Canada currently bans the non-consensual sharing of explicit images, but not those conjured up with AI technology.Chris Wattie/Reuters
Canada’s federal parties have a bad habit when in government of trying to squeeze too many things into a single bill. That happens annually in omnibus budget bills as thick as a cinder block, but it can also be seen in a lot of other legislation, too.
This scenario is now playing out in Bill C-16, branded by the Liberals as a crackdown on gender-based violence.
Much of the bill brings about urgently needed reform, in particular changes to the Criminal Code that would ban the distribution of AI-generated fake nude images of real people.
But that and other laudable changes are stalled in committee with the rest of the bill, because Ottawa has wedged marginally related, controversial changes into a piece of legislation that should have remained focused on its stated purpose.
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The potential consequence of delaying the bill’s passage was seen in a case in March, when a Nova Scotia provincial court judge was obliged to acquit a man who made deepfake nude images of five women he had gone to high school with and sent the pictures to them.
Canada bans the non-consensual sharing of explicit images but not those conjured up with AI technology, leaving the five women vulnerable to what the judge called an “affront to their sexual integrity.” The Criminal Code desperately needs to be brought up to date.
Bill C-16 also protects women by classifying murders in situations involving sexual violence, control and exploitation as first-degree murder. And it criminalizes coercive control that makes an intimate partner fear for her safety or that of her children or family.
These reforms to the Criminal Code are urgently needed but are stalled because the Liberals padded out Bill C-16 with less pressing reforms that don’t have unanimous support.
One is an attempt in the bill to revive mandatory minimum sentences that have been declared unconstitutional by the Supreme Court; the other is a proposal to give judges leeway before being obliged automatically to toss out cases because of delays that have also been ruled unconstitutional.
The government needs to act on mandatory minimums because of the Supreme Court’s “reasonable hypothetical” approach to criminal law, something this space has decried in the past. Last year, the Supreme Court set off a firestorm of criticism when it ruled against a one-year mandatory minimum for possessing child pornography on the grounds that such a sentence would be unfair to an 18-year-old who receives a racy image of a friend’s 17-year-old girlfriend.
The ruling in fact addressed the real-life case of two men in Quebec convicted of possessing hundreds of images of child pornography, some of which showed brutal sexual abuse.
The Carney Liberals’ answer is to give judges the discretion to impose a sentence lower than the mandatory minimum in the kinds of cases that so far have only ever existed in the imagination of some Supreme Court justices.
The Liberals are trying a similar tack with court delays, giving judges the discretion to resolve them through lighter sentences, or to consider additional factors when examining the reasons for a long delay, rather than automatically freeing people accused of serious crimes after a certain number of months have passed without trial.
Mandatory minimums and trial delays are without question serious, but their inclusion in a bill designed to address shortcomings around gender-based violence is ill conceived.
There is little doubt Parliament could push through the criminalization of the distribution of non-consensual deepfake images in short order, along with the other pressing issues addressed in Bill C-16.
Conservatives and other MPs might be balking at the proposed reforms to mandatory sentencing and delays, but they would no doubt leap at the chance to push through the parts of the bill that focus on the need to protect victims of gender-based violence, and on which there is no lack of agreement.
The proper course for the Liberals is to split the bill into different parts and leave the more contentious questions of mandatory minimums and court delays for another day.
The government should address those other issues, but not at the expense of reforms that are clearly urgent and do not require complex solutions.
One woman has seen her tormentor walk free after being accused of distributing deepfake images of her. That is one unjust outcome too many. Only the Liberal government can ensure that the next victim is able to find justice.