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)

Tabled in the House of Commons, February 27, 2026

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-16 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:

• Freedom of expression (section 2(b))
  Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It includes the “open court principle” whereby members of the public have a right to receive information pertaining to judicial proceedings.
• Right to liberty (section 7)
  Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose. Offences that carry the possibility of imprisonment have the potential to deprive liberty and so must accord with the principles of fundamental justice.
• Right against unreasonable search and seizure (section 8)
  Section 8 of the Charter protects against “unreasonable” searches and seizures. The purpose of section 8 is to protect individuals against unreasonable intrusion into a reasonable expectation of privacy. A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it is authorized by a law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being pursued), and it is carried out in a reasonable manner. The assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.
• Right to trial within a reasonable time (section 11(b))
  Section 11(b) of the Charter guarantees to anyone charged with an offence the right to be tried within a reasonable time.
• Right to a fair trial and to make full answer and defence (sections 7 and 11(d))
  Together, sections 7 and 11(d) of the Charter protect the right of persons charged with an offence to a fair trial and to make full answer and defence. This includes a right to engage in a full cross-examination of Crown witnesses, without significant and unwarranted constraint.
• Cruel and unusual treatment or punishment (section 12)
  Section 12 of the Charter guarantees that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments.
• Equality rights (section 15 of the Charter)
  Section 15(1) Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of age and mental or physical disability. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration.

Inviting, counselling or inciting exposure of sexual organs

The bill would amend three existing sexual offences – invitation to sexual touching, sexual exploitation, and sexual exploitation of a person with a disability – to include inviting, counselling or inciting the victim to expose their own sexual organs. Currently, these offences only capture inviting, counselling or inciting the victim to touch their body or another person’s body.

These three offences are all punishable by a term of imprisonment. As a result, they engage the right to liberty and must be consistent with the principles of fundamental justice to comply with section 7 of the Charter.

The following considerations support the consistency of the proposed amendments with section 7. The expanded offences would capture conduct that is harmful and sexually exploitative, even where there is no physical contact. The offences would apply only where the perpetrator invites, counsels or incites the victim to expose their sexual organs for a sexual purpose. This requirement excludes situations where a person is invited to expose their sexual organs for a non-sexual reason, such as legitimate medical or hygiene purposes.

Bestiality representations

Section 160 of the Criminal Code prohibits the commission of bestiality, which is defined as any contact, for a sexual purpose, with an animal. The bill would introduce a new offence of knowingly publishing, distributing, transmitting, selling, making available or advertising any visual representation that is or is likely to be mistaken for a photograph, film, video or other visual recording of a person committing bestiality.

As this provision limits the communication of expressive content, it engages freedom of expression protected by section 2(b) of the Charter. In addition, because this offence would be punishable by up to five years imprisonment, it engages the right to liberty and must be consistent with the principles of fundamental justice to comply with section 7 of the Charter.

The following considerations support the consistency of this offence with sections 2(b) and 7. The provision serves to protect animals and children from the harms caused by the distribution of visual representations of bestiality. Animals are harmed in the production of visual representations of bestiality, and making these materials available may lead to greater rates of offending. Harms also include the use of visual representations of bestiality in the sexual exploitation of children, in particular to manipulate them for sexual purposes. The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression. Visual representations of bestiality lie far from the core of the free expression guarantee, meaning limitations on this kind of expression may be more easily justified under the Charter. The new offence is tailored to its objective, applying only to the distribution of visual representations of bestiality that are real or likely to be considered real. The offence would be subject to a defence in cases where the conduct serves the public good, such as distribution by people within the justice system for purposes associated with prosecution or by researchers studying the effects of exposure to bestiality representations.

Intimate images – deepfakes

Section 162.1 of the Criminal Code prohibits the non-consensual distribution of intimate images. Amendments would amend the definition of “intimate image” in section 162.1 to include a visual representation, made by electronic or mechanical means, that shows an identifiable person who is depicted as nude, as exposing their sexual organs or as engaged in explicit sexual activity, if the depiction is likely to be mistaken for a visual recording of that person. As this provision limits the distribution of expressive content, it engages freedom of expression guaranteed by section 2(b) of the Charter.

The following considerations support the consistency of these amendments with the Charter. The harm to victims that arises from the distribution of deepfake intimate images is similar to that arising from distribution of real intimate images. The definition is carefully tailored in that it does not cover images that are not of an identifiable person (i.e. that are of a fictitious person), or depictions that aren’t likely to be mistaken for real ones. The amended offence, like the current offence, would be subject to a defence in cases where the conduct serves the public good.

Intimate images – threats

The bill would introduce a new offence of threatening, with the intent to intimidate or be taken seriously, to publish, distribute, transmit, sell, make available or advertise an intimate image without the consent of the person depicted in it. Because this offence would be punishable by up to 10 years imprisonment, it engages the right to liberty and so must be consistent with the principles of fundamental justice in order to comply with section 7 of the Charter.

The following considerations support the consistency of this offence with section 7. The offence is worded in a manner that captures only conduct that addresses the harm caused by threats to distribute intimate images, including but not limited to cases of sexual extortion. The offence would also be subject to the same “public good” defence as the current offence of non-consensual distribution of intimate images, ensuring that conduct that serves the public good would not be criminalized. For example, the public good defence could potentially apply in the case of transmission of images to police for investigation purposes.

Child Sexual Abuse and Exploitation Material – Threats

The bill would introduce a new offence of threatening, with the intent to intimidate or be taken seriously, to publish, distribute, transmit, sell, make available or advertise child sexual abuse and exploitation material. Because this offence would be punishable by up to 10 years imprisonment, it engages the right to liberty and so must be consistent with the principles of fundamental justice in order to comply with section 7 of the Charter.

The following considerations support the consistency of these amendments with the Charter. The offence is worded in a manner that captures only conduct that addresses the harm caused by threats to distribute child sexual abuse and exploitation material, including but not limited to sexual extortion. The offence would be subject to the existing defence in section 163.1(6) of the Criminal Code, which applies if the act both has a legitimate purpose related to the administration of justice or to science, medicine, education or art, and does not pose an undue risk of harm to persons under the age of eighteen years. This defence could be applicable, for example, in cases of transmission to police for investigation purposes.

Recruiting a young person to participate in offences

Bill C-16 would create a new offence of recruiting, counseling, encouraging or inviting a young person to be a party to an offence under the Criminal Code or the Controlled Drugs and Substances Act. The offence would apply to persons in a position of trust, power or authority towards a young person and would specify that a person who is 18 years of age or older is, by virtue of that fact, considered to be in a position of trust, power or authority. Because the proposed offence is punishable by imprisonment, it engages the right to liberty under section 7 and must be consistent with the principles of fundamental justice.

The following considerations support the consistency of the offence with the Charter. The proposed youth recruitment offence is tailored to its objectives and targets a narrow category of harmful conduct in relation to young persons. A person could not be convicted of this offence unless they knew that the person they were recruiting, counseling, encouraging or inviting was under 18 or were reckless as to that fact.

The proposed offence also may engage equality rights under section 15 of the Charter because persons over 18 would, by virtue of their age, be considered to be in a position of trust, power or authority.

