THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 2, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:20 p.m. [ET] for the consideration of Bill S-210, 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 am Mobina Jaffer, senator from British Columbia and I have the pleasure of chairing this committee.
[Translation]
First, I’d like to ask members to introduce themselves, starting from my right.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne, Quebec.
[English]
Senator Cotter: Senator Brent Cotter, Saskatchewan.
Senator Smith: Senator Larry Smith, Quebec.
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Pate: Kim Pate, from here on the shores of the Kitchissippi, the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement, Ontario.
Senator Boisvenu: Pierre-Hugues Boisvenu, Quebec.
Senator Dupuis: Renée Dupuis, independent senator for The Laurentides, Quebec.
The Chair: Thank you, honourable senators.
[English]
Today, we conclude our study of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material.
Senators, before we begin, I would like to remind you of a number of points. If, at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process.
As chair, I will do my utmost to ensure that all senators wishing to speak have an opportunity to do so. For this, however, I will depend upon your cooperation, and I ask all of you to consider other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which, obviously, provides unambiguous results.
Senators, we are all aware that any tied vote negates the motion in question. Are there any questions? We will proceed.
Senators, because it has been seven months, I asked Senator Miville-Dechêne to make a few remarks because we have new members, just to refresh people’s memory.
Senator Miville-Dechêne: Dear colleagues, considering that seven months have passed since the end of witness hearings, the chair of your committee suggested that I remind you of the key features of Bill S-210.
The purpose of this bill is simple: to protect minors from the harms associated with early exposure to pornography. These harms are well documented. In its brief, the Canadian Centre for Child Protection writes that:
Research has highlighted multiple negative impacts on children from viewing pornography, which include:
Difficulty forming healthy relationships
Harmful sexual beliefs and behaviours. . . . a distorted belief that women and girls are always sexually available . . . harmful attitudes and beliefs regarding sexual consent.
A normalization of sexual harm.
In the real world, access to strip clubs and porn cinemas is restricted to those 18 and over. Bill S-210 essentially seeks to apply the same rule to the virtual world.
Last December, a young British woman, Ava Vakil, told The Guardian that:
It is simply unbelievable that children are prevented from seeing a rated-18 film in the cinema, and yet can access sexually violent and explicit content with a few taps of their fingers.
Other countries have already tackled this problem or are in the process of doing so, but the issue seems to be a blind spot for the Canadian government. Professor Pierre Trudel summed up the raison d’être and the relevance of Bill S-210 in his testimony:
. . . the bill levels the legal playing field, so to speak, by ensuring that what is prohibited offline is also prohibited online.
The fundamental aim of Bill S-210 is to require porn sites to perform effective age verification of their users. Bill S-210 is, in fact, an improved version of Bill S-203, which has been studied by this committee and adopted by the Senate in June 2021, but died on the Order Paper.
The bill makes it an offence for an organization to make available sexually explicit material on the internet to a young person for commercial purposes. It is important to emphasize that the bill does not target individuals.
To avoid sanctions, porn websites must implement an age verification mechanism prescribed by regulation.
The law provides for maximum fines of $250,000 for a first offence. In practice, however, these fines are unlikely to be imposed, because porn sites are almost always based overseas, making it difficult to enforce the law.
For this reason, Bill S-210 also provides an administrative enforcement process: a designated agency or department of the federal government can apply to the Federal Court to order the blocking of infringing websites in Canada. This process would apply only after a detailed notice was sent and the expiry of a 20‑day period. So delinquent porn sites could be blocked even if they are based abroad.
I should point out that Bill S-210 was developed in consultation with several national and international experts, major international reports and that it draws inspiration from existing or proposed legislation in France, Germany and in the United Kingdom.
Finally, it goes without saying that the bill in no way limits the importance of sex education and the role of parents. These approaches remain fundamental. But it’s clear that they are insufficient at a time when porn has become omnipresent and subject to no real control.
According to the brief submitted to the committee by the International Centre on Sexual Exploitation:
Public opinion surveys from other democratic countries have found that the majority of adults support implementing age verification to protect children from pornography exposure. For example, 2019 research in the United Kingdom found that 83% of parents agreed that there should be robust age verification controls in place to stop children from viewing pornography online. 2021 research from Australia found that 78% of adults supported age verification . . . . We are not aware of any compelling reason to believe that public opinion in Canada would greatly differ from the findings in this international research.
