THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 5, 2026
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:30 a.m. [ET] to consider Bill S-209, An Act to restrict young persons’ online access to pornographic material.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. Welcome to the committee.
My name is David Arnot, a senator from Saskatchewan and the chair of this committee. I invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Gerba: Amina Gerba from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Prosper: Paul Prosper from Nova Scotia, Mi’kma’ki territory.
Senator Simons: Paula Simons, Alberta, and I reside on Treaty 6 territory.
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe Nation.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Dhillon: Baltej Dhillon, British Columbia.
The Chair: Honourable senators, we’re meeting to conclude our study of Bill S-209, An Act to restrict young persons’ online access to pornographic material. Since it has been a while since we conducted a clause-by-clause meeting, I would like to remind the senators of a number of points.
First, if, at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we have the same understanding of where we are in the process.
Second, in terms of the mechanics of the process, when more than one amendment is proposed to be moved in a particular clause, amendments should be proposed in the order of the lines of the clause.
Third, if a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
Fourth, some amendments may have consequential effects on other parts of the bill. Senators moving amendments are therefore encouraged to identify any other clauses that may be affected to assist the committee in ensuring consistency in its decisions. I can say the clerk is well aware of where there may be overlaps, and we will be able to deal with that appropriately and accordingly.
Fifth, as no notice is required to move an amendment, no preliminary analysis may be conducted to identify amendments with consequential or contradictory effects.
Sixth, if members have questions regarding the process or the propriety of the proceedings, they may raise a point of order at any time. The chair will hear the argument, determine when the discussion is concluded by all the senators and render a ruling.
Seventh, the committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
Eighth, I wish to remind honourable senators that if there is any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which provides unambiguous results.
Finally, senators are aware that any tied vote negates the vote in question.
Are there any questions about the proceedings or the last eight statements I’ve made? If not, then we can proceed.
Senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-209, An Act to restrict young persons’ online access to pornographic material?
Hon. Senators: Agreed.
The Chair: Senators, shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Senators, shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Senators, shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: We will move to clause 2. Before I ask if it’s carried, there are two amendments. The first is by Senator Simons. It’s amendment number S209-2-2-13. Senator Simons, speak to the amendment, please.
Senator Simons: I move:
That Bill S-209 be amended in clause 2, on page 2,
(a) by replacing line 13 with the following:
“pornographic material means, with the exception of the material referred to in the definition of child sexual abuse and exploitation material in paragraph 163.1(1)(a) of the Criminal Code, any photographic, film,”;
(b) by replacing lines 15 to 20 with the following:
“was made by electronic or mechanical means, that
(a) shows the genital organs or anal region of a person engaged or depicted as engaged in explicit sexual activity; and
(b) is intended to cause sexual excitement. (matériel pornographique)”.
We know that, down through the ages, the definition of “pornography” has been a difficult thing on which to find consensus. So, this proposal comprises two amendments for one purpose, which is to improve the definition of “pornographic material” so that it accurately and only captures depictions of what we might call explicit sexual activity. This is especially important for the time in which we are living, when things that our parents might have considered softcore pornography are now regularly shown on mainstream channels, such as Netflix and Prime Video.
One of the purposes of this amendment is to avoid the application of the bill to such internet streaming services and similar sites that may feature shows or movies that have nudity in them or scenes of a sexual nature that nonetheless don’t amount to what we used to call “X-rated.” You can think about shows like Game of Thrones, Bridgerton or — although I appear to be the only person in Canada who hasn’t seen them yet — Heated Rivalry. Basically, it covers any popular drama on streaming services today.
The current definition would capture any material that merely displays genitals, an anal region or a woman’s exposed breasts for a sexual purpose. There is currently no requirement that actual sexual activity be depicted, and any kind of intended titillation involving any brief amount of nudity would meet this definition, which I think is too broad, goes too far and could potentially impose restrictions on a wide swath of regular entertainment services. I don’t think that is the intention of the bill’s sponsor, because the bill is to put age controls specifically on internet sites that allow people to access actual pornography.
Part (a) of the amendment in line 13 simply rearranges the order of the words in the definition, making sure to keep language that I do not propose to remove, that being the reference to the definition of “child sexual abuse and exploitation material” in the Criminal Code.
Part (b) is where the substantive change happens. The wording was developed with reference to descriptions of obscene material already found in the Criminal Code but with changes to a word here or there to suit the purpose of the bill explicitly. You’ll forgive the use of the word “explicit” in this context.
What would this amendment do? It would define “pornographic material” as a visual representation that specifically shows the genital or anal regions of a person and where the person is engaged in explicit sexual activity. So, mere nudity — and I can think of an example of a film I saw recently that was about the Holocaust that showed people being taken naked to the showers. You could see the complete genital region, and it was clearly not pornographic. We can all think of examples when we have seen television programming where even genitalia is displayed that is not meant to be titillating or show sex. These would not qualify.
The depiction must show genital regions being involved in explicit sex. In addition, there is the extra qualifier in paragraph (b) where the depiction is intended to cause sexual excitement. That makes it clear, as I believe the sponsor of the bill wishes to say, that if something is educational or scientific, it would not be captured.
These are changes that I think will limit the regime of the bill specifically and only to actual pornographic material. That is the amendment I proffer.
The Chair: On debate?
Senator Batters: Actually, I have a few questions, if that’s okay. They are to Senator Simons about this amendment.
The Chair: Okay.
Senator Batters: Thank you very much, and thank you for making the change about child sexual abuse and exploitation, given the private member’s bill that I brought forward on behalf of those two MPs that was passed into law. I appreciate that.
Senator Simons: I know that is a matter of real passion for you.
Senator Batters: Yes. Thank you very much for including that.
My questions are with respect to the definition part. Previously, the way that it was phrased in the bill that’s before us and, previously, in the Criminal Code was that it needed to be “for a sexual purpose.” I guess what you’ve done is replace that with what you have. The example you were referencing — regarding the Holocaust and pictures of naked people — that wouldn’t have applied even before, because it was not for a sexual purpose.
I wanted to get your confirmation on whether that is what you are thinking. You’ve also added this paragraph (b), “is intended to cause sexual excitement.” So I guess you decided to use that instead of continuing with the phrase “for a sexual purpose.” That is one of my questions on that.
The other part of it is that, previously, if a person was female, her breasts were included. That is not included now.
Senator Simons: Correct.
Senator Batters: I notice that, as it exists, I think — I’m not sure if this part is included anymore; it might have been withdrawn. The bill, as it currently reads, at the end of that definition, it says “. . . but does not include child pornography as defined . . .”
So I’m wondering, if that part about child sexual abuse and exploitation material is not included, wouldn’t it still be appropriate to have breasts in that definition?
Senator Simons: I think replacing line 13 with the following pornographic materials means with the exception of the material referred to in the definition of child sexual abuse and exploitation material, which I think answers that concern, does it not?
Senator Batters: Okay. Because you’re replacing line 13.
Senator Simons: Yes.
Senator Batters: Okay.
Senator Simons: But I think “sexual purpose” is too broad in 2026. Watching Bridgerton, that’s some amount of nudity with a sexual purpose, but we have decided that is not pornography; that is now mainstream, popular entertainment. So I think “sexual purpose” is too broad a phrase, and that’s why we said “explicit sexual activity.”
Senator Batters: And “is intended to cause —”
Senator Simons: And “is intended to cause sexual excitement.”
Senator Batters: So you think that limits it sufficiently?
Senator Simons: Yes, it is my hope that it limits it sufficiently. As you know, Senator Batters, I have other, more existential concerns with this bill, but I want to ensure that, at the very least, it captures what I think the sponsor intends to. I chatted with the sponsor about this, so I think we are of an understanding.
Senator Batters: Thank you.
The Chair: Let’s find out what the sponsor thinks.
Senator Miville-Dechêne: Well, as Senator Simons said, I agree with this amendment.
[Translation]
I will explain why in French. The previous definition of “pornographic material” mirrors the Criminal Code definition. When we decided to change the definition — because previously it was “sexually explicit material” — we decided to use the term “pornographic material” to make it clearer. We did use the Criminal Code definition, because at the time it was considered more widely known.
However, the definition has not aged well, as it has been in the Criminal Code for a long time. The phrase “for a sexual purpose,” can be quite vague. But Senator Simons said, “. . . is intended to cause sexual excitement . . .” Second, the issue of breasts is indeed debatable — but increasingly, in mainstream programming, breasts are frequently exposed. In this case, when it comes to pornography, we’re talking about genital organs and the anal region. That’s important to know.
Overall, I believe this amendment addresses many of the criticisms I received from the House of Commons. I received a flood of criticism, including from the government; it was argued that, because of the way the definition was drafted, a series such as “Game of Thrones,” for example, might be affected by the bill.
