.
Also at this committee, for Bill C-16, we have had such a truncated time frame dictated by the government that we haven’t even been able to get briefs translated, so we haven’t been able to provide them to committee members. People have taken significant time to provide their briefs, but because we have not had the time to translate them, they can’t be circulated to committee members, not until they are. That is a huge downfall.
The government should not do this. It’s not correct to handle this in this fashion, and it’s making a bill weaker by not allowing us to make such a well-reasoned, sought-after amendment that the Federal Ombudsperson for Victims of Crime himself came with to try to make the “Protecting Victims Act” stronger. Now, we’re not able to do it. It’s unfortunate. Thank you.
[Translation]
Senator Clement: My remarks are directed at my colleagues around this table, especially my colleague and friend, Senator Miville-Dechêne. I know it is painful for you to withdraw this amendment, especially since it seemed as though it would have been adopted.
This is a complicated and stressful situation, as Senator Batters described. I agree with what she said.
I’d like to mention the names of the two victims who testified before us. Ms. Cooke and Ms. Bergeron were exceptionally articulate and professional in their remarks. They made it clear that notifying victims is the very least that can be done to ensure their protection and that of their families. In fact, Ms. Bergeron was surprised that this wasn’t already included in the bill.
I know it’s painful to withdraw this amendment. It’s not all on you, though, Julie. We understand. Thank you.
Senator Oudar: First, I would like to address Senator Miville-Dechêne to thank her. I understand your pain, dear colleague, and I fully share the concerns expressed by the ombudsperson. This is vital information that victims are entitled to receive. There are already provisions in the Criminal Code to reassure them. Some victims get informed, but we’d like for these provisions to be expanded so that victims are no longer required to request the information. I think that’s what it comes down to: proactively informing victims. That’s essentially what we were hoping for.
Committee members have expressed this need. There will be comments that we’ll look at later. I think this is important, and Senator Dhillon mentioned it a little earlier. These are among the comments we’ll need to discuss later.
Committee members will appreciate that there is currently a provision under section 515(14) of the Criminal Code that already addresses this situation when an order is issued under section 515 — namely, the order for release or detention if release is denied. In each case, the judge must provide a copy of this order to the victim upon request. At the very least, we have this safety net pending future amendments. I’m also satisfied with the response the minister provided yesterday, when he told us he would look into this.
I suggested changing the guidelines that apply to Crown prosecutors. So, I hope that administrative solutions will be found and that we won’t have to wait five years to make changes, because I believe there are solutions.
I’m looking for my copy, which I can’t find, but these are precisely the excerpts from the guidelines I mentioned yesterday.
I hope there will be administrative solutions in the form of guidelines that can be applied. I believe this could also impose certain obligations on justice system officials to protect victims. Thank you once again for this gesture, my dear colleague, and for your remarks on this topic today.
[English]
Senator K. Wells: To be brief and on the record, the fact that this mandatory bail notification isn’t in the bill is a major oversight. I would hope, since an amendment is not going forward, that our colleagues will give strong consideration to the multiple observations that have focused on this area and send these messages back to the Minister of Justice and, importantly, to the victims out there that the Senate has heard you loud and clear. It’s not our unwillingness to include this; it’s due to factors beyond our control.
Senator Batters: First of all, about observations, I never hold out much hope because I have seen almost no realization from the government in the last decade that they ever even pay attention to those observations.
With that said, I wanted to ask Senator Oudar on that point she just made about the prosecutor’s guideline. I believe that is probably the federal prosecutor’s guideline, which, of course, those are only for federally prosecuted offences and not applicable to provincial prosecutors. Is that correct, federal?
[Translation]
Senator Oudar: Yes, exactly. In fact, the issue was discussed yesterday in committee, and that’s why, when Senator Miville-Dechêne spoke of administrative procedures, the minister referred to discussions with the provinces — because the guide does indeed apply to federal offences. So provincial offences will require coordination and collaboration with the provinces. The guidelines we’re discussing apply to the most serious offences, and I believe these are the ones we’re particularly concerned with. You’re right to point out that there will also need to be alignment for offences of a provincial nature.
[English]
Senator Batters: Federally prosecuted crimes aren’t necessarily the most serious. They are for things like drug offences and that type of thing. It’s the provinces that prosecute murders and sexual assault and all of those types of offences. It doesn’t have to do with the severity of the crime. It has to do with the type of crime.
Senator LaBoucane-Benson: Could the officials speak to the provincial policies that exist regarding the notification of victims of bail?