The committee heard from 13 witnesses and received 17 briefs on Bill S-210. Of these 30 witnesses and briefs, only 5 opposed the bill. However, some specific issues have been identified — three in particular — and I would like to discuss them briefly.
First, some members of the committee questioned the choice of the federal criminal law power to require age verification on porn sites. I can tell you that this issue was extensively discussed with the legislative clerk and we agreed that this was the best option. France and Germany have also based their legislation on the criminal law power.
Most jurists who testified or submitted briefs to the committee — including the Canadian Bar Association — did not dispute the use of criminal law. Here is what Audrey Boctor and Professor Catherine Mathieu write in their brief:
. . . the pith and substance of Bill S-210 can be described as protecting the health and safety of young people and avoiding the harmful effects of their exposure to sexually explicit material on the Internet.
In our view, this pith and substance satisfies the three criteria for the exercise of the criminal law power.
They conclude as follows:
. . . it is our view that Bill S-210 meets all the requirements for federal criminal law jurisdiction and is consistent with other legislation that has been found to be criminal law. Without prejudging the validity or appropriateness of basing the regulation . . . on the federal telecommunications jurisdiction, it appears that this route is more complex a priori in terms of the existing legislative framework and recent jurisprudence regarding the division of powers.
Second, in its brief to the committee, MindGeek warns that if age verification becomes mandatory, search engines like Google will promote delinquent sites in their search results because their “bounce rates” will be lower than those of sites that have age verification processes. But this assertion does not hold water, as Google representative Colin McKay explained. In its search results, Google considers several factors, and the illegality of a site has more importance than its bounce rates. Mr. McKay also said that porn platforms were in the best position to limit minors’ access to their sites and that the age verification requirement was the right way to do it.
Some have also expressed concern that Bill S-210 would be ineffective because there are millions of porn sites on the web. However, the British Board of Film Classification responded to this argument before an Australian parliamentary committee:
As 70% of UK traffic visit just the top 50 sites — and these sites are owned by an even smaller number of companies — we were confident our efforts would have made a significant impact in a relatively brief period of time.
Finally, some have argued that Bill S-210 will not solve anything because some young people will evade controls using VPNs and other methods. Here is what European expert John Carr writes about this argument:
It is a convenient myth that every child is a super-cool internet user who knows every technical trick in the book and wants to break every rule or ignore every boundary.
The evidence . . . points in a different direction and suggests that, in fact, most kids do not know how to get around most blocks and even among those who do only a small proportion (6%) actually bother.
In any case, it is obvious that Bill S-210 won’t solve all problems. Witness Pierre Trudel responded to this objection:
. . . any law can be circumvented and, in my opinion, that is not an appropriate criterion. We cannot use the fact that a piece of legislation can be circumvented to say that it has no purpose. Otherwise, the entire Criminal Code should be abolished because, unfortunately, many of its provisions are circumvented or ignored in Canada on a daily basis.
In Australia, the Standing Committee on Social Policy and Legal Affairs published an important report in 2020 titled Protecting the age of innocence. In its report, the committee writes:
. . . the goal of age verification is not the unrealistic prevention of any access by any child to online pornography but rather to create a significant barrier to access and in particular to prevent inadvertent and casual access. . . .
The Committee acknowledges that age verification is not a silver bullet — some websites containing pornographic material may not be captured, and some determined young people may find ways to circumvent the system. However, when it comes to protecting children from the very real harms associated with exposure to online pornography, the Committee’s strong view is that we should not let the perfect be the enemy of the good.
I fully support this conclusion. Thank you for your attention. If it is needed, I have paper copies of those speaking notes in French and English.
The Chair: Thank you very much.
I understand that Senator Dupuis wanted to remind us of something.
[Translation]
Senator Dupuis: I have no comments at this time. Thank you.
[English]
The Chair: Senators, shall we proceed to clause-by-clause consideration?
It is agreed that the committee proceed to clause-by-clause consideration of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material?
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which carries the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Senator Dalphond: Senator Miville-Dechêne, sexually explicit material means sexually explicit material as defined for the purpose of section 171.1(1) of the Criminal Code. Does that include child pornography?
