THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 9, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met by videoconference this day at 4:30 p.m. [ET] in consideration of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, I welcome you all today to our meeting for clause-by-clause consideration of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material.
[Translation]
Before we begin clause-by-clause consideration, I would like to remind honourable senators of a number of points. If at any time a senator isn’t sure where we are in the process, please ask for clarification. I want to make sure that at all times we all have the same understanding of where we are in the process.
With respect to the mechanics of the process, I want to remind honourable senators that when more than one amendment is moved in the clauses, the amendments must be moved in the order of the lines of the clause. Therefore, before addressing an amendment in a clause, I will check to see if a senator intended to move an amendment earlier in that clause. If senators intend to move an amendment earlier, they will have the opportunity to do so.
[English]
One small point: If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause.
It would be useful to this process if a senator moving an amendment identify to the committee other clauses in this bill where this amendment could have an effect and where the senator will have further amendments.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order.
If no one says anything, then the clause or amendment will carry.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the result of a vote, the most effective route is to request a roll call vote.
Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, I would now like to introduce the senators who are members of this committee.
Senator, do you have a question or an intervention?
[Translation]
Senator Dupuis: I would like to raise a point of order.
[English]
The Chair: Before you proceed, I will introduce the committee members: Senator Campbell, deputy chair; Senator Batters, deputy chair; Senator Boisvenu; Senator Boniface; Senator Boyer; Senator Carignan; Senator Cotter; Senator Dalphond; Senator Dupuis; Senator Miville-Dechêne, the sponsor of the bill; and Senator Tannas. Senator Pate is also with us.
[Translation]
Senator Dupuis: I would like to raise an objection. Tell me if this is the time to do so.
It seems to me that we haven’t had the opportunity to examine the technical complexity of the bill before us. In my opinion, there are witnesses who should have appeared, but we didn’t have the opportunity to do so. This isn’t a criticism of anyone; it’s an observation. There are crucial questions in this bill, particularly with respect to the interrelationship with the criminal law and the Criminal Code, but also strictly technological questions.
Also, the many amendments were introduced late in the process, because the sponsor of the bill had outlined them at the very beginning of our committee work. She had laid out the fact that there were technical problems with her bill, and that there would be changes. So, the many amendments that were tabled quite late in the process — and without having had time to examine them in detail — lead me to ask if it would be better to postpone. This is the question I am asking you. I don't think that we have really reached the stage of considering this bill as it is before us, clause by clause.
[English]
The Chair: Thank you, Senator Dupuis. Senators, do we want to have this discussion in public or in camera?
Senator Batters: In public.
The Chair: Okay, so we will continue. I see that Senator Dalphond has an intervention.
Senator Dalphond: I will be using the same language all the time.
Regarding what Senator Dupuis just said, I have the same concerns to raise. I think the spirit of this bill is very good, and I certainly support it. However, what we have to achieve here is the best way to achieve the goals described in the preamble of the bill. From the witnesses we heard, including those last week — I missed the second panel, but I will be sure to catch up — I was impressed by the number of people who did not show up, including the internet providers and the operators of those porn sites. We also have not heard from the industry, especially from the internet providers.
We’ve heard a lot of people — and we all agree — that children having access to pornographic material is not something we should value; it can be damaging and dangerous. It’s a health issue of serious concern to all of us, and I think it has to be addressed.
That being said, I was impressed by the testimony of the two legal experts last week — the defence lawyer representative and Professor Emily Laidlaw, the research chair in cybersecurity law. I wonder if she proposed something we should consider seriously when she said that it starts with good intentions and good principles, but it’s something that deserves to go back to the drawing table and maybe be reconsidered.
I see the number of amendments being proposed today, which show that a major rewriting of the whole bill is proposed. If we do that without having the benefit of hearing from witnesses who could address these changes, I wonder if we are doing the right thing.
I share the concerns expressed by Senator Dupuis.
The Chair: Thank you, Senator Dalphond.
Senator Batters: In response to this question, I would certainly be curious to hear Senator Miville-Dechêne’s response to all of this, since it’s her bill. I understand that she’s subbed in as a member of the committee today so she will certainly have that opportunity.
I am supportive of this bill and its important intent. I did have some concerns raised by some of the witnesses that we most recently heard from. However, I was pleasantly surprised to see the types of amendments that are being proposed by Senator Miville-Dechêne to improve the bill and to bring it more in line with some of the concerns we heard from witnesses throughout. I think the amendments vastly improve it.
I feel like we should go forward at this point. If the sponsor of the bill wishes to go forward, some of the concerns that I had have been addressed by these different amendments. I think it’s an important step forward, and I would like to see us proceed.
Regarding the witnesses, obviously Senator Dalphond being a member of steering, he knows that, yes, we had many different witnesses, but we had trouble getting them because they declined to participate. However, I do think we had a well-rounded hearing of this issue from many different facets, and we worked hard to get well-rounded witnesses from a number of different perspectives. We had a good hearing, and I would like to see us proceed. Thank you.
The Chair: Thank you, Senator Batters.
[Translation]
Senator Miville-Dechêne: As you can imagine, I don’t agree with this idea of not doing clause-by-clause.
There are six amendments, indeed, but of those, there are two that are more complex and that affect clause 9 and clause 10. The other amendments are as follows: two to correct typos and one to change the minister. Basically, they were all proposed because we knew the mistakes that had been made, but the two main amendments are those to clause 9 and clause 10.
You’re right that this bill isn’t perfect. As you know, the process will undoubtedly continue and the bill will get better as it goes along. I’ve taken note of what the last few witnesses have said. I’ll tell you that from my perspective, it’s certainly not the gospel truth; there were several defence lawyers.
However, I consulted with other technical lawyers, and they didn’t see the problem as being of the same magnitude. I asked one of the lawyers about it, and she said that we should have a more gradual system, but it’s impossible in this case because there are blocks. That’s the way other countries like France do it, because that’s basically the only way to do it.
I still feel that this bill needs to move forward, although I understand that you want it to be refined. I’ve been working on it since last summer, and I’ve consulted a lot of people. As you know, the internet is a new area, and I’m against waiting and rejecting proposals or putting them aside — proposals that aim to reduce significant harm — because the internet is complex, and we’re always a little afraid of touching fundamental freedoms.
My personal view is that we can’t just sit back and do nothing because it’s a difficult issue. I understand that there is a potential for error, but the whole issue of privacy isn’t in the bill. It would come after the bill is passed, and we have a year in the bill to put in place appropriate regulations.
My own bill will certainly not go through all the stages for some time. We know how quickly private bills move. So I feel that if the goal is to have legislation in place in about two years, which is realistic, that gives us plenty of time to do some more vetting. There is no single truth about a bill, and I think you know that as well as I do.
There are different ways to proceed. I worked with a very good law clerk, Marc-André Roy, and I consulted several lawyers. The fact that the pornographic sites do not want to testify, even though representatives had told me that they would come, in one case, is a reflection of the conversation with them, which has been non-existent since the beginning. There is no need to take this refusal as proof that we can’t move forward. It’s obvious that pornographic sites will comply with the legislation if there is any. However, their position is obviously that they won’t do so without legislation.
I think I’ve said enough. So I think we should move forward.
Senator Boisvenu: I intend to support Senator Miville-Dechêne’s position. On the one hand, we must send a clear message: We’re concerned about what we’ve seen and heard about these networks that exploit children. Adults are turning these children into consumer products, and this is totally unacceptable. Let’s also mention that there are children who use these products. We need to send a message that the Senate has heard from families who are struggling with this problem and parental controls that are not easy to enforce.