Matthew Taylor, Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. I would start by saying we have taken note of your thoughtful comments and will, within our areas of responsibility, work with our provincial partners to ensure they hear what you have shared today and that we can work with them to explore these issues in earnest. Thank you for that.
After the appearance yesterday, we did a bit of a review of provincial and territorial policies, and we are happy to provide that in writing to the committee.
To start picking up on what Senator Batters mentioned, the federal deskbook that Senator Oudar spoke to does apply in the three territories, so it would apply to a range of Criminal Code offences there because the federal prosecution service is responsible for prosecutions in those jurisdictions, as well as, as Senator Batters noted, other types of offences in the provinces, like drug offences.
Minister Fraser mentioned yesterday both British Columbia and Ontario have specific guidance in their Crown manuals about when to notify victims. A lot of the practices in the provinces, based on our initial review, are informed by a combination of two things: provincial victims’ legislation and the Canadian Victims Bill of Rights, and then Crown policy. In some cases, victim services’ workers, like in Quebec, are the ones responsible for providing that information to victims. In other cases — it appears in the territories, in particular — it is the RCMP or prosecutors themselves who share that information.
There is a variety of practices. It appears that every jurisdiction has some guidance on how to engage with victims. The exact details of that guidance vary. Most often it is on request, to the point that Minister Fraser spoke to yesterday, and in some cases it is limited to a certain subset of offending, for example, offences where there are particular victim safety concerns at issue. I hope that helps.
The Chair: To the officials, it is very clear and unambiguous that there is an expectation from the senators on this committee that uniformly there be a mandatory victim notification on release of an accused. The majority of the committee feels this way, and probably unanimously. I want to thank Senator Miville-Dechêne for raising this issue with the passion she has for the issue, and that kind of passion and sentiment are held by every senator on this committee.
Senators, shall clauses 51 to 60 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division.
The next amendment is from Senator Pate on clause 63. I will ask Senator Pate to introduce this motion for amendment.
Senator Pate: I move that:
That Bill C-16 be amended in clause 63, on page 75,
(a) by replacing lines 21 to 27 with the following:
“prisonment or period of parole ineligibility, a court shall impose a sentence other than the specified term of imprisonment or period of parole ineligibility if, in the circumstances and considering the sentencing principle set out in paragraph 718.2(e), the minimum punishment would amount to cruel and unusual punishment for that individual or would otherwise infringe upon any of that individual’s rights or freedoms guaranteed by the Canadian Charter of Rights and Freedoms.”;
(b) by replacing line 30 with the following:
“(4) A court that imposes a sentence other than the minimum punishment”;
(c) by replacing line 33 with the following:
“(5) For the purposes of this Part, a shorter term of im-”.
The amendment would ensure that the “safety valve” exception to mandatory minimum penalties created by Bill C-16 better reflects legal obligations under section 718.2(e) of the Criminal Code, often referred to as Gladue principles; Charter principles; Canada’s Truth and Reconciliation Commission; and National Inquiry into Missing and Murdered Indigenous Women and Girls commitments, which per TRC’s Call to Action 32, require allowing “ . . . trial judges upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences,” in order to redress the mass incarceration of Indigenous Peoples.
We heard from the minister. He identified section 718.2(e), which requires prioritization of non-carceral sentences, as vital to redressing overrepresentation. Under Bill C-16, however, this provision will not apply to any provision carrying a mandatory minimum penalty.
Witnesses including the Canadian Bar Association; the Women’s Legal Education and Action Fund, or LEAF; the National Association of Women and the Law, or NAWL; the Canadian Association of Black Lawyers; the Criminal Lawyers’ Association; the Canadian Civil Liberties Association; the Canadian Association of Elizabeth Fry Societies, or CAEFS; constitutional law professor Colton Fehr; and, just in, Dr. Pam Palmater all recommended similar steps to apply the safety valve to all mandatory minimums in the code and ensure access to non-carceral sentences in appropriate cases.
Several witnesses, including the Canadian Bar Association, NAWL and the Criminal Lawyers’ Association, recommended adopting the approach contained in Bill S-208, which would better ensure just, fair and Charter-compliant sentences.
The amendment proposed today is far more modest. It leaves untouched the narrow standard of cruel and unusual punishment chosen by the government. It changes only what is necessary to avoid the clearest and most blatant contradictions with Canada’s existing legal obligations.