The following considerations support the consistency of the proposed offence with section 15 of the Charter. Courts have recognized that age-based distinctions are a common and necessary way of ordering our society. Persons who have reached the age of 18 are generally recognized as fully responsible actors in the legal system. The proposed offence seeks to protect young persons, who are more vulnerable and less mature, by imposing heightened responsibilities on adults in their dealings with them.

Extortion of a sexual nature or for a sexual purpose

The bill would expand the offence of child luring in paragraph 172.1(1)(a) of the Criminal Code, which prohibits communicating with a person under 18 (or a person the accused believes is under 18), by means of telecommunications, for the purpose of facilitating another specified offence. The bill would add extortion to the list of specified offences, where the perpetrator’s conduct is of a sexual nature or for a sexual purpose. Child luring is punishable by up to 14 years imprisonment and is designated as a “primary” offence within the sex offender information registration regime. The expanded offence therefore engages the liberty interest protected under section 7 of the Charter, and as a result, must comply with the principles of fundamental justice.

The following considerations support the consistency of the proposed amendments with section 7. The modified offence is tailored to address the objective of protecting children from online sexual exploitation. This includes sexual extortion – for instance, where a person extorts or attempts to extort money, further sexual images or sexual activity by threatening to distribute intimate images of the victim. The offence would not apply where the perpetrator communicates with a child in order to facilitate non-sexual extortion, such as purely monetary threats where no sexual images or sexual activity are involved.

Murder – femicide, including of intimate partner, and other aggravated circumstances

The bill would amend section 231 of the Criminal Code, which classifies murder into first- and second-degree murder, by adding a new subsection described as “Femicide, including of intimate partner, and other aggravated circumstances.” The provision would stipulate that, irrespective of whether murder is planned and deliberate, it is to be treated as first-degree in four new circumstances. First, the provision would apply to the murder of an intimate partner who was subjected to a pattern of coercive or controlling conduct, where the perpetrator intended to cause the victim to believe their physical or psychological safety was threatened. Second, the provision would apply when the perpetrator murdered the victim while controlling, directing or influencing the victim’s movements with the intent to exploit them, within the meaning of the human trafficking provisions in the Criminal Code. Third, the provision would apply when the perpetrator murdered the victim while committing or attempting to commit any offence of a sexual nature or for a sexual purpose. Finally, the provision would apply when the perpetrator committed murder while motivated by hate based on “colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

Both first-degree and second-degree murder carry a mandatory sentence of life imprisonment, but people convicted of first-degree murder are not eligible to apply for parole until they have served 25 years in custody. By contrast, sentencing courts have discretion to set the parole ineligibility period for people convicted of second-degree murder between 10 and 25 years (unless the individual was previously convicted of murder). These amendments would, in certain cases, affect an offender’s liberty by requiring a longer period of imprisonment, and thus would engage section 7 and may engage section 12 of the Charter.

The following considerations support the consistency of the amendments with the Charter. The Supreme Court of Canada has recognized that Parliament is entitled to identify certain classes of murder as particularly blameworthy and deserving of strong societal condemnation. The Court has upheld existing provisions that deem murder to be first-degree murder when it is committed in connection with “crimes of domination” such as kidnapping and forcible confinement. A similar rationale would underpin the amendments regarding murder of an intimate partner committed during or after engaging in a pattern of coercive or controlling conduct, murder committed in the context of human trafficking, and murder committed in the context of a sexual offence. These three circumstances all involve unlawful control, or attempts to exercise unlawful control, over the victim. The amendments proposed in the bill would reflect Parliament’s judgement that committing murder in such circumstances involves an added degree of moral culpability and therefore merits the most severe punishment in Canadian criminal law.

Similarly, the amendment regarding hate-motivated murder reflects an equally important objective. It would align with the principle, already codified in the Criminal Code, that evidence that an offence was motivated by bias, prejudice or hate based on protected characteristics is an aggravating factor upon sentencing. Hate-motivated murders strike at the community’s sense of safety in a particularly grievous and destabilizing way, sending the message that some people are less safe because of their sex, race, religion, sexual orientation or other factors. Parliament’s decision to designate these murders as first-degree murder recognizes their particular seriousness.

Criminal harassment

The bill would amend the offence of criminal harassment under section 264 of the Criminal Code. Currently, the offence requires the Crown to prove that the conduct of the accused caused the victim to fear for their safety (or the safety of someone they know) and that the victim’s fear was reasonable in all the circumstances. The bill would modify this by requiring the Crown to prove only that the perpetrator’s conduct could reasonably be expected to cause the victim to believe that their safety (or the safety of someone they know) was threatened. The bill would also clarify that criminal harassment can occur through the use of digital communications; can include monitoring the victim’s location, movements, actions or social interactions; and can involve threats to the victim’s animals or pets. Because criminal harassment can be punished by up to 10 years imprisonment, the proposed amendments engage the right to liberty under section 7 of the Charter. The following considerations support the consistency of this amendment with section 7.

The offence would be well-defined and tailored to the objective of prohibiting stalking and related conduct. It would only apply where the perpetrator intended to harass the victim (or they were reckless as to whether they could be harassing another person) by engaging in conduct that a reasonable person would perceive as threatening, either to their personal safety or the safety of someone they know. These requirements ensure that the offence does not capture conduct that is harmless, non-threatening or consensual, such as using technology to share one’s whereabouts with a friend or loved one.

Coercion or control of intimate partner

The bill would introduce a new offence prohibiting coercive or controlling conduct. The offence would capture circumstances where an individual engages in a pattern of coercive or controlling conduct against an intimate partner. Coercive or controlling conduct would be defined as a combination or repeated instances of violent conduct, sexually coercive conduct or conduct that would reasonably be expected to cause the intimate partner to believe their physical or psychological safety is threatened. Violent conduct includes actual, attempted or threatened violence against the intimate partner or a child of the intimate partner, another person known to the intimate partner, or an animal in the care of the intimate partner. Sexually coercive conduct includes actual or attempted coercion of the intimate partner to engage in sexual activity. Other conduct specified in the offence involves the individual controlling or attempting to control various aspects of the intimate partner’s life, including social interactions, communications, childcare decisions, employment, education, finances, property, physical appearance, access to health services or medication, expression of opinions, engagement with linguistic or cultural communities, or by threatening suicide or self-harm, if that conduct could reasonably be expected to cause the victim to believe that their safety, or the safety of anyone known to them, is threatened. The new offence would also become subject to the interception of private communications regime and the forensic DNA analysis regime, be added as a “secondary offence” within the sex offender information registration regime, and would be punishable by imprisonment. Because of the potential for imprisonment and sex offender registration, the new offence and related amendments engage the liberty interest protected by section 7 of the Charter.

The following considerations support the offence’s consistency with section 7. The offence captures conduct defined by objective indicators such as violence, sexual coercion, and other controlling behaviour which could reasonably be expected to threaten physical or psychological safety. The offence includes clear mental elements, applying only where an accused engages in specific conduct with the intent to cause, or is reckless as to whether they would cause, the intimate partner to believe their safety was threatened. The offence would not apply to isolated incidents or controlling conduct which did not amount to a pattern of behaviour threatening the intimate partner’s safety. In addition, the following considerations support inclusion of the offence within the sex offender information registration regime as consistent with section 7. As a “secondary” designated offence, the prosecutor would be required to establish beyond a reasonable doubt that the accused person committed the offence with the intent to commit a “primary” offence, such as sexual assault. Any requirement for an offender to comply with the Sex Offender Information Registration Act would be pursuant to a court order.