In this case, I figure one is better than two. Like all bills, this one could be improved. I’m thinking of Bill C-75, passed in 2019. Some of the elements in it now seem to me to be very weak in relation to the reality of 2019.
I therefore support the senator’s initiative and I believe that we should adopt this bill, even if it means improving it over the next few years.
[English]
Senator Boyer: I tend to agree with Senator Batters, Senator Boisvenu and Senator Miville-Dechêne. This bill should go forward. We can do much with the regulations. I know there are problems with it, and I know that it can be improved, but I think it’s a very good starting point from which to go forward.
[Translation]
Senator Carignan: I agree with Senator Miville-Dechêne and the comments of Senator Batters, Senator Boisvenu and Senator Boyer.
[English]
Senator Cotter: On balance, I’m with Senator Batters and the position she espoused. There are problems with the draft, and there are problems even with the amendments that Senator Miville-Dechêne will present today. But we are better off talking about them and seeing what can be done moving forward, with the entire anticipation, as some other colleagues have indicated, that if the bill makes it to become law, it will likely get bounced around a bit and maybe, over the years, improved. I agree it’s better to do something than run the risk of not doing anything, if we can.
Senator Boniface: I share the concerns of Senator Dupuis and Senator Dalphond, although having heard from all of my colleagues, there is an interest in moving forward and, therefore, I would suggest we do so.
The Chair: Senators, I hear that most of us want to proceed.
Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry? I say clause 2 because clause 1 contains the short title, and we said it would stand postponed. Shall clause 2 carry?
[Translation]
Senator Dupuis: I’ll call the vote.
Senator Miville-Dechêne: On clause 2? I have an amendment for clause 2, but perhaps we aren’t there yet.
The Chair: One moment, Senator Miville-Dechêne.
[English]
Senator Dupuis, you want to vote on what?
[Translation]
Senator Dupuis: I would like a recorded division on each of the clauses that affect this issue today.
[English]
The Chair: Okay, we will have a roll call on everything.
Do you want a roll call on whether the title shall be postponed?
Hon. Senators: No.
The Chair: So on clause 2, Senator Miville-Dechêne, do you have an amendment?
[Translation]
Senator Miville-Dechêne: Yes. It reads as follows:
That Bill S-203 be amended in clause 2, on page 2, by replacing lines 9 and 10 with the following:
“Minister means the Minister of Canadian Heritage. (ministre)”.
May I explain briefly why I’m proposing this amendment?
The Chair: Yes.
Senator Miville-Dechêne: We originally agreed to make the Minister of Public Safety responsible for this bill because, if you read the preamble, there was an issue of public safety — the safety of children and women — with respect to the harmful effects of pornography.
We know that Public Safety is working with the Department of Heritage on the issue of child sexual exploitation on the internet. That’s why that logic was adopted. However, last fall, after my bill was introduced, the Minister of Heritage himself introduced Bill C-10 and, more importantly, announced a bill, which is not yet in force, in which he wants to require internet platforms to remove any illegal content within 24 hours.
The minister has taken his responsibilities in this area head on. We felt that, given the situation, it was best to bring these issues under the same ministry, although, as you know, several ministries are working together on these issues. That’s the logic behind the change.
[English]
The Chair: Thank you, Senator Miville-Dechêne, for the explanation.
Senator Cotter: Not a lot turns on this, but for two reasons I wanted to inquire whether it would be better here simply to have a provision that indicated it would be such minister as the Governor-in-Council assigns to this responsibility. Who knows exactly the shape of how the executive government might manage such an initiative, whether they might treat it as more criminal as opposed to more an issue of humanity and culture and the like. It seems to me it would create more flexibility for the administration of the provision if we were, in a sense, deferring to the executive rather than dictating to the ministry. That’s my only thought. Thank you.
The Chair: Senator Miville-Dechêne, would you accept that friendly amendment?
Senator Miville-Dechêne: Yes. Considering the fact that more than one minister is involved in this particular file, I think it would be prudent and careful not to name the minister in that bill.
Senator Batters: I’m not sure if that’s needed. I’ve certainly seen this sort of thing in bills before where the minister is designated.
In her second reading speech, the critic of this bill, Senator Frum, suggested that this change should be made to designate the Minister of Canadian Heritage instead of the Minister of Public Safety. I would be okay with either way, but I don’t think it necessarily needs to be left to the Governor-in-Council as to which minister to designate. However, if Senator Miville-Dechêne wishes to do that, that’s fine.
The Chair: Senators, we will go to the vote.
Senator Miville-Dechêne, are you accepting Senator Cotter’s friendly amendment?
Senator Miville-Dechêne: Yes. Obviously, if others have an opinion. I don’t think it’s major. I chose the Minister of Heritage because he’s very involved in these questions right now, but things can change.
The Chair: Senators, we’ll go for the roll call.
Senator Dalphond: Can you read the amendment? Is it the amendment by Governor-in-Council?
The Chair: The amendment is minister in council.
Mark Palmer, Clerk of the Committee: Senators, if we make this subamendment, we’ll have to suspend a minute to get the proper language written by the Law Clerk’s Office to make sure we’re doing a proper amendment.
The Chair: Mark, you suggest we wait. Is the Law Clerk available?
Mr. Palmer: I’m going to write the Law Clerk right away.
The Chair: We will await the Law Clerk’s response.
Mr. Palmer: The Law Clerk will work on it right away. In the meantime, we could decide to stand the clause and move on to the other clauses of the bill.
The Chair: Is that acceptable? Senators, can we stand clause 2 for now?
Hon. Senators: Agreed.
The Chair: Senators, shall clause 3 carry?
Some Hon. Senators: Agreed.
The Chair: Is there anybody who does not agree? No.
[Translation]
Senator Dupuis: I’m against it. I asked for a recorded division on each of the votes, please.
[English]
Mr. Palmer: Absolutely. The question is, shall clause 3 carry? The Honourable Senator Jaffer?
The Chair: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 10; no, 0; abstentions, 1. The clause carries.
The Chair: Shall clause 4 carry? Senator Dupuis wishes a roll-call vote for each clause.
Mr. Palmer: The question is, shall clause 4 carry? The Honourable Senator Jaffer?
The Chair: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 2. The clause carries.
The Chair: Shall clause 5 carry? Please do the roll call.
Mr. Palmer: The question is, shall clause 5 carry?
Senator Dalphond: Sorry, a point of order, Madam Chair.
The Chair: Yes.
Senator Dalphond: Are we going to discuss the content of each of these clauses, or are we just going to vote without discussion?
The Chair: There is no amendment to this clause, senator.
Senator Dalphond: So you mean we have no choice? We have to vote for it because there’s no amendment?
The Chair: Senator, if you would like to discuss any clauses, you can always say you would like to have further discussion on it. I did not hear any desire for discussion, so I proceeded.
Senator Dalphond: I wish to raise some questions about that provision.
The Chair: On clause 5?
Senator Dalphond: Yes.
The Chair: Go ahead.
Senator Dalphond: Last week, we had witnesses, especially the defence lawyers, saying the definition as proposed is too broad and that it should be restricted. I don’t see any amendment that addresses that concern here.
Senator Batters: I just wanted to say that if we didn’t proceed with a clause that defence lawyers thought to be too broad, we wouldn’t proceed with very many criminal laws in Canada. I say that as a former defence lawyer.
[Translation]
Senator Miville-Dechêne: I consulted following last week’s hearings. Are we talking about clause 4 or clause 5 here?
Senator Dalphond: Clause 5.
