Bill C-412

Promotion of Safety in the Digital Age Act

An Act to enact the Protection of Minors in the Digital Age Act and to amend the Criminal Code

Part 1 of this enactment enacts the Protection of Minors in the Digital Age Act , the purpose of which is to provide for a safe online environment for minors by requiring owners and operators of platforms such as online services or applications to put the interests of minors first and to ensure that minors’ personal data is not used in a manner that could compromise their privacy, health or well-being.
Part 2 amends the Criminal Code to, among other things,
(a) prohibit the publication of the image of a person created or edited through the use of computer software that falsely represents the person, in a manner that is intended to make the image appear authentic, as being nude, as exposing their genital organs, anal region or breasts or as being engaged in explicit sexual activity;
(b) create a separate offence of criminal harassment that is conducted by means of the Internet, a social media service or other digital network and require the court imposing a sentence for the offence to consider as an aggravating factor the fact that the offender, in committing the offence, communicated with the victim anonymously or using a false identity; and
(c) provide for the circumstances in which a person who presents a risk of committing an offence of online harassment may be required to enter into a recognizance and, if the person has communicated anonymously or using a false identity, provide for the circumstances in which a court may make a production order for the purpose of identifying the person.

[Anna Roberts, Conservative, King—Vaughan, ON]

I hope we will look at Bill C-412, so that we can make sure we can stop people who project that hatred online, because it has to stop.

[Anna Roberts, Conservative, King—Vaughan, ON]

Thank you, Madam Chair.

First of all, I want to state for the record that I'm really disappointed in the other parties that want to politicize this, especially to my colleague across the way, when I mentioned a personal client of mine who shared her very deep story with me. It was because of her background and her religious beliefs that I brought it to the forefront. That's why I was talking about education, because we need to make sure that, in Canada, everyone is accepted. That was my point. I'm very disappointed.

However, let's talk about online harms.

Tyler, I'm so sorry that you had to deal with someone who threatened you. That's not acceptable. I am interested to hear from you about the operations....

Bill C-412 aims to ensure that we don't have this hatred online. The Liberals are trying to stop it because they want to create another department. We don't need $200 million going towards another department. In my view, we need that money to go towards what you've stated today about education and helping people understand that it doesn't matter whom you love, and it doesn't matter whom you want to love. That's your personal choice. That's the freedom that Canada offers.

I'm tired of this committee's pointing the finger at our Conservative leader who is a believer. We have a deputy leader who is gay and who is proud of it, and we're proud of her. I'm not sure where this is going with the Liberals, because when you point fingers, four more point back at you.

I want to let you know that I'm sorry that you encountered hatred online. That's not acceptable. I have family members who are gay, whom I love dearly and trust from here to the ends of the world, and I'm proud of them.

Why can't we make sure that this online hatred...? Introducing Bill C-412 would stop it and would make them accountable so that individuals who choose to love whomever they choose to love would be allowed to do that without hate.

Mr. Wisner, I'd like you to respond.

[Anna Roberts, Conservative, King—Vaughan, ON]

Thank you, Madam Chair.

Thank you to the witnesses.

I'm going to start by asking if anyone has heard of Bill C-412.

No.

Bill C-412 is a better alternative to Bill C-63, the online harms act. It will keep Canadians safe online without infringing on their civil liberties. The online harms act creates a costly censorship bureaucracy, which the PBO has estimated at $200 million—arguably the most expensive in the world. Bill C-412 gives Canadians more protection online through existing regulations and the justice system.

The reason I ask is that I understand free speech. I get it. However, what I'm getting from all the witnesses is that we're not holding people accountable. I feel it's important that if you commit a crime, you should be held accountable. If we don't stop the perpetrators from hurting people.... It was said earlier by Ms. Baker, I believe, that 91% of 2SLGBTQ1+...do not report.

How can we make this a better world if we don't hold these individuals to account?

I'll start with you, Mr. Boyce.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

Thank you to the witnesses.

Ms. Baron, I want to pick up on something you said in your opening remarks. You've repeated several times that you're not in favour of a digital safety commission and the process laid out in part 1. You just made it very clear that you don't support Bill C-412 because it's too “vague”, which is a word that's been used by virtually every witness who's been asked about it. We've had two categories of witnesses on Bill C-412: They either didn't know about it or didn't like it, so I'll leave that there.

But what don't you like about the idea...? You said in your remarks, “there are other ways of enforcing that”, and then you went on to criticize the court process. Where does that leave us?

[Joanna Baron]

I think part 4 should be moved forward immediately. It's pressing and urgent, and I think it's really unfortunate that this government has lumped it together with parts 1, 2 and 3, which are entirely different.

