THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, February 9, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to study 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. Today, we are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
If you are having technical difficulties, particularly relating to the interpretation, please let the chair or the clerk know and we will try to solve the problem.
I would like to take a few minutes to introduce the committee members who are taking part in the meeting today.
[English]
A reminder to the members to please only signal if you do not have a question. Otherwise, all members are on my list of questioners. I would like to take a moment now to introduce the members of our committee: Senator Boisvenu, deputy chair; Senator Campbell; Senator Carignan; Senator Clement; Senator Cotter; Senator Dalphond; Senator Dawson; Senator Dupuis; Senator Pate; Senator Wetston; and Senator White.
Senators, today we begin our study of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material. Senators, you may remember our study in the last session on Bill S-203 with the same title.
Senators, we are happy today to welcome our colleague Senator Miville-Dechêne to speak to Bill S-210 and how it differs from Bill S-203 from the last session. She is also the sponsor of the bill and she will speak on the bill itself.
Senators, you will each have four minutes to question Senator Miville-Dechêne.
Senator Miville-Dechêne, please make your presentation.
[Translation]
Hon. Julie Miville-Dechêne, sponsor of the bill: Thank you very much, Madam Chair. The internet is a marvellous invention. The network has expanded our societies’ horizons and enriched our lives in numerous ways that we could not have imagined a generation ago. However, the internet has also created new risks: hacking, fraud, disinformation, intimidation, and more. The online world is unregulated space, an Old West where everything goes, and it has the potential to make victims and to destroy things that we value as a society.
I don’t think I would be mistaken in saying that one of the things parents in Canada value is protecting their children’s innocence and mental health and limiting their exposure to pornography.
But the internet has made pornographic content readily accessible to young persons, and this has negative effects on their social and emotional development, their self-esteem, and their sexual relationships, and on the concept of consent. Even in the digital world, minors have rights, including the right to be protected from harmful content. Canada is a signatory to international conventions about this. It is therefore time to act.
Certainly, this is a relatively new legislative field. How can we target the right organizations and keep vulnerable persons from harm? How can we reach companies that are based outside Canada? And how can we effectively verify age without infringing on people’s privacy?
The good news is that there seem to be solutions to all these problems. A number of countries, including France, the United Kingdom, and Germany, are studying or have already enacted legislation to do this.
Bill S-210 is relatively simple. It requires companies that distribute pornography on the internet to put an age verification mechanism in place. Organizations in violation will be liable to a fine and risk being subject to a blocking order in Canada.
Because technology evolves quickly, we thought it preferable to have age verification standards prescribed at the regulations stage. The technology now allows for reliable, unintrusive verification. Obviously, the goal is to minimize the invasion of privacy while still protecting children.
I would now like to take a few minutes to describe what Bill S-201 is not.
It is not a law that censors content or limits freedom of expression. It is simply a matter of replicating, on the internet, the real-world rules about distributing pornographic material to minors. For people over the age of 18, the law would change nothing. All legal content would continue to be available.
Nor is this a law that gives arbitrary censorship powers to the government. The act identifies a simple, clear and precise rule: It requires organizations that distribute pornographic material to implement a real age verification mechanism. The bill provides all of the necessary procedural guarantees, and protects the rights of all parties.
This is not a law that casts a wide net or targets marginalized individuals. In its new version, the bill is aimed only at organizations. Clear exceptions are provided for educational, scientific and artistic material. As in any legislative exercise, a balance must be struck. In this case, automatic, anonymous age verification seems to me to be a very minor and very reasonable inconvenience to protect children’s development and mental health.
Nor is Bill S-210 a law that creates a bureaucracy to control content. Under the bill, the only obligation placed on porn sites is to implement a prescribed age verification mechanism. The government’s power is limited to taking action against organizations that fail to meet their obligation to implement such a system. The state is not making value judgments or engaging in proactive surveillance of content.
This is also not a law that will force Canadians to have files kept on them or to be subject to surveillance. Technology today makes it possible to verify a person’s age in a few minutes, without identifying them and without keeping information about them. We can reduce fears of cyber-surveillance even more in the regulations, which will have to make sure to protect privacy adequately.
I would like to respond briefly to an argument that is often made: that this act will be useless, because young persons will find a way around it.
Yes, no system is perfect, even in the real world. Young persons manage to get into bars and to buy cigarettes and marijuana. Nonetheless, age verifications significantly reduce the prevalence of those behaviours, even though they don’t eliminate them completely. There is every indication that the same thing would apply to porn on the internet and that children would be better protected, particularly the youngest children. Obviously, none of this eliminates the responsibility of parents and schools for supervising young persons and providing sex education, but let’s help them.
In closing, I am very open to your comments and suggestions. When we put our heads together, we do better. Thank you.
The Chair: Thank you for your presentation, Senator Miville-Dechêne. We will now proceed with the question period.
Senator Boisvenu: Welcome, Senator Miville-Dechêne, and congratulations on your bill. Of course, I have a few questions to ask you. The first one is about the implementation of your bill. When I read your bill, I wonder about the results that might be obtained in terms of reducing this type of crime. My questions may be technical, but who will be going after the offending organizations? Who will file a complaint when an offence is committed? Explain the judicial process that will be applied when an organization is found to have committed an offence. I understand that it will not be the police filing complaints. The process seems complex to me, so I would simply like you to enlighten me about how we will go after offenders when your law is brought into force.
Senator Miville-Dechêne: Thank you for your question, Senator Boisvenu. The easiest thing to explain is that this is a bill with two avenues for action. There is the avenue that will probably be used most often, because most pornographic sites are outside Canada. That is the avenue described starting in section 7, non-compliance notice, if you want a reference in the text. That means that the government will designate a division or branch of the federal government that will be responsible. If the person in charge has reasonable grounds to believe that a site is not complying with age verification, that person or organization, because it could be a regulator — I have not identified the regulator, because you can’t spend money in a private member’s bill, but there will be a regulator or an organization that will be responsible for doing these verifications of websites. It could also be in the form of a complaint, of course, and at that point, if there are reasonable grounds to believe that the site is not complying with age verification — which is not very difficult to do, since you just have to try to enter the site — then at that point, you send the site a non-compliance notice.
Senator Boisvenu: How many sites do you estimate, everywhere in Canada and ultimately everywhere in the world, offer this type of “product” that young persons can access?
Senator Miville-Dechêne: I am going to give you a two‑part answer. Some people say there are as many as four million. However, we know there are about 50 large sites of the Pornhub type. The sites visited most often come to about 50. In Canada, for these types of large site alone, that offer free porn, there is MindGeek, which is located in Montreal. But most of the other sites may be located in Cyprus, in the United States, or more or less all over the world. Those 50 sites are the ones, by definition, that we would monitor the most, because they are the most popular.
Senator Boisvenu: But do you believe that this “bureau” —
[English]
The Chair: Senator Boisvenu, may I please put you on the second round?
Senator Miville-Dechêne, to follow up on what Senator Boisvenu said, section 6(3) of the bill that you are sponsoring states that, if they received a non-compliance notice under section 8 and took the required steps to comply with the notice within the set deadline, “No organization will be convicted of an offence under section 5 . . . .”
Have I read that correctly? Yes? Can you explain how you interpret this defence and its rationale and its purpose?
[Translation]
Senator Miville-Dechêne: Thank you for the question, and if I may, I would like to answer in French, because these are somewhat technical questions. That section was added in the final version of the bill.
The idea is to offer the pornography sites a defence. It may be that a site has been accused of not obeying the law, but the site in question has complied with the law throughout the court proceedings, that is, it doesn’t just say: “Yes, I got a notice,” but it has genuinely complied with the law, as required by that section, that is, it has installed an age verification system.
So the defence is to install an age verification system. If that is done during the court proceedings and the system is compliant with the law, then the person will not be convicted. So this is the defence provided so that a pornography site that complies with the law once the legal proceedings are initiated will not be convicted.
[English]
The Chair: Does this mean it would permit an organization to simply wait for a non-compliance notice before taking steps to comply with the act?
[Translation]
Senator Miville-Dechêne: Yes, that is why we have included the two ways of taking action in this bill: the court avenue and the administrative avenue. What has happened in other jurisdictions is that non-compliance notices have been sent. In France, for example, they are waiting to see whether the pornography sites are going to comply, but so far they are not complying. So yes, we can certainly expect that the pornography sites will wait until the last minute to comply, because competition also comes into it for them.
[English]
The Chair: Thank you very much.
Senator White: Thank you for bringing the legislation forward.
I have a couple of questions. Just so I’m clear, my understanding is that the benchmarks would be set by regulations and the internet providers would be provided with them to meet the benchmark. If they fail to meet the benchmark, that would mean breaches. What I’m trying to understand is: Would that include the potential for penalties, and if so, who would enforce them?
If we look at the legislation proposed last spring by the federal government, which was similar in nature, it talked about having a regulator appointed. I think the government had earmarked the costs that would be associated. You made a comment about the possibility of having a regulator. If we’re suggesting this become a money bill and there is a cost associated with it, we have to have a different discussion about how that would be satisfied. Realistically, although we can pass legislation, private members’ bills typically cannot include costs to the federal government. Can you walk me through how that would take place in your legislation?
