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Joseph Neuberger and Michael Bury, Neuberger & Partners, Toronto Sexual Assault Lawyers
01 • INTRODUCTION
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), short-titled the Protecting Victims Act (the “Act”), received Royal Assent on June 18, 2026, as S.C. 2026, c. 19 (LEGISinfo; Justice Laws). Subject to limited exceptions, the Act came into force on July 18, 2026, being the thirtieth day following Royal Assent.
The Act was introduced in the House of Commons by the Minister of Justice on December 9, 2025. It is an omnibus measure addressing child protection, gender-based violence, sentencing and delay in criminal proceedings. It represents the most substantial reform of the procedural regime governing sexual offence prosecutions since the enactment of Bill C-51 in 2018.
This article examines the provisions of the Act that bear most directly on the prosecution and defence of sexual offences. These are: (a) amendments to the substantive offences; (b) the restructured regime governing evidence of other sexual activity under s. 276 of the Criminal Code (the “Code”); (c) the reconstituted regimes governing third-party records and records in the possession of the accused; (d) enhanced measures for complainant participation and protection; and (e) the new statutory framework governing unreasonable delay and the remedy for an infringement of s. 11(b) of the Canadian Charter of Rights and Freedoms.
02 • AMENDMENTS TO THE SUBSTANTIVE OFFENCES
The Act does not amend the statutory definition of consent in s. 273.1 of the Code. Its substantive amendments instead broaden the scope of several existing offences, increase certain maximum penalties and address technology-facilitated sexual abuse. The principal amendments are summarized below (Department of Justice Canada; Bill C-16, Royal Assent text).
| Provision | Amendment |
|---|---|
| s. 271(b) (sexual assault, summary conviction) | The maximum term of imprisonment is increased from 18 months to two years less a day. |
| s. 162.1 (intimate images) | The offence is extended to visual representations, including those created by means of artificial intelligence, that are likely to be mistaken for a visual recording of the person depicted. The maximum term of imprisonment on indictment for the distribution offence is increased from five to 10 years, or to 14 years where the accused knew or ought to have known that an aggravated sexual assault was committed against the person depicted. |
| s. 162.1(1.1) (threats to distribute) | A new offence prohibits knowingly threatening to publish or distribute an intimate image, including a synthetic image. |
| s. 163.1(4.21) (threats involving child sexual abuse and exploitation material) | A new offence prohibits threatening to distribute such material, with a mandatory minimum of one year’s imprisonment where the Crown proceeds by indictment, and of six months where the Crown proceeds summarily. |
| ss. 152, 153(1)(c) and 153.1 (invitation offences) | The offences are extended to inviting, counselling or inciting a young person, for a sexual purpose, to expose their own sexual organs, including by live video transmission. |
| s. 172.1 (luring) | The offence is extended to conduct in the nature of sextortion. |
| s. 173(2) (exposure to a person under 16) | The maximum term of imprisonment is increased to 10 years. |
| s. 160(3.1) (bestiality material) | A new hybrid offence addresses the distribution of depictions of bestiality, whether actual or synthetic. |
| s. 7(4.1) (extraterritorial jurisdiction) | Jurisdiction is extended to enumerated offences committed outside Canada against persons under the age of 18. |
| s. 164.1(5.1) (deletion orders) | Where the material is an intimate image connected to an offence under s. 162.1, the court must order the custodian of a computer system to delete the material within 48 hours. |
Two further amendments warrant mention. First, under amended s. 231 of the Code, murder is first-degree murder, irrespective of whether it is planned and deliberate, where it is caused while engaging in a pattern of coercive or controlling conduct towards an intimate partner, while exercising control over the victim for the purpose of exploitation, while committing or attempting a sexual offence, or where it is motivated by hate. Second, the Act reinstates mandatory minimum penalties that courts had previously declared to be of no force or effect, including several applicable to sexual offences against children. A court may impose a sentence below the prescribed minimum only where the minimum would amount to cruel and unusual punishment for the particular offender.
03 • EVIDENCE OF OTHER SEXUAL ACTIVITY: THE RESTRUCTURED SECTION 276 REGIME
A. Overview
The prohibition in s. 276(1) against the use of sexual activity evidence to support the “twin myths” is preserved. By amendment at committee stage, Parliament clarified that evidence of sexual activity includes evidence of sexual inactivity (Standing Committee on Justice and Human Rights, Fourth Report). The regime is further extended, by means of a residual clause, to any offence of a sexual nature or committed for a sexual purpose.