The proposed designation of the new offence within the interception of private communications regime and the forensic DNA analysis regime may engage the protection against unreasonable search or seizure under section 8 of the Charter. The following considerations support the consistency of these inclusions with section 8. Existing protections contained in these regimes would continue to apply. This would include the requirement for judicial authorization before intercepting private communications or to take bodily samples for the purpose of forensic DNA analysis, thus meeting the requirements under section 8 for a search or seizure to be reasonable.

Sexual Activity Evidence Regime and Records Regime

The bill would amend the Criminal Code scheme governing the admissibility of a complainant’s sexual activity evidence (“sexual activity evidence regime”). Sexual activity evidence for the purposes of the admissibility regime relates to any evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, but does not concern the sexual activity that forms the subject matter of the criminal charge against the accused. Proposed amendments to the sexual activity evidence regime include: clarifying the relevant admissibility thresholds that apply to the accused and the prosecutor; setting out the applicable procedure for admitting sexual activity evidence for the accused and prosecutor; increasing the notice period from seven days to 60 days for admissibility applications; and creating a new joint application procedure for determining the admissibility of sexual activity evidence.

The bill would also make changes to the Criminal Code scheme governing the production and admissibility of records (“records regimes”). Proposed amendments to the records regime include: creating a new authority for the prosecutor to disclose certain records to the accused; introducing a new definition of “therapeutic records”; establishing a higher threshold for the production and admissibility of therapeutic records; increasing the notice period from seven days to 60 days for admissibility applications; and creating a new joint application procedure for determining the admissibility of records.

In addition, the bill would amend the National Defence Act to make similar amendments to those in the Criminal Code in relation to the sexual activity evidence and records regimes with some appropriate modifications. The proposed amendments seek to streamline, strengthen and clarify the procedural rules in sexual offence trials that govern when evidence of a complainant’s past sexual activity can be used, and when their private records, including therapeutic records, can be produced or used. For instance, the amendments would clarify that the sexual activity evidence regime and records regimes also apply to any Criminal Code offence that is of a sexual nature or that is committed for a sexual purpose.  Proposed amendments that have potential Charter effects are discussed further below.

a) Third Party Therapeutic Records

The bill would amend the regime governing the production and admissibility of records and therapeutic records in sexual offence prosecutions. The current definition of “record” in s. 278.1 of the Criminal Code would be amended to remove reference to psychiatric, therapeutic and counselling records and to create a separate definition of “therapeutic record”, defined as any record produced in the course of psychiatric treatment or any therapy or counselling provided by a qualified healthcare practitioner. Such records in relation to a complainant or witness which are in the possession of a third party can only be produced or admitted in accordance with this regime. Under the present regime, an accused person is required to apply for the production of such records and, following a private hearing, production to the court for review may occur where the court is satisfied the record is likely relevant to an issue at trial or the competence of a witness to testify. Under the amended regime, production of a therapeutic record to the court for review would only occur if the court were satisfied that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused person’s guilt. This higher threshold would also apply before any subsequent production of therapeutic records to the accused person or the admission of therapeutic records into evidence at trial. Because these amendments would limit the types of evidence that may be admitted in a criminal trial, they may engage the right of an accused person to a fair trial and to make full answer and defence as protected under sections 7 and 11(d) of the Charter.

The following considerations support the consistency of the proposed provisions with the Charter. The Supreme Court of Canada has upheld the current records regimes as consistent with the Charter. The proposed amendments would preserve the features of the production and admissibility regime that allow the accused to present evidence relevant to their defence, while also accounting for the interests of complainants and witnesses, in particular the privacy  interests attaching to private therapeutic records.

b) Prosecutor’s Authority to Disclose Records to Accused

The bill would create a new authority for the prosecutor to disclose to the accused: (a) a record or part of a record if the prosecutor intends to use it in court or if it directly relates to the subject matter of the charge against the accused; (b) a record or therapeutic record or part of it if the complainant or witness to whom the record relates agrees to its disclosure to the accused; and (c) any communication between the accused and the complainant. The prosecutor must notify the accused of any records within its possession that are not being disclosed to the accused.  The accused must then follow the applicable rules for seeking the production of records. In addition, the normal rules governing the admissibility of records and therapeutic records would still apply. In allowing for the disclosure of information to the accused which may interfere with a person’s reasonable expectation of privacy, such as private communications between the accused and complainant, the new disclosure authority may engage section 8 of the Charter.

The following considerations support the consistency of the proposed amendments with section 8. The amendments would enable prosecutors to disclose certain information within its possession to the accused in circumstances where the information would be relevant to the accused’s trial. Accordingly, the amendments are intended to facilitate the accused’s right to make full answer and defence protected under sections 7 and 11(d) of the Charter while minimizing delays associated with the need for the accused to separately apply for the production of records. While therapeutic records can be highly private and sensitive in nature, such records may only be disclosed under the new authority if the complainant or witness to whom the record relates specifically consents to the disclosure of them to the accused. Furthermore, even where certain records are disclosed to the accused under the new authority, their admissibility in the trial would be subject to the court’s review based on the applicable admissibility criteria. The statutory factors a judge must consider when determining the admissibility of records include prejudice to the complainant’s personal dignity and right of privacy.

c) Admissibility Thresholds of Sexual Activity Evidence

The bill would amend subsection 276(2) of the Criminal Code to clarify the relevant admissibility thresholds that apply to sexual activity evidence depending on who is seeking to use it. If the evidence is sought to be used by or on behalf of the accused, it must have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. If the evidence is sought to be used by or on behalf of the prosecutor, it must have “probative value that is not outweighed by the danger of prejudice to the proper administration of justice.” Currently, subsection 276(2) only sets out the admissibility threshold that applies where the accused is seeking to admit sexual activity evidence. The proposed amendments setting out different admissibility thresholds that apply to the accused and prosecutor may engage the accused’s right to a fair trial protected under section 7 and section 11(d) of the Charter.