I find this drafting much more contemporary, and the fact that it talks about “excitement,” whether it be (a) and (b), is much clearer. I have read a lot, I pondered long and hard, I looked at the past and I believe that this amendment is justified under the circumstances.
[English]
The Chair: There is no further debate. Are senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion with the amendment proposed by Senator Simons?
Hon. Senators: Agreed.
The Chair: Carried. The proposed amendment is by Senator Miville-Dechêne S209-2-2-19 is redundant.
Senator Miville-Dechêne: Exactly. It’s redundant because, in Senator Simons’ amendment, she puts in the right definition of child pornography, which is not “child pornography.”
The Chair: Correct. I just wanted to confirm. Shall clause 2, as amended, be carried?
Hon. Senators: Agreed.
The Chair: Senators, shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried. With respect to clause 6, there are two amendments. I’m therefore going to ask Senator Miville-Dechêne to speak to her amendment S209-6-3-24. Is everybody there?
[Translation]
Senator Miville-Dechêne: Honourable senators, I move:
That Bill S-209 be amended in clause 6, on page 3, by replacing line 21 with the following:
“organization that incidentally pro-”.
To better understand, we need to see this amendment in context. I sent a table for your reference. Let me explain the underlying logic.
In the last version of the bill that I reintroduced, we took into account the concerns of web intermediaries. We heard a lot of concern expressed by intermediaries — I’m talking about internet service providers and search engines — who would be subject to the bill. They said that, after all, they are the ones who distribute pornography and send it far and wide. In the case of a search engine, it is even simpler: when you type “pornography,” you land on a website.
So clause 6, as drafted . . . Should I read it in full and in context so you understand it?
For greater certainty, for the purpose of section 5, an organization that incidentally provides a service that is used to search for, transmit, download, store or access content on the Internet that is alleged to constitute pornographic material does not make available pornographic material on the Internet for commercial purposes.
In this case, we keep “incidentally” but delete “not deliberately” because intermediaries, including Google, told us that allowing internet users to click on the word “pornography” on Google and go to a site was deliberate. The wrong word was chosen. The only word we’re keeping to better protect intermediaries, but also to narrow the scope of this amendment, is “incidentally.” That means —
[English]
— I think “incidentally” —
[Translation]
That means “secondarily.” That means it is not the main purpose. It can happen, but it’s incidental. It’s an amendment that allows the scope of the bill to be narrowed to its purpose, which is sexually explicit material and the sites that create, make and distribute it.
[English]
Senator Simons: I agree with Senator Miville-Dechêne that the definition in the original bill is too broad, but as you will see, I have my own preferred amendment to the same clause. I don’t know at what point we need to sort of combine discussion of the two of them because my amendment would overwrite Senator Miville-Dechêne’s. It gets complicated when you have two amendments proposed for the same clause.
The Chair: Well, perhaps in debate, you can identify your amendment and say why you believe it’s more sufficient than the one proposed —
Senator Simons: I didn’t want to —
The Chair: I understand. Does everyone understand either one or the other is going to — possibly — be an amendment?
Senator Simons: They are attempting to do the same thing. I think my amendment is a little broader because it would replace lines 21 and 22 with, “Organization that provides a service that is not primarily intended to be used to search for, transmit . . .” et cetera.
It’s a question of what we think the word “incidentally” means. The way that my team and I approached this is that we were concerned that saying “incidentally” doesn’t quite work to shield search engines and similar services from the bill’s application. This is because the operators of search engines are fully aware that users can use their applications to access pornography. It’s not happening by accident.
Any open or broad-based service that is used to locate material for the user’s own choice will do that. And because this is an intentional and known part of a search service, even if it’s not the main or primary function of that service, I’m worried that if we say “incidentally,” it may not capture what I believe we’re trying to achieve here.
My amendment is pretty much exactly the one suggested to the committee by Google when they were here because I think — not that I’m carrying water for any particular search engine or company — that it will save a lot of confusion down the road if we are very clear about what is scoped into the bill and what is not.
[Translation]
Senator Miville-Dechêne: Since we’re discussing your amendment, Senator Simons, I think mine is more focused and more appropriate for what we want to accomplish. When we make the point, as you do, that these services are not primarily designed to search for, transmit or download, we run the risk of including social media. I think it’s the wrong clause. This clause was designed specifically to protect intermediaries. Clause 12 — which we will look at a little later — will give the government the required flexibility to decide what will or will not be included — social media, for example — in the bill.
At this point, accepting this amendment, which considerably broadens the possibility of capturing or including more sites or social media that contain pornography, will create uncertainty in terms of assessing what it means, and it will end up before the courts. I don’t think it’s a good idea, when a bill is passed, to immediately provide for resorting to the courts. My amendment targets intermediaries more than yours does.
[English]
The Chair: I am going to ask Senator Simons to respond before Senator Batters because it’s a bit of a debate.
Senator Simons: Thank you, Mr. Chair and Senator Batters.
I think that’s precisely why. I’m not disagreeing with anything Senator Miville-Dechêne says. That’s precisely why I prefer my amendment — because I think we want to have a regime where we are capturing sites that are mainly and primarily intended for the depiction of pornography.
I think one of the concerns has always been that if the language is too loose, it could accidentally capture or be used to capture sites that are not primarily sites of pornography.
That said, when I drafted this amendment with my office before Christmas, Grok wasn’t taking the clothes off children. The Grok use case makes this much more complicated because, clearly, X is not a site mainly or primarily intended for the depiction of pornography.
I still think that “incidentally” is insufficient. I still prefer my amendment. But I grant you that the amendment was drafted in a more innocent time — in other words, six weeks ago.
Senator Batters: Yes, that is similar to my comment on this. I prefer the amendment of Senator Miville-Dechêne for this part. I think that “incidentally” covers what we’re trying to deal with here.
My concern about Senator Simons’s wording of “provides a service that is not primarily intended” is this: Whose primary intention is that — the service’s? Because if it’s the service’s, Twitter/X would say, “That’s not our primary intention.”
There may be other, more nefarious players who may deliberately try to set up the type of service they could use for a bit of cover, so they could actually provide a viable search engine sort of service to access pornography yet say that’s not their primary intention. Is it some objective standard? It’s unclear. Because of that, I don’t think it’s a good way to phrase it.
The Chair: Senator Simons, do you have a response?
Senator Simons: I disagree. I think I’ve made this point.
If the intention of this bill is to scope in a general interest social media site, I think that is different than having a bill designed to target the commercial pornographic industry.
I have a lot of disquiet about this bill, as my good friend Senator Miville-Dechêne knows. I think we need to be careful if we are intentionally creating a bill that allows us to scope in a general interest social media site and not a specifically pornographic producer.
[Translation]
Senator Miville-Dechêne: As I said, I think that on the regulations side, we have to let the government decide on the scope of this bill, because there are a lot of players in this industry. For example, there were many questions on that, because things evolve very quickly. I think it’s wise to let the government decide in clause 12, especially since the government will be introducing a bill against online harms in the coming months. Maybe it won’t include pornography, but it will include other elements.
Given the many moving parts and the changing reality, it’s good to give the government some leeway in clause 12, which addresses regulations.
[English]
Senator Simons: It makes me a little uneasy to give the government that latitude, but I take your point.
[Translation]
Senator Oudar: I completely agree with the comments that were just made. I would add that I do not agree with my colleague Senator Simons’ proposal. In this proposal, there are many ways to circumvent the law and avoid its reach. For example, despite the inclusion of the words “search for, transmit, download,” other kinds of actions are missing. We heard expert testimony yesterday about how technology is changing. I think those three verbs are no longer enough today.
My main comment is about the word “primarily.” Since lawyers will have to find evidence and build it up to determine what is or is not an offence, what does the word “primarily” mean? Is it 10%, 25%, 30%? In one case, is it more than 50%? Will it be 30% in one case and 50% in another? The word “primarily” should not be included in an act that contains offences, because it is a perfect recipe for escaping them. No one has the same concept of “primarily,” and you have to be extremely precise when it comes to offences. Otherwise, it will not necessarily benefit the victims. We can’t be vague. We can’t leave any wiggle room. It’s a word we see more often in civil law, but not in criminal law.
I fully support the amendment proposed by the bill’s sponsor, Senator Miville-Dechêne, and not the one we are debating.
[English]
The Chair: Are there any other comments on debate on Senator Miville-Dechêne’s amendment?
Senator Simons: I would say that “incidental” is defined — in Merriam-Webster, at least — as “occurring merely by chance or without intention or calculation.” That’s why I think the use of that word is potentially too broad.
We have two different attempts at solving the same problem, and I don’t know how we vote —
The Chair: We’re going to deal with each one in order.