[Translation]
Senator Miville-Dechêne: Thank you for your question, senator. In this bill, no regulator is necessarily being created. I gave the example of what the government could do, because it could also decide to assign the job to officials working in a government department. Obviously, it would be a good idea for that designated person or organization to have a degree of independence, so it couldn’t be said that these are political decisions.
As you know, we have the CRTC and it could be a regulator for this kind of bill. As well, as you said, the government has said that to limit online harm, it was going to create a regulator itself. The minister, Steven Guilbeault, said this last summer, and in fact the CRTC could certainly also take on responsibility for doing the verifications.
Let’s agree, though; I want to be clear. We are not asking an organization to do proactive surveillance. What we want is for proceedings to be possible if a site does not comply with the regulations. I know that in France, for example, it is done in the form of a complaint. Children’s rights organizations report the organizations that are not complying with the regulation. So I don’t think we have to create an enormous bureaucratic structure. The CRTC already exists, and I did not think it appropriate to name the designated person, who has to be named by the Governor-in-Council.
Having said that, I think you asked me in the first part of your question, and please let me know if this is actually what you were asking me, what norms are associated with the age verification systems, because no age verification system will be prescribed. There have to be norms in relation to privacy and data erasure. Those norms are part of the regulations, because our technology is changing rapidly. We want the norms to be incorporated into the regulations so they can be changed when necessary.
I don’t know whether I have answered your question.
[English]
Senator White: Thank you for the response. That is exactly what I was trying to figure out: whether there was an expectation that your legislation would prescribe an agency that would oversee and investigate. I’m glad you explained we are not going to set out the benchmarks or, in your case, the prescriptive nature in which they have to identify. That’s important.
Have we had discussions with the government about whether the Canadian Radio-television and Telecommunications Commission would require changes in the way they do business if we were to add this legislation, or did Minister Guilbeault talk about it last year when he looked at legislation that was going to be introduced by the government?
[Translation]
Senator Miville-Dechêne: The short answer is no. I have had discussions with Mr. Guilbeault about the nature of my bill, but we did not go into the details of implementing it.
Senator White: Thank you.
Senator Dalphond: Thank you for being with us today, senator. There have been comments made about the bill, and I am particularly interested in the comments of the Canadian Bar Association. Its representatives are not with us today, due to time constraints, but they will be here eventually.
I hope you have obtained a copy of the brief. If so, I would like to hear your comments on the suggestions made by the Canadian Bar Association regarding three aspects of the bill, for which it is proposing amendments.
Senator Miville-Dechêne: Unfortunately, Senator Dalphond, you are going to have to name the amendments for me. I have not received the brief. That’s unfortunate.
Senator Dalphond: I think the briefs were distributed by the clerk, but you may have been left out. I apologize.
I will summarize the brief, but I don’t want to be accused of not saying what the Bar Association says. The first change concerns the age limit, which is considered to be arbitrary. I will explain why. The age of consent for sexual activities in the Criminal Code is 16. The Canadian Bar Association therefore suggests that the bill be amended to prohibit companies from distributing pornography to young persons under the age of 16 rather than 18.
Senator Miville-Dechêne: My response on that point will be relatively easy. As you know, in the non-virtual world, pornography is reserved for people over 18. So I don’t see how choosing age 18 in the virtual world is arbitrary, as the Bar Association calls it. There is nothing arbitrary about it. It is the norm in society.
To get into a sex shop to buy pornographic material, to get into movie theatres where pornographic films are shown, the norm requires that the person be 18 years old. Obviously, the norm could be changed.
From a more philosophical perspective, it is quite true that the age of consent is 16. These days, young persons are more exposed online to scenes of nudity and sexuality. On some free pornography sites, you see much tougher scenes that sometimes include violence and degrading acts. That seems to be the norm today. The connection between watching a lot of pornography and the harms that result is real. Whether someone is 15 or 16 years old, the negative influence is present in that those scenes do not reflect basic sexuality.
Senator Dalphond: We are getting into the question of the content of pornographic material.
Senator Miville-Dechêne: Of course.
Senator Dalphond: Since time is flying, I would like to move on to another point.
Senator Miville-Dechêne: I am just trying to explain the fact that our norm —
Senator Dalphond: My four minutes will be up before you finish.
Senator Miville-Dechêne: Go ahead.
Senator Dalphond: My next two questions are fairly simple. I will leave it to you to read the other two objections stated by the Canadian Bar Association and we can discuss it again later, when their representatives appear.
Senator Miville-Dechêne: I will try to be briefer in my answers, Senator Dalphond.
Senator Dalphond: The next question is about the content of the notice. Section 8 provides that an organization designated by the government may send non-compliance notices in which an organization is allowed time to enable it to take certain steps.
Would it be possible to amend your text to provide that the authority in question has the power to grant a 20-day extension?
Senator Miville-Dechêne: Yes.
Senator Dalphond: Sometimes, the process may be more technical and complex and some organizations will say they would like to do it, but it might take two months.
Senator Miville-Dechêne: One of the legal experts I consulted told me specifically that it would be preferable to give an organization, or these persons, the opportunity to extend the time if necessary, if they see that there is good cooperation.
Senator Dalphond: That would be my first amendment, and we are in agreement.
Second, in section 9, it talks about an application to Federal Court. It says that the person or authority may, within 20 days after the day on which the period ended —
The Chair: I’m sorry to tell you that your time is up.
Senator Clement: Senator, I must first congratulate you on your very complete preparation. I am impressed by your dedication and your level of preparation. Of course, I missed some of the comments made earlier. My own will therefore be more general in nature.
I would first need to get more information about the technology. The first time I read your bill, I thought that people would surely find ways to get around the law. I would therefore need more information about the technology. I am thinking, more specifically, about VPNs, virtual private networks, and all the twisty ways of getting around things.
My other comment is also a general one. This is undoubtedly what you have done, but has sufficient consideration been given to ways other than the criminal law to speak to young persons and educate them, so they know how to find their way through all this material and understand the long-term toxic impact it could have on their sexual life? And have we discussed that enough in society? I am thinking about parents and the possibility of educating young people. Blocking access is one thing. We also have to help young people understand how to find their way through all this material.
Senator Miville-Dechêne: Thank you for these important questions. This bill is certainly neither the beginning nor the end of the subject. At the same time, we have to strengthen sex education courses. In Quebec, for example, it gets only a few hours, there are no teachers assigned to this subject, and there isn’t necessarily any discussion of pornography. The goal is to equip our young people. Not enough is being done.
Of course, sex education is absolutely essential. The reason we need to use the Criminal Code today is out of precaution, because we know the harms that can result from this pornography. We are therefore applying a precautionary principle and saying that pornography sites, like in life, have to verify the age of the people consuming it. That is the answer to your second question.
As to your first question, yes, VPNs allow teenagers, it being teenagers who are the main users of them, to get around age verifications, because teenagers give false information about their place of residence. With a VPN, it is impossible, for example, to detect whether they reside in Canada. There is therefore an opportunity for quite a few teenagers to get around this.
Studies show that the average age of young persons who start to watch pornography is 11. The same studies show that the youngest of them, aged 13 and under, use VPNs much less. They are not familiar with that technology and it is not part of their everyday life. Whether it is my bill or a bill from another country, because I am not the only one who has taken this approach, we are not trying to prevent every minor from seeing pornography. Rather, we are trying to protect the most vulnerable children by avoiding having them see pornography.
The bill is not perfect. At the same time, senator, we can’t prevent children from finding ways to open a bottle of alcohol by one system or another in real life. I don’t know whether you understand. We did not wait to have a 100% effective system before deciding that pornography was meant for an adult audience, not for children. I think it should be the same for the internet, because it has become the way for adults to look at pornography and get hooked on it.
[English]
Senator Pate: Thank you, senator, for introducing this bill. I know through some of the discussions we’ve had and the work you’ve been doing on this for some time that a big part of your interest is also in public education. I’m curious as to how you see the interplay between this bill and how that might drive a greater public education agenda, particularly for young people. I know you’ve already spoken a bit about that, but I’d like it if you could please expand on it and how you might see this inspiring greater activity in that regard.
[Translation]
Senator Miville-Dechêne: We know that suppressing certain content is not the way to do sex education. Young persons have to be able to get a healthy sex education, and that is part of my values. That education must be given by professionals in the schools, because parents are outdated. Certainly, it is one of their responsibilities. But more than ever, given the availability of content of all sorts on the internet, high quality sex education, at all stages of elementary and secondary instruction, is essential.
It enables the child or young person to draw the distinction between what we are discussing, questions of consent, of discomfort, or equality between partners, everything that is discussed in a real sex education course, and what is seen in pornography, which is not necessarily consensual. You see sex acts that are often performance, and this gives children a pretty twisted image of what sexuality is.
As Senator Dalphond said, I will not go into all the details about what is on these pornography sites, which I obviously viewed before introducing this bill. However, I have to tell you that it doesn’t prevent anything. The fact that Pornhub claims to have a page about sex education on its site is not the solution, because sex education obviously has to be something else. It is absolutely not what is found on porn sites, and, unfortunately, a lot of teenagers say they get their sex education on pornography sites. I find all of that disturbing in the extreme, because it may cause what are important principles for me, the principles of equality between the sexes, to lose ground. That is a basic criterion for a fulfilling sex life. The desire of two people, not just one. That is not the kind of scene that is often seen in pornography.