Senator Miville-Dechêne: The difficulty is that if we focus more on the clauses — there are obviously many views on this — the danger is that we’re going to get away from them. A fairly broad scope is necessary. I understand the danger, but the police and prosecutors have to be able to do their jobs without the section being too restrictive. I understand that there may be different views on this.
[English]
Senator Boniface: I just wonder on this issue if the sponsor could help me. Does this language find itself in other pieces of legislation? I’m just wondering whether in your discussion with other lawyers they would have given you an indication that this type of language to deal with corporations would be a typical language.
[Translation]
Senator Miville-Dechêne: My answer is that, in this case, it was Law Clerk Marc-André Roy, whom I consulted afterwards, who was quite surprised by the comments, because from his point of view, it was a fairly common way of describing the fact that it is possible, in the case of a company, to target both the officers, directors or agents with respect to offences.
Also, unfortunately, I can’t give you the exact reference in the act. I could send it to you, but it won’t be in the context of this clause-by-clause study; I apologize for that.
[English]
Senator Cotter: Just on that point, I think this language is not dissimilar to lots of other provisions that try to pierce the corporate veil and get at directors. This is common in areas like bankruptcy law, labour standards, whether it’s for offences or civil liability. I can’t say word for word, but it’s pretty darn close, I would say, to other language that’s used in a similar fashion.
Senator Dalphond: This is a question, not a comment. The end of the provision says, “whether or not the corporation has been prosecuted or convicted.” So I understand if the company is prosecuted but declared not guilty, that the provisions would still apply?
The Chair: Are you asking that question of the sponsor?
Senator Dalphond: I wonder, the way it’s drafted, “prosecuted or convicted,” does it mean if the company is prosecuted and found not guilty, the liability could still occur?
[Translation]
Senator Miville-Dechêne: My understanding is that the company can be sued, but there is liability at the highest level, and directors and their agents can also be sued.
[English]
Senator Cotter: This feels a little bit like a legal discussion, but I guess in response to Senator Dalphond’s point, I think he makes a good one. My reading of it, as it’s drafted, is if the corporation is acquitted, then an offence wasn’t committed. In the middle of the text, you will see the requirement is those directors had to acquiesce in the commission of the offence. If there was no offence and the corporation were acquitted, then it would be difficult to prosecute individuals for an offence that had been found not to have been committed.
I do think it’s still valuable for this to appear here. It’s not uncommon in situations like this for the corporation to become insolvent or in some other way not prosecutable. The value of still being able to pursue the directors and directing mind to the corporation, even if there’s no criminal charge against the corporation itself, is still a valuable avenue to be available.
In answer to Senator Dalphond’s more direct question, it strikes me in the reading of this, and seems to make sense, that if the corporation did not commit an offence and it was acquitted, it would be pretty awkward and difficult for a prosecutor to proceed against individuals who might have directed that behaviour that was found itself not to be an offence. Thanks.
The Chair: Any other interventions? I see none, so we will go to the votes.
Mr. Palmer: The question is, shall clause 5 carry?
The Honourable Senator Jaffer?
The Chair: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 2. The clause carries.
The Chair: We’ll now go to clause 6. There is an amendment.
[Translation]
Senator Miville-Dechêne: I propose the following amendment:
That Bill S-203 be amended in clause 6, on page 3, by replacing line 32 of the English version with the following:
“secuted for the offence under this Act.”.
As you know, this is a typo, one that was noticed by Senator Batters. Thank you, Senator Batters, for your eagle eye. We didn’t mean to say “proceeded,” but “prosecuted.” What we’re doing is we’re substituting the word “prosecuted” for the word that was the incorrect word, “proceeded.”
It’s a technical amendment.
[English]
Senator Cotter: I’m fine with it and I think it’s wise to make the change that Senator Miville-Dechêne proposed.
I have a little more trouble with the content of this provision, and maybe I could speak to it if that’s acceptable at this time.
The Chair: Yes, absolutely.
Senator Cotter: The language here is very much kind of what’s referred to in law I think as vicarious liability, and that is when somebody’s employee does a bad thing, usually in civil proceedings, the directing mind is responsible for it, but it is a bit unusual for a criminal-type offence to rely solely on the fact that this is a person who happened to be working in the course of their employment and did this sort of thing.
Let me give you what I think is an awkward parallel. In the earlier provision where the corporation might be convicted of the offence in those circumstances when the director, officer, agent or mandatary directed, authorized, consented to, acquiesced to or participated in, they all have an active, intentional behaviour by the director — mens rea in the criminal law. This provision doesn’t have the acting mind in the perpetration of the offence. It just makes the employer liable on the basis that the employee, acting within the scope of their employment, committed the offence. I’m a little bit worried that that overreaches on the question of the criminalization of this provision. I don’t have an answer for the solution, but I am worried about this provision and its ability to withstand scrutiny because it makes this much more — I think the language might be an absolute liability offence if the offence is committed by the employee and the employee was acting within the scope of their authority when they did it, and then the directing person, the employer, suddenly becomes liable.
There’s a second component, which is that one of the answers that an employer could give in these circumstances is that the commission of the offence by an employee was never something that was in the scope of their duties and the scope of their authority. That would be a common view. Normally, people do not authorize their employees to commit crimes. That creates a very simple mechanism by which the employer of this person could be off the hook.
I’m worried that this provision reaches a bit too far in the imposition of, essentially, criminal liability in the way it is presently structured. Thanks.
[Translation]
Senator Miville-Dechêne: Senator, I’ll tell you how I understand it. Obviously, I’m not speaking as a lawyer. We’re talking about an age verification context, an age verification system, that is in place in a company. If employee X or Y doesn’t verify the age of those who want to view the site or the images in question, it’s his or her boss, the one who made the decision not to verify the age, who will be somewhat responsible for that action, not the employee. That’s how I understood it, but I agree that’s not a legal view of it.
[English]
Senator Dalphond: Paragraph 6 concludes the same way as paragraph 5, by saying that the person is not identified. The person is not committed, charged or proceeded for the offence under the act. The employer could be a manager, I suppose, because a person is a rather large word and it doesn’t necessarily mean the corporate body. Anybody could be prosecuted, but not the person who made the things, despite the fact that the person who has not complied with the law has not been prosecuted. Again, I find it too broad, quite frankly. I have questions about the validity of this.
The Chair: Any other interventions? I see none. We shall proceed, Mr. Clerk.
Mr. Palmer: The first vote is on the amendment to clause 6. The question is, shall the amendment to clause 6 carry? The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 7; no, 3; abstentions, 1. The amendment to clause 6 carries.
The Chair: Shall clause 7 carry?
Mr. Palmer: Sorry, senator, that was just the amendment. We still have to carry clause 6, as amended.
The Chair: Sorry, I meant clause 6. Shall clause 6 carry, as amended?
Senator Dalphond: I thought we voted on the things, because I didn’t intend to vote against “prosecuted” instead of “proceeded.”
Senator Cotter: Madam Chair, I think it doesn’t matter. I was a bit surprised by Senator Dalphond because leaving the word “proceeded” in made that phrase nonsense. I think it passed anyway, so I think we’re okay and can move on.
The Chair: Senator, we still have to vote on the whole clause, and that’s what we’re doing now. Shall clause 6 carry?
Mr. Palmer: The question is, shall clause 6, as amended, carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Abstain.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: I vote no, as I wanted to do earlier.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 7; no, 2; abstentions, 2. The clause, as amended, carries.
The Chair: Senators, shall clause 7 carry?
[Translation]
Senator Miville-Dechêne: I have an amendment, Madam Chair. I’ll read it to you:
That Bill S-203 be amended in clause 7, on page 4, by replacing line 3 of the French version with the following:
“individus âgés d’au moins dix-huit ans l’accès au matériel”.
