Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
How Canada’s New Justice Bill Could Reshape Courts, Sentencing, And Digital Harms
A 76-page justice overhaul just landed, and we’re diving into what actually changes for victims, accused persons, and the people who keep our courts running. We break down how Bill C-16 reframes parts of criminal law—naming femicide as a route to first-degree murder, tackling AI-generated intimate images and deepfakes, and defining coercive control—while asking the hard question: can an already stretched system carry the weight?
We walk through the new femicide framework and why proving patterns of coercive or controlling behaviour will demand careful evidence and clear jury instructions. Then we turn to the digital front: offences targeting realistic AI fabrications, “nudify” apps, and the spread of synthetic sexual content. You’ll hear how the “likely to be mistaken” standard may hinge on context, labelling, and expert testimony, and why enforcement will test both legal doctrines and tech literacy.
Delay is the thread that ties it all together. We explore how pretrial screening in sexual offence cases—lawyers for complainants, notice periods, and multiple hearings—slows trials, and how C-16’s timing tweaks may help at the margins but won’t replace the need for more judges, Crown, defence, and courtrooms. On sentencing, we unpack the shift that lets courts set aside mandatory minimums when they would be grossly disproportionate for the individual—fairer outcomes, but likely more litigation. We also highlight humane changes that support witnesses, including broader remote testimony and support animals.
To ground the legal theory in real life, we close with a BC case on who qualifies as a spouse under the Family Law Act. The two-year marriage-like rule sounds simple—until on-and-off relationships, shared business ties, and disputed “gifts” like a six-figure SUV enter the picture. The result is a cautionary tale about continuity, documentation, and the legal weight of domestic arrangements.
If you care about safer communities, fair process, and workable courts, this conversation maps what’s coming—and what still needs funding and focus. If the analysis helped, follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal content.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
Oh my goodness, there is a lot here, that's for sure. This uh piece of legislation introduced by the government, so likely to pass um in some form or other, is 76 pages long. Uh and uh only half jokingly I suggested uh, you know, rather than uh the current name of it, you might call this the uh criminal lawyers make work project. But uh boy, there's a lot happening here. And I genuinely hope if they pass all of pass this or something like it, one of the other uh requirements uh is going to be to increase capacity of the justice system, which is already completely stretched uh in terms of judges and courtrooms and crown and legal aid and all the things that are already lacking, is that this is just going to add to it. Uh but a whole bunch here. So some of the things which are uh interesting in it, one of the interesting things that is being proposed here is a introduction of a new type of murder referred to as femicide, uh, which is uh intended to refer to murders of female persons. Um and what it amounts to is uh various different ways in which murder could become first degree murder, right? The there are various ways that could occur now. The most common way that murder becomes first degree as opposed to second degree, right, would be planning and deliberation. Uh there are other ways currently that uh a murder could become a first degree murder, which mandates mandates the uh no prol eligibility for at least twenty five years. It's a life sentence either way, but longer prol and eligibility. We currently have things like uh if it's a murder of a police officer or a jail guard, uh things of that sort. So what this does is it says that irrespective of whether a murder is planned and deliberate, a murder would become first degree murder in the form of femicide if a number of other things were also established. Um so for example, um if the murder occurred while engaging in or ha having engaged in a pattern of coercive or controlling conduct, first part of it, with the intent to cause the victim to believe that's the next part of it, remembering the victim is necessarily dead, that's the part of litigation, that the victim's or psychological safety is threatened in the case where the victim is the person's intimate partner. Okay, so think about all the elements of that, what that's gonna mean. Uh it can you can also get to femicide in other ways, uh while exercising control, direction, or influence over the movements of the victim with the intent to exploit the victim within the meaning of a section. Also, you could get to femicide uh if uh the murder was motivated by hate based on color, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. Why that last part would be under this category of femicide, I'm not sure, but that's what they've done uh under that heading. So uh this is uh an interesting thing. I guess a number of things there for sort of public uh consideration about whether that uh is an appropriate way to handle that. Uh and it should also be apparent looking at that, uh, that it's going to create some uh additional complexity uh in murder trials going forward where the victim is female, um trying to sort out uh things like uh, you know, was there a pattern of coercive or controlling conduct which was intended to cause the person who's deceased to believe that their psychological safety was threatened, for example. Just imagine what that's going to look like in court or trying to explain that to a jury. But uh so that's femicide. That's one of the things that this would add. Um another uh whole series of things are have been introduced here, or if this passes, which would deal with um images online, and interestingly, uh many of them are concerned with now what AI is doing, right? Um so for example, uh this would make it a criminal offense uh for a person to publish, distribute, transmit, sell, make available, or advertise any visual representation that is likely to be mistaken for a photographic, film, video, or other visual recording of a person committing bestiality. So sexual activity with an animal. What that appears to be contemplating is AI generated photorealistic images.
