JUST meeting 28 · 2026-05-04 — Committee Evidence — LegisWatch

Summary

The House of Commons Standing Committee on Justice and Human Rights met to continue clause-by-clause study of Bill C-16, an Act to amend certain Acts in relation to criminal and correctional matters, including child protection, gender-based violence, delays and other measures. Appearing from the Department of Justice were Michael Ellison, Matthew Taylor, Nathalie Levman, Leah Burt and Jocelyn Sigouin, along with Lieutenant-Colonel Matt MacMillan from the Office of the Judge Advocate General.

Michael Ellison explained that the Supreme Court has long held it is highly desirable for the trial judge to hear production applications for private records, and that expanding who could hear them, as proposed by an NDP amendment, could lead to inconsistent decisions. He noted that the bill’s expansion of the production regime to offences under any Act of Parliament, not just the Criminal Code, is intended to capture offences under the Immigration and Refugee Protection Act and the National Defence Act. He also stated that giving the Crown discretion to produce communications evidence without a full application would reduce delays, and that requiring a complainant to first obtain independent legal advice before waiving protections could introduce further delays.

Matthew Taylor stated that it is difficult to predict whether a proposed mandatory minimum penalty for extortion with a firearm would be Charter-compliant, but pointed to the Supreme Court’s Hilbach decision, which upheld similar penalties for robbery with a firearm. He noted that mandatory minimum penalties can contribute to delays by discouraging guilty pleas and prompting Charter challenges. He also explained that the safety valve in Bill C-16 is intended to reinforce mandatory minimum penalties by allowing a judge to depart from them only where they would be cruel and unusual for the specific offender, and that murder and treason were excluded because their life sentences have not been subject to significant Charter litigation.

Nathalie Levman stated that an NDP amendment to exempt victims from sanctions for breaching a publication ban would conflict with existing safeguards in the Criminal Code, which already provide broad leeway for victims to speak while protecting the privacy of others.

Leah Burt stated that adding mandatory criteria to the safety valve, such as requiring no prior criminal record or limiting departures to no less than half the minimum penalty, could introduce new Charter vulnerabilities. She noted that the Supreme Court has held that financial hardship can be relevant to whether a punishment is cruel and unusual, and that in some cases even half of a mandatory minimum could still be found unconstitutional.

Jocelyn Sigouin explained that the proposed no-contact order for intimate partner offences fills a gap by allowing a lifetime order, which is not currently available, and that an NDP amendment to expand it to all offences against an intimate partner would broaden its scope.

Lieutenant-Colonel Matt MacMillan confirmed that amendments aligning the National Defence Act with the Criminal Code regarding sexual history evidence would have no impact on Bill C-11, as that bill deals with Criminal Code sexual offences committed in Canada, while the military justice system also handles offences outside Canada.

The committee debated several amendments, including Conservative proposals to add mandatory minimum penalties for extortion with a firearm and to restrict the safety valve by prohibiting consideration of reasonable hypotheticals and by adding criteria such as no prior criminal record. The government argued these could invite Charter challenges and undermine the safety valve’s purpose. NDP amendments sought to expand procedural protections for victims of intimate partner violence and to require independent legal advice for complainants, among other changes. The committee also considered technical and harmonization amendments from the government and the Bloc Québécois. After debate, the committee voted down several Conservative and NDP amendments, adopted numerous government amendments, and deferred a vote on one Conservative amendment on extortion penalties to the end of the meeting. The chair ruled several other Conservative amendments out of order, and those rulings were sustained on recorded votes.

AI-generated summary — may contain errors; verify against the official evidence.

Witnesses · 6

Michael Ellison

Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice

Opening remarks

Thank you, Chair. I thank the member for the question. Since the O'Connor decision that first laid out the groundwork for these types of production applications, guidance from the Supreme Court of Canada has stated that it is highly desirable for the trial judge to be the one to hear this type of application. That's something that over the past 31 years or so—hopefully my math is correct—jurisdictions across the country have strived to achieve. They ensure that the trial judge is the one hearing it. There are a couple of reasons outlined in O'Connor for that. It's mostly to ensure consistency between decisions and to ensure that these are heard at the appropriate time in the process. In terms of redundancy, what I would speak to is that with respect to NDP-12, the main concern would be that if there is an expansion beyond the trial judge hearing these types of applications, we could open up the door to a greater possibility of inconsistent decisions. One example would be if a justice of the peace who is also considered a justice were to make an order for production at a bail hearing, and months down the line, the trial judge hears or has the evidence before them and disagrees…

Full testimony ↗

Matthew Taylor

Senior General Counsel and Director General, Criminal Law Policy Section, Department of Justice

Opening remarks

Thanks for the question. It's difficult to say, in the abstract, whether it would be charter-compliant. I would point the committee to the Hilbach decision, which was discussed last week. There, the Supreme Court of Canada upheld two mandatory minimum penalties of imprisonment for robbery with a firearm. That would be, I think, instructive regarding any charter challenge in this space, given that the offences are similar in terms of their seriousness and that they would have some similar penalties. Certainly, on the delays issue—to the second part of your question—that was one of the objectives that animated Bill C-5 at the time, in addition to some of the objectives Mr. Brock spoke about already. There was a significant concern about justice system delays. There had been a fairly significant number of charter challenges. There was a disincentive for individuals to plead guilty, and therefore their trials would continue. One expects those kinds of considerations to continue to be relevant in any offence where there are mandatory minimum penalties of imprisonment.

Justice and Human Rights

Summary

Witnesses · 6

Bills mentioned