Canadian Heritage Committee on Dec. 11th, 2024

[The Vice-Chair, Bloc, Martin Champoux]

I call this meeting to order.

Welcome to meeting number 147 of the Standing Committee on Canadian Heritage.

Before we begin, I would like to ask all in-person participants to read the guidelines written on the updated cards on the table in front of them. These measures are in place to help prevent audio feedback incidents and to protect the health and safety of interpreters and participants.

You will also notice a QR code on the card that links to a short awareness video. However, dear friends, it's a bit late to go and watch a video, because we've started.

Today's meeting is taking place in a hybrid format.

I would like to remind all participants of a few important points. First, as usual, before speaking, all participants should wait until they are recognized by the chair. For members participating in person and via Zoom, please raise your hand and wait until you are recognized by the chair. The clerk and I will do the best we can to manage the order in which people have indicated their intention to speak.

We can confirm that all witnesses have completed the required connection tests in advance of the meeting.

Pursuant to Standing Order 108(2) and the motion adopted by the committee on Wednesday, September 18, 2024, the committee shall resume its study of the protection of freedom of expression.

I would like to begin by welcoming the two witnesses who are with us today: the Honourable Kristopher David Wells, senator from Alberta, and Jacques Marcoux, director of research and analytics at the Canadian Centre for Child Protection, who is participating in the meeting by videoconference.

Before I go to you, Senator Wells, I want to ask the committee something. I would like us to talk about the drafting instructions we'll have to give the analysts for the report on this study. I think we all noticed that today's meeting was shortened to one hour to allow us to hear from the witnesses who were invited and who confirmed their attendance today. I would move, and I believe I would get general agreement, that the drafting instructions for the report be emailed to the analysts. Is there any opposition to that? That's how we did it with the previous study on CBC/Radio-Canada.

I see that everyone is in agreement.

I talked to the analysts a little earlier, and we agreed that the drafting instructions should be sent out by Friday at 4 p.m. eastern time, end of day. Is that okay with everyone?

I see no opposition, so I think we can start hearing the witnesses' opening remarks. We will begin with Senator Kristopher David Wells.

Mr. Wells, you have the floor for five minutes. Towards the end of your five minutes, I will give you a signal. You will then have about 30 seconds to finish your remarks.

[Kristopher David Wells, Senator, Alberta, Non-affiliated]

Dear colleagues, thank you for the opportunity to speak with you today as part of your study examining the protection of freedom of expression in Canadian society. I have been following your deliberations with great interest.

In my brief time with you today, I would like to share a recent illustrative case study that highlights many of the issues you have been studying with respect to the rights and responsibilities related to freedom of expression, the impacts of discrimination and its consequences for community safety, well-being and inclusion.

This case study highlights the concerning and increasing rise in hatred directed towards the 2SLGBTQIA+ community and the City of Calgary’s Safe and Inclusive Access Bylaw, passed in 2023, which is designed to create safe and inclusive access to city libraries and recreational facilities. These have become frequent targets for anti-2SLGBTQIA+ protests against drag queen or “rainbow storytime” events and gender-inclusiveness. The City of Calgary’s general manager of community services indicated that 21 planned protests targeted the Calgary community, with a dozen focused on public libraries and recreational facilities. Several planned events at these locations had to be cancelled out of concern for participants' safety.

The main focus of the City of Calgary’s bylaw stipulates that a person may not engage in protest activities on publicly accessible property within 100 metres of an entrance to a recreation facility or library, and may not impede or attempt to impede access to or from an entrance. This prohibition is in force one hour before and one hour after normal operational hours, or at differing hours for special events.

The legality of this bylaw was very recently challenged in the Alberta Court of Justice in response to a bylaw infraction ticket issued to an accused on April 15, 2023. He had engaged in a protest at the Calgary Public Library’s “reading with royalty” drag storytime event and was found to be within 100 metres of the library entrance. The accused used a bullhorn to amplify his voice and displayed a sign stating that “transgenders are perverts”. He had previously stated that such events are used to groom, exploit and traffic children. The accused also admitted to conducting similar protests at other libraries but had been deemed to be outside the 100-metre no-protest zone and was not charged with a bylaw infraction in those instances.