B. The Three Categories of Application
| Application | Provisions | Principal requirements |
|---|---|---|
| By the accused | ss. 276.01 to 276.05 | The application must be in writing and accompanied by an affidavit. It must be done on 60 days’ notice. A copy must be provided to the complainant, but not by the accused personally. The jury and the public are excluded from the hearing (s. 276.02(1)). |
| By the prosecutor | ss. 276.06 to 276.09 | A formal application is now required on 60 days’ notice. No affidavit is required. The qualifiers “significant” and “substantially” are removed from the test balancing probative value against prejudice. |
| Joint application | ss. 276.1 to 276.13 | The prosecutor, the accused and the complainant may apply jointly. The court may determine the application without a hearing where it is satisfied that the evidence is admissible. |
C. Participation of the Complainant
The complainant may appear and make submissions at the hearing of an application brought by the accused. The presiding judge must, as soon as feasible, inform a participating complainant of the right to be represented by counsel (s. 276.02(3)). The same right is expressly confirmed in respect of joint applications (s. 276.1(7)).
04 • RECORDS
A. Records in the Possession of the Accused
The regime established by the Supreme Court of Canada’s decision in R. v. J.J., 2022 SCC 28, is preserved in substance but relocated to new ss. 278.29 to 278.38 of the Code. An application by the accused under s. 278.3 must be supported by an affidavit and made on 60 days’ notice. The hearing is conducted under s. 278.31.
The Act introduces a distinct category of “therapeutic record,” which encompasses psychiatric, therapeutic and counselling records irrespective of their contents. Where a therapeutic record does not relate to sexual activity, the threshold for admissibility is elevated. The accused must establish that the record contains evidence likely to raise a reasonable doubt as to guilt and that no other evidence is capable of doing so. A joint application under s. 278.35 is available only in respect of records that are not therapeutic records.
By amendment at committee stage, Parliament: (a) required that a copy of the application be provided to the complainant by a person other than the accused; (b) expressly confirmed the complainant’s right to be represented by counsel; and (c) enacted exceptions to the prohibition against disclosing the contents of the application (Standing Committee on Justice and Human Rights, Fourth Report).
B. Third-Party Records
The production regime derived from R. v. O’Connor and R. v. Mills, formerly ss. 278.1 to 278.91, is reconstituted in new ss. 278.1 to 278.28, which also establish a separate procedure for records in the possession of the prosecutor (see Part IV.C below). The two-stage structure is retained, subject to the following principal amendments:
C. Records in the Possession of the Prosecutor
Under s. 278.2(2), the prosecutor may disclose a record relating to a complainant to the accused only in limited circumstances: where the prosecutor intends to adduce the record in evidence, where the record relates directly to the activity forming the subject-matter of the charge, or where the complainant or witness consents.
05 • COMPLAINANT PROTECTION AND PARTICIPATION
A. Testimonial Aids
The Act expands the availability of testimonial aids and establishes presumptions in favour of their use for specified categories of victims (Library of Parliament, Legislative Summary; Department of Justice Canada).
| Provision | Amendment |
|---|---|
| s. 486.1 (support person) | A witness may be accompanied by a support person or a support animal. The order is presumptively available to victims of sexual offences, intimate partner violence, human trafficking and criminal harassment. |
| s. 486.2 (testimony outside the courtroom) | The same presumption applies. The witness may elect between testimony by closed-circuit television and testimony behind a screen. |
| s. 486.3 (cross-examination by a self-represented accused) | The presumption is extended to victims of all sexual offences, human trafficking and intimate partner violence. |
| ss. 486.1 to 486.3 | The court must inquire whether the prosecutor has taken reasonable steps to inform the victim of the availability of the order, and must give written reasons for any refusal. |
| s. 486.71 | More than one protective order may be made in respect of the same witness. |
B. Publication Bans and the Canadian Victims Bill of Rights
Victims are now entitled to be consulted as to whether a publication ban should be sought, to be informed when an order is made, and to apply to vary or revoke the order. The amendments to the Canadian Victims Bill of Rights confer additional rights to be treated with respect, to receive information concerning the proceedings and the criminal justice system, and to have the victim’s interests considered in the timely resolution of the matter.