So, it’s a typo, a typing error. Despite the many, many rereadings, we didn’t see that the French version of the bill indicates that access is limited to those under 10 years of age and not 18 years of age. An “eight” was missing. We realized this after the bill was written.
[English]
The Chair: Any other interventions? Senators, shall clause 7 carry?
Mr. Palmer: First it would be the amendment.
The Chair: I apologize. Senators, shall the amendment to clause 7 carry?
Senator Batters: Agreed.
The Chair: We have to do the roll call, Mark.
Mr. Palmer: Honourable senators, the question is: Shall the amendment to clause 7 carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 10; no, 0; abstentions, 1. The amendment to clause 7 carries.
The Chair: Senators, shall clause 7, as amended, carry?
Mr. Palmer: Honourable senators, the question is, shall clause 7, as amended carry. The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 10; no, 0; abstentions, 1. The clause, as amended, carries.
The Chair: Senators, shall clause 8 carry?
Senator Cotter: I have a question about this, Senator Miville-Dechêne. Young people getting access to pornographic material on websites where it’s supposed to only be available to adults are likely going to see pornography, sex acts and that sort of thing. That’s, in a sense, what the bill intends to sanction for.
I would have thought that our biggest concern here about aggravating circumstances is less that they see obscene material and more that they see violent depictions of sex. I would have thought that maybe “obscene” wasn’t quite the right word but some other conception of it here. Quite frankly, if there’s an offence of letting them have access to seeing sex acts, that’s the offence, and aspects of that might include obscenity. But degradation of girls and women, exposure to what otherwise might be acts of criminality, that kind of thing, that would be what I would be more interested in than focusing on obscenity there. I don’t know whether there’s an approach or whether you thought about that as an option.
Senator Miville-Dechêne: Well, it seems to me — and I don’t have the Criminal Code definition of “obscene” in front of me, but I will get it in a few seconds. This is exactly that. Violent acts are also part of obscenity. There’s a definition that includes a few aggravating circumstances, such as degrading. There’s also the question of — I’m sorry. I should wait a few seconds to have the definition of “obscene material”. I can look at it on my cellphone.
Senator Boyer: It’s in the definitions in the interpretation.
Senator Miville-Dechêne: Exactly. Thank you so much. So here we have it: includes any material a dominant characteristic.
“a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence . . .”
You see violence — this is what I remembered — is included in that definition. I watched quite a bit of those porn sites to be able to seize the topic, and you can see that very often. Freedom has great qualities.
[Translation]
Freedom allows for great things, but in this case, over the past decade, pornographic sites have become partly degrading, partly violent; there is everything on these sites.
We thought that making the offence more serious, with aggravating circumstances for obscene material, was the right thing to do. In fact, some courts have already ruled on this. I know that the defence lawyer who appeared said that the courts shouldn’t be told what to do and what to think on these matters, and that judges were quite capable of deciding on their own.
However, it seemed to me that, given the nature of the material we saw on these platforms, this clause was important.
[English]
Senator Cotter: Could I just say that I think you’ve shown yourself to be a better lawyer than me on this point, and I accept your explanation entirely. Thanks.
Senator Miville-Dechêne: Except that I didn’t know where to find the definition, so thank you very much for pointing me towards it.
The Chair: Senator Batters, did you have an intervention to make?
Senator Batters: I was just going to say that I had noticed it there too. If there is a desire to have it more precise, perhaps there could be obscene material put in quotes with “as defined in section 2.” But if that’s not necessary, and Senator Cotter seems to be satisfied, I think we could probably just proceed with that.
Senator Dalphond: That answers my question. Thank you.
The Chair: Senators, shall clause 8 carry?
Mr. Palmer: Senators, the question is, shall clause 8 carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 2. Clause 8 carries.
The Chair: Honourable senators, shall clause 9 carry? Senator Miville-Dechêne, you have an amendment.
[Translation]
Senator Miville-Dechêne: The next two amendments are related. I want to mention that. I’ll read them first:
That Bill S-203 be amended
(a) on page 4 by replacing the heading before line 14 and, in clause 9, by replacing lines 14 to 36 with the following:
“Enforcement
9 The Governor in Council may, on the recommendation of the Minister, designate an agency, division or branch of the Government of Canada as the enforcement authority for the purposes of sections 10 and 10.1.”;
(b) on page 5, in clause 9, by deleting lines 1 to 24.
I’m going to take a few moments to explain this amendment, which is much more fundamental than the technical amendments I’ve been talking about. So, this amendment is necessary at this time to give the minister the task of applying this administrative part of the act. Now, the Governor-in-Council is being asked to appoint either an agency or a unit of the federal government as an enforcement officer to manage the administrative sanctions. Why? To ensure greater independence of the process. The minister will not be called upon to enforce the act, but rather the agency designated by the Governor-in-Council or a division of the government. In this sense, the minister would be limited to making recommendations to the Governor-in-Council with respect to the designation, and cabinet would have to approve the minister’s choice.
It’s true that we’re talking about either an organization — in this case, it isn’t named, but it could be, for example, the CRTC — or a federal government department. So, as long as we remain in the public service, the independence is obviously much less. That’s why this amendment is attached to the other one, which talks about going to court, which will confirm the complete independence of the process.
For the record, one of the difficulties we had when we draft this bill was avoiding spending. Had we anticipated that the CRTC would be the lead agency, it would have had to hire staff, and have a larger budget to be able to implement this bill, and we would have been in the difficult position of justifying budgets in a private member’s bill that could not include budgets. That’s why we were a little more cautious about it, but on the other hand, it is true that it gave too much power to a minister in an area that is, it must be said, controversial: pornography. All it would take is the minister of the day having particular ideas about pornography for penalty administration to be perceived as not being independent.
I want to thank Senator Dalphond, who shared his reservations with me about this particular clause, and who, with the help of his staff, took the time to review our amendments. I also want to extend a warm thank you to Senate Law Clerk Marc-André Roy, with whom I had countless discussions, my Parliamentary Advisors To-Yen Tran and Mylène Alotto and, from Senator Dalphond’s office, Anushua Nag.
In short, it was a team effort that led us to change that approach in terms of the second part of the bill. In the first part, there are criminal penalties for those who break the law, but as we know, we absolutely need this second part of the law, because many of the pornographic platforms we’re targeting are not in Canada. If you want the law to have teeth, you have to be able to enforce it. So that’s it for clause 9. I’ll talk separately about the next amendment, which is related to this one.
[English]
The Chair: On debate? Senator Cotter.
Senator Cotter: I don’t want to over-extend the discussion here, but, Senator Miville-Dechêne, can you say a little bit more about the choice of the oversight agency to establish orders that can shut down internet service providers going to the Federal Court? I guess that’s the first point.
The second one really might be a question for Senator Dalphond. I noticed that in that process — and here I’m looking at the new sub (4) of clause 9 — the language here is that the Federal Court must order such and such if conditions A, B and C are met.
Senator Miville-Dechêne: That is clause 10. You’re a little bit ahead of yourself.
Senator Cotter: Okay. Thank you, Senator Miville-Dechêne. I’ll save it.
Senator Miville-Dechêne: We’re now switching the minister for the Governor-in-Council.
Senator Cotter: I read ahead. I apologize.
Senator Miville-Dechêne: That’s fine.
The Chair: Anything else, senators? There are two amendments, if I’m not mistaken. Right, Senator Miville-Dechêne?
Senator Miville-Dechêne: At this point, we’re on clause 9, on one amendment. I will present when this one is concluded a second amendment that is linked. That’s why Senator Cotter was right to ask a general question.
