Peter Copeland testifies on Bill C-16 at Justice Committee

Bill C-16 – Protecting Victims Act 

The protection of victims is at the core of public safety. The federal government deserves credit for taking up several politically fraught issues at once, both long-standing and novel. But it is one thing to be willing to tackle these problems, and another to ensure the policies are crafted in such a way that that they meet the objective in substance, not just in style.

Ten thousand cases stayed or withdrawn annually is an affront to justice for the accused, victims, and our general public safety. At MLI, we’ve argued that legislative refinement of the Jordan framework is warranted, as the court’s ceilings were not the product of data-driven analysis and institutional knowledge, but legislated from the bench. Parliament is on firmer ground when it deploys the additional resources and time they have at their disposal to find an appropriate solution to the issue, as they have here.

The bill’s amendments are welcome but should go further by expressly recognizing organized crime and national security matters as categories that warrant special treatment. These cases are unusually document-heavy, operationally complex, and often involve cross-border evidence, multiple accused, and intelligence-sensitivity issues. They should not be measured by the same timelines as routine prosecutions.

The image-based abuse reforms are among the strongest parts of the bill, but they do not go far enough. For many victims, the core harm is that images stay up for far too long. Canada should learn from the recent American approach, as we argued at MLI with Bridge 2 Future (a nonprofit dedicated to research, advocacy, and policy advice on generational trauma, intimate partner violence, and the commercial sexual exploitation of women and children). This means a 48-hour takedown capacity with expectation and consequences for platforms that fail to act.

The concept of coercive control is well known and can be operationalized in a way that is precise. The bill is directionally right to include it, but the definition is dangerously loose as drafted. What counts as a “pattern” is undefined: two acts or ten, and over what period? When does financial management become coercive control of economic resources?When do domestic disagreements say, about parenting, become control over the manner in which a child is cared for? The definition should be amended in line with what the concept in fact is: a sustained pattern of domination, intimidation, isolation, and threatened consequences that deprive a person of ordinary agency within an intimate relationship. To achieve that, a predicate offence – rather than standalone – where multiple acts over a defined period of time (and with Crown approval) would be superior. It would avoid excessive overcharges, and the capture of basic disagreements, and absurd scenarios that would likely not even make it through prosecution. Scotland adopted this predicate approach and had 95% prosecution rates, whereas England adopted the loosely defined model akin to this legislation, and its success rates were 13%.

The “femicide” language should be removed – and can be – without sacrificing any of the additional offence types or the severity that it is to be associated with. Unlike organized crime, which recognizes patterns of behaviours and clusters of offences under a concept with additional powers for police and prosecutors, along with penalties associated with it, femicide is a misleading term. It implies someone has the intent of killing based on generalized misogyny. In reality, people generally have specific motives related to concrete facts and realities, not a generalized “hatred of women.” Parliament is already ensuring harsher treatment for killings committed in the context of coercive control, sexual violence, trafficking, or hate through Bill C-16. The law can specify those aggravating features, require courts to consider more serious sentences where they are present, and improve statistical tracking of violence against women without adopting activist terminology that is effectively a distinction without a difference.

The government is right to reassert Parliament’s authority in minimum sentencing, but the safety-valve approach remains too deferential to the same jurisprudence that created the problem. Courts have stretched section 12 to second-guess sentencing policy that properly belongs to legislatures and could do so again here. They could find, for example, that an offender’s race, or migration status – warrants this special treatment, as they have been prone to. It’s important to remember that there is in fact already a great deal of discretion in the law. Police decide what facts justify charges, prosecutors decide how to proceed, and in many cases the Crown can elect by indictment, summarily, or under a different offence altogether depending on the circumstances.

A better model would be targeted mandatory minimums with a set of narrow and objective grounds that, when coupled with gross disproportionality, could qualify the offender for a lower sentence. Things like the age of the victim, prior convictions, use of violence or threats, commercial purpose, scale, abuse of trust, organized exploitation, or other clearly ascertainable facts could make a case eligible for the gross disproportionality test. That would preserve Parliament’s sentencing signal and reduce opportunities for imaginative judicial revision.

Bill C-16 is genuinely impressive in its scope and intent. But it must go beyond that to ensure laws are properly tailored to address the problem they’re meant to and include less symbolism beyond what may be attractive politically or most expedient to carry out.

Peter Copeland is the deputy director of Domestic Policy at the Macdonald-Laurier Institute.