Bill C-16 is entitled “Protecting Victims Act.” Many witnesses, including the Department of Justice, acknowledge that mandatory minimum penalties do not deter crime, improve public safety or protect victims. The government has suggested that even though mandatory minimums do not prevent crime, they will send a message about violence against women. That message will be undercut because — as emphasized by witnesses, including LEAF, NAWL, CAEFS, law professors Emma Cunliffe and Colton Fehr as well as Dr. Palmater — the mandatory life sentence in particular will continue to allow survivors of intimate partner violence, particularly Indigenous and Black women, to be punished for defensive responses to violence inflicted on them. These sentences incentivize women trying to protect themselves from abusers to guilty pleas to lesser charges whether or not the context of their homicide charges includes context that gives rise to a defence.
This is what happened to Jamie Gladue and, very recently, to Helen Naslund, among many others. In fact, Dr. Palmater says 18% of those wrongfully convicted of crimes were the result of false guilty pleas, and it should be no surprise that nearly all of them were Indigenous, racialized, female or living with a disability.
In the absence of this amendment, there is nothing in Bill C-16 to prevent this ongoing charging, prosecuting, convicting and imprisoning of victims who are characterized as aggressors when they act to defend themselves or others in their care and are therefore subject to coercive pressure to plead guilty to avoid the potential of facing the most punitive life sentence if they are not believed due to racist, sexist and/or class-bias stereotypes.
If the goal is to protect victims, nearly all witnesses to appear before the committee, notably including the minister, the Office of the Federal Ombudsperson for Victims of Crime and the Canadian Police Association, emphasized the necessity of ensuring women have access to housing, health, income, social and other supports they need to be safe. This amendment will help ensure victims are not criminalized and do not face additional barriers to these supports.
Witness testimony indicates that Bill C-16 does not respect Charter obligations, contrary to the government’s intention to ensure the constitutionality of Canada’s mandatory minimum penalties. This amendment may help address some of the most glaring issues. We heard, in particular, that in the absence of the application of a safety valve, mandatory life sentences are vulnerable to Charter challenges, especially in light of Canada’s obligations under section 718.2(e) to consider Indigenous history and context.
So, to our restrictions on alternatives to prison sentences, in a bill concerned about court delays, this amendment may help avoid some of the significant costs and delays within the legal system associated with vulnerable people having to mount challenges to legislation that is not Charter-compliant. It would prevent people from serving longer in prison than is required on public safety grounds. As the Parliamentary Budget Officer identified, removing people from the community through prison can cost as much as $463,000 per person per year and does not allow victims to find the housing, health, social and income stability necessary for long-term safety.
This amendment could help free up resources to invest in these vital supports that will meaningfully improve public safety for all Canadians. For these reasons, I urge honourable colleagues to support the amendment.
[Translation]
Senator Oudar: Thank you for proposing this amendment, Senator Pate.
I’d like to revisit the current wording and objectives of proposed section 718.4. Essentially, if a sentencing court determines that a minimum punishment for a given offence would constitute cruel and unusual punishment under the circumstances and decides to hand down a lesser sentence, that would comply with the Canadian Charter of Rights and Freedoms. I believe the section is worded in a way that respects our constitutional rights, because the judge will have some discretion if the punishment is cruel, unusual or extraordinary.
First, I don’t think the proposal meets the objectives of Bill C-16. I do, however, have a concern regarding the objective, which is the protection of victims. Senator Pate often refers to the Gladue decision, but I believe that the principles of the Gladue decision are already reflected in paragraph 718.2(e). This provision will require courts to take the offender’s circumstances into account during sentencing, while ensuring that the sentence is not disproportionate. All of this remains proportionate to the harm caused to victims and the community. I believe that the principle applies to all offenders and that, in essence, paragraph 718.2(e) focuses specifically on the particular circumstances of Indigenous offenders.
I believe that the section, as drafted, complies not only with the principles of the Charter of Rights and Freedoms, but also with the Supreme Court’s rulings — not only in Gladue, but also in the case law relating to cruel and unusual punishment.
I thank Senator Pate, but I don’t support the amendment.
[English]
Senator Batters: Let’s just make it clear what this amendment does. Right now, in Bill C-16, there is only one exception — life imprisonment — that is exempt from the safety valve the government is putting in for mandatory minimum sentences. And there are only two crimes that are subject to the life imprisonment sentence. That would be murder and treason.
Senator Pate’s amendment would remove the exception for those two things. For example, a mandatory minimum sentence for first-degree murder of life imprisonment without the possibility of parole for 25 years would then be open for a judge to decide, in his or her discretion, that the sentence could be shorter than that mandatory minimum.
If this were to pass, I think Canadians would be absolutely stunned. Even in a safety-valve or escape-hatch situation, this would not improve public confidence. In fact, it would shatter it.
The Supreme Court of Canada and many other courts across Canada have consistently upheld, for decades, the constitutionality of life imprisonment situations. For many years, they have found it is not cruel or unusual punishment.