Senator Simons: Yes.
The Chair: Are the senators ready for the question on Senator Miville-Dechêne’s amendment?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: It sounds to me as if this vote is carried.
Shall clause 6 as amended carry?
Hon. Senators: Agreed.
The Chair: Carried.
This makes Senator Simons’s amendment inadmissible or redundant.
Senator Simons: Yes. Understood.
The Chair: Senators, shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: With respect to clause 9, there is a proposed amendment by Senator Saint-Germain. It is S209-9-4-31.
[Translation]
Senator Saint-Germain: This amendment is consistent with two other amendments that I will explain later. I move:
That Bill S-209 be amended in clause 9, on page 4, by replacing line 31 with the following:
“(e.1) any appropriate information in relation to a system of administrative monetary penalties made by regulation under paragraph 12(1)(c); and”.
If these regulations were adopted, they would be consistent with the proposed amendment to clause 10, on page 5. I don’t know, Mr. Chair.
[English]
Should I read the second amendment, which is consequential, or do you prefer me to explain this amendment, then read the other two amendments?
The Chair: How do you feel comfortable proceeding?
Senator Saint-Germain: I believe that it could be beneficial for my colleagues to have the whole picture of the three amendments.
The Chair: Is everybody in agreement? Please proceed that way, then, senator.
[Translation]
Senator Saint-Germain: I also move:
That Bill S-209 be amended in clause 10, on page 5, by adding the following after line 42:
“(6) If the Federal Court makes an order under subsection (4), the Court must, in addition to any cost order that it considers appropriate, order the respondent non‑complying organization to pay the enforcement authority’s costs on a solicitor-and-client basis.”.
As for the third amendment, which is related —
[English]
Senator Batters: Excuse me. I’m sorry. I’m not sure where we are. What is the number of this? The one you have gone on to read, which one is that?
Senator Saint-Germain: The amendment number is 7, and then —
Senator Batters: What is the number at the top of the page?
The Chair: We’re dealing with clause 9, but we’re moving to clause 10. Is that correct?
Senator Saint-Germain: It is 10 and then 12. It is 9-4-31, 10-5-42 and 12-6-21. Is that the answer to your question, Senator Batters?
Senator Batters: Yes.
Senator Saint-Germain: Okay. Sorry about that.
Senator Batters: Can we go back to the second one?
Senator Saint-Germain: The second one is clause 10, page 5.
I move:
That Bill S-209 be amended in clause 10, on page 5, by adding the following after line 42:
“(6) If the Federal Court makes an order under subsection (4), the Court must, in addition to any cost order that it considers appropriate, order the respondent non‑complying organization to pay the enforcement authority’s costs on a solicitor-and-client basis.”.
I move:
That Bill S-209 be amended in clause 12,
(a) on page 6,
(i) by replacing line 21 with the following:
“available for commercial purposes;”,
(ii) by replacing line 23 with the following:
“tion methods referred to in subsection 7(1); and
(c) designating as a violation the failure of an organization that receives a notice under subsection 9(1) to take the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d), establishing a system of administrative monetary penalties applicable to those violations and setting a range of amounts for those penalties.”;
(b) on page 7, by adding the following after line 9:
“(3) In establishing the system of administrative monetary penalties referred to in paragraph (1)(c), the Governor in Council must ensure that any representation made pursuant to paragraph 9(2)(f) is taken into consideration when determining if an organization has committed a violation and in determining the amount of the penalty.”.
[Translation]
Let me explain further in French. We heard testimony from a number of witnesses — including some from the pornography industry — that if Bill S-209 were passed and implemented, a number of smaller organizations would simply flout the law, that it would create a two-tier system, where organizations wishing to comply with the law would be subject to these measures, while others, who are more questionable, would simply ignore these measures imposed by the law. That was the view expressed by Alison Boden of the Free Speech Coalition and Solomon Friedman, among others.
To counter this two-tiered system, to ensure compliance with the regime and to deter any organization from non-compliance with the act, I propose these three interrelated amendments, which, in the event of non-compliance, of not following the law, would impose administrative monetary penalties.
The penalty scheme proposed by these amendments is distinct from criminal fines — this is very important. A criminal fine is intended to express the state’s disapproval of conduct, so it’s a punishment, whereas an administrative sanction is intended to ensure that a person complies with a legal regime. That’s an important distinction in law. For example, the criminal provisions of the Charter do not apply to administrative penalties.
This would be an additional option for exercising authority and would retain the possibility of submitting an application to the Federal Court for an order. This amendment provides for a conviction of the guilty organization on a solicitor-and-client basis. This is the highest level that corresponds to the actual cost of the proceeding. In addition, the details of this monetary penalty regime will be set out in regulations, as I believe they should be.
I will conclude by saying that this legislation, if these amendments are adopted, would have more teeth because of stronger disincentives to ensure compliance. There you have it.
[English]
Senator Simons: I want to thank Senator Saint-Germain for these thoughtful amendments because I understand what she is trying to do: ensure there is a penalty beyond just taking a site down.
Functionally, though, it is my understanding that administrative monetary penalty, or AMP, regimes are typically established in statutes, so that Parliament gets to decide the details and the scope of the fines. I therefore have to ask if it is appropriate for us to delegate to the executive — the lawmaking power — to establish the details of an AMP regime, or if the administrative monetary penalties should remain something that Parliament decides directly and approves.
I also have a specific concern about the second of these amendments, regarding the enforcement of the authorities’ costs on a solicitor-client basis. It seems to me that — the Crown will tell you what it spent to prosecute you, and then you have to pay them back. That seems to me to be an unjust way of doing things, because the state has tremendous resources, and requiring a private company to pay back the state’s costs to get the non‑complying organization to pay for the enforcement authority’s costs — we don’t normally ask people who are being investigated or prosecuted by the government to pay for the costs of their own prosecution.
That doesn’t sit well with me.
[Translation]
Senator Saint-Germain: First, I am concerned that this bill, if not amended as I am proposing, will lend credibility to the pornography industry, which, in my opinion, is not a noble industry. This bill will have implementation costs for the government, and I believe those costs should not be borne by taxpayers but by the industry itself.
Second, I fear that the unamended bill will be used by the industry to create the perception that it is now safe because there is a new regime, a new identification, a law, a new authentication. That’s the purpose of these three amendments.
To answer your question more specifically about the role for Parliament and the government, I think that Parliament is entirely within its right and constitutional relevance to ask the government to impose an administrative penalties system — I repeat, not criminal penalties — and that it will be up to the government, through regulations, to specify the breadth, levels and details of applying those penalties. I would remind you that government regulations are the subject of public consultations; that’s an important aspect.
Once again, unlike you, I am of the opinion that, in this case, given the nature of this industry’s undertakings, it should not be able to benefit from public funds to improve its business.
[English]
Senator Batters: I will speak first against the second of these amendments, which is the one dealing with costs being required to be ordered on a solicitor-client basis.
First, in this part, it says that if the Federal Court makes an order, the court “must,” in addition to any other cost order that it considers appropriate, order that the non-complying organization pay the enforcement authority’s costs — that could be a government agency, likely — on a solicitor-client basis. If it is a government department’s lawyers, then it is going to be an unusual way to figure it out. Solicitor-client costs mean — I practised in Saskatchewan, so it is possible that this is different across the country. But in Saskatchewan, there is a certain set schedule. If you have a court costs order, that is a lower amount and is determined by the rules of the King’s Bench Court in Saskatchewan, with a certain schedule that says, “For this step, you get this much.” Solicitor-client costs could be much closer to the actual legal bills that are payable by the lawyers who are handling it.
When you have lawyers who don’t charge an hourly amount, because they are not private lawyers but government ones, that would be a more difficult method to determine. I’m not in favour of it on that basis. Also, it makes it imperative that the court must order that, even if they don’t think it is appropriate. There could be situations where the court might think that only regular court costs are the appropriate way of dealing with it due to certain factual parts of that matter. There could also be a reason the court thinks it is appropriate in a certain case that no costs be ordered because the respondent organization had legitimate reasons for taking the matter to court.
So, it is taking all of that out of the judge’s hands and, instead, making an imperative and potentially very high cost basis that tells someone it wasn’t even really worth it for you. It is usually a very punitive measure when solicitor-client costs are ordered by a court, and it is meant to mean, “You shouldn’t have even done this. This is bad news.”
Senator Saint-Germain: Senator Batters, I believe you are making a very good point, and we had a discussion about this. Would replacing “must” by “may” be a solution?