Adam Stirling:Yeah.
Michael Mulligan:Uh you know, only you gotta shake your head at what uh humans do with amazing technology, but uh apparently this is part of it. Uh and so it would create this offense if somebody, if it's a visual representation that is likely to be mistaken, so I guess not a cartoon. It would have to be photorealistic, maybe without a uh uh uh a messenger warning on it. That's an interesting thing. What do you have if you have an AI-generated image that looks very realistic but has printed on it, this is AI. Is that likely to be mistaken for those things? I'm not sure. I'm sure we'll be litigating it. Um also an interesting concept, I must say is an exception to that, that the bestial AI bestiality provision has an exception that is not an offense if the conduct uh was uh to serve the public good. So I guess they're contemplating some version of people circulating AI-generated bestiality images for the public good. Uh you can't imagine quite what all that might involve. Maybe that's the uh uh crown transmitting it or the police transmitting it or something. Anyways, that's what they've done, so that will be uh interesting. They've also uh created uh definitions dealing with the uh criminalizing the distribution of intimate images, which are obviously also intended to deal with what's become of AI. Um and you know, there's been a little bit of reporting on this that I've read about. I haven't seen it in any criminal cases that I've been involved with, but uh AI generated or modified images. Like apparently there are apps uh that uh you know high school students are getting that are like nudify apps, so they can like take a picture of a person and AI would modify the picture to make it look like the person is naked. Uh and so once again you shake your head at humanity, but there it's what we've done. Uh and so this would make it an offense to uh distribute, um, like posting online or saying it to somebody, a visual representation that is made by any electronic or mechanical means. I'm not sure how you're mechanically doing this, but electronically certainly, uh, that shows an identifiable person who is depicted as nude exposing their sexual organs or engaged in explicit sexual activity if the depiction is likely to be mistaken for a visual recording of that person. Just there are a lot of things going on in that sentence, right? Um and so uh, you know, if you had an AI generated image that's likely to be mistaken for a recording of the person, again, doesn't see what what happens if it's like labeled as this is not real, right? Or generated by Nutify app. But I guess if the visual recording is likely to be mistaken for a visual recording of the person, it would create offenses prohibiting those things from being um like posted or distributed. Um other things that are in included in this proposal or this bill, not a proposal, um uh would be to make it an offense to threaten to distribute um child uh images of child sexual abuse. So I think this would contemplate you know somebody who might be online threatening a child with you, you better do something or take more pictures or send me money or do something or I'm gonna publish this, right? Um so that's uh uh I think obviously a serious matter. That's that's been added here. They this would uh create uh another uh defense of uh for a person who's in a position of trust or authority or power over somebody. So that would be a first legal question, you know, parent or guardian or teacher probably, uh employer maybe, um, who is trying to uh uh recruit somebody under the age of 18 to become uh party to um a crime. Now it's already an offense to uh uh try, you know, if you're doing something to like encourage or abet somebody to commit a crime, that's already an offense, but this would create a new offense with those elements of under 18 and trust and authority and so on. Uh I'm not quite sure what's motivated that is uh coming out as a separate matter. They've also uh in this they've uh uh amended a section dealing with a concept of coercive control. Uh and that is being defined in here as repeated instances of controlling conduct, and then there are a whole bunch of things listed here, um, including things like a threat to use violence against a long list of people, including things like an animal owned by a person. So I guess if you're somebody who was repeatedly threatening an animal, that could amount to that. Um the other things that are in there, this is interesting, in terms of sort of who might be caught up in this, there are uh the engaging in other conducts, a broad category under this heading of coercive conduct, uh, can include things like um uh a person who is controlling or attempting to control or monitor an intimate partner's location. You think cell phone things like that, right? Uh, or uh social interactions or movements. Also, uh, if there was controlling or attempting to control an intimate partner's uh or other partners' finances or monitoring their finances, if that if that uh sort of thing uh might cause the person to feel threatened for their safety. So again, it's not to say that any of these are good conduct, but you can just imagine when I just describe it in that degree of detail, what that is going to look like uh in terms of litigating uh those things and the beliefs and purposes and what is that ca uh what does that uh amount to. Um one of the other things, this is obvious, this large package of amendments uh is intended to try to deal with are some of the uh delay problems which we are already uh dealing with in a virtually crushing manner in the criminal justice system. Um a few years ago, the Supreme Court of Canada uh set out sort of presumptive upper limits for how long a criminal case can go before it's considered uh not in a reasonable time. Um and it's important to