The Chair: But if I’m not mistaken, I see there’s an (a) and a (b). Are we voting on (a) and (b) at the same time, or are we first voting for (a) and then (b)?
Senator Miville-Dechêne: I don’t decide on those things, but the (b) is the suppression. If you look at the bill, you see that we had all of the regime that was written. Because we are rewriting this way of doing things on the administrative side, we have taken out all the lines on page 4 —
The Chair: Lines 1 to 24. Thank you.
Senator Batters: I just wanted to say on this that I believe this is all part of the same amendment to clause 9.
The Chair: Yes. That’s why I’m saying we vote for both at the same time. Is that acceptable, senators?
Senator Batters: Agreed.
The Chair: Clerk, can you call the vote, please.
Senator Cotter: I’m sorry, I didn’t entirely follow that intervention. I’m not quite sure what we’re voting on. Are we voting on the new provision for clause 9, then?
The Chair: We’re voting for the amendments, (a) and (b).
Senator Cotter: When you say (a) and (b), I’m not able to follow what is (a) and what is (b) here. I have on my little cheat sheet just a clause 9 that is six lines long. I think that is Senator Miville-Dechêne’s new clause 9. Then the new regime is a separate clause 10.
Senator Miville-Dechêne: Exactly. That’s why we have to erase the former clause 9, which was quite long and which was entitled, in French, Avis aux fournisseurs de services Internet.
Senator Cotter: So we’re just voting on that six-line-or-less clause that begins, “The Governor-in-Council may . . .”?
Senator Batters: It’s also part of it to say that, on page 5 in clause 9, lines 1 to 24 are deleted. That’s the (b) part.
Senator Cotter: Right. Yes. Got it.
The Chair: That’s the (a) and the (b). I am asking, should we vote separately for the (a) and the (b)? In this case, I think we should vote together. Is that acceptable, senators?
Hon. Senators: Agreed.
The Chair: Clerk, please call the roll.
Mr. Palmer: The question is, shall the amendment for clause 9 carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 10; no, 0; abstentions, 1. The amendment carries.
The Chair: Senators, I don’t mean to rush anyone, but I just want everyone to know that we must stop at 6:30. It’s a hard stop.
Senators, will clause 9, as amended, carry?
Mr. Palmer: The question is, shall clause 9, as amended, carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 10; no, 0; abstentions, 1. Clause 9, as amended, carries.
The Chair: Senators, shall clause 10 carry?
Senator Miville-Dechêne has an amendment.
[Translation]
Senator Miville-Dechêne: I will read out this long amendment for you.
That Bill S-203 be amended in Clause 10, on page 5, by replacing lines 24 to 30 with the following —
The Chair: One moment, please.
[English]
Mr. Palmer, do we have the ability to put this on the screen? Because it is a very long amendment.
Senator Miville-Dechêne: Would you prefer me to read it in English, maybe?
[Translation]
The Chair: No, there’s no need.
Mr. Palmer: It would be hard to do it in both official languages, Madam Chair.
[English]
The Chair: Does everybody have the amendment?
Senator Miville-Dechêne: I sent the amendment. You also have a tableau where you can compare.
The Chair: Yes. Senators, I’m not meaning to rush anybody. We can continue next week if need be. Do senators have a need for Senator Miville-Dechêne to read this whole amendment, or have they read it?
Senator Batters: Does it need to be read as part of the process for Mr. Palmer?
Mr. Palmer: If it’s agreed, you can agree to dispense.
Hon. Senators: Dispense.
The Chair: Thank you.
Senator Miville-Dechêne, you don’t need to read it, as I read the room. It’s hard to read the room in a virtual meeting. Can you explain, please?
[Translation]
Senator Miville-Dechêne: Yes. Thank you. This amendment is centred on court-ordered blocking.
The decision to order the blocking of an offender — this would include pornographic sites, and distributors of sexually explicit material — will come from a judicial court, the Federal Court, actually. The remedy is no longer purely administrative; rather, it will be mixed and it will be carried out through the steps of a judicial process.
I want to say that this is an important amendment, because it minimizes the risk of political interference in a controversial field: pornography. This is absolutely not about regulating pornographic content for adults; it’s about reducing access to it for young people.
When the designated agency determines that the age verification requirement hasn’t been met, it will be able to apply to the Federal Court for an order directing internet service providers — Bell, Videotron, or others — to block the offender’s site.
The rationale is that the possibility of seeking legal remedy would allow a judge to independently determine whether they have reasonable grounds to conclude that there has been a violation of clause 4, while taking into account the limits imposed by the Charter with respect to freedom of expression, and ultimately to issue an order accordingly.
This allows us to include several independence and transparency measures in clause 9 and subsection 4; transparency, because there will be appeal mechanisms, which are provided for in the rules for decisions—and these are public decisions.
The steps here are well defined and they address the concerns about our earlier version, which was not quite as clear on what offenders or those who do not carry out age verification could expect. Now we know. This is a notice sent to sites in violation of the law.
Then, after the notice, the site is given 20 days to submit comments. After that, if no action is taken, the designated agency has another 20 days to request a court hearing and compel the service providers to block the site.
We believe this remedy would be more balanced, more independent than the one in the former bill.
[English]
The Chair: Any interventions? Any questions?
Senator Boniface: Yes, I apologize. I know we’re up against time.
The Chair: Honourable senators, happily, we have some more time because the Social Affairs Committee finished early. I am sorry to have put the pressure on everybody. We have more time.
Senator Boniface: No problem. In this clause, I’m trying to understand when you refer to steps that need to be taken and they’re not defined. I’m sure there’s a reason they’re not. Can you give us some examples of steps? It’s not language I’m used to seeing in this type of legislation.
Senator Miville-Dechêne: It’s basically to conform to clause 4.
[Translation]
The goal is to have the individual or legal entity conduct age verification to ensure that young people do not have access to the material.
There would likely be an investigation. After the investigation, it would be determined that reasonable grounds exist to believe that a particular platform is not obeying the law and a notice would be sent to the platform in question ordering it to comply with the law within 20 days. In those 20 days, it would either start using an age verification system or provide comments.
Then, if the platform has not complied within 20 days, the regulator will ask the Federal Court to order a block. Those are the different steps, but the only recourse we have is blocking, because we have no other way to impose any kind of penalty on sites, especially abroad. The entire first part of the act dealing with criminal penalties cannot be applied because of extraterritoriality. Here, we’re talking about age verification. Obviously, these platforms will have time during the whole regulatory process to comply with the law, but we’re dealing with offenders here, those who make no effort to comply with the law.
I’m sorry that internet service providers were not able to participate in your hearings, because I spoke with two of them. There’s a lot of openness now. They want to block sites because of all the copyright issues. They understand that there are problems. They are taking child pornography out of their circuit. As long as a court order has been issued, internet service providers are happy to enforce it since it’s the last resort.
[English]
The Chair: Senator Boniface, did you have a question?
Senator Boniface: No. It’s just unfortunate we didn’t hear from them because it would have been a little easier. Thank you.
Senator Cotter: I defer to Senator Dalphond to help us out about whether this is a natural jurisdiction for the Federal Court as opposed to a superior court in a province. That’s a technical question in terms of where you go.
Also, there’s a dimension here where essentially in subsection 4 there is a directive to the Federal Court where the Federal Court must order the respondent. That seems to be unusual in the language.
My other question, which is a bigger one, is for Senator Miville-Dechêne. If that first part in what I think is sub 4, if the Federal Court determines (a), (b), and (c), it must order the internet service provider to prevent access to young persons on the internet. I’m having a hard time imagining how an internet service provider would do that. Do they shut down everybody’s access to that particular internet site?