The following considerations support the consistency of the amendments with these provisions. The two admissibility standards directly reflect the Supreme Court of Canada’s findings in several decisions. The admissibility standard that applies to the accused (“has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”) has been upheld by the Supreme Court as respecting an accused’s right to a fair trial and right to make full answer and defence under section 7 and section 11(d) of the Charter. The Supreme Court has also found that the normal standard governing the admission of Crown-led evidence should apply: where the prejudicial effect of the evidence outweighs its probative value. The bill’s description of the admissibility threshold that applies to the prosecutor (“has probative value that is not outweighed by the danger of prejudice to the proper administration of justice”) reflects this accepted standard.

d) Procedure for Prosecutor to Admit Sexual Activity Evidence

The Supreme Court of Canada in R. v. Kinamore recently found that the current procedure in subsections 278.93-278.94 of the Criminal Code that applies to the accused when seeking to determine the admissibility of sexual activity evidence also applies to the prosecutor, with some necessary modifications. This decision was intended to address uncertainties on the specific rules that apply to the prosecutor and to facilitate consistency and predictability in the management of sexual offence trials. The bill would reflect some of the findings in Kinamore while seeking to create a more simplified procedure.  A key difference between the procedures that apply to the prosecutor and accused is the number of hearings that may be held. The procedure for the prosecutor proposed in the bill would provide for only one hearing in which the admissibility determination is made. The procedure for the accused allows for the possibility of two hearings – a preliminary hearing (for instance, to assess whether the evidence is capable of being admissible) and a subsequent hearing to determine the admissibility of the evidence. The proposed amendments in the bill would also clarify that a prosecutor’s application need not be supported by “any affidavit or oral testimony of the complainant or of any other person with knowledge of the complainant’s sexual history, any transcript from any preliminary inquiry or any sworn police statement.” In creating a simplified procedure that applies to prosecutors when seeking to admit sexual activity evidence, the proposed amendments may engage the accused’s right to a fair trial protected under section 7 and section 11(d) of the Charter.

The following considerations support the consistency of the amendments with these provisions of the Charter. The procedure for the prosecutor preserves key requirements that would apply to the accused, such as the need to file a written application with the court which outlines the specific evidence in question and its relevance to an issue at trial at least 60 days before the day of the hearing (or shorter time period set by the judge or justice). In addition, a hearing would still be required for the judge or justice to determine the admissibility of the evidence. The amendments promote the legislative objective of addressing delays and enhancing efficiencies in sexual offences trials by removing the possibility of holding two hearings when the prosecutor seeks to admit sexual activity evidence. Furthermore, the amendments which clarify that prosecutors need not provide certain types of evidence in support of its written application (such as the complainant’s oral testimony) does not remove the need for some evidentiary basis to support the application. This clarifying amendment is intended to remove the need to provide categories of evidence that do not align with a trauma-informed approach to prosecuting sexual offences or are not readily available in sexual offence proceedings.

e) Joint Applications to Determine Admissibility of Evidence

The bill would create new procedures that enable the prosecutor, the accused and the complainant to apply jointly to admit sexual history evidence or private records where they agree that the evidence is admissible.  The application must be: made in writing; signed by all three applicants; set out the specific evidence in question; identify its relevance to an issue in trial; explain how the conditions for the admissibility of the evidence in question are satisfied; and outline any information they consider is necessary to assist the judge or justice in making the admissibility determination.

The applicants must file a copy of the application with the court at least 60 days before the date of the trial. The judge or justice must then decide whether to admit the evidence, based on that application, or hold a hearing to determine admissibility within 30 days of the application being filed. This would ensure sufficient time to resolve the admissibility issue prior to trial, which would minimize the likelihood of an adjournment and delay. Encouraging such applications to be adjudicated on a pre-trial basis whenever possible is consistent with the Supreme Court of Canada’s guidance regarding the appropriate timing of these applications within the sexual activity evidence and records regimes.  Reasons for the admissibility determination must be given which identify: (a) the part of evidence that is to be admitted if not all of the evidence is to be admitted; (b) the factors in subsection 276(3) or subsection 278.29(3) that affected the determination; and (c) the manner in which the evidence is expected to be relevant to an issue at trial. The joint application will be granted without a hearing if the judge or justice is satisfied that the evidence in question is admissible. Otherwise, a hearing must be held in order for the judge or justice to determine the admissibility of the evidence. By placing rules on how an accused may seek to use evidence in their criminal trial, the proposed amendments may engage the accused’s right to make full answer and defence protected under section 7 and section 11(d) of the Charter.

The following considerations support the consistency of the amendments with these provisions. The proposed amendments would not change the relevant admissibility criteria for sexual activity evidence or records nor make it more challenging for an accused to obtain admissibility determinations in relation to this type of evidence. Rather, the amendments seek to create a simplified procedure in which the court can make admissibility determinations based on a joint written application without the need for a hearing, thereby facilitating the accused’s right to full answer and defence. If the court is not satisfied that it can determine the admissibility of the evidence based solely on the application, the amendments provide that the court may hold a hearing to assist in making the determination.

f) Private Hearings and Publication Bans

The measures in the bill that provide for private hearings and publication bans under the sexual activity evidence regime and records regime are not new in that they would re-enact existing rules that appear in these two schemes. The bill would provide that applications for a hearing brought by an accused to determine the admissibility of sexual activity evidence, records or therapeutic records must be considered in camera or private, which means in the absence of the jury and public including the media. A hearing that is held to determine the admissibility of these types of evidence must also be conducted in private. In addition, hearings that are held to assist a judge in deciding whether to order the production of a record or therapeutic record to the court for review are to be done privately. The judge may also choose to hold a hearing in private to decide whether to produce the record or therapeutic record to the accused.

The bill would also include measures to prohibit a person from publishing, broadcasting or transmitting in any way the:

• contents of applications made under the sexual activity evidence and record regimes;
• any evidence taken, the information given and the representations made at applications or hearings held under the sexual activity evidence and record regimes; and
• the decisions made and reasons given by a judge or justice in relation to the admissibility of sexual activity evidence or the production and admissibility of records and therapeutic records, unless the decision is that this type of evidence is admissible or after considering the complainant’s right to privacy and interests of justice, the judge or justice orders that their decision and reasons may be published, broadcasted or transmitted.

The measures in the bill that provide for private hearings and publication bans engage the open court principle under section 2(b) by permitting the exclusion of the public and media from judicial proceedings and limiting access to information pertaining to such proceedings.

The following considerations support the consistency of these measures with section 2(b) of the Charter. The open court principle may be limited where there are pressing state objectives, such as to protect a person’s privacy or safety. The Supreme Court of Canada has recognized that court openness during sexual history evidence admissibility proceedings poses a serious risk to the important societal objective of protecting a complainant’s privacy and dignity interests. The exclusion of the public and jury from these proceedings is necessary to prevent the risks of exposing irrelevant and highly private information about complainants. Similar considerations apply in the case of private records. Private hearings and publication bans also advance the important public interest of encouraging victims to report sexual offences without suffering negative consequences associated with their sexual history evidence and private records being made public. Furthermore, the publication bans are not absolute. Decisions or reasons arising from the sexual activity evidence and records proceedings may be published where the evidence is determined to be admissible or where the judge or justice orders that their decision and reasons may be published upon considering a complainant’s rights to privacy and the interests of justice.

g) Offence for Contravening Publication Bans

The bill would re-enact existing summary conviction offences under the Criminal Code for the failure to comply with publication bans imposed under the sexual activity evidence and private records regimes.  These offences are subject to a penalty of a fine of not more than $5,000 and/or a term of imprisonment of not more than two years less day. Because the offence is punishable by imprisonment, it engages the right to liberty under section 7 of the Charter. Accordingly, in order to conform with section 7 of the Charter, the offence must be consistent with the principles of fundamental justice, including those against arbitrariness and overbreadth.