Senator Miville-Dechêne: No. Do you want me —
Senator Dalphond: No. So this bill does not prevent the distribution of child pornography?
Senator Miville-Dechêne: Another section of the Criminal Code does. Do you want me to read —
Senator Dalphond: Yes, but your bill doesn’t refer to it.
Senator Miville-Dechêne: No.
Senator Dalphond: Can you define sexually explicit material as excluding that?
Senator Miville-Dechêne: I don’t think it excludes it. It’s a double definition.
[Translation]
If you look at the definition of sexually explicit material in the Criminal Code, it doesn’t specify whether it’s an adult or a child, because another criminal offence covers the distribution of child pornography.
Would you like me to read you what constitutes sexually explicit material?
Senator Dalphond: Section 171.1(5) defines it as the following material that is not child pornography.
[English]
That is not child pornography in English.
[Translation]
The definition we have before us will cover everything except child pornography.
I’m asking the question for consideration. It’s not my bill, but if we’re going to pass it today, we need to be aware of what we’re doing.
Senator Boisvenu: As Senator Miville-Dechêne pointed out, the Criminal Code already has a chapter on child pornography. Does not having it in the current bill have any impact on the Criminal Code?
Senator Dalphond: No. We’re talking about providing access to certain types of material, and child pornography is not included. So when we’re talking about making requests for orders from the Federal Court, child pornography would be excluded. The judge won’t be able to make that order because the definition doesn’t include child pornography.
I’m just putting the question out there. This is not my bill. As I said, I have reservations about this bill.
Senator Boisvenu: In your opinion, would amending the bill to include child pornography be the answer?
Senator Dalphond: It would certainly be better than not having it.
Senator Miville-Dechêne: I feel like this bill covers legal pornography. This is about preventing children from gaining access to this material, and the Criminal Code has several other provisions that make child pornography, or the sexual exploitation of minors in general, illegal. There have been scandals recently over these sites posting images that minors were able to see with no consent being sought.
However, that is covered by other sections. I don’t believe you can say that they’re going to evade it. The purpose of this law is to prevent children from being exposed to legal pornography. Other sections cover the sexual exploitation of children and child pornography.
[English]
Senator Cotter: In response to Senator Dalphond, if I understood his inquiry, the worry is about leaving out child pornography from this bill and, therefore, it not really being captured under the umbrella. I’m not an expert in this area, but I note in section 163.1 of the Criminal Code, accessing child pornography is itself an offence. While it might not be addressed in explicit language in this bill, people would still be criminally accountable; so my sense is that the bases are covered here, at least off the top of my head.
[Translation]
Senator Dupuis: I had kind of the same question. The question came up when we were considering this bill in the spring and last winter. We were wondering about the content of the bill in relation to what’s in the Criminal Code and whether it was an effective way to control access to sexually explicit material.
May I ask Senator Miville-Dechêne exactly what she’s aiming for with her definition of “obscene matter” in Bill S-210?
Senator Miville-Dechêne: It doesn’t use “obscene matter;” it’s “sexually explicit material.”
Senator Dupuis: I see a reference here to “obscene matter,” so I guess that’s a mistake in the document we received. So, “sexually explicit,” yes.
Senator Miville-Dechêne: What’s your question?
Senator Dupuis: What does this bill aim to accomplish?
Senator Miville-Dechêne: Sexually explicit material is defined in section 171.1(5) of the Criminal Code. We’re talking about:
(a) a photographic, film, video or other visual representation
(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of the person’s genital organs or anal region or, if the person is female, her breasts;
What’s important to note here is that we’re talking about “explicit depiction.” Some rulings on this issue have made it clear that they weren’t talking about naked bodies from a distance, but specifically sexual acts that were visible up close, and which were therefore explicit. I think that’s important. That definition exists and it’s been refined by court rulings; talking about sexually explicit material is far from trivial.
Senator Dupuis: I referred back to my notes after the testimony we heard on the following definition:
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
Does that exclude platforms like social media from this section? When it refers to section 171.1(5), it provides the definition of what we mean when we’re talking about this kind of material. To your recollection or based on your research, does that exclude platforms or not? There is an access problem, and that’s not covered in section 171.1(5).
