Our City Tonight sat down with criminal defence lawyer Kyla Lee to discuss three major pieces of federal legislation changing Canada’s criminal law, including reforms to bail and sentencing, protections surrounding sexually explicit “deep  fakes” and stronger laws addressing hate crimes.

OCT: This is a landmark period for criminal law in Canada. How significant are these changes?

KL: This is probably one of the biggest moments for criminal law in modern Canadian history. Multiple major pieces of legislation are moving forward very quickly, and they make substantial changes to the Criminal Code.

OCT: There are three major criminal law reforms Canadians should know about. Let’s break them down and make them as understandable as possible. Let’s start with Bill C-14, the Bail and Sentencing Reform Act. What does this actually mean for Canadians?

KL: Essentially, the Criminal Code has been amended to make bail more restrictive in a number of circumstances, including through additional reverse-onus provisions. That means that, in certain cases, the accused has to demonstrate why they should be released rather than the Crown having to establish why they should be detained. There are also significant sentencing changes. Some reforms introduced in recent years are being rolled back, particularly the use of conditional sentences or house arrest for certain serious offences. The legislation places greater emphasis on actual jail sentences for some offences, including serious violent and sexual offences.

OCT: So, in some circumstances, the accused has to demonstrate why they should be released. As a criminal defence lawyer, will this make a huge practical difference?

KL: I don’t think it will fundamentally change how most bail hearings are conducted. The Supreme Court of Canada has made it clear that, regardless of who bears the burden, the principle of restraint still applies. Release is generally the starting point, and the court must consider the least restrictive form of release. So even with these changes, if a person can be released under appropriate conditions while protecting the public and meeting the objectives of bail, they can still be released.

OCT: What about the so-called “catch-and-release” concern we hear so much about? These reforms sound significant, but implementation is often where the real challenge lies.

KL: That is an important point. This is another criminal law Bill adding reverse-onus provisions, but the fundamental test for bail has not completely changed. What is changing is who has to demonstrate why release is appropriate in certain circumstances. So, practically speaking, I don’t think this is going to eliminate the “revolving door” concern that some people have.

We often hear about people who breach their bail conditions because those cases make the news. The vast majority of people released on bail in Canada comply with their conditions. We don’t hear about those cases because there is nothing particularly newsworthy about someone following the rules.

OCT: Let’s move to Bill C-16, the Protecting Victims Act. This one feels particularly modern because we weren’t having these conversations about artificial intelligence and deep fakes 10 or 12 years ago. How does the legislation address that?

KL: This modernizes the Criminal Code. The legislation expands protections against the non-consensual distribution of intimate images to sexually explicit deep fakes.

For example, if someone uses artificial intelligence to create a sexually explicit image or video depicting another person without their consent and then distributes it, that can now result in criminal consequences. The law responds to how technology has changed these offences. We already had protections against revenge porn and non-consensual distribution of intimate images, but AI has created a new way of doing this.

OCT: Does this give victims more protection and police better tools?

KL: Absolutely. The existing Criminal Code already provided protections for people under 18, but these amendments expand protections relating to sexually explicit “deep fakes” to people of any age. It recognizes that you should not be able to take somebody’s image, manipulate it and turn it into sexually explicit content without their consent. The legislation also strengthens the law around threats to distribute intimate images, which is particularly important in cases involving sextortion.

OCT: And then we have the Combatting Hate Act, Bill C-9. Walk us through what that entails.

KL: The Combatting Hate Act changes the Criminal Code, including creating a specific hate-crime offence. Previously, hate motivation could be treated as an aggravating factor at sentencing. Now, in certain circumstances, the hate motivation can form the basis of a separate criminal offence in addition to the underlying offence. The legislation also defines “hatred” in the Criminal Code, essentially codifying a definition developed through Canadian case law. It is intended to distinguish genuine hatred from speech or conduct that is simply offensive or unpopular.

OCT: Freedom of expression is fundamental in Canada. Do you see this becoming a slippery slope? What one person considers hateful may not be considered hateful by someone else?

KL: That is going to be an important issue. There is a very fine line between protecting people from genuine hate and protecting freedom of expression. The legislation focuses on intentional promotion of hatred and defines hatred in terms of an intense and extreme emotion associated with vilification and detestation. It also makes clear that something is not necessarily hate simply because it hurts or offends someone. Whenever Parliament creates or expands criminal offences that potentially affect freedom of expression, there is the possibility of constitutional challenges. Canada has a strong Charter of Rights and Freedoms, and courts will ultimately determine how these provisions operate in practice.

OCT: We’ve seen strong opinions surrounding events in the Middle East. People can have very different views and sometimes feel attacked by what others are saying. How do you determine where strong disagreement ends, and criminal hate begins?

KL: That is exactly where the challenge lies. Disagreement, criticism and even deeply offensive speech are not automatically criminal. The question becomes whether the conduct meets the legal threshold established by the legislation. Intent is also incredibly important. Proving what someone intended to communicate or accomplish can be difficult, which is why these cases will likely require careful consideration by police, prosecutors and ultimately the courts.

OCT: Do you think Canada's hate-crime laws will continue to evolve as society changes?

KL: Absolutely. Criminal law is always evolving because society is evolving. The way we communicate and the technology we use are changing. We are becoming increasingly conscious of how we treat one another and the impact that hate and intimidation can have on individuals and communities. The challenge for lawmakers is finding the balance between protecting people from genuine harm while protecting the fundamental rights and freedoms at the heart of Canadian society.