In the accused's statement of defence, he makes several claims as to the legal authority and validity of the city bylaw, which include his belief that the bylaw violates subsection 2(a), subsection 2(b), subsection 2(c) and section 7 of the charter. The city conceded that the bylaw violated subsection 2(a) and subsection 2(b) but denied any violation of subsection 2(c) or section 7.

Because of my limited time here with you today, I will focus my comments on whether the bylaw was found to be in violation of subsection 2(b) and the accused’s freedom of expression.

Ultimately, the court found that the bylaw did violate subsection 2(b) but was saved under section 1 as a reasonable limitation on the accused’s freedom of expression, based on similar legal precedents, such as exclusion zones or bubble zones established to support access to abortion services. These were ruled to be legal by the Supreme Court of British Columbia, and twice more by the B.C. Court of Appeal.

At this point, I should identify that before I was appointed to the Senate of Canada, the City of Calgary tenured me to produce an expert report in my capacity as the Canada research chair for the public understanding of sexual and gender minority youth. As summarized in the court decision, my expert report provided evidence that exposure to anti-2SLGBTQIA+ speech, signage, messaging, etc. outside public facilities such as libraries and recreational facilities and pools can have the following detrimental impacts: increased hypervigilance and minority stress; compromised mental and physical health; invalidation of 2SLGBTQIA+ identities and communities; contribution to post-traumatic stress and other negative coping mechanisms; distrust of law enforcement, government and civic institutions; avoidance of public spaces, recreation, community facilities, programs, events and support due to fears of anticipatory prejudice, violence, intimidation and discrimination; and (g) an erosion of a sense of belonging, community connectedness and social cohesion.

On November 26, 2024, the Honourable Justice Barley stated in his decision that the City of Calgary's Safe and Inclusive Access Bylaw addresses “a valid and important social issue” and that the community could suffer “significant psychological harm” if subjected to protesters objecting to their sexual orientation, gender identity or gender expression.

[The Vice-Chair, Bloc, Martin Champoux]

Senator, your time is up, but if you want to wrap up, I'll give you another 10 seconds.

[Kristopher David Wells]

Sure. Thank you. It's always amazing how quickly time goes when you're the witness, as opposed to being on the committee.

Ultimately, what they found was that the bylaw was a reasonable limitation on freedom of expression because of its potential for reducing harm and the opportunity for conflict and escalation at these events.

I'd be happy to answer questions related to that.

Thank you.

[The Vice-Chair, Bloc, Martin Champoux]

Thank you very much, Senator.

Next, from the Canadian Centre for Child Protection, we have Jacques Marcoux, director of research and analytics.

Mr. Marcoux, welcome to the Standing Committee on Canadian Heritage. I'll turn the floor over to you. You have five minutes for your opening remarks.

[Jacques Marcoux, Director of research and analytics, Canadian Centre for Child Protection]

Good afternoon, and thank you for the invitation to participate in this study.

My name is Jacques Marcoux. I'm the director of research with the Canadian Centre for Child Protection. We are a registered charity that has been operating for nearly 40 years. We operate Cybertip.ca, which is Canada's national tip line for the public reporting of online child sexual abuse and exploitation. When you read in the news about the thousands of online sextortion and luring cases across the country, in many of those cases, we were the first point of contact for these kids.

I also want to note that our organization is viewed internationally as a world leader in the discovery, identification and the issuance of take-down notices for child sexual abuse material all across the Internet. We do this through the deployment of a number of technological tools built by our organization over the years. It's a platform we call Project Arachnid. Just for a sense of scale for the committee, on any given day, we issue anywhere between 2,000 to 20,000 take-down notices to hundreds of online service providers across dozens of countries.

We have, quite frankly, seen it all, so I want to really emphasize that the perspective I'm here to share today is really grounded in this reality that thousands of Canadians experience online, and this isn't hypothetical and it isn't philosophical; this is real, and it happens on mainstream services that all of us use.

With that said, it may not be clear exactly how our work connects to freedom of expression, so I want to provide a couple of examples.

First, it's important to know that in our space, we especially focus on expression in the form of images and videos. This includes expression that is criminal but also expression that is often referred to as “lawful but awful”. This, for example, can include images of kids in highly sexualized poses or even the spread of images or information that's used to doxx them.