know that uh none of that includes conduct like the calculation of delay caused by an accused person, obviously, maybe not obviously, but that is not included in that. If somebody's like, you know, unnecessarily delaying something, that does not count in terms of the uh that presumptive uh time limit. But one of the things which has genuinely caused a problem is that in the prosecution of sexual offenses in Canada, uh, and some of this came out of the Gian Gomeshi case, uh Parliament has created a bunch of circumstances where prior judicial approval has to be obtained in order to, for example, ask a complainant in a uh sexual assault case about uh particular records, sometimes text messages, sometimes uh things that might involve other sexual activity that's not the part of the specific charge in the case. And the screening mechanism for those things involves like notice being provided and then uh uh the person getting their own lawyer potentially and a judge reviewing it and having often two different hearings. Um and as you can probably tell even from that description, uh that can be time consuming, right, when you're the introducing another lawyer and multiple hearings, and those things occur now in most sexual assault cases because some of those things are so common uh these days, right? Uh the sort of uh material that might be an issue there. And so this legislation, if if passed, uh would do things like trying to uh have a longer notice period, like a 60 days notice before that kind of a hearing, presumptively. I guess with the idea that might allow more time for the other lawyer to be engaged, that sort of thing. Uh, and then trying not to count time when there wasn't 60 days notice provided, but um and then not to count the actual days that the hearing is occurring, although that seems not particularly significant in most cases. Um adding some things to that, trying to ameliorate the delays being caused by all of those screening provisions and hearings that are now required, um, and then also requiring a judge where there is uh potentially going to be a stay of proceedings as a result of a case just being delayed too long, uh, to require the judge to consider whether there's any other just remedy. Usually there would not be, right? Uh, you know, but um requiring that to be considered. Um another thing in here, which is also going to add significantly to uh timing in criminal cases is that they've introduced, and this is interesting, a provision providing that mandatory minimum sentences for somebody will not be applicable to the person, uh, if it would result in a cruel and unusual punishment, like a uh or grossly excessive punishment for that particular person. Now, here's really the import of that. The way the law is now is if there's an issue about whether a sentence is um uh going to be uh constitutionally impermissible because it's excessive, right, um the court would consider whether it would be that for this particular person or whether that could occur in a sort of a reasonable hypothetical circumstance. And if a sentence would be grossly disproportionate, the minimum, then the court would find it to be the minimum to be unconstitutional, and that wouldn't get relitigated in every case, right? This would contemplate uh at least potentially here, a court being required in every single case where that's an issue to be litigating the issue of whether the sentence would be the mandatory minimum would be a grossly disproportionate for this person. And so what that will mean is that in cases where that is so, you will be repeating that litigation process case by case to determine whether that is so. Uh, and that is going to add significantly to the burden in uh criminal courts. Uh other interesting miscellaneous things, just going through all of this, we have had uh for some time now uh provisions that allow, for example, like young witnesses to testify outside a courtroom, like by closed circuit television or behind a screen to make it more comfortable for them. I find that's generally a positive uh thing, at least from my perspective. Uh but it the idea would be to expand that to other categories of witnesses potentially. And also interestingly, at the moment, it permits a person to be uh have a support worker sit with them when they're testifying, like on the video connection. Uh but this legislation would uh allow a support animal. So I guess we may have circumstances where witnesses are testifying with a dog or cat or something in another room hooked up by uh video uh as a matter of accommodation. Um, anyways, none of this is a there's a you know, all of these things have to be, of course, considered on their, you know, on their own merits, whether these things will be helpful or to assist or not. But it's very clear from this, without a shadow of a doubt, that if this is passed, there is going to be a increased demand on court time and requirements. Simply more judges, courtrooms, sheriffs, clerks, crown, legal aid, and all of that is going to be required to make this work. Um so a very interesting package of things. There's a whole bunch packed up in that, um, you know, that uh should be carefully considered. Uh, but uh at least what I've indicated there in terms of resourcing, there's no doubt about it that if you add 76 pages of additional requirements and offenses and considerations and hearings and so on, you need the capacity to actually decide those things. And so it's not free, you can't just do it and make everything go away. Um, you need to be able to have the capacity to do it. So that's Bill C 16, introduced uh first reading on December the 9th, so just introduced this week. We'll have to watch and see how that makes its way through the just through the uh legislative process, but uh boy, there's a lot uh a lot going on uh in Bill C sixteen.
