Justice Committee on Dec. 9th, 2024

[The Vice-Chair, Conservative, Larry Brock]

I call the meeting to order.

Welcome to meeting 126 of the House of Commons Standing Committee on Justice and Human Rights.

At this point in the meeting, I'd like to propose the adoption of the Bill C-63 prestudy budget in the amount of $23,250. I understand that budget was previously distributed to all members.

Can I see a show of hands in support?

(Motion agreed to)

That's unanimous. It's adopted.

Thank you.

Pursuant to Standing Order 108(2) and the motion adopted on December 2, 2024, the committee is meeting in public to begin its study on the subject matter of Bill C-63, an act to enact the online harms act, to amend the Criminal Code, the Canadian Human Rights Act, and an act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other acts.

At this juncture, I'd like to welcome our witnesses for the first hour.

Appearing by video conference, on behalf of the Quebec Bar, we have Catherine Claveau, president; Nicolas Le Grand Alary, secretariat of the order and legal affairs; and Michel Marchand, member, criminal law expert group.

Appearing in person is Madame Anaïs Bussières McNicoll, director, fundamental freedoms program, Canadian Civil Liberties Association.

Witnesses and members, please wait until I recognize you by name before speaking. For those participating by video conference, please ensure that you have selected the language of your choice for simultaneous interpretation, which is on the bottom left of your screen, and please mute yourself when you are not speaking.

I remind all members to take the floor only after being recognized by the chair.

Without any further delay, the floor is yours. Each witness has five minutes.

Who would like to start?

Perhaps Madame Bussières McNicoll can start.

[Anaïs Bussières McNicoll, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Honourable members of the committee, good afternoon.

The Canadian Civil Liberties Association, or CCLA, appreciates the opportunity to share its view on Bill C‑63.

The CCLA is an independent, national non-governmental organization founded in 1964 with a mandate to defend and foster the civil liberties, human rights and democratic freedoms of all people across Canada. We work to achieve strong protections for freedom of expression, privacy and principles of fundamental justice. That work is central to our mandate.

The CCLA recognizes the importance of legislative measures to protect some of the most vulnerable members of society from especially harmful forms of online speech. In that sense, the CCLA recognizes that some of the duties established under part 1 of the bill for operators of a regulated service are welcome. However, the current iteration of the online harms act also sets out broader duties that need to be clarified and limited appropriately. Otherwise, they will give rise to problems in relation to freedom of expression.

For example, the general duty set out in subsection 55(1) of the proposed act requires operators to implement measures that are adequate to mitigate the risk that users of the service will be exposed to harmful content on the service. The scope of the provision is too vague. In the absence of proper parameters, operators will likely try to fulfill the unspecific duty as efficiently and economically as possible, potentially at the expense of users' freedom of expression. For instance, operators could proactively monitor content, which at this point is not prohibited under the new act, or they could take down content as determined by non-transparent algorithms.

The general duty imposed on operators to implement tools and processes to flag harmful content, as per section 59 of the proposed act, has similar flaws, which would likely jeopardize freedom of expression as well. As it is written, the online harms act would allow operators to remove various types of flagged content, without giving the user who posted the content an opportunity to present their view. In fact, as written, the proposed act would even implicitly allow operators to remove various types of flagged content without first having to determine whether the content was indeed harmful.

The first three recommendations in our written submission to the committee address these concerns. We recommend that operators, in their efforts to fulfill their statutory duties, be prohibited from engaging in mass surveillance and unduly limiting users' freedom of expression. We also recommend that the newly created body in the bill, the digital safety commission of Canada, be required to check annually that operators are fulfilling their duties as they relate to users' rights.

The CCLA applauds the justice minister's recently announced plan to remove parts 2 and 3 from this bill. This addresses a joint request made months ago by the CCLA and a number of civil society groups to ensure that the committee's study of part 1 was not overshadowed by controversial changes to the Criminal Code and the Canadian Human Rights Act. The CCLA is of the view that Parliament should not pass parts 2 and 3 of the bill.

With respect to the proposed Criminal Code amendments, the new hate-motivated offence would irrationally increase the maximum sentence associated with any offence in Canada to life imprisonment. This excessive judicial discretion paves the way for disproportionate sentencing and an increase in plea bargaining by innocent and vulnerable defendants. It would also hinder free speech in Canada.

The CCLA also objects to the new “fear of hate propaganda offence or hate crime” provision. Criminal law should be a means of holding individuals accountable for what they have done, not for what others fear they might do. Allowing a judge to limit the freedom and expression of an individual who is not even suspected or accused of having committed a crime, let alone convicted of one, unreasonably and unjustifiably infringes on several rights protected by the Canadian Charter of Rights and Freedoms.