The following considerations support the consistency of the offence with section 7 of the Charter. Publication bans issued under the sexual activity evidence regime and records regime promote the important public interest of protecting a complainant’s privacy and dignity. The offence for contravening a publication ban is directly related to this objective by providing an enforcement mechanism if a person fails to respect the publican ban. Furthermore, the offence preserves the discretion of trial judges to impose a fit and appropriate sentence.

Testimonial Aids

Section 486.1 of the Criminal Code requires a judge or justice to order, on application by a prosecutor or witness, in the case of a witness who is under 18 years of age or who has a mental or physical disability, that a support person of the witness’s choice be permitted to be present and close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. “Support person” has in some cases been interpreted to include support animal. The bill would amend this provision to clarify that support animals are also covered by this provision, and would also extend the provision to witnesses, regardless of age or disability, who are victims in proceedings in respect of certain offences. These offences include any offence that is of a sexual nature or committed for a sexual purpose, any offence that is related to criminal harassment or trafficking in persons or any offence in the commission of which violence was used, threatened or attempted against the accused’s intimate partner. Since these provisions govern the conduct of trials, they may engage the right to a fair trial protected by sections 7 and 11(d) of the Charter.

The following considerations support the consistency of these amendments with the Charter. The clarification regarding support animals codifies existing practice which has been accepted by the courts. The application of this provision to certain adult victims reflects the fact that these offences inherently involve elements of power and control over victims, which generally makes it more difficult for such victims to testify. This approach recognizes that testifying can cause further trauma to victims and witnesses. The presumptive availability of support persons and support animals can help in the court’s truth-seeking function by facilitating testimony. While these orders would be presumptively available, the court would retain the discretion to refuse them where they would interfere with the proper administration of justice.

Testimony outside courtroom

Section 486.2 of the Criminal Code requires a judge or justice to order, on application by a prosecutor or witness, in the case of a witness who is under 18 years of age or who has a mental or physical disability, that the witness testify from outside the courtroom or from behind a screen, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice. The bill would clarify that the choice of testimony from outside the courtroom or behind the screen is at the option of the witness. It would also extend this provision to witnesses, regardless of age or disability, who are victims of the types of offences discussed in the preceding section of this Charter Statement. Since these provisions govern the conduct of the trial, they may engage the right to a fair trial protected by sections 7 and 11(d) of the Charter.

The following considerations support the consistency of these amendments with the Charter. Giving the witness the choice of testifying from outside the courtroom or from behind a screen would help ensure that the witness has access to the aid most suited to their needs. The application of this provision to certain adult victims reflects the fact that these offences inherently involve elements of power and control over victims, which generally makes it more difficult for such victims to testify. This approach recognizes that testifying can cause further trauma. The presumptive availability of testimony from outside the courtroom or behind a screen can help in the court’s truth-seeking function by facilitating testimony. While these orders would be presumptively available, the court would retain the discretion to refuse them where they would interfere with the proper administration of justice.

Accused not to cross-examine victim

Subsection 486.3(2) of the Criminal Code requires a judge or justice, on application by a prosecutor or witness, in the case of a witness who is a victim of certain enumerated offences, to order that the accused not cross-examine the witness – in which case the judge or justice must appoint counsel to conduct the cross-examination. This is subject to an exception where the judge or justice is of the view that the proper administration of justice requires that the accused personally cross-examine the witness. The bill would amend this provision to replace the reference to specific offences with a broader reference to any offence that is of a sexual nature or committed for a sexual purpose, any offence that is related to criminal harassment or trafficking in persons or any offence in the commission of which violence was used, threatened or attempted against the accused’s intimate partner. Since these provisions govern the conduct of a trial, they may engage the right to a fair trial protected by sections 7 and 11(d) of the Charter.

The following considerations support the consistency of these amendments with the Charter. Preventing the accused from personally cross-examining the witness can facilitate the court’s truth-seeking function by reducing the possibility that the witness could be deterred from testifying because of the potential to be re-traumatized, or that the accused’s personal cross-examination could intimidate the witness with respect to the content of the testimony. The extension of this provision to the types of offences described reflects that such offences inherently involve elements of power and control over victims and that permitting accused persons to personally cross-examine victims could further this dynamic and re-traumatize victims. The safeguards that currently exist would continue, namely the exception where personal cross-examination is in the interests of justice, and the requirement that the judge or justice appoint counsel to conduct the cross-examination.

Further Detention of Things Seized

The bill also includes proposed amendments to s. 490 of the Criminal Code with respect to items seized by law enforcement. The proposed amendments would exclude computer data from the Criminal Code provisions governing the detention, retention, return or disposal of objects seized by a peace officer. The proposed amendments would also permit the justice who receives an application for initial detention following seizure to order seized objects detained for a longer period – up to 180 days.  The retention of seized items engages the protection against unreasonable search or seizure under section 8 of the Charter.

The following considerations support the consistency of the measures with section 8. Retention and disposal of seized computer data would still be governed by safeguards at the warrant stage under the Criminal Code including judicial authorization and any conditions that the issuing judge thinks are appropriate for the specific search of the data. The extension of the initial detention period for seized items would better align with the timelines required for modern evidence gathering techniques such as forensic examination, which can be complicated and time-consuming. It would also be in line with other seizure regimes under the Criminal Code, in particular the six month detention period for seized proceeds of crime pending application for forfeiture. Lawful owners or possessors of items would still be entitled to make applications for return of their seized property at any time.

Unreasonable Delay

The bill sets out a legislated framework for the granting of stays of prosecutions by courts in cases of unreasonable delay, providing that courts must not stay proceedings for reason of unreasonable delay except in accordance with this framework. The framework includes:

• factors relating to the consideration of alternative remedies;
• the consideration of factors that contribute to case complexity in cases involving applications or motions;
• the treatment of delays caused by late applications regarding certain evidence in sexual offence proceedings; and
• the treatment of delays caused by objections to disclosure of evidence on public interest or national security grounds.

To the extent that these amendments require trials to continue beyond the point where a judge might otherwise find the delay to have become unreasonable, they may engage section 11(b) of the Charter.

a) Alternative remedies

The bill would require courts to refrain from ordering a stay for reasons of delay unless they are satisfied that no other remedy would be appropriate and just in the circumstances. The bill would also list a number of factors to be considered when making this determination.

The following considerations support the consistency of this amendment with the Charter. The amendments do not preclude courts from issuing stays, but require courts to turn their mind to whether other remedies would be appropriate and just in the circumstances of the particular case, effectively treating stays as a remedy of last resort. The proposed test is consistent with jurisprudence from other Chartercontexts on when stays are appropriate and just remedies under section 24(1) of the Charter. Further, the proposed amendment reflects the Supreme Court of Canada’s general approach to Charter remedies, which stresses that section 24(1) is a broad, flexible grant of discretion that requires a court to fashion a remedy tailored to the facts and circumstances of the particular case. The amendments serve the objective of ensuring that society’s interest in trials on the merits is considered, along with any potential prejudice against the accused, when a court is considering whether to stay proceedings.

b) Case complexity

Amendments would require courts, in determining whether there has been unreasonable delay for the purposes of granting a stay, to consider whether there are any relevant factors that contributed to making the case complex. In cases involving applications or motions, courts would be specifically required to consider the number of applications or motions, whether these required scheduling court dates separately and in advance of trial dates, whether these resulted in periods of delay between court dates, the amount of court time taken to hear these applications or motions, the need for trial continuation dates where applications or motions required more time than anticipated or were not scheduled in advance of trial, and any factor that the court finds relevant in assessing the complexity of the applications or motions.