Senator Batters: That would be part of it, but I still don’t agree with the solicitor-client costs. I’m not in favour of having this sort of prescriptive method of determining what a court should be doing. Even saying “may” — sure, they probably could always do a “may.” We don’t necessarily need to have it in an act. But to just state that level of it, always rising to a solicitor-client basis that they should be looking at — I don’t think it is appropriate, but thank you for that.
Senator Saint-Germain: My goal was to make sure that this industry — which is not noble, from my standpoint — with the definition that we adopted relating to their core business, could not abuse appeals, referrals to the court and so on. But I get your point, and I will withdraw this amendment.
Senator Batters: Thank you.
The Chair: So the amendment to clause 10 on page 5 — okay. We will have to hold that withdrawal in abeyance, because we have to deal with the first amendment first.
So we know what is going to happen to that. What about the third amendment at clause 12? Do you want to speak to that? Does anybody want to debate it or have any questions about that one?
[Translation]
Senator Miville-Dechêne: I also had problems with the amendment that mentioned the solicitor-and-client basis, so I agree with its withdrawal.
As for the penalty system, Great Britain currently has a bill providing for a penalty system; obviously, that’s a positive signal.
How will we impose penalties on porn sites that are not in the country? That’s the reality: They’re all over the world and it’s complicated. That doesn’t mean that your idea of imposing penalties at this stage isn’t a good one, because, yes, there are penalties, but there is also the possibility of removing access to all pornographic material in the country in question. So there are two kinds of consequences for non-compliance with the law.
I think that’s a good idea. I agree with the first amendment, which is a secondary amendment, and with your amendment to clause 12.
[English]
Senator Saint-Germain: I agree with Senator Miville-Dechêne, who agrees with the amendment.
The Chair: Are you speaking to the clause 12 amendment?
Senator Miville-Dechêne: That’s what we’re doing, as I understand.
Senator Batters: And also still, potentially, the first one.
Senator Miville-Dechêne: I agree with the first one, 9-4-31 and 12-6-21.
The Chair: Yes. Okay. Are there any other questions?
Senator Dhillon: Thank you. This is my first time going through one of these, so if you see an expression of confusion, it is real. It is not made up.
I’m trying to stay on board. I think this may be moot now because you may be withdrawing this clause. However, I was going to speak to this. Conceptually and in principle, I agree that the taxpayers of this country should not bear the costs of pursuing any type of action against these large organizations. I do agree, Senator Batters, that this may not be the way to go about it. To Senator Simons’s commentary about how this is not how we normally do business, I think this is a time when we begin to inspect and investigate how we change how we do business, to begin to represent the interests of Canadians who are paying into these costs and expenses when the laws are clear and there is a deliberate effort to violate them and go against what we have set out.
Again, I’m not very prescriptive here because there are three parts. So with that, I don’t know what happens with respect to this particular clause. If you are withdrawing it, I guess this is a —
The Chair: We’re going to go back soon to S209-9-4-31. We’re going to vote on that. Then we’re going to clause 10, and it is not really a withdrawal. Senator Saint-Germain just won’t present that amendment, but we do have another amendment from Senator Miville-Dechêne on the same clause, clause 10, so we have to deal with it in that order. S209-10-5-31. We are going to try to do this in a logical way so there is no confusion. That’s the whole point of the question of Senator Dhillon. I’m trying to assure him that we will.
Senator Simons: I had a question for Senator Saint-Germain. It is my understanding that an AMP regime like this has never been done via regulation before. Yes, Parliament has the power to do it, but as a matter of protocol and propriety, there is a system by which AMPs are established. Am I incorrect, or is this an unprecedented use regarding the way an AMP regime is to be set up?
Senator Saint-Germain: Don’t forget that those are administrative sanctions, and it can be done by regulation. Those are not criminal sanctions.
Senator Simons: I understand that. It is the way to be doing it, but —
Senator Saint-Germain: By regulation? We cannot be so detailed in the law?
Senator Simons: Okay.
The Chair: All right. Senators, I want to deal with clause 9, the first amendment of Senator Saint-Germain, S209-9-4-31. So we are going back to the original and dealing with it in that order. Senator Tannas.
Senator Tannas: So as I’m thinking of this, it is kind of weird that you do the consequential amendment when you haven’t got to the main one, but I understand that’s the precedent that we follow. So for me, I should be guiding myself on whether I vote for this by whether I intend to vote for that — is that right?
An Hon. Senator: Yes.
Senator Tannas: Thank you.
The Chair: On the first amendment, proposed by Senator Saint-Germain, are senators ready for the question?
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in the amendment?
Some Hon. Senators: Agreed.
The Chair: Okay. I hear agreement.
An Hon. Senator: No.
The Chair: There is a no. So that is carried on division.
Shall clause 9, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Now we move to clause 10. And on this clause, just to be clear, Senator Saint-Germain is not presenting any amendments. She is withdrawing. She used the word “withdraw,” but she is not presenting. So we have one amendment from Senator Miville-Dechêne on the same clause 10.
Senator Miville-Dechêne: Thank you, chair. So the amendment is that Bill S-209 be amended in clause 10 on page 5 by deleting lines 31 to 42. That’s the change in the amendment. I will explain it to you in French.
So what we are trying to do here is correct a part of the bill that was criticized.
[Translation]
We’re trying to amend the bill because there were a number of criticisms on this specific aspect. The bill stated that if the Federal Court found the website guilty, both pornographic and non-pornographic material, if any, could be removed at the same time. This was severely criticized by Emily Laidlaw in the study, because it was seen as presenting a risk of legal action and a risk of violating the Charter of Rights and Freedoms with regard to freedom of expression.
It’s one thing to remove pornographic material; it’s quite another to remove non-pornographic material, even if the two are together.
We realize that the paragraph we included was, once again, far too prescriptive. We’ll let the Federal Court decide what to remove. That’s why the Federal Court was asked to intervene; it will decide what it will ask the internet service provider to remove. In that case, this clause is completely withdrawn to give the court all the latitude it needs to decide how to protect children.
So this simplifies the text. As you can see, we’re removing 10 lines. If it’s not clear, I can —
[English]
The Chair: On debate on Senator Miville-Dechêne’s amendment to clause 10, are there any questions for the senator? There are no questions on debate. Are senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 10, as amended, be carried?
Hon. Senators: Agreed.
The Chair: Carried.
Senators, shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried. There is no amendment proposed on clause 11. Is everybody okay with that?
Senator Batters: When it’s called 11, does that not include 11.1? Is that different? You wouldn’t normally call 11.1, would you? How do you get into that? Do you know what I mean?
The Chair: Would it eventually be called clause 12?
Vincent Labrosse, Clerk of the Committee, Senate of Canada: Clause 11.1.
The Chair: Okay, clause 11.1. Is that okay?
Senator Batters: Yes. I just find it a bit strange. I’m not sure how you call that. We’ve now passed 11. How do you call it?
The Chair: I would call it 11.1.
Senator Batters: Okay.
The Chair: That’s what I’m calling it.
Senator Batters: I see.
The Chair: I’m proposing three separate amendments. They’re all connected, and I’m calling the first 11.1.
Colleagues, I propose that evidence was presented to the standing Senate committee that included testimony from privacy experts, mental health professionals and technological specialists concerning both potential benefits and limitations of age verification and access restriction measures. Several witnesses noted that while access restriction mechanisms may reduce exposure, they may not fully prevent a young person from encountering pornographic material through a range of pathways, including search results, social sharing or content accessed outside of regulated platforms.
Witnesses also emphasized that some young persons have already been exposed to such material and may experience adverse mental health, psychological and psychosocial effects as a result. Testimony further indicated that an approach focused solely on access restriction may not on its own address the consequences of exposure where it occurs and that complementary non-regulatory measures may assist in mitigating those harms.
The purpose of these amendments is to complement the access restriction measures set out in Bill S-209 by requiring the development of a national strategy focused on specifically addressing the harmful effects of exposure to pornographic material on young persons, as recognized in paragraph 4(b) of the bill.
The amendments do not alter the bill’s regulatory framework, enforcement mechanisms or compliance obligations. They introduce no new restrictions on expression or access. Instead, they establish a procedural obligation for the minister to coordinate, in consultation with relevant partners, a strategy addressing harm mitigation in circumstances where exposure has occurred, despite the measures provided in the act.
The proposed national strategy is limited to measures relating only to exposure to pornographic material, so it’s very narrow. It’s about trauma-informed counselling, mental health supports for young persons who have been exposed to pornographic material, public awareness initiatives, the potential harmful effects of such exposure on young persons, as well as the development and maintenance of publicly accessible resources providing current research, factual information and best practices relating to the protection of young persons from exposure to pornographic material.
The strategy is intended to operate in a complementary manner alongside the bill’s access restriction provisions and does not create obligations for service providers, platforms or provincial governments.