Senator Miville-Dechêne: I remember we had a discussion about the scope of the bill.
Senator Dupuis: Yes.
Senator Miville-Dechêne: What I said about it at the time was that we were specifically targeting pornographic platforms, and we said that in the preamble, although we know that the preamble is one way, but not the only way, to indicate the scope of the bill. That’s why it says:
a significant proportion of the sexually explicit material accessed online is made available on the Internet for commercial purposes — in particular through pornographic websites ....
That’s the second paragraph of the preamble.
I found that the witness Colin McKay who came to speak to us narrowed the debate well by saying that, yes, it’s true that as a search engine, Google can list the sites, but they felt it was the content providers who should have age-verification systems. Once the legislation takes effect, search engines like Google will enforce it. That could mean removing or placing sites that don’t obey the law very low on the list of results. As for social media, quickly, you’re right that it’s a whole other issue. There are smaller amounts of sexually explicit material on various social media, and that’s a very broad scope of intervention. My bill doesn’t set out to target the entire Internet. It’s a first step, because young people are watching porn more frequently on porn sites devoted to pornography.
Senator Dupuis: We’d seen that there were something like 15 million sites accessible through Google. We’d done a search with the Google witness.
Senator Miville-Dechêne: There are millions of porn sites but we can find comfort in the fact that about 50 of them get most of the traffic. When we’re legislating, we can think that those 50 sites are owned by a smaller group of individuals; it’s still realistic to try to have an effect on what young people watch the most. On the other hand, there are millions of sites around the world.
Senator Dupuis: Thank you.
[English]
Senator Batters: Senator Miville-Dechêne, thank you very much. I appreciated your summary prior to starting today, where you specified and drew important facts to our attention, including the fact that the previous iteration of this bill passed through this committee. This bill is, as you say, an improved version, but this particular bill had 30 witnesses and only 5 opposed the bill.
Senator Miville-Dechêne: Thirty witnesses and briefs.
Senator Batters: Thirty witnesses and briefs together; okay, thank you very much for that clarification.
This is a private member’s bill, after all. You have made a valiant attempt at a large subject matter. At the same time, when people are asking you things like whether this or that is included, you’re not the Government of Canada after all. Isn’t it the case that you’re just trying to address a specific area — yes, an important area which has turned out to be quite large, but you’re not attempting to address everything all together — and let the Government of Canada, hopefully, continue to look at areas to improve the Criminal Code on this important topic of child pornography and how we can address this very important subject matter?
[Translation]
Senator Miville-Dechêne: Absolutely. Thank you for your question because, yes, this bill is very focused and that’s by design, for when you draft a Senate bill, you don’t want to be too broad. Let’s not forget that the government itself promised to intervene in a bill after Bill C-18 that will deal with online harms. Consultations were held and reference was made to hate speech and harassment. The government plans to introduce a very ambitious bill to try to reduce online harm more generally, particularly to young girls.
So my bill is more modest, and the reason I’ve been pursuing this for two years is because I feel like pornography is a blind spot for the government among all of these online harm issues. So far, I haven’t had any conversations that have led me to believe that this is a significant government concern. Of course, governments make choices. So I chose to pursue this.
I must say, it’s true that this is a private member’s bill. I have a small team, but they are very hard-working. Despite our limited resources, because we had time and because COVID happened, I was able to do a lot of research, and it’s amazing how much we got done with Zoom and Teams meetings. I was able to talk to people around the world, in places like Germany, which is much further along, France and England. I was able to learn from the mistakes made over there and efforts to rectify them.
Of course, I’m not the government, and fortunately the regulations central to this legislation will come to be if this bill goes all the way through, taking into account all the new technologies that will emerge, as all of that continues to evolve. So, it’s quite complex.
Senator Dalphond: As for the definition of “organization” —
[English]
I gather from the answers you are providing that the organizations as you perceive them — as is the goal of the bill — do not include Twitter or Instagram, for example. You said your target is the main producers of pornographic material like Pornhub.
[Translation]
Senator Miville-Dechêne: Yes. That’s my target. That said, the word “organization” is broader than that, as defined in the Criminal Code. It’s defined as any “body corporate, society, company, firm, partnership, trade union or municipality.” The fact remains that the bill exists. The question of where specifically to focus implementation efforts may be further defined in the regulations. For example, it could be determined that it’s organizations that have platforms or content containing more than 30% pornography. That will indeed limit the number of organizations that are targeted first.