I also think that the bill sends a strong normative signal regarding the need to have sex education programs. It is astonishing to see the conversation that my bill has generated. A lot of parents are worried, but it wasn’t talked about very much; I think people are saying: “Fine, let’s block the sites,” but what are we offering minors so they are able to get a complete sex education? It could be on the internet. We would just have to ensure a balance, and the internet would have to offer free, well‑made programs for young persons and children that they could even view outside the classroom.
[English]
Senator Wetston: Thank you, Senator Miville-Dechêne, for your work on this. Obviously, this is the second time around for you on this bill, more or less. I just wanted to ask you a couple of questions, generally.
Other countries have implemented some aspects of attempting to address issues of access to pornography by pre-adults — I’ll describe that group that way — including France, Germany and the U.K. I’m not sure if the U.K. has succeeded in implementing such measures, but France and Germany have, I believe.
Do you have any information that might assist in describing what success they’ve had with respect to the implementation of their programs?
I’ll ask you a quick second question, which is part of that: How would you measure success if this law were implemented and regulations were created? Would it be the number of notices issued by ISPs or through the agency you’re describing? If you could give me some sense of what that might be, I would appreciate it. Thank you.
[Translation]
Senator Miville-Dechêne: To answer your first question, it is obviously early days with this legislation, but two countries are way ahead of us: France and Germany. For a decade, Germany has required domestic, that is, German porn sites to verify their customers’ age, and that has been done with no problem. Everyone obeyed. For international sites, there is a problem.
There is only one, to tell the truth, that has complied and is doing age verification. It is called FanCentro. It is an American site that has done age verification with a site called Yoti and has admitted that it makes a difference in the number of users. The Germans are also at the stage where they have sent non‑compliance notices to a number of sites, including Pornhub, but also xHamster, and, my sources tell me, they are on the point of having internet service providers block one of those international pornography sites that has not imposed age verification. Germany has gone furthest in putting these laws in place.
However, we have learned some news. From my perspective, it is very good news, because Great Britain was really a leader in age verification, and its efforts had been interrupted when Boris Johnson decided not to move forward with the bill. Yesterday, just before our meeting, the British government announced that it was really going to strengthen the bill that is under consideration at present, called the Online Safety Bill, to require all porn sites to do age verification. The fines, hold on to your hat, are not $250,000 as in my bill; we are talking here about 10% of the revenue of the platforms in question. So we are talking about a bill that would go much further than mine, because it would affect not only free pornography sites, but also internet platforms more broadly.
That was your first question. For the second, how would we measure success?
We could probably measure effectiveness by the number of non-compliance notices, but ideally, what we would want to see is that the pornography sites would comply. The ideal, and it would be apparent quickly, would be that the biggest pornography sites in the whole world, about 50 of them, would comply. If there are enough countries threatening to block the sites, capitalism being what it is, maybe that will happen.
Senator Dupuis: Welcome, Senator Miville-Dechêne. If we are talking about experience outside Canada, could you provide our committee with references for outside witnesses about what is currently in force and what is working, in France and Germany, that is? Last year, we had some fairly detailed presentations on the situation in Great Britain. We know that they have now resumed the parliamentary process, so it is not at all an operational system.
There is talk of new debates, new discussions about a new bill. That was my first question. For my second question, I am trying to understand this: in the previous version of the bill, it talked about “every person who, for commercial purposes, makes available sexually explicit material on the internet for commercial purposes.” That term was amended to say “any organization.” Can you tell us who you are aiming at here?
Senator Miville-Dechêne: To answer your first question, yes, I have provided the names of witnesses who could talk about the situation in Germany and France, which are not as advanced as we think, as you said.
For the question about organizations, I have made two changes, and yes, I removed the reference to individuals. Before, the targets for the criminal offence were the entities and persons. I removed the reference to persons, but in general, most of the criticisms I received came from the experts I consulted after the last meeting of the committee. For example, young people could swap pornography for money, and so they might have been covered by the law, in some way. That is also the case for women who engage in prostitution, who are on porn sites, so who could have been targeted. However, we need to remember that what we are targeting is the porn sites, not the individuals who are on the porn sites. To install an age verification system, there has to be an organization.
We chose the term “organization” because it is defined in section 2 of the Criminal Code, which provides that this term refers to a body corporate, society, company, firm, or partnership. So we are talking about an organizational structure that is known as such by the public. We thought that this term was sufficiently broad to reassure individuals who were afraid of being prosecuted and to adhere to the intent of our bill. We have further clarified the intent of our bill in this new version.
In the preamble to the bill, it says the following, and I quote:
. . . a significant proportion of the sexually explicit material accessed online is made available on the Internet for commercial purposes — in particular through pornographic websites . . .
I know that is just in the preamble, but the intent has been added to the new version of the bill.
Obviously, it will be up to the courts and decision-making bodies to decide who will be affected. Legally, we have chosen to use known terms. In the opinion of the experts we consulted, the idea of naming only pornography sites in the body of the law seemed to be impossible because a new definition would have had to be created. I should not say that it was impossible, but it seemed much more complex because a new definition would have had to be created for what a pornography site is.
Senator Dupuis: That is why I was trying to reconcile what is in the preamble with what you have just quoted.
[English]
Senator Campbell: Thank you for this bill, senator.
The question I have mainly deals with the internet in general. We have seen numerous attempts, for various reasons, to have government control the internet. We see it with Facebook, and we see it with all of the sites there. Quite frankly, unless I’m terribly wrong, government has been less than successful in bringing any of those organizations under the mantle of regulation. It is almost, as you said, the “Wild West.” There is this sense there is a right for people to do whatever they want when it comes to the internet.
I think we should try; I’m not saying that we stop trying and just give up. But do you have a sense that there is an opportunity here for us to deal with the internet, and this issue in particular, in a fashion that hasn’t been accomplished before?
[Translation]
Senator Miville-Dechêne: Absolutely, Senator Campbell. Yes, there are some areas of the internet that are still not regulated. There are certainly battles. Think of betting and online gambling. For online gambling in Quebec, there is Loto-Québec; it is a public company that has very tight age verification that means that only adults can enter those sites. Obviously, you will tell me that they take credit card imprints and that helps things. I went there recently, and I saw that they also require identity cards.
There are people in place, for online gambling, and age verification systems that work because there is a consensus that only adults should be able to gamble and bet. That is exactly what happened in England, because, in that case, there had also been private online gambling. So in that case, there was an obligation to verify age, because at one point all the children were visiting the gambling sites. In Canada, however, because it is generally the governments that have online gambling companies, age verification is done pretty diligently.
I would say that I draw a parallel with that. We are talking here about a consensus in society, that children, minors, must not have access to online gambling or to pornography, because, in real life, children do not get into casinos or sex shops. It works very well in the other sectors. I think it is time to apply age verification to pornography as well. There are some small additional issues here. Because they are free sites, credit cards are not automatically used. There have to be more sophisticated methods for determining the age of a pornography site customer.
[English]
Senator Campbell: Thank you very much, senator. Good luck.
[Translation]
Senator Carignan: My question is for Senator Miville-Dechêne. I agree 100% with your bill. I was flabbergasted to see how easy it was, in two clicks, with Google Images, to find free pornography. I tried it in order to see how it worked. I was disturbed to see the kind of photographs that could be found; there are even photographs of teenagers. It is truly shocking. I don’t know whether the police do anything about it. I am going to continue my investigation.
Have you talked to the people at Google? If so, what was their reaction? If not, why? How do you see your bill being implemented when a child of 10 can get access to pornography in two clicks, using Google, that I would describe as high level, to be polite?
Senator Miville-Dechêne: Low level.
Senator Carignan: Yes, low level, pardon me.
Senator Miville-Dechêne: Thank you for your question. Yes, it is frightening. You didn’t enter a pornography site?
Senator Carignan: No.
Senator Miville-Dechêne: You just clicked on a search engine.
Senator Carignan: Exactly.
Senator Miville-Dechêne: I would say that’s a first, because my bill is aimed primarily at pornography sites. Great Britain is trying to cover pornography more broadly, that also exists on social media and more or less everywhere. I chose to present a more modest bill, because people who look at pornography mostly do it on porn sites. So that is aiming at the heart of pornography viewing. What you say is true. In Canada, there are quite a few measures aimed at eliminating the sexual exploitation of minors on the internet as a whole. The Canadian Centre for Child Protection, located in Winnipeg, is a very serious institution; one of its achievements is Project Arachnid, a platform that detects child sexual abuse images on the internet and often asks internet service providers to remove material of that nature.
You also know that social media say they remove this kind of material from their platforms. So there is a bit of work being done in the case of sexual exploitation, but not pornography. That is the difference. When you see images of adults that can be just as disturbing for children, it’s the Wild West. Everything is permitted. This is really a step in my bill. I think we will undoubtedly have to go further, but let’s start with that.
Senator Carignan: Have you been in contact with people at Google? Do you think they should testify?
Senator Miville-Dechêne: Yes, but I think that the problem lies with the search engines. Say that a site that is distributed in Canada gets blocked; a child can go to a search engine and immediately find 40 more.
What can we do so that these search engines don’t produce references to porn? That is what does happen with Google. What I have understood, because I didn’t learn it directly, is that this subject is starting to be discussed. That doesn’t mean that it has got very far.
We can have them testify before our committee, except that they are not directly connected with this aspect of the issue. That is the next stage. However, I think it would be interesting to know what they have to say.
Senator Carignan: Thank you.