06 • UNREASONABLE DELAY: PART XV.1 AND THE REMEDY FOR AN INFRINGEMENT OF SECTION 11(b)
A. Overview
The Act enacts a new Part XV.1 of the Code (ss. 492.21 to 492.31). Part XV.1 integrates the new notice requirements into the calculation of delay under R. v. Jordan, 2016 SCC 27, and departs from the principle that a stay of proceedings is the minimum remedy for unreasonable delay (Criminal Code, Part XV.1).
B. Exclusion of Periods Attributable to Late Applications
Section 492.27 directs that, in assessing delay, the court shall not take into account specified periods where an application by the accused was not brought in a timely manner. The provision applies to:
The excluded periods comprise the cumulative number of days required to hear the application, together with any other period that the court determines to be attributable to the late filing or service. Under s. 492.3, these exclusions do not extend to any frivolous or dilatory action, or any action not taken in good faith, by the prosecutor.
C. Case Complexity and Notice to Victims
Section 492.26 requires the court to consider any relevant factors that have rendered or will render the case complex, including the number of applications and motions, their scheduling, related adjournments and the cumulative court time required. Section 492.25 requires the prosecutor to take reasonable steps to inform any victim of an application for a stay of proceedings and of the decision on that application.
D. Remedy
Section 492.31(1) provides that the court shall not order a stay of proceedings as a result of a finding of unreasonable delay unless no other remedy would be appropriate and just in the circumstances. Under s. 492.31(2), the court must consider:
This provision is likely to attract constitutional challenge. Since R. v. Rahey, [1987] 1 S.C.R. 588, the Supreme Court of Canada has held that a stay of proceedings is the minimum remedy for an infringement of s. 11(b). The Canadian Civil Liberties Association has characterized the amendment as unconstitutional (Law360 Canada). As the determination of an appropriate and just remedy under s. 24(1) of the Charter lies ultimately with the courts, the validity of s. 492.31 will fall to be determined through litigation.
07 • PRACTICAL IMPLICATIONS
The Act has the effect of advancing the litigation of sexual offence applications to a considerably earlier stage of the proceedings.
A. Defence Counsel
B. The Crown
The prosecutor must bring a formal application under s. 276.06, on 60 days’ notice, before adducing evidence of the complainant’s other sexual activity.
The prosecutor must take reasonable steps to inform victims of the availability of testimonial aids, the right to seek a publication ban and any application for a stay of proceedings. The court is required to inquire whether those steps were taken.
C. The Court
The amendments contemplate greater participation of complainants and their counsel, the use of support animals, and written reasons for the refusal of testimonial aids. In the Ontario Court of Justice, the existing requirement under the Court’s s. 11(b) practice direction that s. 11(b) applications be heard not less than four months before trial now operates alongside the statutory remedial analysis prescribed by s. 492.31.
D. Transitional Provisions and Coming into Force
The Act came into force, for the most part, on July 18, 2026. By amendment at committee stage, the transitional provisions were revised such that the new records regime (ss. 278.1 to 278.38) applies only in respect of offences for which a charge is laid on or after a specified date (Standing Committee on Justice and Human Rights, Fourth Report). Where the charge was laid before that date, records applications continue to be governed by former ss. 278.1 to 278.97. Counsel should verify the applicable date, and whether any transitional rule applies to the s. 276 regime, against the enacted text before relying on either regime.
The offence of coercive or controlling conduct (s. 264.01) comes into force on a day fixed by order, but not later than June 18, 2028. Certain amendments to the Mandatory Reporting Act and the Corrections and Conditional Release Act come into force on a day fixed by order of the Governor in Council.
08 • CONCLUSION
In short, the Act requires earlier and more formal litigation of sexual offence applications in exchange for greater certainty at trial and enhanced protection for complainants. The 60-day notice requirement, the heightened standard for therapeutic records and the exclusion of accused-complainant communications from the records regime will affect proceedings immediately. The limitation on the stay remedy for unreasonable delay is likely to be resolved by the appellate courts. In the interim, counsel should treat the judicial pre-trial as the stage at which strategy respecting s. 276, records and s. 11(b) is determined.
This article is provided for general information only and does not constitute legal advice. Statutory references are to the Criminal Code as consolidated to September 21, 2026.