Once again, I felt it was inappropriate to go into so much detail in the bill, because it all changes. Also, countries that are working on these issues and have already passed legislation are refining the definitions to really reach their goal. In this case, I preferred to stick with the word “organization,” which wasn’t the word used at first, and leave further specifics to the regulations.
Senator Dalphond: I understand that this could apply to Twitter. It’s up to the government to decide by regulation whether or not Twitter should be included.
Senator Miville-Dechêne: Exactly.
Senator Dalphond: I read the French Senate committee report released in late September. It states that the amendment to the Penal Code is totally ineffective and doesn’t apply in France, and that it’s a purely symbolic amendment. The reality is that practices have not changed.
The report goes on to state, especially on page 79, that in addition to sites not complying with the regulations — either because they are not based in France or, even when they are, they are able to circumvent the legislation — some users have virtual private networks, or VPNs. These networks, which are not at all covered by the regulations, are not subject to all this because they are technically outside France. The report states that young people generally have VPN accounts. It also states the following:
However, many Twitter and Instagram accounts display pornographic content or promote content available on other sites like Onlyfans. Warnings are sometimes but not always displayed, and users can override warnings with a single click.
What the group of French senators essentially found is that social networks are a major source of pornography among youth. You’re telling us that we’re not sure if social networks are subject to your legislation and that it’s not them you are targeting, and you’re saying that if the government wants to include them, they can do it by regulation.
Senator Miville-Dechêne: I’m not quite saying that, as I also told you that the government was working on a broader online harms bill, strongly basing it on the premise that platforms must be designed to protect children, and therefore design programs that put up barriers to detect if children have access to places they shouldn’t be allowed to go that are dangerous for them.
That’s where we are in terms of government-to-government discussions. The concept of “age-related design” comes from England, by the way. It’s meant to be preventive; it’s the idea that platforms themselves could take part in this. Pornographic platforms don’t have the same dynamics, since the content is 100% pornographic, and to have never intended, discussed or considered the possibility of establishing or imposing age verification. Given that young people watch a lot of content on such platforms, I think it’s a good start. That doesn’t mean we can’t go further. Once again, I’m well aware that this is a private member’s bill that must have targeted objectives, and I’m working alongside a government that’s trying to produce a bill to address online harms.
Senator Dalphond: That answers my question.
[English]
The Chair: Shall clause 2 carry, senators?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
[Translation]
Senator Miville-Dechêne: Would you like me to read it?
[English]
The Chair: Senators, does everybody have a copy of the amendment? We have extra copies here. Does anybody need one?
[Translation]
Senator Miville-Dechêne: I move that Bill S-210 be amended in clause 11, on page 6,
(a) by replacing line 11 with the following:
“11(1) The Governor in Council may make regulations for”;
(b) by adding the following after line 14:
“(2) Before prescribing an age-verification method under subsection (1), the Governor in Council must consider whether the method
(a) is reliable;
(b) maintains user privacy and protects user personal information;
(c) collects and uses personal information solely for age-verification purposes, except to the extent required by law;
(d) destroys any personal information collected for age-verification purposes once the verification is completed; and
(e) generally complies with best practices in the fields of age verification and privacy protection.”.
I will take a few moments to explain the amendment. It refers directly to two testimonies we heard during the hearings, particularly that of Keith Jansa, executive director of the CIO Strategy Council. He’s a tech expert. In his testimony, he had told us it was very important that the words “effective, trustworthy and privacy preserving age verification method” be included in the bill. So we built on that. I should also say that the Canadian Bar Association called for privacy protections to be strengthened in the bill as well, if possible, but didn’t make a specific recommendation. So that explains a very simple amendment to the bill, in the end.
Senator Dupuis: Do I understand correctly that of the three reference points, effectiveness, reliability and privacy, the first one was dropped? This doesn’t include the word “effective.” Unless I’m not reading it right...
Senator Miville-Dechêne: It’s used elsewhere. Effective age verification is described in another section of my bill, which I don’t know off by heart. That’s too bad.