The Chair: Let’s move on to the second round of questions. I am going to give everyone two minutes for the second round.
Senator Boisvenu: I am going to go quickly.
Senator, from a technical point of view, in the previous version, I recall that we discussed technologies that would allow a person’s age to be verified at the entry to the site. I think this technology is a crucial point. I also recall discussions we had about the technology put in place by Yoti.
In many statutes and regulations that are made, the government often has to specify a type of technology that companies have to put in place when they are found in default.
What is the reason why you have not included a type of technology in your bill that should be used by the companies?
Senator Miville-Dechêne: Senator Boisvenu, the reason is very simple. This is all evolving at very high speed. So we believe, and we have consulted technology experts about this, that it is better to establish the norms, that is, what norms these verification systems have to meet in terms of privacy and data erasure, in particular, rather than require that they use a certain technique.
This sector is a developing one. You know, Yoti talked not just about the possibility of doing a verification with an identity card, with an image of the person that moves and that requests the identity, and with facial analysis. This technology, that allows age to be assessed, is being developed right now. However, it is important to know that all this data must be erased as quickly as possible. These are the kinds of norms for which the regulations have to be strict, because there will be multiple companies. You talked about Yoti, but there is another company, called Bluink, that uses a digital identification platform in Canada. Regardless of the technology, what counts is that the technology respect privacy and that it is effective.
Senator Dalphond: I have two small technical questions. I will ask them right away, and let you have time to answer.
First, section 9 provides that the enforcement authority may, within 20 days after expiry of the 20 days provided in section 8, institute proceedings in the Federal Court. From that, I understand that you are offering a choice and the organization is not obliged to go to Federal Court.
Second, can you explain the meaning of subsection 9(5), about the effect of the order that the Federal Court determines is necessary to ensure that certain types of orders are made? What did you have in mind there?
Senator Miville-Dechêne: It is a very complex way of saying that the Federal Court...
Broadly, we want the Federal Court to hear the parties. This is where it says there are in fact defences for the pornography sites, and that if it is determined that age verification... If it is determined that the law has not been followed, what we expect is that the Federal Court will make a blocking order that would require internet service providers, such as Bell and Vidéotron, to use various processes, whether IP address, domain, or URL, to block not just the material seen by child X or child Y, but also all of the sexually explicit material on the site in question that did not comply with the law.
However, I am not claiming —
Senator Dupuis: I would like to come back to section 5. I am a bit surprised to hear that search engines would not be covered.
In the preamble, you say that everything made available on the internet for commercial purposes would be covered. However, in section 5, it says “any organization.” There is nothing in section 5 that limits access to pornography sites; I am trying to understand it all.
What organizations are covered? Does it cover all organizations that permit access to sexually explicit material? That is what section 5 suggests. However, you say no, because search engines are not covered. So nothing has been resolved, it seems to me.
Senator Miville-Dechêne: Your question is a good one. According to the experts I consulted, we explained the main intent of the law, which is to target pornography sites. However, nothing else has been excluded, depending on how things evolve. The intent, first and foremost, is to target all pornography sites.
You are correct to say that it is not written out in black and white that Google search engines are not covered. However, from what I understand, for this type of bill that is written this way, in general, it is the pornography sites that are the easiest to target.
That doesn’t mean that the Crown, the police, and everyone could decide to tackle it proactively. However, Senator Dupuis, I think we are not there yet. It will take time to “clean up” the pornography videos that might be on social media, that are there, that are distributed by users and circulated.
So we are starting with the providers of pornographic content, which are the main suppliers.
Senator Dupuis: They are not the only ones?
Senator Miville-Dechêne: No, but there is pornography —
[English]
Senator Wetston: Senator Miville-Dechêne, I have a very quick question about the choice. Is it your opinion that you adopted both administrative as well as criminal provisions in your bill? And is the purpose of the criminal provisions in your bill to act as a potential deterrent to organizations doing what you’re attempting to prevent from occurring? Is that the main purpose of it?
Because, as you know, there are many provisions in the Criminal Code dealing with various aspects of what I’ll call sexual crimes. We know the internet is the 21st century crime scene. We’re aware of that. Do you have any comments on the choice you made and the purpose of the criminal provision?
[Translation]
Senator Miville-Dechêne: Absolutely. You are correct to say, given that there are two avenues, this one sends a strong signal, in my view, because it is a criminal offence; that sends a signal. Up to now, there was section 171.1 of the Criminal Code, which says, and I quote:
Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to
(a) a person who is ... under the age of 18 years ...
Then it adds that it concerns an offence committed for the purpose of facilitating the commission of another sexual offence with respect to that person.
A specific offence had therefore not been provided in the Criminal Code about simply distributing sexually explicit material to minors. We had to create that offence.
Obviously, it was created based on the Criminal Code, because the Criminal Code contains most sexual offences, whether it be the sexual exploitation of children or child pornography. Everything is in the Criminal Code. So we thought this was the best way of legislating, but in my opinion, it is clear that the administrative avenue will undoubtedly be less difficult to use, particularly, Senator Wetston, because most of these pornography sites, and I have said this repeatedly, are hosted on servers outside Canada. So laying criminal charges —
[English]
The Chair: Thank you, Senator Miville-Dechêne, for a comprehensive presentation and for answering our detailed questions. We appreciate you always making yourself available.
Senators, we will now go to our second panel, starting with Mr. Michael A. Geist, Canada Research Chair in Internet and E‑commerce Law, Common Law Section, Faculty of Law, University of Ottawa; Lara Karaian, Associate Professor, Institute of Criminology & Criminal Justice, Carleton University; and Brian Hurley, Director, Canadian Council of Criminal Defence Lawyers.
[Translation]
Before starting with the witnesses, I would like to introduce the committee members. They are Senator Boisvenu, Senator Campbell, Senator Carignan, Senator Clement, Senator Cotter, Senator Dalphond, Senator Dawson, Senator Dupuis, Senator Pate, Senator Wetston and Senator White.
[English]
We are ready for your presentations, starting with Mr. Geist.
Michael A. Geist, Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, as an individual: Thank you so much to the committee for the invitation. I have appeared before some of you in the past. It’s nice to see everyone. I hope you’re staying healthy.
My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I’m appearing in a personal capacity representing only my own views.
I thank the committee for the invitation to appear on Bill S-210. I should start by noting I’m not averse to addressing the concerns identified in the bill. I have three children who are in their teens and early twenties and who were fortunate to grow up in a house where computers with internet access were ubiquitous. The concerns of this parent, like so many others, included those of exposure to content inappropriate for their age. I believed then and believe now that addressing the issue is my responsibility, which includes education, frank conversations and an assessment of whether to use internal blocking tools or filters.
Further, many years ago when the government worked with internet providers to establish Project Cleanfeed Canada, an initiative to block access to the very worst images of child pornography, I was a public supporter of the initiative, which struck me as appropriate given the content itself was unlawful and the blocking was limited to specific images, not entire websites. But while blocking specific illegal imagery may be supportable, this bill is not. Indeed, by bringing together website blocking, facial recognition technologies and stunning overbreadth that would capture numerous mainstream services, the bill isn’t just a slippery slope; it’s an avalanche.
There are many concerns, but in my limited time, let me focus on three.
The first is the reliance on website blocking. I realize that there may have been some amendments in this version of the bill to engage the courts, but the reliance on blocking sites as an enforcement mechanism remains troubling. The danger of over‑blocking legitimate websites raises serious freedom of expression concerns, particularly since experience suggests that over-blocking is a likely outcome of blocking systems. We’ve seen this in Canada dating back to 2005, when TELUS intended to block access to a single site supporting a union action and blocked hundreds of other websites in the process.
The costs associated with website blocking can run into the millions of dollars, with significant investments in blocking technologies and services, employee time to implement blocking orders and associated service issues. The result would be higher consumer costs and less affordable access in one of the highest‑cost countries for internet services in the world.
In fact, as part of the government’s recent consultation on online harms, the prospect of website blocking as a measure was widely criticized. Canadian Heritage’s What We Heard report released just last week notes:
Multiple respondents criticized the proposal for allowing the blocking of entire platforms, advocating instead for a more targeted and human rights compliant proposal of targeting specific webpages. A few advocates for sex workers explained that the overbreadth of the power was particularly worrisome to them . . . .
And that involves illegal content. This bill moves into legal content.
Second, I have similarly serious concerns about the reliance on age-verification technologies, particularly the potential use of facial recognition. We’re only starting to come to grips with the risks associated with such technologies, which raise privacy concerns, fears of bias and error, security risks and the potential for misuse.
To actively legislate their use runs directly counter to the current movement that seeks to restrict the use of such technologies until an appropriate and effective regulatory framework is developed. There may be some companies that do it better than others, but in the absence of a regulatory framework, the last thing we should be doing is effectively mandating its use.
Third, the overbreadth of this bill is simply stunning. While I realize the proponents may have certain sites in mind, we should recognize that the current definition covers some of the most popular and commonly used sites and services on the internet today.
I suspect many senators have Twitter accounts. I hope there is awareness that explicit content is easily accessible on that service. Is the intent to require all Twitter users to engage in age verification? If Twitter declines to implement such a system, as they surely would, is the plan to require all ISPs in Canada to block access to Twitter? The same is true for Snapchat, where this content can be found, or Reddit, where a not-safe-for-work section is full of explicit content.
