Justice Committee on Dec. 9th, 2024

[The Vice-Chair, Conservative, Larry Brock]

We now go to Mrs. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Thank you for your remarks, Witness 1.

[The Vice-Chair, Conservative, Larry Brock]

I will have to stop you there, Madame Brière. There's no interpretation coming through. There are some issues with your headset.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

All right, but the sound checks were done, and everything was working.

[The Vice-Chair, Conservative, Larry Brock]

Can we move to somebody else? We don't have time to suspend.

Will that be you, James?

Madame Brière, we won't suspend. We'll have the technicians give you a call to sort out your headphone issues.

In the meantime, I will turn matters over to Mr. Maloney.

Mr. Maloney, you have roughly five and a half minutes left.

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

Thank you, Mr. Chair.

I want to thank all the witnesses for joining us today.

Jane—I'll refer to you that way—thank you very much for sharing your horrific story with us. We're here talking about a bill presented by the government, Bill C-63, and particularly part 1. My question for you is one that you've somewhat addressed. To quote you, “The unregulated Internet has damaged my child”, and it continues to do so on an ongoing basis.

An important part of part 1 of the bill, which is the part we're focusing on, is the so-called takedown provisions that would be required on the Internet. Criminal Code provisions are one thing, but there's a requirement, as you alluded to, about the importance of having the ability to instantly address a problem when it arises and have something removed from the Internet ASAP.

Can you expand on the importance of that, in your view? Also, if this is not passed into legislation now, can you explain what impact that might have on your family and others?

[Witness-Témoin 1]

Implementing the immediate takedown is definitely the biggest part of solving this problem. Without having that in place, there's no end to this.

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

Thank you.

Having lived through this—I take it that included dealing with the police and the authorities—was there any immediate action taken to have the content removed from the online world? If so, please share your experience in that regard.

[Witness-Témoin 1]

My experience is that this has been a very slow and drawn-out process and horrifically painful.

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

It's been completely ineffective.

What do you say to those, then, who are openly critical of these provisions of the bill and who have stated unequivocally that should this bill be passed, they would remove those parts of the legislation and in fact remove the bill altogether?

[Witness-Témoin 1]

This part of the bill is one of the most important parts: Protecting the children. This is the beginning of the end of it.

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

Thank you.

I'm going to move on to you, Ms. McNicoll, because in your opening remarks and in your answers to some of these questions, you spoke about parts 2 and 3, which we're not talking about right now.

You did say that part 1 is important and you're willing to take a position. What is your position on part 1, particularly in light of what you just heard from Jane?

[Anaïs Bussières McNicoll]

I believe you're referring to the duty laid out in sections 67 and 68 and subsequent sections of the proposed act in part 1 of the bill. Those sections address specific types of very harmful content, in particular, content that sexually victimizes a child. The provisions also set out a deadline for the platform operator to assess the flagged content and remove it if the content turns out to be real.

The CCLA does not have a problem with the provisions. As we see it, the problem has more to do with the much more general duties laid out for operators. I'm talking mainly about sections 55 to 59 of the proposed act.

Section 55 sets out a general duty to take reasonable measures to prevent users from being exposed to harmful content. When I say harmful content, I'm talking about the seven types listed in the bill. Unfortunately, without adequate parameters, an operator might be tempted to take a very cautious approach in fulfilling the duty, an approach that could unreasonably limit freedom of expression in Canada.

For example, proactively searching and deleting content amounts to state surveillance by proxy. The CCLA considers that to be a problematic practice, but it isn't prohibited in the bill as it currently stands. An operator could also decide to take down content without even reviewing it, which we also consider problematic.

Frankly, we are not saying that freedom of expression is an absolute right in Canada that should not be subject to reasonable limits. However, the duties imposed on operators need to be circumscribed in a way that makes clear to operators not only what their duties are, but also the fact they must act reasonably to fulfill those duties in accordance with freedom of expression principles.

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

Thank you.

Just considering Jane's evidence, it's better to have a takedown provision in the legislation than to leave it to the criminal law, and certainly better than leaving it to the Internet providers themselves. Wouldn't you agree with that?