My question to the officials is this: For how many decades has the sentence of life imprisonment for murder or treason without the possibility of parole been in effect? I’d also like to ask Senator Pate for how many decades she has advocated for the removal of these mandatory minimums of life imprisonment.
Leah Burt, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. We believe that the life penalty for murder has been in place for approximately 70 years.
Senator Batters: Senator Pate, for how many years have you advocated for the removal of mandatory minimum life sentences for murder and these other crimes?
Senator Pate: I have been advocating since I came to the Senate, but I want to point out that it’s not just something that I dreamed up. The last time the Supreme Court of Canada looked at the life sentence in 1990, it was saved from being unconstitutional because of the 15-year judicial review. That was eliminated in 2011 or 2012. It has not been considered by the Supreme Court alone since then.
When Justice Ratushny reviewed the self-defence cases of women who had killed abusive partners, she found that many cases could not be reviewed because many of the women had pled guilty to lesser charges when facing first-degree murder charges. One of her first recommendations was that Crown prosecutors be instructed, in the procedural rule book that you’ve heard about, that where they would accept a guilty plea to manslaughter — and they usually do that once they hear of the abuse — they should withdraw the first-degree murder charge and proceed with the manslaughter charge.
That has not happened, so, as a result, we continue to see them. Jamie Gladue was one. She was charged with murder. After the preliminary inquiry and the evidence of abuse, the Crown offered a deal. She eventually pled guilty to manslaughter because hanging over her head was the possibility of a life sentence without parole eligibility for 25 years or a deal for manslaughter.
This is aimed at addressing that issue, and it is the same issue seen by the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Truth and Reconciliation Commission and the Stonechild inquiry and the Marshall inquiry. We could go back even further. The result of not doing this is a situation where now 50% of the women serving federal prison sentences are Indigenous. Almost half of them are in that situation as a result of responding to violence first perpetrated against them. It is a significant issue.
Even Jamie Gladue’s case gets misused as a way of addressing the inappropriate and racist responses of the criminal legal system to Indigenous women. That misses the whole point and the huge question of whether she had a defence of self and defence of other. It was never heard or considered in her case because the deal was offered. In those kinds of situations, unless you have a safety valve, you will not likely see the pressure on Crown prosecutors to actually proceed in the way that Justice Ratushny recommended.
Senator Clement: I go back on the record as saying it’s challenging to make these piecemeal amendments to the Criminal Code, but here we are. That being said, I will support this amendment.
The Gender-based Analysis Plus for this bill is heartbreaking. Paragraph 1 clearly states that this bill may offer some protection to victims. We hope that it does, but the evidence says that there will be unintended negative consequences, mostly for the communities I represent and with whom I am in allyship.
I was particularly taken with the very clear testimony of Shakir Rahim yesterday. The Charter challenges will come, and resources will be used to challenge; that’s inevitable. This amendment is about having the safety valve to better reflect Charter principles, but, more importantly, as I heard Senator Pate say, the TRC, the National Inquiry into Missing and Murdered Indigenous Women and Girls and all of those reports in which smart experts tell us what needs to be done in addition to legislating. All of those reports are reflected here in the thrust of this amendment, so I support it.
Senator Simons: It is about the phrase “cruel and unusual punishment.” I’m not even sure I understood, as a layperson, that it has such a very specific and narrow meaning in Canadian law. It is a very high bar for something to be considered “cruel and unusual,” as opposed to simply disproportionate or out of alignment.
Like Senator Batters, if someone is convicted of first-degree murder, I’m not unhappy for them to get a life sentence. I’m worried about the sentences at the other end. Senneville is a perfect example of that. Madam Justice Moreau has been roasted by the public — most of whom have not read the Senneville decision — because she pointed out that the sentence is wholly disproportionate, not for the guy who was on trial but for the teenage “bro” who sent a picture of his naked 17-year-old girlfriend to his 19-year-old friend, and now everybody is in possession of child pornography.
It is really important to remember that this isn’t just for the most extreme cases. It is for the whole range of mandatory minimum sentences that the courts have repeatedly knocked down and that are now being brought in by the back door. I suspect that if we keep it narrowly to what is “cruel and unusual punishment,” these cases are all going to end up being relitigated and going back to the Supreme Court.
I think of Senator Pate’s amendment as a friendly one because I think it indemnifies the bill against a Charter challenge. It doesn’t create a particularly large escape hatch, but I think it does create a more functional safety valve.