Will every Canadian be required to effectively prove their age in order to tweet or read a post on Reddit? Are all these sites to be blocked in Canada if there’s no age verification system? Further, as referenced in the previous panel, will every Canadian be required to undergo age verification to use Google? Will that mean that kids in school will be blocked from conducting internet searches because they’re not over 18?
These are just some of the problems with this bill. Potentially vesting much of the bill’s responsibility to Canadian Heritage, when this is surely a public safety matter, or, even more, handing enforcement to a CRTC already facing serious credibility concerns, only makes matters worse.
I recognize the good intentions of this bill, but respectfully, I believe the risks and the harms far outweigh the benefits. I look forward to your questions.
The Chair: Thank you. We’ll now go to the next witness, Professor Lara Karaian. Professor, I want to first thank you. You made yourself available at very short notice. We just asked you yesterday, and you agreed to attend today. That’s pretty special. Thank you for accommodating us.
Lara Karaian, Associate Professor, Institute of Criminology & Criminal Justice, Carleton University, as an individual: Thank you. It’s my sincere pleasure, and I’m grateful to have this opportunity. My thoughts might be a little less organized as a result, so I hope you’re patient with me.
As you mentioned, I’m an associate professor at the Institute of Criminology and Criminal Justice at Carleton University. I have studied the legal regulation of sexuality and pornography for about the past two decades. I am a self-identified criminologist, sexuality scholar and porn studies scholar.
I would like to begin by acknowledging the substantive changes made to the original bill. I’ve now had the opportunity to read both the original and the revamped versions. I would like to say that while the restricted scope, the clarified intention and the additional measures outlined in the new bill demonstrate a welcome engagement with a range of experts and stakeholders, I too have significant issues with the bill, and I’m going to focus on different areas than I’m sure the other experts will focus on. In particular, I want to think about the issues of public health and safety and also the issue of pornography’s benefits.
The bill has been framed as an effort to protect public health and public safety, not to enforce prudery and censorship of all sexual material. That is highly commendable, but I would also like to say that the scope and potential negative implications of the bill outweigh the benefits.
I’m happy to provide some sources for all of my claims, but for now I will speak to the findings of Emily Rothman, a professor of pediatrics, and Kimberly Nelson, a professor of community health sciences, both of whom are at the Boston University School of Public Health. They draw on the Oxford Handbook of Public Health Practice to argue that pornography, first of all, is not a public health crisis.
A public health crisis has three main qualities: It’s an acute event that requires an immediate response; it’s an event that is expected to immediately lead to death, disease and morbidity, property destruction or population displacement; and it overwhelms the capacity of local systems to do the job of maintaining the community’s health.
By all accounts, adolescents’ and adults’ access to pornography does not meet the criteria of a public health crisis for three main reasons.
First, even with the steady rise and accelerated access to pornography on the internet, pornography is not an acute event that requires an immediate response, and access to pornography by youth does not require an immediate response.
Second, pornography does not directly or imminently lead to death, infectious disease, morbidity, property destruction or population displacement, despite legitimate references to emotional and psychological stress caused to some youth, and also the very unfortunate but rare instances of suicide that I know have been cited in defence of this bill. Ultimately, the threshold is not met in terms of the scale that is required.
While research demonstrates that there may be negative health consequences of pornography use for some, including youth, studies suggest that there are no substantial consequences for the majority and, indeed, there are positive implications for large numbers of users, including youth. I will get to that momentarily. The potential implications do not rise to a crisis threshold.
Finally, pornography does not overwhelm the capacity of local health systems to maintain the community’s health. There are multiple resources within our communities in Canada for individuals who believe they have been negatively affected by pornography, including therapy, so this threshold is also not met.
As Nelson and Rothman demonstrate, referring to pornography as a public health crisis has resulted globally in unwarranted and unconstitutional policies, funding shifts, modes of regulation and the pathologizing of forms of sexual behaviour, including pornography use, that has the potential to restrict sexual freedoms, stigmatize normative and non-normative sexualities and is, in fact, antithetical to public health.
Additionally, decades of correlational and experimental studies of pornography and its relationship to sexual violence, as well as its relationship to violent crime data, demonstrate that the negative effects of violent pornography are inconsistent, and victimization rates in the United States for rape actually demonstrate an inverse relationship between pornography consumption and rates of rape. Data from other nations also suggests similar relationships.
With my brief remaining time, I want to emphasize something else that I have more expertise in, and that has to do with the fact that many of these sorts of efforts — again, as well intentioned as they are — pay little attention to young people as sexual beings with desires and to the significance of sexually explicit material in everyday life.
Those who access pornography under 18 are most typically 16- and 17-year-olds who are above the age of sexual consent. Today, our age-of-consent laws in Canada have provided this context whereby youth are legally permitted to engage in sex; they are indeed allowed to create sexual representations of themselves, as long as they’re for private use, as has been acknowledged by the Supreme Court of Canada, but they’re not permitted to view representations involving adults. This is based in part on the very faulty premise that sexual speech and sexual arousal for youth, including for adults, are somehow uniquely valueless or harmful.
So I would like to encourage the committee to acknowledge and recognize that sexual pleasure has intrinsic value in and of itself, and that pornography is a speech that is to be protected outside of its educational, artistic or medical contexts. Indeed, sexual expression has been deemed by Canada’s Supreme Court as significant to adolescents’ sexual self-fulfillment, actualization, exploration and identity.
The Chair: Thank you. We will now go to Mr. Hurley.
Brian Hurley, Director, Canadian Council of Criminal Defence Lawyers: I thank the Senate for inviting me to speak on behalf of the Canadian Council of Criminal Defence Lawyers. I’m a practitioner. I’ve been practising criminal law for the last 30 years, and I’ve done a number of administrative law processes in the last 5 or 6 years of my career.
Like the first speaker, I come at this as a father; I have two boys and two girls, aged 18 to 24. I sort of started at the preamble. I’ll let the experts speak to the public health or safety concerns, but obviously as a father, I would want to keep my children, when they were younger, away from pornography.
Point number two in the preamble is the age verification. I think many people have spoken to this: Does that work? We have a completely legal activity of looking at pornography here, and we’re requiring age verification. I would have liked to have seen something in the legislation, if it is going to move forward, that dealt with penalties for companies that do not appropriately deal with personal information when it comes to age verification.
Like a lot of experts, I’m not sure that this works. If we look at age verification on other adult sites — one of the big ones is massive online gambling sites, which obviously have a lot of money — the age verification they require is quite extensive. I would think most Canadian citizens who do engage in perfectly legal online gambling are providing that extensive information to legitimate — if I can say that — big gambling sites that are extremely highly regulated. That’s not what we’re dealing with when it comes to pornography.
“Sexually explicit material” is defined in the bill by borrowing from section 171.1, and specifically subsection (5), of the Criminal Code, and I would encourage people to look at that section. That’s a very specific section dealing with, essentially, luring children with pornography. It specifically excludes child pornography, because that’s dealt with elsewhere in the code. It also specifically includes pornographic writing.
I’m not sure if we want to include that in this bill. That kind of dovetails on from what Lara was saying with regard to 16- and 17-year-olds. If they’re writing about their perfectly legal sexual experiences and posting it, then they’re presumably caught by this.
I do share concerns about the lack of definition, overreach, vagueness and leaving things for regulations.
I do like this version of the bill versus the previous one. I do think excluding individuals was the right choice. I do see this bill becoming more of an administrative bill than a criminal law bill, and that may be the right direction as well.
However, if it becomes an administrative bill, hearkening back to the first session, it becomes a money bill. If you’re going to do an administrative process, you’re going to need a tribunal, a panel and agents, or it’s not going to work. Our police are swamped with different types of work. There has to be an enforcement agency and a reporting agency if this is going to work; I’m not sure what the French and the Germans are doing, but I would imagine they have something along those lines. You have to report violations to people. People have to look into it.
There is one other technical thing from a clinician’s point of view: I would like to see that it essentially becomes an administrative bill if it’s going to move forward and that we go to a process where we don’t jump to offences; that we essentially have the warnings or that we go from compliance notices to offences. That is what most administrative bills would do: You send a compliance notice, and if it’s not complied with, then we move to offence. That is as opposed to this legislation, which seems to allow us to jump straight to offences.
“Legitimate purpose,” once again, is in the bill. I hearken to what Professor Geist had to say in that it is very vague and open to interpretation. If the Edmonton Sun runs a news article about women protesting topless bathing in the summer, as they did last year, an online version may have photos. An online version may have what my local newspaper has if I want to look at cannabis stories in that it asks if the viewer is over 18. Then you can read a cannabis story. Is that going to be a legitimate purpose? It’s very vague, and I would have concerns.
I do appreciate that aggravating factors in the previous bill — “obscene material” — were taken out. We can trust our judges to know what an aggravating factor is, and I appreciate that. That definitely is a step in the right direction.
As I said, regulations are a big issue, and many lawyers look at many pieces of legislation where the real important material is in the regulations. That’s problematic, because obviously regulations can be changed quickly, without public debate. Age verification, as many speakers have talked about, looks quite problematic. If this bill is to move forward, I would want to see safeguards on that data and serious penalties for those who don’t take care of that data.
Most importantly, though, unlike gambling sites, where you deal with a half-dozen major gambling sites, there are thousands upon thousands of pornographic sites out there, most of them not in Canada. If I’m a lawyer, I know the person I’m going to represent on this is your TELUS-type companies and your internet service providers.
