Third reading of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material

By: The Hon. Pierre Dalphond

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Could wearing a Canadian flag, Toronto

Hon. Pierre J. Dalphond: Honourable senators, the end of this session is very interesting for various reasons. We are seeing very few government bills and a lot of non-government bills introduced by senators and MPs. The official opposition has raised serious concerns regarding the government bills, whereas it basically supports the non-government bills and their quick passage. That is quite the contrast from what was happening in June 2019, and I am happy about that.

Perhaps it is the result of a dysfunctional House of Commons, but four government bills arrived in the Senate only last week. As the representatives of the four non-governmental groups in the Senate said, that should not prevent us from carefully analyzing these bills if they were not already examined as part of the pre-study process.

Obviously, Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, will be thoroughly examined. Many members of this chamber find this bill to be questionable because they believe it is proposing to regulate online content. At the same time, others are proposing that we pass, without any real debate, Bill S-203, which seeks to control online access to sexually explicit material available on the internet, regardless of its nature. The purpose of that bill is to prevent people under the age of 18 from accessing such material.

To this end, Bill S-203 proposes to regulate the internet by making it a serious offence for a commercial website, as well as its employees, officers and directors, not to put in place a government-approved method to verify the age of those seeking access to sexually explicit material.

At committee, it was suggested that the age verification could be done through government-issued documents or newer technologies such as age estimation using biometrics and artificial intelligence.

With regard to the targeted websites, the bill refers to commercial content providers, which could include platforms such as Netflix, HBO or Crave that all currently offer paid access to sexually explicit material without verifying the age of the viewer.

The enforcement authority could be the Canadian Radio-television and Telecommunications Commission, or CRTC, if the designated minister were to propose it. The CRTC would then be empowered to issue age-verification orders to websites. Failure to comply within 20 days would entitle the CRTC to seek a Federal Court order to have an internet service provider block access to a website for all Canadians — minors and adults alike — including parts of the website that do not contain sexually explicit material.

At the committee, we heard that the U.K. Parliament adopted the Digital Economy Act 2017, which contains a chapter on age verification for sexually explicit material. Professor Victoria Nash of the Oxford Internet Institute, who conducts research into digital policies targeted at children, explained that this chapter was never brought into force for four main reasons.

First, age-assurance tools are very blunt and have no regard for the maturity or vulnerability of the user. She explained that the tool won’t tell you whether an individual is:

. . . particularly vulnerable and might need additional protections or maybe is particularly mature and may be well placed to enjoy an element of online risk.

Second, the U.K. government was very concerned that user data could be inappropriately shared or used if proper safeguards were not in place.

Third, on competition, larger online companies could end up benefiting from high-cost regulatory barriers because they have the means to comply, while smaller sites do not.

Fourth, serious concerns about freedom of expression and information.

We were also told that an alternative is in progress before the U.K. Parliament: the Online Safety Bill that was tabled by the U.K. government in May 2021.

It is comprehensive legislation to regulate a range of online harms to protect children, crack down on hate speech and create a truly democratic digital age. Unfortunately, its second reading and joint committee study are not expected until after the summer recess, so we do not yet have the benefit of the results of the study of this bill. Suffice to say that the U.K. bill does not include any age-verification requirements. Rather, it imposes other duties through a new standard of care on websites to reduce risks and harms to children and other users.

Brian Hurley, Director of the Canadian Council of Criminal Defence Lawyers, explained that Bill S-203 provisions creating offences were not clearly drafted and will be subject to constitutional challenges.

Professor Emily Laidlaw, Canada Research Chair in Cybersecurity Law at the University of Calgary, stated:

. . . website blocking . . . . has historically been frowned upon in democratic societies, because it’s seen as a prior restraint on speech. It’s hard to do it in a way that’s human-rights-compliant. It can be a blunt tool, it’s easily circumvented, it tends to block more than it should for longer than it should, it tends to be a bit of a due-process nightmare . . . .

. . . blocking should be a last resort, if at all, and it’s not structured that way at the moment in the bill.

The Privacy Commissioner of Canada, Mr. Daniel Therrien, expressed concerns about means to control access and the collection of users’ personal data.