Senator Dalphond: I understand the amendment will add to the list of potential judicial interventions first-degree murder, second-degree murder and treason. These are the three highest crimes according to our system of law. They come with minimum sentences. One is life sentence with a minimum of 25 years; the other is a minimum of 10 years; and, treason, I don’t know. It guess it must be long, but I’ve never had a case of treason in my life.
In those cases, society is sending a clear message. The message is, “You deserve to serve life because you took away a life.” Before that, we were hanging people. We decided we should not do that. It was replaced by a major sentence called life.
This is what the amendment will do. Senator Pate justifies it by saying that some people will plead guilty to offences when they don’t deserve to plead guilty, and they will serve long sentences. She is proposing an amendment to take effect at the time of sentencing. That means, at sentencing, counsel will say to the judge, “By the way, she pleaded guilty, but she is not guilty. She pleaded guilty to get out of it sooner than later, and she is the victim.” I am sorry, but if I were the judge hearing that case, I would not pronounce any sentence. I would order a new trial.
If there were a false plea made or one made improperly for constraint or that was uninformed, you don’t sentence people; you correct the system.
This is a way to address the problem, but it is a bad way, in my opinion, respectfully; I think it’s a bad way to address a problem of false pleas, false agreements and things like that. Thank you.
Senator Batters: First of all, the treason penalty — I just looked it up — is life without the possibility of parole for 25 years, the same as first-degree murder.
As I look through the Gender-based Analysis Plus, it also spends a significant amount of space, as it should, talking about victims of these very serious crimes. Here are a few parts I found in there dealing with homicide victims: “Between 2011 and 2021, police reported 1,125 gender-related homicides of women and girls in Canada.” In paragraph 7, dealing with Black people: “The rate of homicide victims identified as Black was 4 times higher than the rate of non-racialized people.” Dealing with Indigenous people, in paragraph 8 of the Gender-based Analysis Plus:
. . . the rate of homicide for Indigenous people was over six times higher than the rate of non-Indigenous people (9.31 victims per 100,000 population for Indigenous people, compared with 1.46 for non-Indigenous people).
So, I think it’s imperative to retain these very serious consequences for extremely serious crimes that impact not only women but Black people and Indigenous people at a disproportionate rate to the population. That’s in keeping with what Canadians would want to see happen: serious consequences for the most serious crimes.
Senator Pate: Thank you all for your interventions.
When I taught this area in defending battered women on trial in criminal law, I used to talk about how the law of self-defence developed around the way men fight; that, at the time the law of self-defence was developed — and we heard that the life sentence was 70 years ago — women and children were the property of the men who either married them or who fathered them, respectively. So, the way that women and children might defend themselves was not understood in the ways that men defend themselves — blow for blow, immediacy. It has been a long, tortured process of the law trying to adapt to address the different ways in which children, battered women and victims of intimate partner violence might fight back.
The majority of women who fight back in a self-defensive way, historically, weren’t recognized as having self-defence as a defence, in large part, because they used a weapon: a hairbrush, a frying pan, the man’s own gun or a knife in the kitchen. They would be seen as more culpable than the men who would beat them because, even though the men might use their fists to punch them, their hands to choke them and their feet to stomp on them, women often had to use a weapon.
We have seen an evolution of this, but we have not seen the law catch up in this area; hence the reason that Justice Ratushny made recommendations 30 years ago — I think it’s 30 years ago this year — about these kinds of things that have been ignored. We saw in the Ryan case. With respect to Senator Dalphond’s view, he might take that approach, but the Supreme Court of Canada, when they heard what Nicole Ryan had gone through and the manner in which she had not been protected, despite going to the police 11 times to seek support — and then the police engaged in an entrapment exercise. When the Supreme Court of Canada heard that, they did not send it back for a new trial; they stayed the charges and they substituted a release and acquittal for her. That is an important distinction that was based on them understanding the miscarriages of justice and the fact that the administration of justice was being brought into disrepute by the ways in which her case had been managed.
We’re now talking about an opportunity. It’s not at all close to the type of amendment that I would like to see; it’s a minor amendment that merely protects the constitutionality of this provision now, based on the fact that, in Luxton, the Supreme Court of Canada said that without the “faint hope” clause, the life sentence might be vulnerable — and the fact that we have not seen a ruling on this.
It actually helps potentially prevent the kinds of challenges that I think will ultimately come to the life sentence and on which the Supreme Court of Canada will have to weigh in. I leave it to my colleagues to vote on this amendment.
The Chair: Are there any other interventions? Are senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “nos” have it.
We will go to a recorded vote.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: No.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: No.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Poirier?
Senator Poirier: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: The Honourable Senator Saint-Germain?
Senator Saint-Germain: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: No.