During the hearings before the standing committee, we heard a wide range of witnesses with professional backgrounds expressing broad support for the objective of protecting young persons from harm associated with exposure to pornographic materials, including the witnesses we heard most currently and most vocally and articulately yesterday.
Several witnesses observed that the age-verification blocking measures, while potentially effective in reducing exposure, do not address the needs of young persons.
My fundamental purpose here is to ensure this bill is focused on young persons. The testimony highlighted the importance of trauma-informed responses, mental health supports and accurate information for affected youth and families. Other witnesses noted the access restriction measures may be circumvented and may not capture all pathways of exposure, underscoring the value of complementary approaches.
The amendments are designed to remain fully in scope of Bill S-209. They are expressly framed as complementary to the measures provided in the act and are directly linked to the bill’s objective of protecting young persons. If we are going to protect young persons, how will we do it? It needs to be broader than just access because of all the evidence we heard, particularly from parents and all the experts, about the obvious harms done.
The amendments do not introduce a general framework for youth well-being or safety regarding online harms, so it’s not broad. It’s purposely very specific, drafted that way to be in scope.
Bill S-209 engages sections 2(b) and 8 of the Canadian Charter of Rights and Freedoms. The amendments do not impose any new restrictions on expression, privacy or access to lawful content.
By requiring the development of complementary, non-coercive measures aimed at mitigating harm, the amendment supports the overall proportionality of the legislative scheme without altering its regulatory design.
What I have to say next will perhaps accelerate discussion.
First, this amendment does not change the purpose of the bill. Bill S-209 remains a bill to restrict young persons’ online access to pornographic material. The amendment does not alter that purpose. It supports it by addressing the harms that arise when exposure occurs despite access restriction measures.
Second, the amendment is expressly tethered to paragraph 4(b) of the bill, which expressly recognizes the mental health impacts of exposure to pornographic material on young persons. The amendment operationalizes that existing purpose by requiring a strategy to mitigate those harms. It does not introduce a new policy objective.
Third, the amendment is ancillary and not free-standing. The amendment is drafted as a complement to the measures set out in the act. It does not create a general youth well-being or online safety regime and does not operate independently of the bill’s access restriction framework.
Fourth, no regulatory or compliance burdens are created. The amendment imposes no obligations on platforms, service providers, parents or provinces. It creates only procedural obligations on the minister to consult, develop a strategy and report to Parliament.
Fifth, the amendment does not interfere with the bill’s enforcement scheme. All compliance enforcement and age‑verification provisions remain untouched. The amendment neither conditions nor delays that operation.
Sixth, speakers have consistently permitted strategy and report provisions to be within scope. Parliamentary practice recognizes that ministerial strategies and reporting mechanisms that support a bill’s stated objective are within scope when they are clearly incidental. This amendment meets that test.
Seventh, the amendment reduces legal risk without expanding legislative reach. By addressing harm mitigation, the amendment strengthens the bill’s proportionality under section 1 of the Charter.
This is a big point here: I feel, fundamentally, this is a legal issue. Courts must discuss whose rights are being fettered.
We’ve heard from Senator Wells explicitly that adult Canadians accessing material lawfully from pornographic sites may well be endangered as a marginalized group, such that when the court measures proportionality in the test as to whether this bill is constitutional in that regard, it doesn’t do anything about the harms to children unless we put this in.
My argument is it’s going to strengthen the bill. It’s going to give the sponsor of the bill a greater platform to reduce potential Supreme Court of Canada challenges to the constitutionality of the bill because the judges are going to have to weigh whether the result of this bill impinges on adult Canadians in a manner which is not proportional to the harm that’s being put forward.
Those are my arguments, colleagues. I can see that they’re very compelling. I would say I was careful to make them very narrow. If we focus on youth harms, it gives the sponsor of the bill a lot more latitude to engage parents and, certainly on the advice of all the experts, a stronger consistency with an opportunity to make it more constitutionally viable.
Senator Tannas: Thank you for bringing this forward and for the rationale that you’ve provided. You talked a lot about it being crafted and being in scope.
The question I have for you is around Royal Recommendation. You’re talking about how the government must provide trauma-informed counselling and mental health supports for young people.
Could you give us some assurance that you and your advisers who helped you draft this are confident that this will not provide a mechanism by which this bill fails because it needs Royal Recommendation?
I think it’s important to the entire substance of the bill that we have some comfort around that. This could be an unintended consequence of very good intentions. We know there are enemies of this bill. If this is an avenue to knock it down quickly, I’d like to know that in advance.
The Chair: My answer to that would be that the fundamental goal is to make the minister provide a strategy, not to implement whatever strategy that might entail. He is to provide a strategy.
Senator Tannas: They do not need to deliver it?
The Chair: Correct.
Senator Tannas: The strategy must, among other things, include measures to provide trauma-informed — so the idea would be that they don’t have to provide it. How would they not?
The Chair: It would be a strategy in concert with provincial and territorial governments. Nothing compels federal, provincial or territorial governments to implement it.
It’s really to acknowledge that, if you’re going to protect children, you need to have a broader aspect to it and to engage in political discussions with policy-makers and legislatures to completely support youth who are harmed by access to pornographic material.
They create the strategy. It doesn’t say anything about implementing the strategy.
Senator Tannas: So they must develop the strategy but not necessarily implement it.
[Translation]
Senator Miville-Dechêne: First, Senator Arnot, I would like to commend you for caring about the well-being of children, who are indeed central to this bill. I saw how deeply moved you were during the testimony and throughout the study by what is happening.
However, beyond that, I must tell you that wanting to promote a national strategy is not, in my opinion, the purpose of the bill, because it would significantly broaden its scope. I would say that it is out of scope.
The purpose of the bill is to prevent children from accessing pornographic material, nothing more. That’s what the bill is about. I understand that you are saying that the government can add in a strategy, but if it does, it will cost money. Worse, it will fall entirely within provincial jurisdiction. Calling for a strategy to provide psychological care, taking trauma into account and aimed at supporting mental health, is a matter of health care management. That is under provincial jurisdiction.
I think it adds complexity to the bill that could undermine it because it would create expenses. We can say we created a strategy, that we have to do this, but we cannot do it because there’s no money to spend. That gets a bit complicated.
Despite your good faith, which I know is fully there, I don’t think this is the right vehicle to present a strategy for caring for children. What you’re talking about is huge, but it requires psychiatrists and provincial health care institutions. It’s really in the provinces’ purview.
Unfortunately, despite the respect I have for you, I find that this amendment is ill-timed and expands the scope of the bill far too much. As Senator Tannas said, it also gives ammunition to those who would like to say that this bill costs money. I was very careful in everything I wrote to ensure that this bill wouldn’t require a royal recommendation.
[English]
The Chair: I would respond by saying we have models in Australia and the U.K. where large sums of money are being spent. We know that the government is going to be, I hope, considering an online harms bill where many of these things could well be answered. I’m hoping that the additional idea of wraparound supports for children could eventually be augmented by that.
I know that in the U.K., the Prime Minister has indicated that he is going to follow, after some study, the Australian model. I see the governments of France and Spain are saying the same thing.
Senator Miville-Dechêne: They are governments.
The Chair: I know.
Senator Miville-Dechêne: I am a senator. I am presenting at a public —
The Chair: I want to give you some ammunition or foundation to raise these other issues.
I don’t have anything more to say.
Senator Dhillon: I’ll build on what’s already been said.
I think again, Senator Arnot, you’ve captured the sentiments of the witnesses who have come here and spoken about a comprehensive strategy. In order to be purposeful in our work and align ourselves with the downstream effects and impacts, and also better prepare us to support our children, a comprehensive strategy and harm reduction are important. Education is important. I’m with you. I stand with you.
Where I concern myself is with exactly what’s been shared.
To that point, this comes with costs. Again, to the earlier discussion, these are costs that are borne by Canadians for harm that Canadians are not causing one another.
Two things, I guess — first, if we are going to move this, is there a prescription we can add in, saying that the assessment of the costs of that strategy is determined, then assigned to providers of platforms of pornographic material that are accessible in Canada? Something along those lines.
I agree that it does allow for the courts to have the sense that this is a comprehensive strategy, and there was thought given to other means of reducing that harm.
Can clause 11 be added without being so prescriptive but rather simply a sort of general direction, or having thought given to putting in a larger strategy around harm reduction and those measures being considered by the minister? I’ll leave it at that.
Senator Batters: Thank you very much for this. It’s a very important part of this topic you’ve brought forward here, Senator Arnot. I think it’s commendable that you’re putting such thought into all these different aspects and how harm to young people can be ameliorated as much as possible.
There are a few things I’m wondering about. First, near the start of the first part of the amendment, 11.1-6-12, in the second line, where it says, “. . . in consultation with provincial government representatives . . .” I think it should probably say “provincial and territorial.”