The Chair: Thank you, Mr. Hurley.
We now go on to questions, starting with the sponsor of the bill, Senator Miville-Dechêne.
[Translation]
Senator Miville-Dechêne: I have heard a lot of things during this testimony with which I do not agree, you will understand.
Ms. Karaian, I understand when you talk about studies, but you spoke about studies of adolescents and adults. You are not talking about children, when multiple studies demonstrate the probable links between harm and children who view pornography.
With respect to sexually explicit material, Mr. Hurley, I will say that the case law interprets sexually explicit material as being —
[English]
The Chair: Senator, I will please ask you to ask a question rather than respond to them.
[Translation]
Senator Miville-Dechêne: You’re right, Madam Chair; I’m sorry.
My question is for Michael Geist. I would like to hear your comments on the famous parental control you talked about. I’m sure you have no trouble making it work, because you are Michael Geist and you are familiar with this technology. However, studies have shown that parents have a lot of trouble with these tools; they do not install them and they do not understand them. That plainly allows children to get around them.
That is the first thing. As well, given that you say you approve of the objective of the bill, and that in Canada, pornography in the non-virtual world is limited to people 18 and over, my question is this: How do we enforce the law that provides that pornography is an industry reserved for adults? How do we enforce that consensus on the internet?
[English]
Mr. Geist: Thank you very much for the question.
With respect to filters, I think internet providers have been conscious of this issue and tried to ensure that those tools are readily available. It gets easier and easier over time to use, as I think even of my own provider that has made so much of the connectivity that I have and control over who can access and the ability to block certain sites much easier.
It’s true that kids can get around it, but perhaps that’s part of the point here too. On the earlier panel, people were somewhat dismissive of the prospect of using VPNs. VPNs are actively being integrated into web browsers nowadays. It was earlier suggested that 16- and 17-year-olds are most likely [Technical difficulties] some of this content, and they can probably teach their parents a thing or two about gaining access to the kinds of things they want. With respect, it does feel somewhat disingenuous to argue, on the one hand, that they may be able to get around this but not acknowledge that they can get around the proposed solution in the bill as well. They surely can.
With respect to looking for solutions, I do think that the solution by and large is to focus on both illegal content — the clear child pornography, which clearly causes real harm and we need to ensure our tools are sufficient in that regard — and we need to ensure that parents and education is well tooled. But the idea that we would equate every Canadian having to sign up for this system and potentially have to go to verify their age, surrendering even facial recognition technology in the process of doing that, quite literally for the purpose of tweeting or accessing websites or even running a Google search is far beyond an equivalence of either gambling online or trying to access pornography. There’s simply no comparison whatsoever.
[Translation]
Senator Miville-Dechêne: What we are talking about here are pornography sites, Mr. Geist, not Twitter. I understand when you say that it can be expanded to everything, but you still have to go after Twitter. I think you are genuinely confident about the ability of all parents to control their children when it comes to pornography sites. That is not what we hear. Parents are asking for help, because they can’t all do it. Not everyone has the knowledge and digital literacy needed to work these tools.
[English]
The Chair: Senator, your four minutes are up and you’re not asking a question.
[Translation]
Senator Boisvenu: First, I want to thank our witnesses, who have given us some interesting testimony. My first question is for Mr. Geist. We know that there is a close connection between cybercrime and pornography. Those worlds go together very well. My question is this: If the verifications provided in this bill require that confidential information be provided, like identification and passport, what are your fears with respect to identity theft?
Because of identity theft, as we have seen in Quebec, that information can be used to blackmail spouses and families. There have been many reports to the police about this issue.
My question is this: If you have to provide a lot of personal information, even from a minor, what is the potential danger of that information being fraudulently used?
[English]
Mr. Geist: Thank you for the question. First, I should note that I actually didn’t think there was a connection to cybercrime. I thought we were being quite explicit that we were talking about lawful content, not criminalized content.
But with respect to the personal information risks that exist, they are very significant. We think of the biggest privacy breaches and the like, and many of them have directly involved this kind of information. Think of Cambridge Analytica, think of some of the services out there that have gathered huge databases of images. The idea that we are going to quite literally have an organization or organizations collect the image of every Canadian who wants to access these sites because, with all due respect, the definition of “organization” simply refers to those that make available sexually explicit content, which includes transmission — sites like Twitter, Reddit allow people to upload that content and then make it available. There is simply no question that those sites are captured by this legislation. There is nothing in this bill that limits it solely to a Pornhub site. It’s simply not the case.
Ms. Karaian: According to some criminological literature that I’m aware of, there are threats to privacy in this data in terms of hackers, and I understand the recognition that no data is 100% safe, and hackers have hacked into the Canadian government as well. But in criminological circles there is also this thing called the insider threat. With regard to data breaches, it’s estimated that anywhere between 43% and 90% of information related to security incidents within businesses or large organizations come from people within those organizations. So they are not from hackers from outside those organizations.
So if we’re asking particular organizations — third parties — to have this information, we can’t necessarily think that the threat is only coming from hacks of that information. It may be coming from within the organization itself in terms of a data breach issue.
[Translation]
Senator Boisvenu: Mr. Hurley, I asked the sponsor of the bill earlier what legal proceedings are required to ultimately lay charges or impose a fine. In your opinion, is the process provided in the bill, which can lead to identifying violators and offenders in the application or the failure to verify people’s age, a relatively practical one for it to be possible to achieve results?
[English]
Mr. Hurley: First, sir, you have to bring a complaint somewhere. I can’t imagine calling the local police with a complaint on this. I think they would tell you they have other things to do, which is why I think for it to work it becomes an administrative law bill with a regulatory organization that you complain to, like the CRTC, although obviously I’ve heard the concerns about that. But hopefully it becomes a specialized regulatory bill with a specialized panel, with significant internet knowledge, who can take the complaint and then bring a notice to comply on to an organization, and if they refuse to comply, a charge.
Obviously, it’s for Parliament and you folks to decide on a balancing act between privacy, the harm that’s here and how you do it. It’s not for me as a father or as a defence lawyer. I really think it becomes a regulatory body specialized in this that you bring a complaint to that has enforcement agents and everything else.
The Chair: Thank you very much, Mr. Hurley.
Senator White: To Mr. Hurley, if I may, a question. I think I heard you speaking to the potential cost of this legislation should it be passed. Can you expand on that? If I was wrong about that, I apologize, but that’s what I took from your response.
Mr. Hurley: As a citizen and a father, I would like to see my children have no access to violent pornography. Once my kids got beyond 14, my wife and I could not stop them. We tried, but they were smarter than us and knew how to do things on the internet that we didn’t.
I think you need an expert panel that knows this stuff. I think you need a regulatory body that is in charge of it, like the CRTC, but probably a subset of that if you’re going to get it to work. If you decide the balance of privacy interests versus the harm you’re going after is worthwhile, you will need a regulatory body, a place to complain and with enforcement agents who can go out and make compliance requests and lay charges.
You might want to ask someone with more expertise in the Federal Court if that is the place to go to. The Federal Court in Edmonton doesn’t handle a lot of stuff. It’s a pretty quiet place. It’s wonderful to go to because they have lots of time to help you out, but I’m not sure if the Federal Court is the place to go. I would think if you want to do this and you want to make it work, you need a specialized tribunal.
Senator White: Thank you very much.
Senator Dalphond: My question is for the Canadian Council of Criminal Defence Lawyers or Professor Geist. It is about clause 9(5) of the proposed bill. It empowers the Federal Court to determine that it is necessary to ensure that sexually explicit material is not made available to young persons on the internet in Canada and, therefore, to make an order which looks to me as being a complete cease order, including non-pornographic material. Does it raise some issues of constitutionality or Charter issues? Do you think that would meet the test of the courts?
Mr. Hurley: I do have the concerns that Professor Geist has that this is potentially very broad. You can block all sorts of things on the internet if you want to. The Chinese do it wonderfully, but you give up a whole lot of other things that would not be tolerated in Canada, so absolutely there are issues of vagueness and overbreadth here.
Mr. Geist: I would supplement that by re-emphasizing that the experience with blocking around the world is it invariably involves over-blocking. In the process of trying to block one site that you think you’ve got, hundreds of other sites are often included. In the Telus example, that included a breast cancer fundraising website and several education sites that were all blocked in the process. That is one of the reasons that human right experts, including the UN special rapporteur on the area, have raised questions as to whether or not website blocking is compliant with our human rights obligations.
Ms. Karaian: Historically and constitutionally, we have seen the over-regulation of queer, non-normative sexual communities that have suffered as a result of broad definitions of “degrading,” and “violent.” We have seen this constitutionally being addressed through the Little Sisters and other cases. We definitely would see probably an overbreadth that would result in constitutional challenges based on sexual freedom and non‑normative sexual communities that were being over-policed as a result.
We saw that in the U.K., for example. Certain types of pornography that were getting restricted early on were feminist porn. Blow jobs were not regulated, but if a woman was — and I’m going to be explicit — sitting on a man’s face, that was deemed a health hazard and a scarier situation than the alternative. So we already saw the blocking of non-normative sexual examples in the U.K. context with early iterations.