Lastly, I will turn to part 3 of the bill, the amendments being proposed to the Canadian Human Rights Act. The CCLA is of the view that the proposed amendments are neither an appropriate nor effective way to address the problem of hate speech in our modern society. The amendments would result in an onslaught of complaints to human rights organizations, which are already chronically under-resourced.

Thank you.

I would be pleased to answer your questions.

[The Vice-Chair, Conservative, Larry Brock]

Thank you very much.

You may go ahead with your opening remarks, Ms. Claveau. You have five minutes.

[Catherine Claveau, Bâtonnière du Québec, Barreau du Québec]

Thank you, Mr. Chair.

Good afternoon, members of the committee.

My name is Catherine Claveau, and I am the president of the Barreau du Québec. Joining me from the Barreau du Québec are Michel Marchand, member of the criminal law expert group; and Nicolas Le Grand Alary, lawyer, secretariat of the order and legal affairs. Thank you for giving the Quebec bar association the opportunity to comment on Bill C‑63.

Given our experience in criminal law and human rights, our remarks will focus solely on parts 2 and 3 of the bill, the proposed amendments to the Criminal Code and the Canadian Human Rights Act.

Let's start with part 2, the Criminal Code amendments. With the significant rise in hate crimes, most of which are based on race and ethnic origin, it is paramount that the bill provide the courts with the tools to respond effectively, while ensuring they adhere to the principles of fundamental justice and Canada's constitutional requirements. That is why the Barreau du Québec supports the Quebec justice minister's call for lawmakers to remove the religious exemption in the Criminal Code for hate propaganda.

The Quebec bar association considers it essential to codify a definition of hate. On one hand, this would encourage people to report incidents while helping communities clearly understand what is prohibited. On the other, it would give all actors in the justice system, police, in particular, a clear framework within which to operate.

However, we have concerns about the definition being proposed in the bill for the term “hatred”, which is based on the decision in Whatcott. In the case, the Supreme Court of Canada ruled on the constitutionality of a human rights provision prohibiting hate publications. The Quebec bar association considers the key decision in criminal matters to be the 1990 decision in Keegstra. The Supreme Court relied on the analysis in Keegstra in Mugesera in 2005.

In both decisions, the Supreme Court interpreted hatred in view of the Criminal Code provisions and found that “‘hatred’ connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” The provision could be subject to a constitutional challenge, and since the burden of proof in criminal law is not the same as it is in civil law and since individuals accused of a crime are guaranteed certain rights under the Canadian Charter of Rights and Freedoms, we recommend that the bill apply the definition relied on in those decisions.

In addition, the bill makes it a hate crime to commit an offence under the Criminal Code or any other act of Parliament if the commission of the offence is motivated by hatred based on certain factors. Someone guilty of the new offence would be liable to imprisonment for life. The new provision refers to any act of Parliament, so it has a broad scope and is likely to capture a wide array of offences, without differentiating at all between the objective seriousness of each offence.

This new provision is contrary to the fundamental principle set out in section 718.1 of the Criminal Code, proportionality in sentencing. We therefore recommend enhancing the existing provisions in the Criminal Code so as not to create a new system of prosecution for hate crimes, alongside the current system.

Now, let's turn to part 3 of the bill, the amendments to the Canadian Human Rights Act. We welcome the fact that the bill restores section 13 of the act to address the communication of hate speech. The proposed new wording is more specific and better circumscribed, helping to balance the rights and freedoms protected by the charter. The Quebec bar association also agrees with the “hate speech” definition laid out in the bill, given that it respects the teachings of the Supreme Court in Whatcott, a case that centred on human rights.

Lastly, we question the punitive quality being introduced into the Canadian Human Rights Act under the bill. The Supreme Court wrote in Taylor and Blencoe that the purpose of the act is not to punish wrongdoing, but to prevent discrimination, and that the aim of a human rights system must be conciliation, not punishment. Under the bill in its current form, the act is being amended to include a punitive measure, something that would distort the purpose of a human rights system.

We recommend that the penalty instead be paid to the victim. Alternatively, if there is no identified or identifiable victim, we recommend that the penalty be paid to a human rights organization or a group targeted by the communication that constituted the discriminatory practice.