We proactively seek the removal of this content online, and we routinely encounter resistance and even outright denials from online services. We also know, from our work with survivors who are on the receiving end of this so-called expression, that it has an incredibly chilling effect on their ability to participate in online life. In fact, part of the services and supports we provide to these individuals is assistance to help them dramatically limit their online footprint for the sake of their personal safety on the Internet. We also work with victims who spend their lives trying to stop the spread of images of their abuse or their personal information across the Internet.

Consider that the person who has disseminated this content essentially does this with zero friction in the exercise of their expression, and it's often done anonymously. With a few clicks, that content of these victims goes online, and it can be downloaded thousands of times with potentially infinite online reach. For the victims, it's just a minefield of barriers, and they are often asked by service providers to “prove it” or to provide ID in order to get anything taken down. When they go to police, what they often discover is that there's little that can be done, and sometimes that's because the content is technically lawful.

These challenges, as you can imagine, are exactly why we as an organization support online safety-type regulations, measures that ensure that the systems themselves that act as these vehicles for our expression have obligations to, for example, anticipate and plan and especially design their services in ways that limit predictable harms and foster healthy environments. It's simply not enough to act once the harm is done.

Some examples of ways that operators can protect and enhance free expression include really basic concepts like providing users with reporting tools; blocking bots that artificially amplify what I'll call inauthentic expression; eliminating problematic algorithmic incentives; and, of course, having stringent rules for the swift removal of illegal content, such as child sexual abuse imagery. This list could go on and on, but I think it's important to recognize that a lot of the core principles behind this list are simply borrowed from all the other industries in Canada that are subject to regulation.

If I can leave you with one core thought, it's this: The digital spaces we all use to express ourselves are very often undeservedly characterized as altruistic public squares of free expression, when in reality these environments are commercial entities, and they're designed to drive engagement and traffic at all cost with little regard for the public interest or the rights of users.

For the government, a decision to not intervene is, in and of itself, an action that has a dramatic impact on free expression. The alternative to intervention is simply to roll the dice and hope that foreign companies voluntarily prioritize the rights of Canadians over their objectives, which may be commercial, political or otherwise.

Thank you.

[The Vice-Chair, Bloc, Martin Champoux]

Thank you very much, Mr. Marcoux.

We will now begin the first round of questions.

I suggest we do what we've done at other meetings where we've had the same number of witnesses. I suggest we have two rounds of questions. In the first round, each party will have the floor for six minutes.

We're going to start with the Conservatives.

Mr. Kurek, you have the floor for six minutes. Go ahead.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you very much, Mr. Chair.

Just to note, I have a question and then I'll be passing my time over to Mr. Jivani.

Mr. Wells, do you know three individuals by the names of Pam Davidson, Erika Barootes, and Mykhailo Martyniouk?

[Kristopher David Wells]

Do you mean personally?

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Do you know who they are?

[Kristopher David Wells]

I know they're Albertans.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Do you know the positions they hold?

[Kristopher David Wells]

I do not.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

They were elected as senators-in-waiting in the province of Alberta.

Do you acknowledge that Albertans have a history and a tradition under various federal governments of being appointed, honouring the democratic will of Albertans, by prime ministers? They have appointed democratically elected senators to the Senate of Canada.

[Kristopher David Wells]

I'm not quite sure how that relates to my testimony here today or the topic of the committee, but—

[Jamil Jivani, Conservative, Durham, ON]

It's the freedom of expression of the Alberta—

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

With respect, I think it speaks very well—

[Hedy Fry, Liberal, Vancouver Centre, BC]

I have a point of order.

[The Vice-Chair, Bloc, Martin Champoux]

Dr. Fry, you have a point of order.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Chair, this is actually a point of order because that question has nothing to do with the freedom of expression study we're doing right now.

[The Vice-Chair, Bloc, Martin Champoux]

I hear you, Dr. Fry, but, as you often say when you are in the chair, we do have some leeway. I'm going to let Mr. Kurek finish his introduction in the hope that he'll get to the topic at hand.

Mr. Kurek, I'll remind you to keep your questions relevant to the topic at hand.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you, Mr. Chair.

I would note that Ms. Fry just referenced that Albertans shouldn't be free to express their democratic will and who represents them in Canada's Senate—

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

I have a point of order, Mr. Chair.

[The Vice-Chair, Bloc, Martin Champoux]

Mr.—

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I would simply say, Mr. Chair, that when it comes to the will of Albertans—