It’s in the “Defence — age verification” section, I believe. I believe it’s also in the preamble. The fifth paragraph in the preamble reads as follows, and I quote:
Whereas online age verification technology is increasingly sophisticated and can now effectively ascertain the age of users without breaching their privacy rights;
Senator Dupuis: That’s an interesting statement, but arguably it’s preemptive and it doesn’t necessarily lead to a tangible result. For it to mean anything, it would have to be incorporated into the required aspects of verification.
Senator Miville-Dechêne: Yes, but I would tell you that the word “effective” was considered; the word “effective” can mean many things to many people. What we’ve done here to talk about effectiveness is list more criteria.
It says in the amendment to section 11(2)(e), and I quote:
(e) generally complies with best practices in the fields of age verification and privacy protection.
Also, the amendment to section 11(2)(c) reads, and I quote:
(c) collects and uses personal information solely for age-verification purposes, except to the extent required by law;
Finally, section 11(2)(d) reads as follows, and I quote:
(d) destroys any personal information ....
So, I feel that effectiveness is defined through the various aspects of that definition.
Senator Dupuis: In that sense, is it fair to say that the word “reliable” isn’t any more precise than the word “effective.” That’s why I want to know why one is used rather than the other. Why not use both?
It’s only a question. I’m raising it in reference to a witness who suggested that for this to stand, you had to meet all three criteria; I see the second one in section 11(2)(a) and the third one in section 11(2)(d), but I couldn’t find the effectiveness criterion. That answers my question.
[English]
The Chair: Are there any more questions?
Senator Batters: Wouldn’t you say “reliable” and “effective” are very similar words that encompass effectiveness?
[Translation]
Senator Miville-Dechêne: I would say to you that, given how long that definition is, I feel you can certainly extrapolate that it secures some effectiveness if those criteria are met, but that’s probably a matter of interpretation.
[English]
The Chair: Senators, is it your pleasure to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Honourable senators, shall clause 11, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: 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, as amended, carry?
[Translation]
Senator Dalphond: On that, I will abstain. I consider that this bill has a worthwhile purpose, but it’s marred by major flaws. I feel that we’re sending a message to the government; if the purpose of adopting the bill is to ask the government to do something, I agree with that objective. If the purpose is to draft legislation that is flawed criminal law, I disagree.
Therefore, I will abstain with respect to passage of the bill.
Senator Dupuis: I abstain.
[English]
The Chair: Are there any other comments or questions? Shall the bill, with abstentions, carry ?
Hon. Senators: Agreed.
The Chair: Senators, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Clement: I have one. It’s brief. I paid particular attention to this bill and to all of the witnesses, and I heard again in Senator Miville-Dechêne’s summary today — helpfully provided — that there needs to also be an emphasis on education.
I was struck particularly by the testimony of Lara Karaian, professor at the Institute of Criminology and Criminal Justice at Carleton University, when she spoke about young people — kids — getting access whether because they are super smart — as you talked about, Senator Miville-Dechêne — or super technical or by accident when they come across images that are scary or harmful because they’re unknown to them. It’s important that we also look at efforts into porn literacy, sex education and alternative ways of helping, such as more counselling services.
I was also struck when two of our expert witnesses, who also spoke as parents — two fathers — about how they worry about their children, how they have to speak to their children and how they make efforts to do that so as to protect them. It struck me that these two fathers with means and education were struggling with that and were quite candid about needing to do that, and I worry about more vulnerable parents who don’t necessarily have access to those kinds of skills and strategies.
So this observation is really just to confirm, repeat and highlight that education is important and we need to continue to pour resources into it. I want to read it out loud:
The committee recognizes that pornography is a reality of today’s world, and it has been said repeatedly during witness testimony that there are no perfect systems to protect young people from being exposed to pornography. Young people are naturally curious and constantly learning. Exploring one’s sexuality, having questions and experimenting are all part of becoming an adult. This committee recognizes that sexual health education is one of the best safeguards against harm. Parents and educators need resources to ensure that we are emphasizing awareness, consent and body autonomy to young people. Bill S-210 is a laudable effort, and any legislation needs to be complemented with robust sexual health education and better pornography literacy programs. Encouraging open dialogue, access to accurate and unbiased information and ensuring judgment-free spaces are essential to healthy sexual exploration and healthy sexuality in general.