[Translation]
Senator Dupuis: My question is for Mr. Geist, Mr. Hurley and perhaps Ms. Karaian. To prevent the sexual exploitation of young persons and access to pornography sites, there is a series of provisions in the Criminal Code. In your opinion, are the existing provisions of the Criminal Code sufficient to prevent young persons from accessing sites that exploit pornography or sexually explicit material? In other words, the Criminal Code currently contains a body of provisions. Mr. Hurley, thank you for your answer on the administrative law aspect and the administrative scheme we can put in place, the regulator and everything else. If we want to tackle the exploitation of young persons and children for commercial purposes, the exploitation of women for pornographic purposes, and too, if we want to block access to those sites by children, could the body of provisions in the Criminal Code meet that objective?
[English]
Mr. Hurley: If we’re talking about exploitation of participants, then certainly the Criminal Code is the way to go, and I think the provisions are there.
But if we are talking about access by young people to such material, then no, I don’t think the Criminal Code goes after that or prosecutes it. And certainly as a parent, I would prefer if there were less. But once again it goes back to what you are prepared to sacrifice to ensure there is less, and whether this bill can effectively do that.
[Translation]
Senator Dupuis: And so the question of access to this kind of site should instead be added to the series of provisions already in the Criminal Code?
[English]
Mr. Hurley: Generally, when we look at Criminal Code provisions, we have a specific person with a specific intent in this country who has committed a crime. I don’t know that any of this fits into that.
Obviously, if you are having perfectly legal, consensual adult sex that’s being filmed, you can put it out there. Does it become a crime then, and for whom, if a child gets access to that? Certainly even in the 1970s, by the time I was 15, 16 or 17, we found pornography that we weren’t entitled to have. So I don’t think the Criminal Code is the place to do that. That’s why I think it is administrative law, potentially, if you move forward.
Mr. Geist: I would certainly agree with Mr. Hurley that implicit in your question was actually not what I thought the purpose of the bill was, which was to stop minors from accessing it, but there were concerns about pornography itself, and that is quite a different issue, in my view.
I would reiterate that the costs this bill would impose on basic freedom of expression, the risks to privacy and, simply, overbreadth is an enormous cost far beyond the harm you are trying to deal with.
You could start thinking about how you target very narrowly the websites you have in mind, but this bill, as currently drafted, doesn’t even come close to trying to do that. Then, at the same time, you are faced with the reality that the same content is readily available on other sites. If you recognize the value of Google or Twitter or many of these other websites goes far beyond the harm that may accrue from some people being able to access pornography, then quite simply the answer is there is no place for this bill.
Senator Dupuis: Thank you.
Ms. Karaian: We need to think beyond the criminal law for many different social harms, including potentially the harms that some young people may experience coming across images that are unsettling to them or unknown to them, and we could once again be putting our efforts into porn literacy, sex education and alternative ways of helping, such as more counselling services or something — alternative mechanisms other than criminal law enforcement, which, frankly, we over-rely on to deal with interpersonal and social harms.
Senator Cotter: Thanks to all of you for these insights. My question is for Professor Geist and Professor Karaian. You described some of the challenges represented here. Given your expertise, what would you do in this set of circumstances? What approach would you take if you were the architect of a legislative or administrative framework here — or maybe do nothing? I don’t know whether that would be your view, but I would be interested in how you would come at this question.
Mr. Geist: I’ll start by saying, with respect — and it came up in the earlier panel — the notion that you would extend any of this to mainstream services like Google or Twitter or whatever should obviously be a complete non-starter.
The question, more fundamentally, is around some of the core pornographic websites. I don’t think the answer lies in trying to offload this issue onto internet service providers and age verification companies, which then imbues this with privacy-related issues and freedom of expression issues. The issue is dealing directly with some of these websites, and to the extent we have some of these websites located in Canada — and we do — there is the ability to try to pressure some of these sites both to ensure the content on it is lawful and that they take measures on a voluntary basis to try to ensure those accessing the site are appropriate. That can be as simple as asking for an age verification. I recognize there will be plenty of people who will simply click yes and attest that they are of age, but if we accept that people will find ways to get around this anyway, even some basic speed bumps may be helpful. Beyond that, there is no place for invoking website blocking and age verification for basic access to things that are perfectly lawful.
Senator Cotter: I was just going to invite Professor Karaian’s view. Thank you, Professor Geist.
Ms. Karaian: Thank you, Senator Cotter. I feel we need a multipronged approach. I can respect the intentions behind this bill. It is intended to help address the mental and physical health concerns that we might have about young people coming into contact with disturbing images, but I share all of the same concerns. And I don’t think legislating this sort of thing is possible.
I also take Senator Miville-Dechêne’s point to heart, which is that if we have regulated this offline, why shouldn’t we regulate it online? I ultimately don’t think there are mechanisms that allow us to do that where the harms outweigh the benefits at this point. We need a multipronged approach, which includes the parental aspect. Again, I understand there are issues with parental locks and self-disclosure.
Ultimately, we need more thorough sex education that addresses interpersonal sexual relationships and that talks explicitly about things like sexual pleasure, sexual harm and sexual fantasy, so young people are aware of what sexual fantasy is and that pornography is acting in many ways and not representation or education. Literacy is a better approach. Criminal penalties are usually the least effective.
Senator Cotter: Thank you.
Senator Campbell: Thank you to the witnesses. I appreciate you coming today, and it has been very interesting. Frankly, I have no questions, Madam Chair.
The Chair: Thank you, Senator Campbell.
Senator Clement: Thank you to the panel. I have two questions. The first one is for the two who identified as fathers.
Ms. Karaian: I would like to add I’m a mother of a 10‑year‑old boy.
Senator Clement: I have a specific question for you, Ms. Karaian. You can answer any question you want.
Is there any bill that will be able to stay ahead of the workarounds young people are going to find to access these sites? As parents, have you had enough access to materials that could help you in having those conversations? Forget blocking — we understand the limits — but think about the actual parenting part where you are talking to your kids about critical thinking on this. Are there materials for parents? Is there support for that?
The next question is specifically for Ms. Karaian. You referenced the Boston University study. Thank you for that. I wonder if there is any evidence at all to link minors watching porn and public health concerns, particularly for young women and the long-term impact on their sex lives and their sexuality. Is there any evidence at all? I know Boston University discussed that, but is there anything people are referencing to speak to that?
Mr. Hurley: In my own experience, things that worked until my children probably were 15 or 16 — and then, obviously, nothing worked, and Lara will experience that in the next few years — were the types of things that create problems for this kind of legislation. For example, Net Nanny was on all of the devices in the house, which my wife was in charge of. It meant that often when I needed to work I had to go into the office, because my personal computer could not access a wealth of perfectly legal websites that might be required.
We as a family sacrificed the ability to look at things on our personal computers in the home to make sure the children were safe. My wife has an MA. I have a couple of degrees. We have computer literacy. We have money. I didn’t come from money, but we have money. And we have the ability to do all of that. I’m not sure the average Canadian has the same perspective. I constantly tell my children they are privileged and how tough an Irish immigrant kid had it. That’s the same issue with the bill. We gave up access to a lot of the internet to limit what our children looked at, but like I said, by the time our children were 14, 15 or 16, they were miles ahead of us. They could get around anything we put on the computer. You throw up your hands at a certain age and hope you have taught your children well.
Senator Clement: Thank you, Mr. Hurley.
Mr. Geist: My family’s emphasis was less on the technical side and more about trying to imbue in our children values of respect and freedom of expression, as well as giving them the space to sort much of that out. I didn’t feel the need, frankly, to put on a whole lot of filtering software.
They may well have been able to access stuff that I may not have approved of. One of my kids is now an engineer, and the other is in engineering, so I’m sure that even before the age of 15 they would have been able to do that. To me, the way to go about it is to be present and give them values. Those values include, just as importantly as identifying issues that some might view as harmful, the importance of speaking out and embracing freedom of expression, which I don’t believe this bill adequately accounts for.
Senator Clement: Thank you, Mr. Geist. Ms. Karaian?
Ms. Karaian: Thank you for the questions. I have had the conversation. I have a 10-year-old. I have spoken with my 10‑year-old about what sex is and what pornography is, but we haven’t had extended conversations about that.
I am not denying pornography can have some harmful effects on people’s sense of self, their sense of their body and their sense of their sexuality. There may be negative implications, but so too are there negative implications in popular culture, music videos, film, TV and video games. There are romance movies. There are innumerable cultural products that affect our sense of self, the way we relate to other people, our value systems and our norms.
However, we are not able or willing to regulate them in the same ways we do pornography because we typically don’t see pornography as having value, or we see it as having a base value that is solely about individual pleasure and that it doesn’t have any added value that it is medical, educational or artistic. That is a faulty starting assumption. We would do well as a culture to understand the value of pornography and what it may add to us in terms of understanding ourselves.
Ultimately, there are studies that demonstrate its harms just like there are studies that demonstrate the harms of false advertising, Photoshopping and romance films. We have to think about why we want to exceptionalize porn in this context. Because it is easy to have sex and porn panics and less easy for us to look at the broader cultural norms that are also harmful.
Senator Clement: Thank you, Ms. Karaian. Thank you for your candour, all three of you.
Senator Wetston: Thank you for coming today. We’ve covered a lot of territory here. From my perspective, it’s challenging to get your head around the various technical issues associated with the implementation of a bill like this because it raises many issues that you have discussed.