Mr. Labrosse: The Honourable Senator Wells?
Senator K. Wells: No.
Mr. Labrosse: Yeas, 5; nays, 10; abstentions, 0.
The Chair: This motion is defeated.
Senators, shall clauses 61 to 70 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Senators, shall clauses 71 to 80 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 81 to 90 carry?
Senator Pate: I want to vote against clause 87. I’ll vote against this provision.
As discussed, a number of witnesses, including the Canadian Bar Association, the Women’s Legal Education and Action Fund, the National Association of Women and the Law, the Canadian Association of Black Lawyers, the Criminal Lawyers’ Association, the Canadian Civil Liberties Association and CAEFS, have raised significant concerns about how Bill C-16 approaches mandatory minimum penalties. This provision will reinstate mandatory minimum penalties that have been struck down by courts as unconstitutional while incorporating a so‑called safety valve that, as previously discussed, is inconsistent with Charter principles, legal obligations to Indigenous Peoples under section 718(2)(e), the TRC and Missing and Murdered Indigenous Women and Girls commitments.
This approach will disproportionately affect those most marginalized, including women who have experienced violence and coercive control. It will mean that women facing cruel and unusual sentences but who do not have the resources to mount the necessary arguments to avoid unconstitutional punishments will likely be sentenced to punishments that violate their Charter rights, or they will be incentivized to plead guilty to lesser charges despite having a defence, as per the examples I provided previously.
The Chair: To be clear, this is regarding clause 87 on page 89 of the bill. Does anybody need any clarification? I see that everyone is on the same page.
Senator LaBoucane-Benson: I would like the officials to comment. If this clause is removed from the bill, what are the effects?
Ms. Burt: Thank you for the question.
Our view is that the legal effect would not change. This is a “for greater certainty” clause to confirm that all mandatory minimum penalties currently in federal legislation would be operative again. However, it’s our view that, by virtue of stare decisis and the fact that the safety valve would change the legal landscape with respect to mandatory minimum penalties, any mandatory minimums that were previously struck down by the courts would once again become operative by virtue of the common law.
Senator Batters: When we’re dealing with an issue as critical as mandatory minimum sentences, this is a place where “for greater certainty” is a good idea to have, especially given the dire consequences that could result.
This is a significant part of the bill: the whole safety valve for mandatory minimum sentences. This is a big part of what the government wanted to accomplish with this bill, so they should be trying to ensure that the existing law, as it exists, is definitely in place. So I’m not personally comfortable at all with having a “for greater certainty” clause taken out on something as critical as mandatory minimum sentences for these types of very serious crimes.
Senator Simons: All of these mandatory minimums have been struck down by the Supreme Court as unconstitutional, and this clause would reaffirm that all the court decisions are set aside. That doesn’t sound like it’s just “for greater certainty.”
When you say it’s just a “for greater certainty” clause, it seems like a quite radical throwing back in the face of the Supreme Court. The court wasn’t just out for fish and chips; the court said all of these various mandatory minimums were unconstitutional — which is not for murder, right, because they’ve never said the one against murder is unconstitutional — so these are all the ones that have been struck down. So this reinserts all the mandatory minimums that have already been deemed unconstitutional by the court. That seems to me more than just a “for greater certainty” clause, which is usually like adding a pair of suspenders to your belt.
Ms. Burt: Thank you for the question. It’s a “for greater certainty” clause because, by virtue of the common law, these mandatory minimum penalties, or MMPs, would once again become operative. The Supreme Court has made clear that where a court issues a declaration that a law is inconsistent with the Charter, the law becomes inoperative but remains on the books unless or until it’s amended or repealed. That declaration of invalidity operates in accordance with the normal rules of stare decisis, and that’s from the Sullivan decision of the Supreme Court in 2022.
The enactment of a general safety valve is a fundamental legal change, so it changes the legal landscape with respect to MMPs and the application of previous judgments declaring MMPs unconstitutional. Because MMPs can no longer apply in situations where the court has found that it would violate the Charter, the basis for those previous findings of unconstitutionality has been removed. In other words, those decisions that made the MMP inoperative would no longer apply. The Supreme Court has said in several decisions now — in Lloyd, in Bertrand Marchand and, most recently, in Senneville — that this is a solution that is available to Parliament to address the constitutionality of MMPs to enact a general safety valve.
Senator Simons: Thank you, that’s very clear. I just want to be really clear that we are not talking about murder and we are not talking about treason; we’re talking specifically about — and we’re not talking about every mandatory minimum; we’re talking about the ones that have been deemed by the court as unconstitutional. The safety valve is that the punishment must be deemed cruel and unusual, which is an extremely high bar.