That is my observation, colleagues.
Senator Batters: Thank you, Senator Clement. Perhaps I missed it with the Senate sitting today, but was this observation sent out beforehand?
Senator Clement: No, it was not, and I apologize for that. I am told that I can only talk about being a baby senator for about a year. I’m running out of runway on that excuse. Also, the seven months threw me for a loop, so I do apologize for that. I’m at the mercy of the committee on that one.
Senator Batters: The point I was going to raise is that, typically, observations are for when we want our committee to point out something particular to, usually, a government or something like that. In the brief chance we have right here and now to look at this, it seems like much of what is dealt with in here is pointing out the subject of provincial governments or parents and that sort of thing. So I’m just wondering if it may be the proper subject of an observation. Perhaps if it’s something you can elaborate on and provide your reasoning, it might be better to provide it in a short speech to the Senate on this particular bill.
Senator Clement: I understand your point and it does seem to be a regular struggle here, the jurisdictional issue. As a former municipal person, I struggle with that as well in terms of the three levels of government.
I did run this observation by Senator Miville-Dechêne and made a few changes. I would like it to remain as an observation, but I take your point, Senator Batters. Education is always provincial, except that it is a message to the federal government that resources are resources, and any way that the federal government can help in this area, especially as they’re considering an online harms legislation coming down the road, I understand your point but I would like it to remain as an observation.
Senator Batters: I’m just pointing out that there is no part of this that says this committee notes to the provincial governments or that sort of thing. Usually that’s the kind of language that is used.
Senator Clement: Can I add that language?
The Chair: Would that be acceptable to you?
Senator Batters: Without seeing the language, yes, we would have to see.
Senator Clement: I’m in the hands of the clerk and the chair.
The Chair: Perhaps the steering committee can fix that if you allow it. Is that acceptable, senator?
Senator Batters: It could be. Again, on these types of things, as many know, I’m not a fan of lengthy observations. I usually think that a better way of proceeding is to make those points in a speech to the Senate, but sure.
[Translation]
Senator Dupuis: May I ask Senator Clement a question?
Senator Clement: Yes.
Senator Dupuis: Would you be willing to add something or replace part of the first sentence? We’re considering a bill that has the ambition and objective to protect young people from accessing pornography or sexually explicit material online. If I understood what Senator Miville-Dechêne said correctly, we’ve learned that the government is considering a potential bill that would be broader than the subject matter we’re considering in Bill S-210.
In this sense, rather than saying pornography is a reality in today’s world, if I may, could we say that pornography isn’t only part of today’s world, but that it also existed in the past? More importantly, I wonder if we shouldn’t delineate the reality we’re considering in Bill S-210 by saying that pornography is an increasingly pervasive reality, but we need to make a connection with young people’s access to sexually explicit material online. If we’re going to ponder legislation to protect youth, we should include awareness and training.
We’re not looking to encroach on a provincial jurisdiction here to start a federal-provincial fight. If I understand the bill correctly, it’s trying to protect young people from sexually explicit material online. In that sense, there may be some who don’t realize that pornography is omnipresent online and that’s the problem you want to think about. The rest can lie. Saying “a reality in today’s world” is too vague. We could clarify that.
Senator Clement: I understand your point, senator. I wonder if the word “omnipresent” might not be appropriate.
Senator Dupuis: “Omnipresent online and accessible to young people.” “Online pornography is a pervasive reality today.”
Senator Dalphond: In the first sentence, we could say that the committee recognizes that pornography is an increasingly pervasive reality due to ease of access to the Internet, including by young people.
[English]
The Chair: Is it agreed, senators?
[Translation]
Senator Clement: I agree.
[English]
The Chair: Should we add both “omnipresent” and Senator Dalphond’s suggestion?
Senator Dalphond: Where is it?
The Chair: The steering committee will approve the final version.
Senators, I have one more observation if you can give me one minute.
Senators, we will not proceed. There are no more observations. It is agreed that I report the bill as amended with observations?
Hon. Senators: Agreed.
The Chair: Senators, we finished earlier than we thought, and tomorrow we will have Senator Boisvenu’s bill, Bill S-205. We have no further government bills, so we will be going to private members’ bills. Since we have time, may we go in camera?
(The committee continued in camera.)