I also have a concern that all of this, frankly — the three parts together, perhaps — would probably be better as the subject of its own senator’s public bill rather than tacking it onto this. There is a risk that it could be considered out of scope or another subject area that, while absolutely related, is too much to add to just a senator’s public bill.
Another part of the cost would be in paragraph 11.1(2)(b), on promoting public awareness campaigns. That could also be a very expensive thing. Yes, I understand it’s developing a strategy for that, but when you’re saying to develop a strategy and then mentioning this or that considerable cost, if the federal government does some of these things — and I hope they do — some of them are provincial jurisdiction, absolutely. Some of them are not necessarily. But they’re going to look at what their mandate is for doing that, and then they would be pointing to this, so that could potentially be problematic.
I also wonder if maybe these types of things would be better as an observation. They could be incorporated as an observation, a lengthy one, to this bill. This could be crafted into that rather than being an amendment. Thank you.
The Chair: Thank you. I feel as if I’m in the Court of Appeal, and sometimes in the Court of Appeal, you can get a sense of where this is going by the questions that are being asked. I don’t want to belabour this, as time is of the essence.
Senators, are you ready for the question on 11.1?
Hon. Senators: Yes.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
An Hon. Senator: Yes.
The Chair: Was there one “yes”? Unfortunately, the motion is defeated. Thank you for your advice on that, senators.
We’re now on clause 12, and we have Senator Saint-Germain’s amendment first. We have four amendments. Senator Simons, Senator Miville-Dechêne, Senator Saint-Germain and Senator Miville-Dechêne — we’ll do it in that order.
I’m now going to give the floor to Senator Simons on S209-12-6-14.
Senator Simons: Thank you very much, Mr. Chair.
Senator Miville-Dechêne and I have discussed this. We have two, again, very similar amendments that seek to limit the scope. Because Senator Miville-Dechêne was very nice in the beginning and deferred to my amendment, in this case, she and I have discussed it, and her amendment will do more or less the same thing. As she’s the sponsor of the bill, I’m going to let her amendment be the one that comes forward.
The Chair: Senator Miville-Dechêne, you’ll go first.
Senator Simons: If Senator Miville-Dechêne’s amendment passes, then mine will be duplicative.
The Chair: Correct. Senator Miville-Dechêne, would you please present your amendment on section 12, which is S209-12-6-17?
Senator Miville-Dechêne: This is the amendment I was referring to earlier at section 12. This is an important amendment because this is where we decide the leeway of the government.
[Translation]
I will read the amendment:
That Bill S-209 be amended in clause 12, on page 6, by replacing lines 17 to 20 with the following:
“graphic material made available free of charge is not to be regarded as made”.
If we read it by itself, as is, it’s clear that we don’t understand what it means, so we have to look at the text and put it back in context.
I will read the amended text of the amendment:
12 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations
(a) specifying the circumstances in which pornographic material is or is not to be regarded as made available for commercial purposes, including circumstances in which pornographic material made available free of charge is or is not to be regarded as made available for commercial purposes; and
What that means is that the previous version gave the opportunity to expand the bill’s scope and the opportunity to narrow it. It used to say, “is or is not to be regarded as made.”
What I’m doing is somewhat narrowing the scope of the government’s power by saying that the government can only exclude sites and social media from the bill. It has the power to exclude sites that might otherwise be considered pornographic material.
I think this is a vital amendment because, as you know, there have been many questions and a lot of controversy about the exact scope of the bill.
For example, does social media constitute pornographic material? We know that there’s a lot of pornography on X. However, the answer to that is to say that as soon as regulations are made, this bill will specify precisely what isn’t included in the bill, and that will prevent court action and uncertainty.
When this bill is implemented, it’s important to know what isn’t included. Obviously, that will reassure those that aren’t included. As I said earlier, I believe it’s important to give the government the necessary leeway to make this decision, given that the reality is fast-changing and that there’s an upcoming bill on online harms.
Indeed, I’d like to thank Senator Simons: Our two amendments don’t have quite the same goal, but they’re along the same lines.
This amendment gives the government the power to narrow the bill’s scope by deciding who won’t be included in the bill.
If you have any questions, I can answer them. It’s not that easy to understand. However, I think it makes sense when you read the text. It’s a response to the criticism. Let us face it: We have heard a number of critics saying that it was too vague and that we didn’t know. Here, the idea is that as soon as the regulations are adopted, we’ll have a good idea of who is subject to the act and who isn’t.
Senator Simons: I think it’s a good idea to make that clearer.
[English]
As I said, I had a different way of achieving the same end, but —
The Chair: In this regard, then, senators, are you ready for the question?
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Simons is withdrawing her amendment, so we now move to Senator Saint-Germain, which is S209-12-6-21.
[Translation]
The text says the following:
That Bill S-209 be amended in clause 12,
(a) on page 6,
(i) by replacing line 21 with the following:
“available for commercial purposes;”,
(ii) by replacing line 23 with the following:
“tion methods referred to in subsection 7(1); and
(c) designating as a violation the failure of an organization that receives a notice under subsection 9(1) to take the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d), establishing a system of administrative monetary penalties applicable to those violations and setting a range of amounts for those penalties.”;
(b) on page 7, by adding the following after line 9:
“(3) In establishing the system of administrative monetary penalties referred to in paragraph (1)(c), the Governor in Council must ensure that any representation made pursuant to paragraph 9(2)(f) is taken into consideration when determining if an organization has committed a violation and in determining the amount of the penalty.”.
Senator Saint-Germain: I had read this amendment earlier. It’s a consequence of the previous amendment on the penalties regime that was adopted. However, I can reread it and add some explanations. This is a consequence that relates to the implementation of the penalties regime.
[English]
The Chair: Do the senators want her to read it again? Is everyone on the same page? Okay.
Are there any questions on debate on Senator Saint-Germain’s amendment? I see none. Are senators ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
There is one more on clause 12. This is Senator Miville-Dechêne’s amendment. It is S209-12-6-35.
Senator Miville-Dechêne: I move:
That Bill S-209 be amended in clause 12, on page 6, by replacing lines 35 and 36 with the following:
“age-verification or age-estimation purposes;”.
This is a pretty easy amendment. It was suggested by —
[Translation]
This is a suggestion from Brian Hurley, who is a lawyer with the Canadian Council of Criminal Defence Lawyers. If you look at your text, among the various measures proposed to ensure that privacy is respected, one measure stated the following: “collects and uses personal information solely for age verification or age‑estimation purposes.” A short phrase was added: “except to the extent required by law.”
It’s the same thing in English; the following other concept was added:
[English]
“Except to the extent required by law.”
[Translation]
According to Mr. Hurley, not only was that unnecessary, but it was also dangerous, because it created uncertainty and could lead people to believe that the act wouldn’t be enforced. That’s why we simply deleted that unnecessary part of the sentence and put a period after the word “purposes.” The text now reads as follows: “collects and uses personal information solely for age‑verification or age‑estimation purposes.” This is a clarification, then: it removes a useless part of the sentence.
[English]
The Chair: Are there any questions on debate?
Senator Simons: I want to say that this is a really important amendment. It strengthens privacy protections and closes the potential that information like this could be used in another forum to the detriment of legitimate, legal purchasers of pornographic materials.
The Chair: Senators, are you ready for the question? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 12 as amended be carried?
Senator Miville-Dechêne: There is another amendment.
The Chair: Okay. I don’t see that.
Senator Saint-Germain: It is 13.
The Chair: It’s 12.1. That’s a new section.
Senator Saint-Germain: It is 12.
The Chair: It is 12.1, the way I have it.
We need to adopt clause 12 first before we can go to 12.1. Shall clause 12, as amended, be carried?
Hon. Senators: Agreed.
The Chair: Carried.
Now we move to what is styled as the new clause 12.1. It is a clause promoted by Senator Saint-Germain, S209-12.1-7-9.
[Translation]
Senator Saint-Germain: I move the following:
That Bill S-209 be amended on page 7 by adding the following after line 9:
“Cost of Administering the Act
12.1 Within one year after the day on which this Act comes into force, the Minister must cause to be tabled in each House of Parliament a report that includes
(a) a proposed framework to ensure that the cost of administering this Act is fully borne by the organizations that make pornographic material available on the Internet in Canada; and
(b) any necessary legislative changes required to implement such a framework.”.
I will explain.
The purpose of this amendment is to consider the role and duties of the pornography industry and to call on the government in this regard. One thing has struck me while considering this bill: The pornography industry distributes an online product that is certainly legal but still problematic and dangerous due to its consequences, including its human consequences. Last night, the three witnesses we heard from gave what I found to be a very rigorous and rather scientific demonstration of the human and psychological impacts of consuming this industry’s products, as well as the potential consequences on crime.