The following considerations support the consistency of these amendments with the Charter. The amendments do not interfere with the court’s calculation of delay. Rather, they require the court to turn its mind to factors that are relevant when assessing whether delay is unreasonable in a particular case. The factors identified are ones that, depending on the circumstances, reflect either the inherent time requirements of the case given the complexities of criminal law, or defence- or crown-caused delay. The factors properly place scrutiny on applications and motions as a potential source of delay.

c) Late applications in sexual offence proceedings

Amendments would require courts to exclude certain periods of time in sexual offence proceedings when calculating whether delay is unreasonable for the purposes of considering whether to issue a stay. Specifically, for applications relating to admissibility of sexual history evidence, or admissibility or production of therapeutic records, under sections 276.01, 278.12, 278.21 or 278.3 of the Criminal Code, time periods attributable to the failure to file or serve (as the case may be) applications within the specified timeframe of 60 days before trial would be excluded from the calculation. These time periods would include, for example, time taken to hear the application as well as time taken up by the need to adjourn proceedings.

The following considerations support the consistency of these amendments with the Charter. These amendments would support the 60-day timeframes that are built into the new regime proposed in the bill for admissibility of these types of evidence. These applications, although necessary for the proper balancing of the interests of complainants and accused, can be complex and time-consuming. The amendments properly incentivize defence counsel to file these applications in a timely manner, so as to minimize the degree to which the hearing of these applications causes delay in the proceedings. The importance of timely filing of applications has been recognized in Supreme Court of Canada caselaw.

d) Objections under the Canada Evidence Act and the Canadian Security Intelligence Service Act

Amendments would require courts, in determining whether there has been unreasonable delay for the purposes of granting a stay, to exclude periods of time required for dealing with objections to disclosure of evidence under sections 37 and 38 of the Canada Evidence Act, as well as section 18.1(4) of the Canadian Security Intelligence Service Act. These provisions govern the disclosure of, respectively, information that should not be disclosed on the grounds of a specified public interest; information that should not be disclosed for reasons of international relations, national defence or national security, and information that could reveal the identity of CSIS human sources.

The following considerations support the consistency of these amendments with the Charter. Applications under these provisions are important in order to ensure that, in every case, the accused’s fair trial rights are balanced against the public interest in withholding these types of information from disclosure. They can be complex and time-consuming, and often result in practically unavoidable delays to the proceedings in which they arise. In the case of s. 38 of the Canada Evidence Act and s. 18.1 of the Canadian Security Intelligence Service Act proceedings, they are heard by the Federal Court and so are out of the control of the trial court. S. 37 proceedings on the other hand, even though heard by the trial court, effectively require a pause in the underlying proceedings. The amendments would specify that any frivolous or dilatory action, or any action not made in good faith, on the part of counsel for the prosecutor or government counsel, would not be part of the period that would be excluded.

Alternative Measures and Restorative Justice Processes – Disclosure of records

The bill makes a number of amendments to the Criminal Code to promote greater use of alternative measures and restorative justice processes. These amendments include provisions governing record-keeping with respect to these measures and processes. For example, police would be required to keep a record when they issue a warning, or a referral to an alternative measures program. They also allow for the keeping of records by police relating to any offence allegedly committed by a person; the keeping of records by government departments and agencies for the purposes of investigations, proceedings, and as a result of the use of alternative measures; as well as the keeping of records by others as a result of the use of alternative measures. Amendments would also allow for disclosure of these records in certain circumstances. These include to judges or courts for the purposes of criminal proceedings; to peace officers for the purposes of criminal investigations and for administration of the case to which the record relates; to government departments or agencies for the purposes of administering alternative measures or making required reports; or to any other person where a judge is satisfied that the disclosure is in the public interest for research or statistical purposes, or is satisfied that the disclosure is desirable in the interest of the proper administration of justice. Records that do not contain identifying information would be available to government departments and agencies for research and statistical purposes. Because these provisions involve the disclosure of personal information, they may engage section 8 of the Charter, which guarantees the right to be secure from unreasonable search or seizure.

The following considerations support the consistency of these amendments with the Charter. The creation of the records in question occurs in the context of the criminal justice system, and the categories of disclosure described are for closely related purposes. Disclosure for the purposes of criminal investigation can only occur where there is reasonable suspicion that the person has committed an offence, or if they have been arrested or charged. Disclosure of records containing identifying information for research or other purposes would only happen when authorized by a judge, who is satisfied that the conditions are met. Records containing identifying information that are disclosed for research purposes could only be subsequently disclosed if identifying information is removed. Evidence of warnings or referrals would also not be admissible in subsequent proceedings for the purpose of proving prior offending behaviour by the accused.

Judicial Discretion Regarding Mandatory Minimum Penalties of Imprisonment

The bill would enact a new section in the Criminal Code providing for judicial discretion to depart from a prescribed mandatory minimum penalty (MMP) in limited circumstances; specifically, where the judge determines that the given MMP would amount to cruel and unusual punishment in the circumstances of the offender before the court. The judge would still be required to impose a term of imprisonment, but would have the discretion to determine the appropriate length. This proposed amendment would not apply to offences punishable by a mandatory sentence of life imprisonment. MMPs may engage section 12 of the Charter, which protects against cruel and unusual treatment or punishment. A MMP will be inconsistent with section 12 if it can result in grossly disproportionate sentences, either for the offender before the court or in reasonably foreseeable circumstances.

The Supreme Court of Canada has indicated in several judgments that the legal vulnerabilities associated with MMPs could be addressed by building a “safety valve” that would preserve judicial discretion to impose a different sentence in cases where a MMP would constitute cruel and unusual punishment for the individual before the court. Bill C-16 adopts that approach. In doing so, it furthers the purpose of section 12, which is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. Because the proposed amendment would still require a term of imprisonment, however, it may engage section 12.

The following considerations support the consistency of this requirement with section 12. The mandatory term of imprisonment can be as short as the judge considers appropriate. As such, the bill would allow the judge to craft a sentence that prioritizes rehabilitation by allowing offenders to preserve their employment, maintain familial ties, and continue with treatments or other rehabilitative measures. In light of the discretion to determine the length of the mandatory term of imprisonment, the bill would not result in punishments that are “so excessive as to outrage the standards of decency” or grossly disproportionate.

Authority to impose orders prohibiting contact

The bill would create a new authority, under both the Criminal Code and the National Defence Act, allowing courts and courts martial to impose a non-contact order on an offender in the course of sentencing for any offence of a sexual nature or that is committed for a sexual purpose, offences related to criminal harassment or human trafficking, or violence against the person’s intimate partner. The sentencing court would have the authority to impose an order prohibiting the offender from having any contact with specified people, including victims or witnesses, for life or for a shorter period.