Any of you can take a crack at this. The one thing I’m wondering about is that we seem to give the expression of your opinions unlimited beliefs in the fact that freedoms and privacy issues are more critical and more important in the context of what this bill is attempting to achieve. And all three of you, with some exception, are totally opposed to this bill. Mr. Hurley, you are not as much but you would say it should have an administrative component rather than criminal, and I certainly might not disagree with you there.
Mr. Geist, for example, we do have a Charter that talks about legitimate legislation prescribed by law that can be demonstrably justified in a free and democratic society. You take the position it cannot be unquestionably justified in a free and democratic society, and I would suggest to you that position is a bit extreme, with all due respect. I would say Mr. Hurley presents a similar perspective but from a defence lawyer and thinks about these issues from the point of view of a prosecution, more on the criminal side, but very fairly has indicated his belief that potentially an administrative scheme might be the right way to go. I might agree with that.
Ms. Karaian, I am very pleased with some of your comments with respect to your understanding of this area, but there must be limits as well. You seem to justify or suggest that there are moral issues here, potentially issues that could affect the mental well‑being of children, or pre-adults if I can put it that way.
Vagueness, overbreadth; yes, this comes up constantly. May I ask you all for your particular perspective on what I have just mentioned, which is there must be some limits to this and what might they be? I think to some extent Senator Cotter was more or less getting at that.
Mr. Geist: I don’t mind starting, since you mentioned me first. I should make clear that the notion the internet is some kind of Wild West and that there are no limits on speech is wrong. Obviously, there are limits. We talked earlier about child pornography but there is an assortment of other limits. The government itself just put forward proposals — as I mentioned, widely criticized for precisely the reason that they did not do a good enough job balancing the various freedoms — around online harms, and that involved a whole series of issues that do involve speech that is circumscribed. And doing so is lawful under the Charter because the harms that accrue from terror speech or child endangerment or hate speech is such that we do make some of those choices.
In this context, given this bill, which is the bill that we are being asked to comment on, I’m suggesting that it simply doesn’t engage in that balance. And once you get into these commonly used tools that are absolutely essential for not only expression but for access to information and a whole range of tools — I mean, I would suggest there is practically no one on this panel who goes a day without using at least one of those services. The idea we would try to put in legislation that would require age verification in order to be able to use those services and, absent that, mandate that every internet provider and communications company in the country block access for all Canadians to that site, if there is anything that’s being extreme, it’s a bill that has that kind of outcome, with all due respect.
Mr. Hurley: I suppose, senator, I come to this as a criminal lawyer who sees far too many things criminalized, the criminal justice system not necessarily giving effective results and, quite often, the criminal justice system doing terrible, detrimental things to marginalized communities in this country, which is why I suggested if you are going to move ahead, it may be an administrative process that’s appropriate. I do like that this bill took out the individual and focuses on the corporate entity, if you will. I’m also struck by the fact that this bill seems to be focused on what is perfectly legal activity but for providing it to children, which is why I suggested criminalization may be a mistake and an expert administrative panel may be the place to go.
I do, of course, come at this as a human being as well as a professional, and obviously a human being with a background in a fairly rigid Irish Catholic immigrant upbringing that would have looked very unfavourably on this type of thing. I would have been, and certainly was, corporally disciplined if something was found under my bed, which did happen. I don’t know if the Playboy under my bed or the corporal discipline was worse. That is also a concern about this bill: Are we doing something worse by going after something that is perfectly legal?
As a father of four, I don’t want my kids looking at this stuff. I mean, my kids aren’t kids anymore, but when they were kids I didn’t want them looking at this stuff. Lara could speak to the damage that may or may not have caused them. I don’t know. Certainly, my upbringing taught me that it did damage them and that they had better go to a priest and confess it. But I don’t know if that was right or if that’s scientifically appropriate.
So I’m not opposed to this, but I do want to find a balance. I think criminal is inappropriate. We have the luxury that we are not reinventing the wheel here and, obviously, we can look and see what is working in France and what is working in Germany, what works with gambling websites and what the risks are. It’s lovely to be a leader but it’s also great to follow examples that work. I’m not aware of any ones that are working well in the world, and I do have concerns about blocking a whole —
The Chair: Mr. Hurley, thank you very much. We’ll give Professor Karaian a minute to answer.
Ms. Karaian: I agree with what was just said. For me, it’s the balance. So often the child ends up becoming a thing that we can mobilize around across different parties. And the child ends up being something that’s mobilized a lot. The protection of the child ends up being mobilized in ways that actually also cause harm to other theoretically vulnerable communities. Sexualized minorities have been historically subjected to imprisonment for consensual sexual acts because of the idea that they threatened the children. Homosexuality has been largely criminalized in the past because of its supposed inherent threat to children. So we have to be careful about how we mobilize childhood, innocence and vulnerability, about how we deny adolescent sexuality and then say they are empty vessels that we are going to work on behalf of to protect at all costs.
For me, again, with this bill the balance is not there. That doesn’t take away from the fact I, too, am concerned with myself and young people seeing things that they don’t want to see. I think that is a real shame, but I don’t think this is the mechanism to do it.
Senator Pate: Thank you to all of you. I want to push further on some of the issues my colleagues have just raised, because we are hearing that this is not the bill. I think we are hearing consensus that everybody is concerned, and certainly in the last iteration of the bill we had a fair bit of evidence about the significant permanent damage access to particularly violent — including snuff — porn can have, particularly on young people and how they develop, and the need for education is absolutely there.
What would each of you propose? I think you have talked a bit about an administrative component as opposed to criminal. Given the work I have done historically, I certainly would be more keen to see something that doesn’t criminalize more people, because we know who tends to be more criminalized than others.
If you could spell out a bit more, please, what kind of administrative procedures you could see working in this respect, it would be useful, because from my limited perspective and very limited experience in this it seems to be very much driven by economics. Those who are benefiting are benefiting economically, so there must be some way we can get at this that is not about violating everybody’s rights but proposes the kind of reasonable limits that Senator Wetston was suggesting we look at.
Maybe, Professor Geist, you could start and then Professor Karaian and Mr. Hurley.
Mr. Geist: I would come back to the point that not only do I think this is the wrong place, but the question leaves me a little bit confused because in part it seemed to emphasize more the harm from pornography as opposed to the concerns about kids accessing pornography. In the answer, I’ll stick to what the bill purports to try to do, which is to try to find ways to stop kids from accessing pornography. I would say, frankly, that I don’t think you need to continue these hearings anymore and I don’t think you should be continuing with this bill.
The roles are, one, tools in the hands of the parents to try to deal with issues where we’re talking about perfectly lawful content; two, ensuring that, where there is unlawful content — and you hinted at stuff that might begin to fall into areas that are unlawful or perhaps ought to be unlawful — then I guess consider whether or not we’ve got the appropriate rules to deal with that. Third, to the extent to which we have sites that may be engaging in, for some of those economic purposes that you indicated or services that are located in Canada, we should identify whether or not we have the appropriate set of rules to ensure that they are compliant and ensuring that things are perfectly lawful.
But trying to inject the government into this area in this particular way, given the harms that this kind of legislation would cause, frankly, in my view — and I don’t believe it’s extreme to say — it simply should be a non-starter. There are better, more effective ways that don’t come with the same kind of harm that this one does.
Ms. Karaian: I’ll pick up where Michael left off. One of the potential harms of a bill like this, if it were to be implemented, is that the workaround might actually send people into more uncharted territories like the dark web, where they would potentially be more likely to access the type of imaginary that you referenced, which is not porn.
Sexualized killing is not porn. That is evidence of a crime. Pornography and that sort of image, those are different things. Child sexual abuse is different than child pornography, even though in Canada we construct them as the same thing.
We also need better definitions. When we’re talking about pornography that might be violent or degrading, extreme or not to our taste, oftentimes it’s still consensually constructed imagery that is not necessarily criminal. So for youth to come across that is one thing, and that’s definitely something we might not want, but it’s different than them coming across actual images of crimes. They are more likely to do that, potentially, if we were to implement something like this and send them to the dark web because they were trying to get around these kinds of precautions. That’s what I would add.
Mr. Hurley: I suppose my perspective is a little more pragmatic and obviously deferential to Parliament. If Parliament wanted to legislate this area, absolutely, and stop children from looking at pornography, and particularly violent pornography, absolutely; I don’t disagree with that at all. The question is: How do you do that and what balance do you want to effect? That, obviously, is another decision for Parliament.
If you are content with web blocking as it’s been set out, I think you’ve got to focus on internet service providers and force them to clean up their act if you want to do that. But that would be a significant decision that you’d have to make. You’d have to decide: Do the technical people have the expertise to accomplish what you want, in a perfectly legal activity such as pornography, without sacrificing a lot? That’s a balancing act Parliament has to engage in. Obviously, the courts will later decide if you got it right or not.
It’s tough for me because I don’t have that computer expertise. What we’ve seen in the past with web blocking and other things is that there was a great deal of overreach and it wasn’t effective.
So I don’t oppose the bill or the premise of the bill. It’s a question of getting it right. As I said before, I think criminalization is not the right way to go in a perfectly legal pornography industry.
The Chair: Thank you very much to all the witnesses. The Legal Committee really appreciates your expertise. You certainly have thought this bill through and given us a lot to think about. Thank you for sharing your time with us. We appreciate all the things you have done for this committee.
(The committee adjourned.)