Senator Miville-Dechêne: Exactly.
Senator Cotter: Then why would we need subsection 5, which says the Federal Court might do it, even if it might deny access to adults, if I understand correctly.
Senator Miville-Dechêne: Exactly. This is exactly what’s going to happen. Once you block a site, you block the site for everybody. The site disappears. There are three different ways to do that.
[Translation]
Once internet service providers are asked to block a site, the entire site is blocked. Of course, neither adults nor young people will have access to that site any longer, and that’s where the penalty lies. As you know, these platforms make their money on the number of clicks they get and in this case, a platform that doesn’t obey Canadian law will no longer be visible, broadcast or consulted in Canada by adults or young people. That’s why this provision exists. The effects of blocking can annoy adults, on the one hand, and on the same site, for example, on Pornhub, there is a page on sex education. You can think whatever you want about that page, but once you block a site, you block the whole site.
It’s pretty easy to do it. The three different ways: blocking the IP address, DNS or URL. I’m told that even the smallest internet service providers are able to do it, and they have already done it.
[English]
Senator Cotter: That wasn’t quite what I was after. It seems to me, if the mechanism is to block access to that site, it’s blocked for everybody, which I think is what you were saying, and that’s what the judge would be expected to do in sub 4. If that’s the case, once it’s blocked for everybody, why do we have this supplementary provision that says the judge can effectively prevent access even to adults? Because it seems to me that’s what would happen in sub 4.
I mention that because the challenge is that, whether you like it or not, for adults, access to sexually explicit material is a freedom of expression and entitlement under the Charter and there would be a meaningful standard of justification for that to be achieved for adults and taking away the rights to adults. I would have thought, based on what you’re describing, we don’t even really need the sub 5 because the problem is solved by the power of the sub 4 order that a court may make.
That’s my question. I don’t quite know how an internet service provider can divide things up so that only adults get access. If it’s an all-or-nothing thing, then any order the Federal Court might make along those lines would solve the problem. I’m just left a bit confused. I support the sympathy of this exercise, and it’s a richer and more stylish way and more legally respectful way of addressing these questions of forms of injunctions essentially. I’m just not quite sure why we need all of this if the first part could do the trick. Thanks.
[Translation]
Senator Miville-Dechêne: Unfortunately, legal language can be too complex for me as well. I personally would like to see simpler language, but here, I believe that subsection 5 is intended to allow for that effect. It sort of repeats the same thing, to authorize the court to make it effective, and it says it in so many words. I believe that’s it.
I know it’s a little wordy, but you will understand that, as a former journalist, I find legal language to be complex sometimes.
[English]
Senator Batters: I have a few small typographical issues within this particular amendment. They’re very small. They’re correct in French but not in English. There isn’t a colon after 10(2). Where it says, “The notice must state,” there should be a colon there. There is in French and there isn’t in English. Then after 10.1(4), again, there is a colon in the French version but not in the English version. There should be one there. Also, 10.1(5) and 10.2. In all of those places, there are colons in the French version and not in the English version, and there should be.
The Chair: Senator Batters, we’ll wait and come back to that so you can move it once we have this done.
Mr. Palmer: Senators, if I may, at the end of clause-by-clause, we’ll pass a motion to allow grammatical changes.
The Chair: Thanks, Mark.
Senator Miville-Dechêne: I did find my answer. I’m sorry, it took me time.
[Translation]
With respect to subsection 5, as you say, Senator Cotter, it indicates that the collateral effects of the order could result in blocking legal content on the infringing site and blocking service to adults who would ordinarily be entitled to access it. According to my legal counsel’s explanation, this section allows the judge to impose a broader blocking measure, despite its effects, which the judge would deem necessary to achieve the purposes of the law.
The wording is clear and somewhat consistent with what I said earlier. It’s kind of an extension of subsection 4.
[English]
Senator Boniface: I didn’t hear an answer to Senator Cotter’s question around whether or not the Federal Court is the right one. I don’t know the answer. I’m just asking because other quasi-criminal issues would actually go to the other court — the Superior Court.
[Translation]
Senator Miville-Dechêne: I can easily answer your question. The previous cases — I’m thinking of the Gold matter, where a site was blocked — were heard by the Federal Court. The CRTC referred the case to the Federal Court. It seems that the court is best suited to make these kinds of decisions.
[English]
The Chair: Did you want to follow that up, Senator Boniface?
Senator Boniface: My concern really was about the legislation falling under the CRTC. However, I don’t know the answer any better myself, so I can’t correct you for sure. I just wanted to be comfortable that it was the Federal Court, but that’s good. I’m fine. Thank you.
Senator Dalphond: I think Senator Cotter indirectly asked me a question, so I’m not going to say I’m bound by confidentiality and that I cannot disclose anything. I was in the loop. Anyway, I’m not the drafter.
Certainly to the first question, my reading and understanding is that subparagraph 5 does authorize a judge of the Federal Court to say “I don’t care” about whether it does affect third parties, because this is going to be an application by the authority against an internet provider and ultimately, maybe, somebody who is the provider of the content.
I’m not the drafter. I’m just saying that I suggested to Senator Miville-Dechêne that we should have a legal recourse, because I didn’t like that an administrative authority can impose all these types of things. I wanted to have a fair hearing. I suggested something similar to what would be an injunctive procedure, where you would seek an order to restrain somebody, so you must provide notice and hear those that might be affected.
I have expressed some concerns about section 5, because I was wondering if the rights of third parties would be affected. That’s what the law clearly says, yes. There is no reason for the judge to refuse to issue the order itself, even if it does prevent the company from running something. Of course, it will also prevent — as you mentioned, Senator Cotter — adults having access to the content that will not become available for anybody in the meantime.
About the Superior Court and Federal Court, quite frankly, I think this bill has two parts. The first part is doing a criminal law or penal law — it’s unclear exactly where it fits in the Criminal Code — that belongs to the provincial court, Superior Court or provincially appointed judges. The second part is more regulatory in scheme, so I felt maybe — I agree with Senator Miville-Dechêne — that the Federal Court seems to be connected with the CRTC and the regulatory framework. I hope it’s useful.
Senator Cotter: Yes, that’s very helpful.
[Translation]
Senator Miville-Dechêne: Once again, Senator Dalphond, I didn’t mean to say that you were involved in the drafting. I meant to point out that you urged me to improve the bill.
With respect to the Federal Court, I would add that the Federal Court has jurisdiction if Parliament is expressly empowered to deal with this matter under the Constitution. In this case, we’re talking about telecommunications.
[English]
The Chair: Did you want to add something else, Senator Dalphond?
Senator Dalphond: I don’t want to contradict the sponsor of the bill. However, the Constitution provides that criminal law is federal but administration of justice is provincial. We could enter a debate about that, but it’s a topic that could fit nicely within the specialized jurisdictions of the Federal Court over the federal regulatory bodies.
[Translation]
Senator Miville-Dechêne: Very good. I will not have the last word, Senator, I will leave it to you.
Senator Dalphond: It’s only a clarification.
[English]
Senator Cotter: I’m pleased that it has been thought about and reflected on, and I’m comfortable with the conversations and don’t have an additional contribution to make. I was just worried that if we misstated the court, that the bill would flounder. I’m satisfied that that’s unlikely to happen. Thanks.
The Chair: Anybody else? No, I don’t see anybody else.
Senators, shall the amendment on clause 10 carry?
Mr. Palmer: The question, senators, is on the amendment to clause 10. The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell.
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 2. The amendment to clause 10 carries.