Adam Stirling:All right, let's take our first break. We'll be back right after this. We've got about four minutes left.
Michael Mulligan:Sure. Uh so just in your last point, I must say in addition to the uh being able to make sort of democratic judgments about things, the other thing I think we need to bear in mind with just how complex some elements of the criminal law have become is you need to ask yourself, is this going to be effective as a means of deterrence when I'm probably the only one who uh at least maybe live is anyone else listening to this taking the time to read bill C16, all 76 pages of it? How do you expect it to have a general deterrence effect if uh almost no one is going to understand what's going on there? But anyway, that's just an aside. So in the last couple the last just few minutes here, uh there's another case I just wanted to touch on because it has some important uh issues in it. And it's another case dealing with this concept under the BC Family Law Act of who is a spouse. Um and we've talked about a few of these cases before. They are coming up frequently. I'm seeing them just in the reported decisions. Um and the ish particular issue that's getting repeatedly litigated is the fact that under the Family Law Act, even if you don't marry somebody, you're effectively married to them if you live in a marriage-like relationship for a continuous period of at least two years. So that produces a lot of litigation. Uh, and this is another example of that. Um it's a uh couple who had uh a complicated and tumultuous relationship that went on for a period of time. They were romantic partners, business partners, they lived together, they didn't have children together, but each of them had children from a prior relationship, uh, and eventually the relationship broke down, and the woman in the relationship was suing for things including child support and spousal support, division of property. And for I should pause there just for a moment so people uh appreciate this. If you wind up uh being in what amounts to a marriage-like relationship, which is continuous for a period of two years, uh, and you stood in the position of a parent in that context, you can be responsible for the child support for the children even if they are not biologically your children. Uh and so that was the a part of the basis of this claim. And because of that definition, it involves, as many of these things do, days of trial, many days, and then a judge in this case writing a twenty nine page judgment, having to pick out all of the various times when who moved in together and who moved out, and were you planning to get back together, and were you fighting, or were you trying to reconcile? Uh, and did this amount to uh you know, marriage like relationship, and was it continuous? Did it end? Did it restart? Um there's a lot of Effort going into trying to sort those issues out. Here, ultimately, given all that complexity, uh the judge concluded no. Certainly during extended periods of time, uh they were living together, but it wasn't continuous for that period of time in a marriage-like relationship. And certainly at times when they had sort of broken up, they still sort of had, you know, chats and went on a vacation from time to time and then kind of got back together and then broke up again. But it never amounted to a continuous period of two years, and so that part of the that claim was found not to be marriage-like and continuous uh cohabitation for that period of time, and so the claim didn't succeed. The other thought, the other part of it, which I at least found amusing, was part of the litigation involved a Range Rover, really nice vehicle, not known to be reliable. And there's an issue about whether the Range Rover that the woman had been using, that the fellow had paid for and but she'd been using continuously during a relationship was a gift, or whether he was just allowing her to use it while they were together. Uh and some of the details, including that the vehicle was purchased in 2020 for a little over$101,000. The other amusing element of it was that at the time of the trial, the Range Rover was not working or insured as it was parked to the driveway. So not exactly a great review of the$101,000 Range Rover. The ultimate decision was it wasn't a gift, but maybe the uh bigger takeaway there is the judicial commentary on the status of the$101,000 Range Rover. You might want to take that into account when you're doing your uh car shopping. So that's the latest from the BC Supreme Court on uh who's a uh who's a spouse for the purpose of the Family Law Act.
Adam Stirling:All out of time for this week, but we look forward to the next one. Michael Mulligan from Mulligan Defense Lawyers Legally Speaking on T FAX. Michael, thank you so much. Thanks a butt. It's always great to be here. All right, quick break. News is next.