As for Bill C-412, it does have language that is disconcertingly vague to us—content that can lead to loneliness, content that constitutes bullying, content that is harmful to dignity. This is also vague and could lead to takedowns of protected content. I think that bill needs to be debated and studied further.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Okay, that's good. Thank you.

Thank you to all the witnesses.

Ms. Baron, I have a question for you. I'm reading from an article written by you that was published in The Hub on February 28 of this year. You said, “The internet is an ugly place.” I agree with you. There's a lot of good, and there's a lot of ugliness. You said that the online harms act is “a profoundly anti-free expression bill that threatens draconian penalties for online speech, chilling legitimate expression by the mere spectre of a complaint to the Canadian Human Rights Commission or the new Digital Safety Commission of Canada.”

Now, you heard that the minister has parsed parts 2 and 3 out of this bill, so I'm assuming it's a less offensive bill. Here's my question for you. In your opinion, if we were to also remove part 1, so all that's left is part 4, would that be a good stand-alone bill? Could that work together with Bill C-412 as well?

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Before I ask questions of the witnesses, I want to put forward the motion of which I gave notice at the last meeting. We heard evidence earlier this week, and again today, of the rapid growth of online harms, particularly for our children. Professor Clement, I too am a granddad, and I have an image of my innocent grandchildren in my mind when I hear this evidence, so I'm very motivated to act quickly on this. This has definitely become a global epidemic that requires immediate action.

Now, happily, our Conservative private member's bill, Bill C-412, addresses some of those issues in an immediate manner. Therefore, Madam Chair, I move the following motion, and we're asking for unanimous consent: That the committee urgently undertake a prestudy of Bill C-412, an act to enact the protection of minors in the digital age and to amend the Criminal Code.

I'm asking for unanimous consent on that.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

In the course of the conversation around Bill C-63, my Conservative colleagues have mentioned one of their own bills, Bill C-412. I want to mention another private member's bill, brought in by my colleague MP Peter Julian, Bill C-292, the online algorithm transparency act.

I'm just wondering if you could talk a little bit about the features in that legislation and maybe how Bill C-63 might not be hitting the mark of where we need to be in this space.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Fair enough. The whole point of Bill C-412 was to have an open debate about what platforms would be responsible for, rather than just porting that behind closed doors into an unelected regulator and giving it unfettered power to regulate speech or impinge on civil liberties.

Do you think that's something the government or any member on this committee should endorse?

[Joanna Baron]

Yes.

You haven't asked me to comment on the substance of Bill C-412. We do have some concerns with some of the categories that are listed in Bill C-412, but I do think it is worthy of further study and consideration. I'm happy to talk about the categories we have concerns with.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

Conservatives have tabled Bill C-412.

Would you recommend to this committee that perhaps we should be starting with a review of what should actually be in a list of responsibilities for online operators and debating that, as opposed to just porting unfettered powers into an unelected regulatory body that will cost $200 million?

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I don't think that part 1 can proceed. Fundamentally, for me, I am being asked as a legislator to abdicate my power to an unelected regulator to regulate speech in very broad terms. What do you think about that?

I fundamentally think that's wrong, and I think it's lazy on the part of the government, as opposed to actually putting forward legislation—which Conservatives have done, with Bill C-412—as a starting point that could define what online platforms are, as opposed to just porting that responsibility, with potential impingements on civil liberties, to an unelected regulator.

[Guillaume Rousseau, Full Professor and Director, Graduate Applied State Law and Policy Programs, Université de Sherbrooke, As an Individual]

Good morning, everyone. Thank you for inviting me to speak to Bill C‑63.

I apologize for my appearance. I had surgery yesterday, which is why I'm wearing a bandage. Although I have a few scars on my head, my mind is working fine. I should be able to make this presentation and answer your questions.

As a constitutional lawyer, I mainly want to draw your attention to the issue of freedom of expression and, since I'm from Quebec, I also want to draw your attention to the fact that Bill C‑63 is very similar to Bill 59, which was studied in Quebec in 2015 and 2016.

For those who, like me, fought against Bill 59, it's a bit like Groundhog Day, since Bill C‑63 contains extremely similar elements, including the prohibition on hate speech. This reminds us of the extent to which Quebec and federal jurisdictions are not always sufficiently exclusive and that there is a lot of overlap. I will stop my digression on Canadian federalism here, but I would like to point out in passing that I have just tabled a report with the Quebec advisory committee on constitutional issues within the Canadian federation. If you're interested in this issue, you should know that a report has just been submitted to the Government of Quebec.

Bill 59, which was studied in 2015 and 2016, banned hate speech, and it was considered very problematic in terms of freedom of expression. In the end, the government of the day decided to set aside part of the bill and not adopt the hate speech component of the bill in order to keep the other part of the bill, which was much more consensual and dealt in particular with the regulation of underage marriages. With respect to Bill C‑63, I hope we are preparing for a similar outcome.