The Chair: Senators, shall clause 10 carry?
Mr. Palmer: The question is, shall clause 10, as amended, carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell.
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: The Honourable Senator Cotter would like to take the Dalphond request for an explanation. We are voting on 10.2 now?
Mr. Palmer: You are voting on clause 10, as amended.
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 2. Clause 10, as amended, carries.
The Chair: Senators, shall clause 11 carry? There is an amendment.
[Translation]
Senator Miville-Dechêne: It’s a very simple amendment. It flows from the other amendments. I will read it to you:
That Bill S-203 be amended in clause 11, on page 6,
(a) by replacing line 9 with the following:
“available for commercial purposes; and”;
(b) by replacing lines 11 to 13 with the following:
“to in subsection 7(1).”.
So, in clause 11 of my bill, paragraph (c), which becomes entirely superfluous, is deleted, and it served to fix the amount — including a range — of the penalty for violations under subsection 10(1).
This provision refers back to the old system, when the former minister could impose administrative penalties without the courts getting involved. Now that the Federal Court is involved, in the event of contempt of court, a series of penalties are provided for. So that version becomes obsolete, and that’s why the amendment removes it.
[English]
The Chair: Any interventions?
Senator Dalphond: I certainly appreciate the fact that we have removed the determination of the penalty by the Governor-in-Council. I still have concerns, though, for the power given to the Governor-in-Council to define a specific element of the infraction, part 1 of the bill, what is sexually explicit material made available for commercial purposes. The law says that, and then the Governor-in-Council could define it. I find it rare that one of the critical elements of a criminal infraction would be left to definition by the Governor-in-Council and could be amended from time to time. I have great concerns about that.
Senator Boniface: I would concur. I’m wondering if there is some other way of looking at (a) because there would certainly be enough case law and other aspects that they could refer. The second thing I’m concerned about is that it either end up being too narrow or too broad. It’s almost by specifying (a), that you’re actually tying your hands more than you may need to, but I don’t know how you rework it. I don’t know whether others may have a suggestion.
[Translation]
Senator Miville-Dechêne: Senator Dalphond, would you recommend that this paragraph be deleted — paragraph (a)?
[English]
Senator Dalphond: Of course, if it’s not defined by the regulation, it will be defined by the case law. As we move from case to case, a set of precedents will be established. I would certainly have more trust in the courts defining it from time to time based on precedents than leaving it to the government to change it from time to time. If it has to be changed, I prefer that it be changed by an amendment to the act rather than through regulations. Again, maybe I’m too old-fashioned.
Senator Cotter: I guess I would just like to express my support for Senator Dalphond’s suggestion, and I might be old-fashioned as well. When it comes to the criminal law, it seems to me to be a better choice to leave it to determination by the courts in the varying circumstances that will arise with the application of a bill like this going forward.
Senator Boyer: I just wanted to say that I do concur with Senators Cotter and Dalphond.
The Chair: Senator Miville-Dechêne, there seems to be a semi-consensus that there should be change. Not everybody has spoken. Am I reading the room wrong? If I am, please tell me.
Senator Miville-Dechêne: I think, Chair, you’re right.
[Translation]
I’m rereading the paragraph and I feel like it’s more related to the old system, before a court was involved, and since we now have the Federal Court, as you say, which is going to create definitions, precedents, things will evolve as they go along.
Obviously, this is all new. What are the commercial purposes? What about sexually explicit material? I think this paragraph was related to the system, back when it was completely administrative, and no courts were involved.
[English]
The Chair: How would you like to proceed, Senator Miville-Dechêne?
[Translation]
Senator Miville-Dechêne: Do my colleagues feel that we should delete this paragraph?
[English]
Senator Cotter: I think the suggestion that the three of us were edging towards was to delete (a) and whether we could entertain an amendment. Maybe we should vote on in some fashion deleting clause 11(a) and just having it read a reference to the prescription of age verification methods by regulation. I don’t know how we do that, but if that were an amendment or a friendly amendment to where we were, I’d be happy to make it.
Senator Miville-Dechêne: I would agree.
The Chair: Clerk, can I get direction? If something like that has to happen, does the Law Clerk intervene, or can we do it?
Mr. Palmer: We can do it because it’s only deleting a section and the motion would allow us to renumber it. This would be a subamendment to the amendment of 11 to delete section (a).
The Chair: Senator Cotter, I don’t for a minute doubt your acumen or anything. I was just trying to follow the rules. Don’t think I was doubting you for a minute.
Senator Cotter: I don’t know the rules at all on this, so thank you.
The Chair: I didn’t mean to do that.
Senators, first of all, we’ll have to have Senator Miville-Dechêne agree to delete her amendment.
[Translation]
Senator Miville-Dechêne: Yes, I agree to delete my amendment and make another one, that’s right, to include the two provisions we would delete.
[English]
The Chair: And challenge me, anybody. I’m completely exhausted. Challenge me, anybody, if I’m not doing this correctly. We don’t need to do anything on that because we haven’t accepted it. Could we go straight to Senator Cotter’s amendment or do we have to —
[Translation]
Senator Dupuis: I move that we proceed by subamendment, as the clerk has indicated to us, and as Senator Cotter has moved; delete 11(a) and then go back to the main amendment to remove subparagraph (c) of 11. We need to deal with the subamendment moved by Senator Cotter first.
The Chair: Senator Dupuis, I really appreciate your suggestion. Thank you.
[English]
Senators, we’ll proceed with Senator Cotter’s amendment. Senator Cotter, can you please repeat your amendment?
Senator Cotter: The amendment would be in clause 11, in the language that was proposed, either in the initial bill or Senator Miville-Dechêne’s amended language, to delete clause 11(a) and probably just turn this in the drafting to one sentence because the sub (b) does not now have to be broken up like that.
The Chair: Senator Miville-Dechêne, you’re okay with that?
Senator Miville-Dechêne: Yes. I agree.
The Chair: Clerk, can we vote on it, please?
Mr. Palmer: Senators, to be clear, what we’re voting on now is the subamendment to the amendment in clause 11. The subamendment would delete section (a).
The Chair: That’s right. Does anybody disagree?
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Carignan?
The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 1. The subamendment to the amendment on clause 11 carries.
The Chair: Senator Miville-Dechêne, does that take care of the amendments, as far as you’re concerned?
Senator Miville-Dechêne: I think we still have to vote on — we voted —
The Chair: We still have to vote on (b).
Senator Dalphond: I think we still have to delete (c).
Senator Miville-Dechêne: Yes. My amendment was (c), so we still need to vote on my amendment, from what I understand from Senator Dupuis’ remarks.
Senator Batters: And we also have to vote on clause 11, as amended, after that.
The Chair: Yes, that would be at the end.
Does anyone want to make an intervention on 11(c)? No?
Mark, can do the roll call on that, please?
Mr. Palmer: Just to be clear, we’re voting on the amendment as subamended, which also removes section (c). Is that correct?
The Chair: Yes.
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 1. Carries.
The Chair: Senators, shall clause 11 carry, as amended? Senator Dupuis, do you want a vote?
[Translation]
Senator Dupuis: We just voted on clause 11. Is that right?
The Chair: No.
Senator Miville-Dechêne: We voted on the amendment.
[English]
Mr. Palmer: We just voted on the amendment as subamended.
[Translation]
The Chair: On clause 11, as amended.
Senator Miville-Dechêne: Yes, all right. Thank you.
[English]
Mr. Palmer: Just to be clear, the vote now is on clause 11, as amended. The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 1. Clause 11, as amended, carries.
The Chair: Senators, shall clause 12 carry?