Just for greater certainty, now we know what we’re talking about.
Senator Dalphond: I have a question for the officials. You have put that there, “for greater certainty,” to make sure that we are not re-establishing the minimum sentences only for the Senneville case but for all those that are more or less subject to attack and maybe some others that are attacked somewhere else to say that the intent of Parliament is to maintain the principle that you can have minimum sentences, but they come with the safety valve now — all of them except murder, i.e., first-degree murder and second-degree murder, and treason. If we were to remove that declaration of intent, is there a risk it could be read as saying that we are not sure about the other ones and that you can start challenging, knowing that it was in the bill and now it’s removed?
Ms. Burt: Thank you for the question. Yes, that’s correct, so the “for greater certainty” clause would be to confirm Parliament’s intent that all mandatory minimums that were previously struck down be returned. It is also an important tool to address any potential risk of litigation and uncertainty that these mandatory minimum penalties are once again operative.
Senator Dalphond: Thank you.
Senator Batters: To the officials, couldn’t the removal of this clause also be seen to have some weight, perhaps, on the decisions of lower courts, which have ruled that a mandatory minimum is removed; however, it’s not something that has been confirmed by an appeal court or the Supreme Court of Canada? Could that also be a problematic part of it?
Ms. Burt: Thank you for the question. Yes, that’s correct, so currently we have what could be described as a patchwork of availability of mandatory minimums across Canada. Because so many of them have been struck down by provincial lower courts as well as appellate courts, the enactment of the safety valve, together with the “for greater certainty” clause, would ensure consistency in the availability of mandatory minimum penalties, as well as certainty for the courts that are applying those penalties.
Senator Batters: Just to be clear, because I don’t want anyone watching this to get the impression that every time a mandatory minimum sentence has been challenged in Canada, it has been overturned. That is absolutely not the case. There are many mandatory minimums that remain in place and have been constitutionally challenged and upheld by the courts, including the Supreme Court of Canada. Thank you.
Ms. Burt: Yes, that’s correct.
Senator Pate: I want to be clear — and if the officials disagree, I’d like you to chime in — but it’s very clear that the Supreme Court of Canada assumed a safety valve. When they talked about a safety valve, they assumed it would apply to any sentence, not just prison sentences. The Canadian Civil Liberties Association argued on this ground that this approach would actually help protect the bill. The fact that right now the safety valve still protects prison sentences is likely to increase the chances of this bill being challenged as unconstitutional.
Mr. Taylor: What I would say is something that Minister Fraser spoke about in the House of Commons. The primary motivation for the safety valve and the “for greater certainty” clause was in the context of the Senneville decision and the outrage that had been expressed around the invalidation of the mandatory minimum penalties.
There was a policy choice taken to focus the safety valve on the MMPs that it is subject to, so that is primarily child sex offences and sexual offending. There are some mandatory minimum penalties for firearms-related offences in the Criminal Code as well, but the concern was for those MMPs that remain on the books, so haven’t been removed from the Criminal Code by an act of Parliament — as was done, for example, with the drug-related MMPs in the former bill, Bill C-5. It was thought and determined that this approach was necessary because, in the government’s view — as you’ve already talked about, Senator Pate or one of the senators — MMPs were being struck most often in hypothetical cases and not in specific cases before the courts.
So, the minister’s view was that, for the vast majority of cases, an MMP would be appropriate as a sentence, and, in many cases, the sentence imposed would exceed the MMP, and he wanted to ensure that those MMPs remained valid, while still addressing the constitutional concern that in a particular hypothetical case the MMP would be grossly disproportionate. So the policy choices reflected in the bill reflect that sentiment and the guidance of the Supreme Court around ways to Charter-proof — I’m generalizing — mandatory minimum penalties. In the Lloyd decision, for example, the court invited Parliament to take this approach, and the government has acted on it.
Senator Pate: Just to be clear, in the Lloyd case, they invited the government to introduce a safety valve but did not go against the TRC recommendation, or any others, that, in fact, it should retain a requirement of a prison sentence.
Mr. Taylor: Yes, so I think the question that has to be reflected on is whether a period of imprisonment could amount to cruel and unusual punishment. And as has been talked about at this committee already, the threshold for finding cruel and unusual punishment is a very onerous one. A court would have to determine, for example, that a very low period of imprisonment would kind of cross that high threshold of outraging the public’s notions of decency — I can’t remember the exact words the court uses.
This gives the court an ability to craft a sentence that is appropriate in the circumstances — that could be a shorter period of imprisonment coupled with a longer period of probation, for example — that arrives at a fit sentence and also respects Parliament’s view that, for offences with prescribed mandatory minimum penalties, a period of imprisonment will be imposed.