I think the bill contains a lot of interesting things about sexual victimization and “revenge porn”. I believe the equivalent term in French is “pornodivulgation”. I think this whole area of protecting minors and protecting them from sexual victimization is very important. However, everything to do with hate seems much more problematic to me.

Sometimes, people talk about splitting the bill, saying that part 1 isn't a problem, and that parts 2 and 3 are more problematic. For my part, I draw your attention to the fact that, even in part 1, the definition of harmful content includes content that promotes hatred. Even in part 1, there's this mix between the issue of protecting minors from certain elements of pornography and the issue of hate. In my opinion, if we want to rework the bill properly, we must not only not adopt parts 2 and 3, but also eliminate hate from part 1.

The problem with everything to do with hate in the bill is that the definition is very vague and very broad. Hate is defined as detestation and defamation, but the definitions of detestation and defamation often include a reference to hate. It's all a bit circular. It's very vague and, for that reason, it's very difficult for litigants to know what their obligation is, to know what they can and cannot say.

I understand that this definition is inspired by the Supreme Court's Whatcott case, but there are two problems in this regard.

First, this definition was given in a human rights case, but here we want to use it as a model in criminal law. In terms of evidence, in particular, these two areas are very distinct. Second, I understand why we are taking our cues from the Supreme Court when it comes to definitions, because that means that the provision of the act is less likely to be struck down. I understand it on a technical level, but on the substance, a definition that isn't clear and isn't good isn't clear and isn't good, even if it comes from the Supreme Court.

I want to repeat this famous sentence: The Supreme Court is not final because it is infallible, it is infallible because it is final.

As legislators, you really have to ask yourself whether the definition is clear rather than just whether it is the Supreme Court's definition. Ultimately, if you absolutely want to have a definition inspired by the Supreme Court, I would recommend the definition in the Keegstra decision, which is more of a criminal decision. It's a little clearer and a little less problematic than the Whatcott inspired definition.

That said, if you go along with what I'm proposing and remove the hate component from the bill, it will raise the following question: If we create a bill that is more targeted on sexual victimization and the protection of minors, will we need a commission, an ombudsperson, an office and all the bureaucracy that is planned when the purpose of the act is more limited? We will therefore have to rethink the bill so that it is less bureaucratic.

Finally, I draw your attention to the fact that the bill should include the abolition of exemptions that allow hate speech in the name of religion. We were talking earlier about Bill C‑63 and Bill C‑412, but there's also Bill C‑367, which I invite you to study.

Thank you.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

I want to thank all the witnesses for being here today. There's a lot to cover.

Ms. Panas, I'll start with something you said. You talked about feeling comfortable and feeling safe online. Last Christmas Day, I posted a video. I was standing in front of a Christmas tree at a community centre wishing everybody a merry Christmas. The first five or six or 10 comments were, “I hope you lose the next election”, “Rot in hell”—blah blah blah—and those were the nice ones. But I sloughed it off. I have big shoulders. It doesn't matter. That's not what this bill is about. This bill is about protecting people who don't have that ability and who are the most vulnerable.

I want to pick up on what Mr. Brock was trying to do. I want to thank you for your answers about the difference between Bill C-63, which you support, and Bill C-412, which I consider to be.... Well, it doesn't matter what I think. We've had witnesses who have said it's far too narrow and doesn't accomplish the goals we're trying to achieve here. One witness said that she thought it confused tort law with criminal law, which I agree with.

I want to deal with this right off the bat. If something is posted online that's offensive and that involves some of the things we're talking about—I won't use the examples—Bill C-63 provides a method to have it taken down from the Internet right away. Contrast that with the so-called solution of Bill C-412, which would require somebody to go out and retain a lawyer, put together some sort of application or motion, go before a judge and try to convince him or her that this should be taken down.

First of all, you're dealing with people who are the most vulnerable, who don't know how to find a lawyer, who can't afford a lawyer, who have to find a lawyer who knows how to deal with this and appear before a judge who has no expertise in this. It's an insulting joke dressed up as policy. It's not effective. I'd like to get that off the table.

I'm assuming you agree with that, Ms. Panas. You've already highlighted the importance of having the ability to deal with this quickly.

[Larry Brock, Conservative, Brantford—Brant, ON]

I'm going to interrupt you there.

Bill C-63 does not provide an avenue for you to deal with online criminal harassment. It is a glaring oversight. Bill C-412 provides a ready, able mechanism that addresses some of the concerns you deal with.

I just wanted to highlight that to you and encourage you to review that.