Senator Cotter: I’m sorry. I put my hand up because, at the end of all the clauses, I wanted to go back and register something I was too slow to intervene on with respect to clause 10, but I can wait until you’ve done each of the single ones. I wanted to suggest a small, friendly amendment to clause 10(2). Apologies.
The Chair: Do you mind if we come back to it?
Senator Cotter: Not at all.
Senator Dalphond: This is a question to the sponsor of the bill, and maybe Senator Miville-Dechêne answered this before but I forgot. Why does it say the act comes into force on the first anniversary of the date on which it receives Royal Assent instead of from the Governor-in-Council order?
[Translation]
Senator Miville-Dechêne: I will explain how I understand it. The government and the stakeholders are given one year to come to an agreement on the regulations, and that’s the year we’re talking about. That’s why I was telling you at the beginning of the meeting that there would be a lot of time to discuss these regulations, how to verify age and everything else. The procedure is standard in this kind of bill; it’s not the only one. Does that answer your question?
Senator Dalphond: Yes, absolutely. Thank you. I understand that under clause 11, the Governor in Council has to make rules as to the identification mechanism, and that’s what the Privacy Commissioner recommended. However, if it turns out that the rules are not yet ready after a year, the legislation would come into force, but in reality it would not be enforceable.
Senator Miville-Dechêne: Exactly. It happens with quite a few laws.
Senator Dalphond: Thank you.
[English]
The Chair: Any other interventions? No? Senators, shall clause 12 carry?
Mr. Palmer: The question is, shall clause 12 carry? The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Abstain.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Abstain.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 7; no, 0; abstentions, 3. Clause 12 carries.
The Chair: Senators, with your permission, I’d like to go back to clause 2. Senator Cotter, were you going to talk about clause 10?
Senator Cotter: When you think it’s appropriate, I would like to do that.
The Chair: After clause 2, may I come to clause 10? Is that okay?
Senator Cotter: Yes.
The Chair: On clause 2, the clerk is suggesting:
The Governor-in-Council may, by order, designate the federal minister as the minister responsible for this act.
That’s his wording. Is that acceptable, senators?
Mr. Palmer: Sorry, senators, if I can jump in here to give a message from the Law Clerk: I had sent two emails. One had just one amendment and a later one had two amendments because the Law Clerk had a little more time to consider it. The later one would have two amendments, one to clause 2 and one would create a new clause. From the Law Clerk’s Office, that would just be more in line with how other acts treat this sort of thing.
The Chair: That’s hard for people to understand. How do I deal with that, Mark?
Mr. Palmer: Right now, we’re back to clause 2, so one amendment — I don’t know if Senator Miville-Dechêne would like to move it. The first amendment is on clause 2.
[Translation]
Senator Miville-Dechêne: The amendment reads as follows:
That Bill S-203 be amended on page 2 by adding the following after line 22:
“Designation of Minister
2.1 The Governor in Council may, by order, designate a federal minister as the minister responsible for this Act.”.
[English]
The Chair: Senators, we will vote on this and then go to the next one. Clerk, can you proceed, please?
Mr. Palmer: I believe Senator Boniface has her hand up.
The Chair: Sorry, Senator Boniface, my apologies.
Senator Boniface: I apologize. I thought I understood it and then I was confused by it. I would like clarity. We received two emails. Are we dealing with the second one first and then going back to the first?
Mr. Palmer: We would disregard the first email I sent, and then the second email I sent has two amendments attached. We would be dealing with those two amendments. The first one is to clause 2, and the other would be a separate addition of a clause.
Senator Boniface: Thank you.
Senator Batters: I wanted to help try to make it a little clearer just because I figured this out myself here. Both of these amendments would apply that were sent along with that second email. The reason for that being that currently “minister” is defined as Minister of Public Safety and Emergency Preparedness. Now that would be replaced with “minister designated under section 2.1,” which sets out the Governor-in-Council may, by order, designate a federal minister as the minister responsible for this act. I think that’s a good way to do it. Thanks.
The Chair: Senators, may I have direction? Can we vote for both at the same time or do we want separate votes?
Hon. Senators: Together.
The Chair: Thank you, senators. Mark, the amendments on clause 2.
Mr. Palmer: There is one amendment on clause 2 and then we would apply the same vote to the new clause 2.1.
The Chair: That’s right. That has been agreed.
Mr. Palmer: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: Yes.
Mr. Palmer: The Honourable Senator Boyer?
Senator Boyer: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Palmer: The Honourable Senator Dupuis?
The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Palmer: Yes, 9; no, 0; abstentions, 0. The amendment to clause 2 and the new clause 2.1 carry.
The Chair: Senators, shall clause 2 carry? Senators, is there a need to go through roll call for this?
Senator Boisvenu: I don’t think so.
The Chair: Thank you. Senators, shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Cotter, on clause 10.
Senator Cotter: Thank you very much. My apologies. I was asleep at the switch when we got to voting on that and was still thinking too slowly.
I’m looking now at clause 10.2, the annual report to Parliament. It identifies that the report, at the tail end of it, must include for the previous year the number of notices issued by the administrative person or agency and the number of applications that would be made to the court.
But if one were interested in this information, it seems to me obvious that what you would actually be interested in would not be so much the number of applications for an order made to the court but the number of orders that the court issues. It seems to me, if we’re going to have a provision as precise as this, that we should say that the report must include the number of notices issued by the enforcement agency, the number of applications to court and the number of orders issued pursuant to subsection 10.1.
My suggestion is we just make a small modification and add a (c) so that Senator Miville-Dechêne or journalists or whoever is interested can examine the report and find out how effective the court process has been and how many times the Federal Court has to intervene to issue orders under this act.
The Chair: Senator Cotter, before we proceed any further, I have to get permission from senators. Senators, can we revert to clause 10 again?
Hon. Senators: Agreed.
The Chair: Senator Cotter, we have now reverted to clause 10.
Senator Cotter: I can suggest wording, if you like. If you have 10.2 in front of you, the last sentence reads, “The report must include, for the previous fiscal year” — I think here probably a colon like Senator Batters would identify — “(a) the number of notices issued under section 10.1;” Then go to (b) — drop the “and” but go to (b) — “the number of applications for an order under subsection 10.1(1); and the number of orders issued pursuant to subsection 10.1.”
Senator Dalphond: May I suggest to Senator Cotter to say “the result” instead.
Senator Cotter: Sure. “Outcome” maybe.
Senator Dalphond: The outcome, yes.
Senator Miville-Dechêne: Can you repeat the sentence here? I have (b) but (c)?
Senator Cotter: The outcome of applications made pursuant to subsection 10.1(1).
The Chair: Is that acceptable, Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes. I think it will make news, to be frank, but why not put it in a report? I think it will make news before the report is published, but you’re right, and it is an important addition.
Senator Dalphond: I’m okay with this.
The Chair: Anybody else? Is Senator Cotter’s amendment acceptable to everybody?
Hon. Senators: Agreed.
The Chair: There is no need for roll call?
Hon. Senators: No.
The Chair: Okay. Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Dalphond: On division.
The Chair: The bill will carry, on division. If anyone needs a vote anywhere, please tell me.
Senators, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to this report?
Hon. Senators: No.
The Chair: Senators, is it agreed that I report the bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: Senators, thank you for your patience.
Senator Miville-Dechêne: Maybe it’s not my place, but I want to thank everyone for your patience and your help. I learned a lot throughout the process. Thank you.
The Chair: We want to thank you for really keeping at this. It is not easy, but we are all supporting you because we believe in the concept. We wish you the best of luck. Thanks to all of you and for your patience.
(The committee adjourned.)