Despite the bill’s flaws in terms of privacy and digital security, it has a legitimate objective, which is to protect young people from content that’s highly problematic and harmful to them. The industry isn’t involved in the financial burden of protecting minors. However, I think it would be appropriate to consider the possibility of having the pornography industry bear the full cost of the measures related to this bill. That isn’t a possibility for us as legislators, but the responsibility could lie with the government. That’s why the legislative clerk’s office worded the amendment in that way.
To that end, the amendment proposes that within one year of the act coming into force, the minister table a framework to ensure that the full cost of administering this act is borne by the organizations that make pornographic material available on the internet in Canada. This framework proposal will have to be tabled in both Houses of Parliament. I think it’s clear that this would give that responsibility to the government, which I think is in the best position to identify the best framework or solution for imposing that fiscal burden on the industry.
Senator Miville-Dechêne: Thank you for your amendments. However, I have reservations about this one. I have some reservations, because the bill that I have been building for five years — and have improved as a result — contains no indication that my bill will cost the government any money. You know the rules around proclamation. Your amendment reads, “Cost of Administering the Act.”
I’m using political terms here: The idea of asking the government to also table a framework proposal adds not only responsibilities, but also costs to the government, and I feel that your penalties regime can work perfectly well without that.
In fact, we haven’t found any other cases in the case law where it was asked . . . For example, in paragraph (b), you say, “any necessary legislative changes required to implement such a framework.” That means that if it doesn’t work, you’re saying that the government can make legislative amendments. But this bill itself is a legislative amendment, and telling the government to take legislative measures because it isn’t working, these things aren’t often done — I have talked to my team about this.
I have to tell you that, politically, I have difficulty with this amendment.
Senator Saint-Germain: Mr. Chair, I would like to respond to that.
First, senator, I believe there will be implementation costs for this bill. Who is going to pay for the monitoring of the implementation, the eventual creation of an agency? Who is going to pay for the private company that will validate the authentication? There will be costs, and unless the industry bears them, taxpayers will. There’s no expectation that the costs will be borne by the users of these services. There is a cost, first of all.
Second, this amendment was drafted with the legislative clerk’s office and is indeed innovative, but we’re dealing with the evolution of an industry that clearly generates enormous costs in terms of health services, social services, legal services, correctional services and so on. That means there are costs to implementing this bill. I don’t think it would be particularly expensive to create or consider a framework for ensuring that the industry funds the implementation, but the government still faces significant costs, in my opinion, that will be associated with implementing the bill.
Senator Miville-Dechêne: I would add that I understand that this is your opinion, senator, and you have said it several times during this debate, but I must say that I’m not creating an agency, specifically. What I’m saying very clearly is that the Governor-in-Council, on the minister’s recommendation, may designate a federal agency, division or branch, so there’s no creation of an agency as such in this bill.
I was very careful in my vocabulary and choice of words so that there wouldn’t be any confusion about the royal recommendation. I think this bill will lead to only minor administrative expenses for a department or agency; we aren’t talking about major spending.
Senator Saint-Germain: Dear colleague, I will refer you to the testimony of the Privacy Commissioner, who would not refuse the surveillance mandate, but who also said that all of this would entail costs and resources that he described as substantial, referring to the experiments that comparable colleagues and organizations have conducted in Europe.
I think there are indeed costs, then, and it’s clear that adding elements to an organization’s mandate will result in costs.
Senator Miville-Dechêne: Not many public bills would be passed at that point, because there are always minimal costs involved in amending the Criminal Code, for example. As you know, there are a number of bills that are moving forward despite the minimal costs. I don’t think it can be said that there are significant costs associated with this bill.
Senator Saint-Germain: This will be my last point in response to this question, dear colleagues.
Above all, I believe the important thing is to avoid promoting an industry that, while legitimate, has extremely harmful consequences for society. I think we need to do more to ensure that this industry, which makes considerable profits, will be able to cover the costs, rather than eventually passing them on to its consumers. That’s a whole other issue, but I think it would be another incentive.
In line with what our colleague Senator Dhillon was saying, I think the current circumstances call for innovation. This is an industry that’s doing really well and that — and we have seen this in other countries — has so far easily managed to circumvent laws that lack teeth.
[English]
Senator Dhillon: I wonder if there is a middle ground to this — if we’re able to amend your proposal to share that a proposed framework to ensure that any costs that might be incurred in administering this act are fully borne, so that there is room there to address future costs if they are borne but not restrict us enough that it is so prescriptive that it says one “must” do this.
I hear your concerns. I want to see this bill go through as well; I don’t want it to fail. In the same breath, I agree with Senator Saint-Germain that we have to come to a turning point at some place where some of this harm has to be borne by those who are causing the harm and not taxpayers. If I were to be given a choice between the bill going through and addressing the costs, the bill goes through. But I’m wondering if there is a middle ground where we’re not demanding but making that recommendation, to some extent, that if there are costs incurred in the development of this framework, those costs should be borne by the industry.
The Chair: Okay. That would be an amendment. Do you want to deal with the amendment proposed by Senator Dhillon right now? I know Senator Pate wanted to make a comment.
Senator Pate: On this issue, I agree very strongly with the sentiment that is being put forth. I’m wondering, though, if this is not the place, that — as we talked about the value of the recommendations you made as well, Mr. Chair — we put this in a strongly worded observation. We saw the pushback immediately when the companies were just challenged about inconsistent testimony. Putting on the record, through a strongly worded observation, the fact that the government would have full support from, at the very least, this committee to pursue those companies that are benefiting from this may be one way to do it.
Putting it in the bill may very well lead to a challenge that’s not even about this issue.
Senator Batters: I think that’s an excellent recommendation, and I would concur with that. I very much appreciate Senator Saint-Germain’s attempt to make it very clear how despicable these companies’ actions are and our desire to not have taxpayers pay for these types of things. However, I think that is the more appropriate way; a senator’s public bill is maybe not the appropriate way. Yes, these are people who are going to push back very hard, so we want to ensure that everything we are doing is very clean. An observation would be a much better way to do that, I think.
The Chair: Okay. Senator Dhillon, do you want to propose an amendment to Senator Saint-Germain’s amendment?
Senator Dhillon: I’m going to defer to Senator Saint-Germain, because it is her amendment. If she would like to make that change, I will leave it with her. I am also perfectly fine with the recommendations around a strong observation about this if one of the risks that we would take on is the bill being defeated.
Senator Saint-Germain: I appreciate Senator Pate’s suggestion. She said “a strong observation,” I believe.
My only hesitation is that there is nothing very compelling for the government, and I’m worried that it will go nowhere. I’m not that concerned about this amendment, if adopted, being a deal‑breaker for the government or even for members of the House. However, I will defer to the majority. We can put it to a vote. If it is defeated, then let’s work on a strong amendment.
Senator Tannas: I associate with what Senator Saint-Germain is saying here. First, it’s a bad industry that we shouldn’t even be giving the cover of regulation, but the fact is that we are where we are.
The other fact is that the government itself hasn’t acted on this, which is bewildering. I support the idea of an observation that encapsulates all of those sentiments we have. We shouldn’t be doing this, we have to do it and we don’t know why the government isn’t doing it. But this industry should be paying through the nose for whatever they should be paying for in order to exist, because this is not what the public should be worried about.
Senator Saint-Germain: I forgot to say that I would support Senator Dhillon’s amendment to my amendment. My worry is that if the amendment is passed, it is more compelling for the government, and it will be easier for them to say that we had the obligation to propose something, but that it is nice to have an observation. This is why I would like a vote. If defeated, the strong observation will be the view of the majority — vox populi.
Senator Pate: I want to be clear. I’m conscious we’re on the public record saying this. I don’t disagree with the sentiment at all. My issue is more that putting it in the bill actually then signals that private sector to then be activated against this bill — in a way that they already will be, but that will become the point. Potentially, it could lose entirely the point of the bill, whereas saying it and putting it on the record, talking about it now, talking about how reluctant the industry has been even to appear and be accountable underscores to the public the need for this kind of action.
So I hear you, and it is not that I’m against what you are suggesting. It is more about how we actually get some movement on this. Putting it in the bill may actually create an inadvertent way for an attack to happen on the legislation. It would be unintended but could potentially provide an avenue for them.
Senator Saint-Germain: I understand your point, but at the same time, I see that the government will have a great cause to all Canadians to explain why this framework is necessary and how legitimate it is for the industry rather than taxpayers to pay for enforcement.
The Chair: We’re very close here. My preference would be to ensure that we get this done today. We have about five minutes or so left. If Senator Dhillon makes a subamendment, we’ll have to get that translated, and that takes a bit of time. Did you want to do that?