By restricting the offender’s ability to have contact with certain people, the new authority would allow for restrictions on an offender’s liberty for a lengthy period or even for life. Moreover, failing to comply with a non-contact order would be an offence punishable by up to two years imprisonment. The amendments therefore engage the right to liberty and must align with the principles of fundamental justice to comply with section 7 of the Charter. By restricting communication, the amendments may also limit freedom of expression protected by section 2(b) of the Charter.

The following considerations support the consistency of these amendments with section 7 and section 2(b). Sentencing judges would have discretion in deciding whether to impose the order, how long it should last, and whether it should include any conditions or exceptions. Non-communication orders would only be available for offenders found guilty of specified offences – all offences whose victims and witnesses may be particularly vulnerable and may require measures to protect their physical and psychological safety. Prohibiting an offender from having contact with specified persons is a precise, targeted restriction, and the offender would have clear notice of the conduct that is prohibited. Finally, the person identified in the order and the Crown would have the ability to apply to vary the order, in order to respond to changing circumstances in the future.

Domestic Violence Peace Bonds

The bill would amend the domestic violence recognizance scheme (or “peace bond” scheme) under section 810.03 of the Criminal Code to replace all references to “provincial court judge” with “justice”. Justice is defined in section 2 of the Criminal Code as “justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction.” The proposed amendments would enable justices of the peace and not only provincial court judges to issue a recognizance under section 810.03 of the Criminal Code, similar to the existing peace bond scheme under section 810. Justices of the peace are judicial officers that have jurisdiction to perform certain judicial functions, such as presiding over bail hearings and considering applications for search warrants among various other proceedings within the criminal justice system.

A person subject to a domestic violence peace bond (referred to as the “defendant”) would be required to keep the peace and be of good behaviour if the justice is satisfied by the evidence that there are reasonable grounds to fear that the person will commit an offence involving the use of domestic violence. The proposed amendments would enable a justice to issue a peace bond for a period of up to one year or up to two years if the person has previously been convicted of an offence involving the use of domestic violence or threats or attempts to use domestic violence against intimate partners or children.

The proposed amendments would also allow a justice to add any reasonable conditions to the peace bond that the justice considers desirable to ensure the good conduct of the defendant or to protect the safety of intimate partners and children. Some non-exhaustive conditions include: restrictions on communicating with intimate partners or their children; restrictions on going to specific places; requirements to attend a treatment program (such as a domestic violence counseling program); weapons prohibitions; and drug or alcohol prohibitions. These conditions are similar to those available for existing peace bonds, for example, peace bonds that may be imposed under the Criminal Code in relation to fear of personal injury or damage to property, fear of a criminal organization offence, and fear of serious personal injury, among others.

A defendant who fails or refuses to enter into the peace bond could be subject to imprisonment for up to one year. In addition, a defendant who breaches the terms of the peace bond could be charged with a hybrid offence that is punishable by imprisonment of up to four years (if prosecuted as an indictable offence), or up to two years less a day (if prosecuted as a summary conviction offence).

Domestic Violence Peace Bond Conditions and Non-Compliance

Because the proposed amendments would allow a justice to impose a peace bond restricting a person’s liberty of movement (such as the prohibitions on going to specific places), and a defendant may face imprisonment for not entering into the peace bond or by breaching its conditions, the amendments engage the right to liberty under section 7 of the Charter and must be consistent with the principles of fundamental justice. The justice’s ability to add a condition prohibiting the defendant from communicating with certain people also may engage the freedom of expression under section 2(b) of the Charter.

The following considerations support the consistency of the proposed amendments with section 7 and section 2(b). The peace bond scheme under section 810.03 of the Criminal Code serves the important objective of protecting potential victims from experiencing domestic violence. The proposed amendment to allow justices and not only provincial court judges to impose a domestic violence peace bond promotes this objective by enhancing a victim’s access to the scheme without removing important safeguards. The amendment would not change the existing requirement for there to be fear on reasonable grounds that the offence will be committed, which courts have interpreted as meaning more than mere suspicion. Justices are required to look objectively at the fear and determine whether a reasonable person in the same situation would have the same fear or belief before imposing the peace bond. In addition, justices would retain discretion on whether to order the peace bond and add any reasonable conditions, which would need to be exercised in accordance with the Charter. The maximum duration of the peace bond and the conditions that could be imposed is structured along the lines of existing peace bond provisions in the Criminal Code that have been found to comply with the Charter. A person subject to the peace bond could appeal the order and could at any time seek to vary its conditions.

Drug/Alcohol Prohibitions and Collection of Bodily Substances

If a justice decides to impose a drug or alcohol prohibition as part of the domestic violence peace bond, this condition could be accompanied by a requirement for the defendant to provide a sample of their bodily substance. The ability of a justice to impose a condition mandating the collection of a person’s bodily substances may engage the protection against unreasonable searches and seizures in section 8 of the Charter.

The following considerations support the consistency of the proposed amendments with section 8. The relevant provisions, which are the same as those that apply to existing peace bonds in the Criminal Code, provide lawful authority for the collection of bodily substances for the limited purpose of enforcing compliance with a peace bond condition that the defendant abstain from consuming drugs, alcohol or other intoxicating substances. The imposition of such a condition would be subject to all the safeguards applicable to the peace bond scheme that are described above. The defendant’s privacy interest would be protected by the existing Criminal Code provisions that require regulatory standards and safeguards to be in place for the collection, storage, analysis and destruction of the samples and related records.

Disclosure of information under the Income Tax Act, the Excise Tax Act, and the Excise Act, 2001

The bill would amend section 241 of the Income Tax Act to allow officials to share taxpayer information with law enforcement if they have “reasonable grounds to believe that the information will afford evidence” of the proposed new offence of coercion or control of an intimate partner. The bill would also make parallel amendments to similar provisions in the Excise Tax Act and the Excise Act, 2001 that permit officials to share confidential information with law enforcement. Taxpayer information and confidential information can include sensitive or deeply personal details, such as medical and financial records. Because the disclosure of such information to police has the potential to interfere with privacy interests, the proposed amendments may engage section 8 of the Charter.

The following considerations support the consistency of these measures with section 8. The ability to disclose information collected by tax officials supports the investigation and prosecution of serious offences. The provisions only authorize disclosure where tax officials conclude that the evidence meets the threshold of “reasonable grounds to believe that the information will afford evidence” of specified offences. This threshold is more demanding than mere suspicion that the information may be linked to a criminal offence. Moreover, the provisions apply only to a specified list of serious offences. The proposed new offence of coercion or control of an intimate partner is similar in seriousness and in nature to offences that are currently on the list, such as criminal harassment contrary to section 264 of the Criminal Code.

Identity of young victim or witness publication ban

Currently, section 111 of the Youth Criminal Justice Act prohibits the publication of the name of a child or young person, or any other information that would identify them as having been victim of, or witness in connection with, an offence committed or alleged to have been committed by a young person under the Act. The proposed amendment would clarify that the publication ban under section 111 continues to apply where the young victim or witness has died.

As explained above, section 2(b) of the Charter protects the open court principle, which provides that judicial proceedings are presumptively open to the public. A publication ban limiting court openness engages section 2(b). The following considerations support the consistency of the amendment with the Charter.