A representative of the sex workers talked about the migration, particularly during the pandemic, from in-person sex work to online and adult-film sex work. She strongly opposed the bill as putting sex workers’ livelihood and safety at risk.

As for representatives of websites providing access to sexually explicit content and internet service providers, no one — I repeat, no one — agreed to testify or sent a brief to the committee. In this context, some members of the committee, including Senator Dupuis and myself, expressed strong reservations on many provisions of the bill. Additionally, I privately made suggestions to the sponsor to make the bill more compatible with our legal tradition and less authoritarian in its approach.

On June 9, at clause-by-clause consideration, the sponsor moved six amendments, including one three pages long designed to address some of the concerns raised. Without much debate because of scheduling limitations, the committee adopted these amendments on division and without observations.

On June 10, the Canadian Action Network for Digital & Personal Rights, an NGO advocating for civil liberties in Canada, published a post entitled, “The Senate’s Committee for Constitutional Affairs Has Assaulted Democratic Values, and Canadians Deserve to Know About It.” In the document, it is stated:

. . . the Canadian Action Network for Digital & Personal Rights is deeply concerned about the wide ranging implications to free speech, free expression, constitutional rights, and the privacy of Canadians that would almost certainly come to realization as a result of this bill becoming law.

On June 21, a deputy chair of the committee made a four-minute speech and moved adoption of the report. He did not summarize the evidence adduced before the committee nor the concerns raised. No question was asked, and the report was promptly adopted. I barely had the time to say, “on division.”

On June 22, after speaking for two minutes, the sponsor of the bill moved third reading, again with no summary of the evidence, no comments on the concerns raised and no explanation on the substantial amendments that she had moved.

An Hon. Senator: Where were you?

Senator Dalphond: I was there. I’m coming.

In her brief remarks, the sponsor said:

I agree that it is perfectible. It seeks to innovate in a vast and complex area, the internet, and I refuse to give up because the technology is supposedly inadequate. . . .

The other place can continue the work.

Then she moved the question while I rose to ask if the critic, Senator Frum, would speak to the substantially revised bill. The answer was no, and I adjourned the debate.

The following day, I informed my scroll colleagues that I was not ready to speak to the bill, and it was agreed, as is the usual practice at scroll, that the bill would stand when called.

But later that day, after the House of Commons had already adjourned for the summer, the sponsor and Senator McPhedran moved the question again.

I won’t say much about this manœuvre but only that it cannot be conducive to a fulsome debate and good relationships between senators. As I said on debate on the reasoned amendment moved against Senator McPhedran’s bill on voting age, I believe private bills must be debated and duly analyzed just like government bills. And on this, I understand I share the views of Senator Plett.

Furthermore, in my opinion, it does not help to improve respect for our work to send a bill to the Commons with a comment that it contains flaws that the other place could fix.

Finally, colleagues, it is important to realize that Bill S-203 and Bill C-10 touch in many ways on similar issues: namely regulation of online content, potential restrictions to access, users’ privacy and the role of the government in controlling the content of the internet. But Bill S-203 goes further as it proposes to empower the government to seek orders against internet service providers.

No doubt, such issues will be reviewed carefully through the study of the government’s Bill C-10, which will bring before the Senate many interested parties including internet service providers, digital economy experts, advocates for freedom of expression and other Charter rights, privacy experts and international experts who may offer some insight on why the balancing of individual rights and the public interest has been so challenging in the U.K. and elsewhere.

Colleagues, in such a context, can we, on the one hand, rush to adopt a private bill that controls part of the internet and, on the other hand, oppose a government bill because it might do the same?

In my humble opinion, there is no valid reason to rush through this new version of Bill S-203. The House of Commons has risen for the summer. If there’s an election called this summer, this bill, like Bill C-10, will die on the Senate Order Paper.

However, if no election is called, we will have plenty of time this fall to debate Bill C-10 and then, well informed, to proceed to meaningful third reading of Bill S-203, including consideration of amendments to address its flaws.

For these reasons, I suggest that we adjourn the consideration of Bill S-203. Thank you for your attention. Meegwetch.

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