Like subsection 53(3) of the Canadian Human Rights Act, the bill could include the possibility of ordering the person responsible for the discriminatory practice to pay special compensation to the victim if the person was engaging or engaged in the discriminatory practice willfully or recklessly. We have provided additional comments in our brief.

We would now be glad to answer the committee's questions.

Thank you.

[The Vice-Chair, Conservative, Larry Brock]

Thank you, Ms. Claveau.

Next we'll go to Monsieur Le Grand Alary for five minutes.

[Catherine Claveau]

Mr. Le Grand Alary is also from the Barreau du Québec, so he doesn't have any opening remarks.

[The Vice-Chair, Conservative, Larry Brock]

Thank you.

In that case, we will now hear from Mr. Marchand for five minutes.

[Catherine Claveau]

Mr. Marchand is also part of the Barreau du Québec team.

[The Vice-Chair, Conservative, Larry Brock]

Okay.

We'll go to Witness Number One for five minutes, please.

[Witness-Témoin 1, As an Individual]

Good afternoon. Thank you for your time today.

I am Jane. Perhaps, like I do, many of you hold the same title—the title of parent. I am the mother of a one-spirited young girl who was sexually abused and, on account of that abuse, has also become a victim of sexual exploitation. Maybe you, as a parent, can relate to my child's story, which unfortunately has also become our family's lived experience.

In my few allotted minutes, I'd like to provide some insight and describe a few details of the horrific sexual abuse my little girl endured and continues to endure daily. My daughter was just a toddler when, one day, fate stamped itself upon her. She was just a young child who had no choice but to solely entrust her life to the hands of an adult who was supposed to protect her from harm, teach her right from wrong and love her in such a manner that cultivated and would enforce, in the future, what a healthy relationship is supposed to look like.

In her preschool to kindergarten years, she was groomed to believe that sex or sexual actions between children and grown-ups was completely acceptable and normal. Some days, instead of watching cartoons, she spent her time with a presumably trusted adult who normalized child pornographic material. This normalization took place by subjecting her to possibly hundreds of child exploitation videos repeatedly, at any opportune moment. With the help of various child sexual abuse materials, she was conveniently raped by her abuser over and over again. Based on evidence collected by law enforcement, it could possibly be determined that she was raped and sexually assaulted on a daily basis. She was between the ages of three and six years old, and raped in such a way that she was brainwashed to believe it was a fun game. Many times, she was bribed with candy as her reward for performance. Her performance included but was not limited to oral sex, vaginal intercourse, and edged into inserting various items into her anus.

The perpetrator was her biological father. This man also trafficked his own daughter by having her virtually participate in scripted, sexually explicit activities with one or more adults within the dark walls of the online world. When my child's abuser was caught, he admitted that the abuse had spiralled out of control. He had become desensitized to raping my daughter for his own sexual satisfaction. He admitted to law enforcement that he was always hungry for more.

My child's understanding of what happened to her is greater than she wishes she could remember. The extent of the damage done to her in the moment, and that continues into the present, is incalculable. My little girl has countless flashbacks that haunt her while she sleeps. Often, she is anxious, fearful and scared. Sadly, the abuse that happened to her is now hyperactively present on the dark web, known to be one of the top-downloaded series of child sexual abuse material circulating on the dark web. Child predators have saved and shared images and videos of her tiny body lying naked and contorted in provocative ways. Her privates are no longer private. Her vagina is on display for the world to view. Her smile, laughter and innocence have all been taken from her. How she is portrayed in those pictures and videos is not how she wants to be perceived.

Those who take it upon themselves to download, view, save and share my child's inappropriate pedophiliac merchandise take part in continually harming her. Perpetrators have blatantly premeditated their motives and have activated those actions against her will. Individuals who possess her child sexual abuse products should no doubt be held accountable and take full moral responsibility for their own contribution to the continued exploitation crisis that my child and many others continue to endure.

Because of these perpetrators' antics, my child has secluded herself from enjoyment of a fulfilling life. This is the only coping mechanism she believes she has to protect herself. She tries to hide herself by not leaving the house. If she does, she fears she may be recognized. She feels that she is damaged beyond repair. She wants the memories to vanish. Until the Internet has mandatory regulations and rules that aim to protect her and other victims against child sexual abuse material, the images will continue to exist. The evolution of technology has been her nemesis. As of now, she cannot escape the abuse, nor can the abuse escape her.

I will fight for my child and be an advocate for the protection she deserves. This should not be a debate. My child has suffered in silence for far too long. She should not be ashamed, nor should she feel guilty about the personal attacks that take place on the uncontrolled Internet. Allow her and others to find their dignity again.