The amendment does not create a new category of protected information. It clarifies that the existing publication ban in section 111 does not automatically cease on the death of the young victim or witness, ensuring consistency in the publication ban’s application and the continued protection of a young victim’s or witness’s privacy, personal integrity, and autonomy. As well, the information which would be subject to the publication ban is narrowly tailored to identifying information only. The amendment would not restrict discussion of, or access to, youth court proceedings. The amendment would also be subject to built-in exceptions set out in subsections 111(2) and (3) of the Act. In particular, paragraph 111(2)(b) permits a parent of a young victim or witness to publish the identity of their deceased child. Once identifying information is published under subsections 111(2) or (3), the publication ban ceases to apply pursuant to section 112 of the Act.

The amendment does not broaden the application of the publication ban under section 111, but clarifies its scope and operation, striking a reasonable balance between the privacy interests of young victims or witnesses and the open court principle.

Amendments to An Act respecting the mandatory reporting of Internet child sexual abuse and exploitation material by persons who provide an Internet service

An Act respecting the mandatory reporting of Internet child sexual abuse and exploitation material by persons who provide an Internet service (the Act) requires internet service providers to notify law enforcement when they have reasonable grounds to believe that their service is being or has been used to commit a child sexual abuse and exploitation material offence. The bill would amend the Act to require service providers to include transmission data in their reports in circumstances in which the content is manifestly child pornography. Transmission data is defined in the Criminal Code as encompassing data related to the routing of a communication (for example, telephone number, Internet Protocol address, port number, date and time) and information that allows service providers to authenticate the user and their devices (for example, the International Mobile Equipment Identity (IMEI) number or Subscriber Identity Module (SIM) card). Transmission data does not reveal the substance, meaning or purpose of the communication.

Because mandatory reports under the Act have the potential to interfere with privacy interests, the amendment engage rights under section 8 of the Charter. The following considerations support the consistency of the amendment with section 8. The Act would provide lawful authority for interferences with privacy interests that may result from the mandatory disclosure of transmission data. The amendment serves the compelling purpose of protecting children against child exploitation offences, which are facilitated by the power and anonymity of the internet. The amendment would enable law enforcement to act more expeditiously in protecting children, a highly vulnerable group, from serious harm. It would do so by providing police, in the initial report, with more of the information that they need to apply to a court for a production order to identify the individual responsible for the child sexual abuse and exploitation material offence. Transmission data does not include or directly reveal the substance, meaning or purpose of the communication. Internet service providers are not obligated to look for child sexual abuse and exploitation material under the Act and would only be required to include transmission data in their mandatory reports where the content is manifestly child sexual abuse and exploitation material. This is a high threshold that narrows the state’s online reach to situations and information that are clearly relevant to the investigation of serious child exploitation offences.

Licence Ineligibility under the Firearms Act

The bill would amend the Firearms Act to provide that an individual is not eligible to hold a firearms licence if a chief firearms officer has reasonable grounds to suspect that they may have engaged in an act of domestic violence (as defined in subsection 70.1(2) of the Firearms Act) or stalking. Currently, an individual’s firearms licence must be revoked by a chief firearms officer within 24 hours based on the same grounds.  The proposed amendment would promote consistency on the statutory factors warranting licence ineligibility and licence revocation.

A refusal to issue a firearms licence will normally not engage any Charter-protected interests. Where the licence refusal could deprive an individual of their only means of livelihood, it could engage their right to security of the person under section 7 of the Charter and the protection against cruel and unusual treatment under section 12 of the Charter. The following considerations support the consistency of the amendment with sections 7 and 12. Under section 70.3 of the Firearms Act, a chief firearms officer may issue a conditional licence to individuals who establish that they need a firearm to hunt or trap in order to sustain themselves or their family. In addition, individuals who are refused a firearms licence based on a chief firearm officer’s reasonable suspicion that they engaged in domestic violence or stalking may refer the refusal to a provincial court judge for review on the basis that the decision was not justified.

Sexual Activity Evidence and Records Regimes under National Defence Act

The bill would amend the National Defence Act toalign with the Criminal Code rules in sexual offence trials that govern when evidence of a complainant’s sexual activity evidence can be used, and when their private records, including therapeutic records, can be produced or used.

Because these amendments would limit the types of evidence that may be admitted in a criminal trial, they may engage the accused’s right to make full answer and defence protected under sections 7 and 11(d) of the Charter. The following considerations support the consistency of the amendments with these provisions. The amendments largely reflect the sexual activity evidence regime and records regime under the Criminal Code that have been upheld by the Supreme Court of Canada as complying with the Charter. The considerations that were outlined earlier which support the Charter consistency of the proposed changes to these Criminal Code regimes also apply to the proposed National Defence Act amendments, which would adopt the same type of changes.

Corrections and Conditional Release Act

The bill would amend the Corrections and Conditional Release Act (CCRA) by enacting provisions to authorize the Correctional Service of Canada (Service) to disclose information about offenders who are or were in the custody of or under the supervision of the Service. First, the bill would authorize the Service to enter into arrangements with other criminal justice bodies to disclose relevant information about offenders for purposes related to the mandates of those bodies, such as an inquest, extradition, tracking of high-risk offenders, or dangerous offender and long-term supervision proceedings. Second, the bill would authorize the Service to disclose relevant information to provincial correctional bodies for the purpose of furthering the effective and proper functioning of the criminal justice system, such as institutional security, supervision of a person to be confined in a provincial correctional facility, or a group that has been identified as a security threat. Third, the bill would authorize designated Service officials to disclose specified categories of information to police. This could include information related to the prevention or mitigation of threats to institutional security or the safety of any person, managing risk posed by a group that has been identified as a security threat, protection of a victim, apprehension of an offender, supervision or surveillance of an offender, or evidence of a criminal offence discovered by the Service in the course of fulfilling its duties under the CCRA. In addition, the bill would authorize the Service to enter into arrangements whereby information about offenders could be disclosed via digital means administered by the Service. Finally, the bill would amend provisions governing the disclosure of information about offenders by the Service or the Parole Board of Canada to victims of crime, such as in relation to escorted temporary absences, penitentiary transfers, and parole. Because these measures would authorize the disclosure of information which may attract a reasonable expectation of privacy, they may engage the protection against unreasonable search or seizure under section 8 of the Charter.

The following considerations support the consistency of the measures with section 8. The privacy interests of persons who have been convicted of an offence and who are serving, or have served, a sentence are greatly reduced. The Service information disclosure authorities are intended to further the objectives of the CCRA, such as the protection of the public, and to support closely related objectives under the mandates of other criminal justice bodies. Any arrangements between the Service and other criminal justice bodies would be made in accordance with the Charter. The Service disclosure authorities would be guided by principles which include that disclosures of personal information be reasonable, proportionate, and documented. The Service disclosure authorities would not displace existing legal frameworks, such as the requirement for law enforcement agencies or other criminal justice bodies to use specific lawful authorities, including judicial authorization, where necessary. The disclosure authorities relating to victims of crime are intended to further the timely exchange of relevant information with victims, which is among the guiding principles of the CCRA and the Canadian Victims Bill of Rights.