Senator Dhillon: I’m deferring to Senator Saint-Germain.
The Chair: Do you want me to call a vote on your amendment?
Senator Saint-Germain: Yes.
The Chair: All right.
Senator Saint-Germain: If I may, I understand that Senator Dhillon’s amendment would be on paragraph (a), “a proposed framework to ensure that any cost of administering this Act is fully borne . . . .”
Senator Batters: Is it correct that all this amendment would do is merely change the word “the” to the word “any”?
Senator Saint-Germain: It would add “any cost.”
The Chair: I have been advised by the clerk. I will let the clerk explain this because he has explained it to me, and I understand it.
Mr. Labrosse: Senator, if you wish to move a subamendment, you would do so verbally, and then we would work with counsel and specialized translators to translate your subamendment and distribute it to the full committee for consideration. There would then be a vote on the subamendment, and then we would go back to the amendment, as amended or unamended, and proceed with the rest of the amendments that are before the committee.
Senator Dhillon: What would the protocol be if Senator Saint-Germain were making that change to her amendment on her own?
Mr. Labrosse: Then it would be Senator Saint-Germain proposing a subamendment.
Senator Dhillon: Would you have to go through the same process?
Mr. Labrosse: Yes.
Senator Dhillon: Okay. I will leave it with Senator Saint-Germain.
The Chair: It has to be translated.
Senator Tannas: One word?
The Chair: There is no option. Is that true?
Mr. Labrosse: Not for something such as this.
Senator Saint-Germain: Can I propose an amendment to the amendment?
Senator Dhillon: Can we just cross out the word “any”?
The Chair: This is what the clerk was telling me: It seems simple, but it is a procedure that we have to follow, and it is mandatory. That would mean translation, and we would do this on another day then.
Mr. Labrosse: It could be done right now.
The Chair: How long would that take? How long do we have here?
Mr. Labrosse: Four minutes.
Senator Simons: We do not know if Senator Saint-Germain’s amendment has the votes to pass anyway.
The Chair: We don’t. So you are proposing that we vote on Senator Saint-Germain’s amendment. Then we will see if there is another amendment. Is that what you are saying?
Senator Saint-Germain: It is very special because this amendment gives more flexibility in stating “any cost.” In French:
[Translation]
The French says, “visant à garantir que tout coût d’application de la présente loi, le cas échéant.”
[English]
It is a different amendment. It brings a very important nuance. So if it is necessary or relevant procedurally that I bring the amendment inspired by my colleague Senator Dhillon, I could bring it now. Then we could vote on it. Is that procedurally right?
Mr. Labrosse: If you propose a subamendment to your own amendment, of course, you can do that. Then there would be a vote on the subamendment and then on the amendment as amended.
Senator Saint-Germain: Mr. Chair, can I proceed now?
The Chair: Yes.
Senator Saint-Germain: I propose that my amendment be amended in paragraph (a), the second line, by adding between the words “that” and “cost” the word “any,” so it would read as follows, “a proposed framework to ensure that any cost of administering this Act is fully borne by the organizations . . .” et cetera, deleting the word “the” on the second line and adding the word “any” before the word “cost.”
The Chair: Very good. There is now an amendment to the amendment. Senators, are you ready for the question on the subamendment?
Mr. Labrosse: Not yet. It has not been translated.
The Chair: Can we have a debate on that right now? No, we still have to wait for the translation. Otherwise it is not receivable. Can we stay an extra 10 minutes and complete the whole thing?
Mr. Labrosse: If you wish.
The Chair: Is everybody in agreement?
Senator Miville-Dechêne: Do you think that we could go to the last amendment in the meantime?
The Chair: Yes.
Senator Miville-Dechêne: I will leave Senator Saint-Germain to present it because it is the same.
The Chair: Senator Saint-Germain’s subamendment to her amendment we stand.
Now we move to clause 13.
Senator Miville-Dechêne: We eliminate it.
The Chair: You have a motion to strike that?
Senator Miville-Dechêne: Yes. Clause 13?
The Chair: Yes.
Senator Miville-Dechêne: Yes. Let’s go to clause 13.
[Translation]
This clause is moot because we made the change in the definition of “pornographic material,” and, above all, we removed the term “child pornography.” The coordinating amendment was there so that, automatically —
[English]
The Chair: A motion to strike clause 13.
Senator Miville-Dechêne: Exactly.
The Chair: We just have to defeat it.
Senator Miville-Dechêne: Yes, that’s what I said.
The Chair: Senators, are you ready for the question on clause 13?
Shall clause 13 be carried?
Some Hon. Senators: No.
The Chair: Shall clause 13 be defeated? Yes. Thank you.
I want to be clear. I declare clause 13 to be struck.
Now we’re moving to clause 14. This is an amendment, Senator Miville-Dechêne. There are two amendments here.
Senator Miville-Dechêne: Yes.
The Chair: The first is yours, Senator Miville-Dechêne. It’s 209-14-7-26.
Senator Miville-Dechêne: This is an easy one.
[Translation]
That Bill S-209 be amended in clause 14, on page 7, by replacing lines 26 and 27 with the following:
“14 This Act comes into force on a day to be fixed by order of the Governor in Council.”.
Until now, the bill has given the government one year after royal assent to bring the bill into force. Given everything that’s coming from the government side regarding the online harms bill, and given that the situation is very fluid, I want, once again, to give the government the flexibility to implement this bill when it deems that to be appropriate. This is a very simple amendment that gives the government all the latitude it needs to decide when the bill will come into force.
Senator Saint-Germain: I have the same amendment for the reasons given by the bill’s sponsor, but also for one additional reason. Before the law comes into force, the government and Canadians need to be reassured about the risks related to confidentiality, privacy and criminal harassment. The government also needs to be satisfied that it can rely, as much as possible, on reliable technology that fully complies with the criteria set out in Bill S-209.
The purpose is the same, and I believe the wording is too, so I also support Senator Miville-Dechêne’s amendment.
[English]
The Chair: I am proposing that we vote on Senator Miville-Dechêne’s amendment.
Senators, are you ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Is clause 14 carried as amended?
Hon. Senators: Agreed.
The Chair: Agreed and therefore carried.
This is going to be Senator Saint-Germain’s motion. Everybody has it in front of them.
It is moved by Senator Saint-Germain that the motion in amendment be further amended, with the words “the cost” replaced with “any cost,” and the same in the French language.
Is it your pleasure, honourable senators, to adopt this subamendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I can’t tell.
Senator Saint-Germain: I think the nays have it.
Senator Dhillon: Yes, I think the nays have it.
The Chair: The nays have it. Okay.
Senator Saint-Germain: So we’ll move a strong observation.
The Chair: Senators, are you ready to vote on the original amendment made by Senator Saint-Germain? Are you ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: No.
The Chair: I declare the motion defeated.
Senator Saint-Germain: Now we need to agree on a strong observation — perhaps not the content right now, but we can propose something soon.
The Chair: We’re going to proceed on clause 1, the preamble and the short title. After that’s done, we’ll agree on amendments. Is that okay? Okay.
Senators, shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Some Hon. Senators: Agreed.
Senator Simons: No.
The Chair: One no? Okay.
Senator Simons: I would like my “no” on the record.
The Chair: On division.
Senator Simons: I would want a recorded vote, but I think at this point it would be a frivolous waste of people’s time. I do want to say on the record and for Hansard that I’m against this.
The Chair: I didn’t hear you. I’m sorry.
Senator Dhillon: I think if you feel strongly, it would be five minutes.
Senator Simons: I think it would be a waste of everybody’s patience to have a recorded vote. I want my opposition noted for the record, so we can say, “On division.”
The Chair: On division. Yes, I did say that. Fine.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes resulting from the amendments adopted by the committee in both official languages, including updating cross-references and renumbering provisions?
Hon. Senators: Agreed.
The Chair: Agreed.
Does the committee wish to consider appending observations to the report?
Hon. Senators: Yes.
The Chair: We can have a discussion on the strong amendment.
Senator Batters: Perhaps the strong amendment — since that was largely Senator Saint-Germain’s topics — could be worked into an observation within the next few days. Then we could discuss it at our next meeting.
Senator Saint-Germain: I was going to propose that. Thank you, Senator Batters. I will consult with my inspiration for this amendment. We will do it expeditiously. Thank you.
The Chair: So everyone is aware, the chair will not be able to report back on this bill until after everybody agrees on the strong observations. That will be done at the next meeting, presumably.
I believe we’ve done as much as we can today. It’s very close, but we’ll finalize it in the next meeting.
Are there any questions from anyone? Thanks, everyone. It was a great discussion.
(The committee adjourned.)