The Chair: Are there any other interventions?
Colleagues, with respect to clause 87 on page 89 of the act, is it your pleasure, honourable senators, to adopt the motion — sorry.
Senator Pate: Sorry, Mr. Chair. I want to add we talked about Lloyd, but we haven’t talked about Hills, where it was emphasized that mandatory minimum penalties are especially vulnerable to invalidation where a community sentence would not be available. So, this takes into account Lloyd but not Hills.
The fact that a one-day sentence is being put out there as a way to challenge whether it would be unreasonable is really akin to the hypothetical issue we’re talking about. So I wanted to be clear that this provision and this amendment I’m proposing are in line with the TRC recommendation that would also allow for conditional sentences in cases, and it’s in line with Hills.
The Chair: The answer was yes? All right.
Senators, are you ready for the question?
Hon. Senators: Yes.
The Chair: The question is whether section 87 should be removed from the act, as it appears on page 89 of the act. Shall clause 87 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Sorry, we will start again.
Clause 87 is in the act; the motion is that the clause not carry.
Senator Simons: It’s not a motion.
Senator Pate: It’s to vote down.
Senator Simons: It’s a straight up-and-down vote.
The Chair: I’m going to ask this question again: Shall clause 87 carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I believe the “yeas” have it.
Senator Pate: Could we have a recorded vote?
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dhillon?
Senator Dhillon: Yes.
Mr. Labrosse: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Oudar?
Senator Oudar: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Poirier?
Senator Poirier: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Saint-Germain?
Senator Saint-Germain: Yes.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: The Honourable Senator Tannas?
Senator Tannas: Yes.
Mr. Labrosse: The Honourable Senator K. Wells?
Senator K. Wells: Yes.
Mr. Labrosse: Yeas, 10; nays, 4; abstentions, 0.
The Chair: I declare that section 87 is carried.
I now move back to sections 81 to 86 inclusive. Is that carried?
An Hon. Senator: On division.
The Chair: Agreed, on division.
Are clauses 88 to 90, inclusive, carried?
An Hon. Senator: On division.
The Chair: Carried, on division.
We’ll now move to clauses 91 to 100. Shall those clauses be carried?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 101 to 110 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Senator Prosper had proposed to amend clause 118.1, on page 94, in line 28. He’s advised the clerk that he will not move those amendments.
Therefore, senators, shall clauses 111 to 120 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 121 to 130 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 131 to 140 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 141 to 150 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 151 to 160 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 161 to 170 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 171 to 180 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 181 to 190 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 191 to 200 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Shall clauses 201 to 206 carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Colleagues, shall clause 1, which contains the short title, carry?
Hon. Senators: Yes.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
An Hon. Senator: On division.
The Chair: Carried, on division.
Colleagues, does the committee wish to consider appending observations to the report, yes or no?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: The “yeas” have it.
Now, colleagues, we have a number of observations; some are overlapping. Does the committee have any suggestions about how we approach these observations?
I can go through them.
Senator Batters: I have a suggestion: Because it’s only half an hour until we are scheduled to break for a couple of hours before the afternoon session, I don’t think we’re going to get through these observations in a half an hour. But maybe those who have done the observations could — before we resume at 2 p.m. — look at those areas where there is overlap and see if they can delete parts to help make it a more efficient use of our time when we return, so we’re not here for three hours debating observations.
The Chair: So you’re suggesting that the committee adjourn, but that those presenting observations stay and work with the clerk and the analyst to see if there’s a commonality —
Senator Batters: Yes.
The Chair: — and to see if they can be amalgamated or distilled in some way?
Senator Batters: Yes.
The Chair: Senators, are you in agreement with that concept?
Hon. Senators: Agreed.
The Chair: Colleagues, we’ll reconvene at two o’clock, in accordance with the agreement we’ve just had.
At this time, I’d like to thank the witnesses from the Department of Justice, Mr. Taylor and Ms. Levman, for their help, as well as all the other witnesses, Ms. Burt and the others, who came to testify. Your assistance has been very helpful. We’ve seen a lot of you in the last few weeks, certainly on Bill C-9 — the Human Rights Committee dealt with that matter — and certainly Bill C-14 and Bill C-16, all expedited. Your considerations and help have been very much appreciated. Thank you very much.
To my colleagues on the committee, I want to thank you for all the hard work you’ve done in the last few weeks on these bills. Uniformly, your interventions have been well thought out, well researched and well presented. I appreciate that. You make my job a lot easier having done that.
(The committee adjourned.)