[Anaïs Bussières McNicoll]

I'm not sure whether it is better to have both mechanisms, but I think it's an interesting idea. Again, I, personally, have no issues with the takedown provisions in relation to the highly disturbing and harmful content Witness 1 described. I'm at a loss for words to convey how sympathetic I am to the situation the witness bravely shared.

[The Vice-Chair, Conservative, Larry Brock]

Thank you.

That is your time, Mr. Maloney.

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

Thank you, Mr. Chair.

[The Vice-Chair, Conservative, Larry Brock]

You have six minutes, Mr. Fortin. Go ahead.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here. I want to say how much my heart goes out to Witness 1. I am grateful to her for sharing her story about the abuse endured by her daughter—her baby, even. The fact that this kind of thing can still happen is disturbing, and I think that we, as lawmakers, must do everything we can to prevent it from happening.

I also want to thank Ms. Claveau for being here.

I'd like to revisit two things you said when you were explaining the Barreau du Québec's position.

First, you said that the Barreau supported Quebec's call for the removal of the religious exemption set out in two provisions of section 319 of the Criminal Code. In discussions about the religious exemption, it is commonly argued that the provision has hardly been used, so there may be no point in eliminating it.

Is it possible that, even though the courts have not addressed the provision often, it is considered when a decision is being made on whether to bring a proceeding in a case?

[Catherine Claveau]

That would be our assumption, as well.

I think it is also important to recognize that hate propaganda and hate speech are unfortunately on the rise, and that all such speech based on religion will probably increase as well.

In our view, one of the ways to address that scourge is to get rid of the religious exemption.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

The other thing I wanted to discuss with you was the definition of the word “hatred”. It is very difficult, impossible even, to clearly define the concept in a manner suitable to everyone and all situations. It is always a sensitive subject.

The Supreme Court's teachings on the matter are obviously valuable. The definition of hatred you recommend is the one in Keegstra, which states that the term “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.”

Certainly, “vilification” and “detestation” are perhaps easier to define. Judges would eventually have to determine whether an accused was driven by emotion of an intense and extreme nature—not any old emotion. I don't want to make things up, but it's likely that the decisions reached by those judges will be shockingly conflicting. I actually don't have another definition to recommend. I defer to the wisdom of the Supreme Court justices.

In your view, how careful should we be in trying to define something as personal and subjective as emotion of an intense and extreme nature driving a person's behaviour?

[Catherine Claveau]

Thank you for your question.

I'm going to ask my colleagues to answer. They are more familiar than I am with interpreting Supreme Court decisions.

[Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Thank you, Ms. Claveau.

I think the member is right about that point.

On the whole, the Barreau submits that it is difficult to identify a definition of the word “hatred”. It is important to ensure that the criteria referred to in the Supreme Court's decisions are met. That is why the definition chosen must leave as little room as possible for court challenges or conflicting decisions, as you mentioned.

I will ask Mr. Marchand to elaborate on definitions and the more technical considerations.

[Michel Marchand, Member, Criminal Law Expert Group, Barreau du Québec]

Good afternoon.

Emotion of an intense and extreme nature is being used as an objective test.

It is important, however, to distinguish between the test set out in Keegstra and Mugesera, which were criminal law decisions, and the test set out in Whatcott and other human rights decisions. The decision was made to rework the test in Whatcott.

Basically, the test selected was the one established in the decisions I just mentioned. It was simply adjusted to clarify that the emotion must be characterized as would reasonably be expected. That means the emotion, not of the person at the source of the content in question, but of the person on the receiving end of the content.

I think the definitions set out by the Supreme Court for the term “hatred” are very clear. It's about taking those criteria and incorporating them into the Criminal Code.

As I see it, the current provisions in Bill C‑63 set a lower standard than the test established in Mugesera.

I think it's important to be very careful because when you get into freedom of expression and freedom of religion, people have rights. The Supreme Court considered the issue very seriously and thoroughly, examining hundreds of pages of material before making the findings it did and rendering its decision.

[The Vice-Chair, Conservative, Larry Brock]

Thank you, Mr. Marchand.

That's your time, Monsieur Fortin.

Mr. Julian, you have six minutes.