The Liberal administration has introduced significant new legislation aimed at safeguarding victims and survivors of sexual and intimate partner violence, while also shielding children from predators.
Describing the Protecting Victims Act as “one of the most significant reforms of the Criminal Code in a generation,” the new law also seeks to overturn a 2016 Supreme Court decision that permits cases to be stayed due to excessive delays.
This legislation aims to impose harsher penalties for sexual offenses, including the distribution of intimate images, the creation of sexual deepfakes, and procuring sexual services from minors.
“With the introduction of the Protecting Victims Act, we have a chance to enhance the protection of children vulnerable to exploitation and address pressing issues of violence against women, including potentially lethal violence,” stated Justice Minister Sean Fraser during a press conference in Ottawa on Tuesday.
Justice Minister Sean Fraser announced the Protecting Victims Act on Tuesday which aims to protect children and survivors of sexual and intimate partner violence. The bill includes tougher penalties for sexual offenses such as distributing intimate images and sexual deepfakes.
The proposed law reinstates mandatory minimum sentences that had been ruled unconstitutional by the Supreme Court of Canada and provincial courts nationwide. These courts determined that such sentences breached Section 12 of the Charter due to the imposition of cruel and unusual punishment on offenders.
Officials, speaking on background, indicated that mandatory minimum sentences have historically violated Section 12 because of a judicial standard known as a reasonable hypothetical scenario. According to this standard, courts maintain that lacking the discretion to issue lighter sentences in exceptionally rare situations is unconstitutional. By allowing courts this limited flexibility, officials believe that mandatory minimum sentences will withstand future constitutional scrutiny.
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Under the Protecting Victims Act, if a conviction necessitates imprisonment, judges would have the option to impose a lighter sentence, though incarceration would still be required. However, in cases involving convictions for murder or treason, where life imprisonment is mandated, reduced sentences would not be allowed.
Should this legislation be enacted, it would reinstate all mandatory minimum sentences that have been invalidated by the courts but remain in the legal framework. Any mandatory minimums that have been abolished by Parliament would not be reinstated.
Protecting children online
Bill C-16 seeks to reinstate at least a dozen mandatory minimum penalties for those convicted of various sexual offenses against children, including the possession or access of child sexual abuse and exploitation materials.
These amendments follow a Supreme Court ruling in October which declared a one-year mandatory minimum sentence unconstitutional in two cases where men pleaded guilty to possessing hundreds of images depicting child abuse.
“Numerous occasions have arisen where the Supreme Court of Canada has invalidated similar penalties previously included in the Criminal Code,” Fraser remarked regarding the October ruling.
“We are advancing a strategy that will not only reinstate those penalties that have been nullified, but also safeguard the remaining mandatory minimums that have yet to be struck down but remain constitutionally at risk.”
Bill C-16 also aims to combat sextortion and the online luring of children by criminalizing even the threat of distributing intimate or child abuse images.
Additional proposed changes would facilitate the prosecution of offenders who sexually exploit children internationally, while also targeting criminal organizations that entice or groom minors to engage in unlawful activities on their behalf.
Intimate partner violence and femicide
The legislation addresses intimate partner violence by classifying hate-motivated murder as a first-degree offense, regardless of whether it was premeditated.
Cases of femicide, defined as the killing of a woman or girl, will be treated as first-degree murder even if the act was not premeditated, provided that it can be demonstrated that the victims endured a history of abuse or coercive control.
Following the announcement of new legislation aimed at protecting victims of intimate partner violence and sexual assault, Justice Minister Sean Fraser said the government plans to ‘advance measures’ to accelerate the criminal justice process with specific amendments for sexual assault trials.
The threshold for proving that level of abuse requires a court’s acknowledgment that a reasonable individual in similar circumstances would perceive the situation as one of control or abuse, rather than relying solely on the victim’s feelings regarding their experience.
The legislation will also introduce a new offense aimed at recognizing and addressing patterns of abusive or coercive behavior, allowing the justice system to intervene prior to escalation to violence.
Additionally, the law will modernize regulations regarding revenge porn. Government representatives noted that while it is already illegal to share intimate sexual images without consent, the forthcoming legislation will expand the law to encompass the use of deepfakes.
Tackling trial delays and stays
A 2016 Supreme Court ruling in R. v. Jordan established that criminal proceedings exceeding 18 months in provincial courts and 30 months in superior courts can be stayed if deemed unreasonably delayed.
Officials have indicated that the growing number of cases being stayed under the Jordan ruling has eroded public trust in the justice system.
The Protecting Victims Act aims to “provide clear directives to the courts on managing court delays, particularly in sexual assault cases, and clarify that a stay need not be invoked in the event of delays.”
Currently, cases may be prolonged beyond the Jordan timeframes if they are classified as complex, but the law lacks a definition of what constitutes complexity.
The Protecting Victims Act will delineate criteria for what qualifies as a complex case, which may involve factors such as the number of motions and applications submitted that contribute to delays.
The legislation will also mandate that courts explore alternatives to staying trials that exceed the Jordan time limits.
Making it easier for victims to testify
In a recent report, Canada’s victims of crime advocate Benjamin Roebuck criticized the legal framework in Canada for causing further trauma to victims of sexual abuse when they seek justice.
The report urged the federal government to impose stricter conditions on defense attorneys attempting to access an alleged victim’s therapeutic records, including personal emails, journals, and medical or psychiatric documents.
The Protecting Victims Act pledges to raise the criteria for obtaining such records and to protect personal communications between the accused and the alleged victim.
Bill C-16 also addresses the report’s recommendations by making testimonial aids, such as allowing a friend to accompany a witness or enabling them to testify behind a screen, accessible without needing prior court approval.
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