Moving forward, we have a choice to be the change and shape the future of all children. My little girl is not solely a victim of hands-on offending. She is revictimized every single time her child sexual abuse material surfs throughout the dark web. What kind of person doesn't want to protect the future of our children or grandchildren? I will say it again with urgency: We need a culture of lawfulness that strongly enforces Internet regulation. The unregulated Internet has damaged my child and countless children across the nation.

[The Vice-Chair, Conservative, Larry Brock]

Thank you, Witness Number One.

I now recognize Mr. Van Popta. Sir, you have six minutes.

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

Thank you, Mr. Chairman.

Thank you to all the witnesses.

Jane, thank you for your very courageous statement.

Before I get into questions for the witnesses, I would like to read a motion into the record, a notice of motion, which reads:

Given that: a need exists to quickly pass provisions to keep Canadians safe while protecting free speech; members of several political parties have expressed a need to split Bill C-63 in part due to reservations about the bill's provisions involving restrictions on speech; the committee is currently doing a pre-study on Bill C-63; Bill C-63 proposes giving full responsibility to develop regulations for online platforms to a regulator that hasn't been formed yet, and does so with too much ambiguity on what regulations this body will propose or administer; based on witness testimony, a better approach to keep Canadians safe online while protecting their civil liberties would be to legislate a defined list of responsibilities that online platforms have to undertake to keep Canadians safe; That the committee proceed to concurrently pre-study Bill C-412, promotion of safety in the digital age act, along with its pre-study of Bill C-63, so as to examine other legislative options to protect Canadians online, which could be quickly advanced by consensus without the controversial elements of C-63.

That's the motion, Mr. Chair.

[The Vice-Chair, Conservative, Larry Brock]

Mr. Van Popta, you are only giving notice at this point, you're not moving it. Is that correct?

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

I'm just giving notice of it; that's right.

[The Vice-Chair, Conservative, Larry Brock]

Thank you.

You have about four and a half minutes left.

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

Well, thank you so much.

Ms. McNicoll, I have a question for you. This is a study of Bill C-63, and I know, from your testimony and from what I read about what your organization has said, that you're very well versed on the topic. Before I ask you a question on it, I want your opinion of Bill C-412, which I just mentioned in this motion. It's a private member's bill by a Conservative member of Parliament, our colleague Michelle Rempel Garner, that deals with some of the same issues and subject matter as Bill C-63.

I'll just give a very high-level overview of it. Bill C-412 will modernize the existing crime of sexual harassment to deal with online harassment. It will require social media platforms to increase safeguards for children around bullying, sexual violence, self-harm, and sexual abuse material—as witness Jane mentioned—and it will update Canada's existing laws around distribution of non-consensual, artificially produced images—deepfakes, in other words. Bill C-63 does not address any of those topics, so there's a big gap there that we think C-412 will fill. Here's my question: Would you agree that these are important subject matters that should be discussed on a priority basis, an opportunity that is presented by Bill C-412?

[Anaïs Bussières McNicoll]

Thank you for your question.

Obviously, to make informed comments on the bill, I would need to know the details. Luckily, I've had a chance to read the bill, so I am familiar with some of the issues it deals with. I agree that the types of harmful content you mentioned are problems.

Bill C‑412may give rise to fewer freedom of expression issues, but it does raise concerns around privacy and the right to equality.

I'll explain what I mean. Much of the bill refers to parental controls in relation to the content available to minors. When it comes to parental controls, it's important to understand that existing methods to verify a user's age are flawed, and raise concerns related to privacy and the right to equality.

Certainly, the methods have to be effective. They can't discriminate against people on the basis of ethnicity, and the personal inormation collected for age verification purposes has to be handled appropriately. In other words, the collection of the data must adhere to the privacy principles that exist in Canada.

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

Understood.

I'm happy that you have some familiarity with Bill C-412. In your opinion, could Bill C-412 and Bill C-63 be studied at the same time?

[Anaïs Bussières McNicoll]

That is outside my area of expertise.

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

Fair enough.

In your testimony, you referenced parts 1, 2 and 3. You're happy that parts 2 and 3 have now been removed. I know that your organization recommended that, so the minister listened to your recommendation. Congratulations.

My question is on whether part 4 of Bill C-63 could be separated out completely and dealt with separately to accelerate the protection it would afford to people who are sexually harassed. Part 4, just for your reference, amends An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. Part 1, on the other hand, creates a regulatory body. It will be time-consuming and expensive to get there. Part 4, if it's separated out completely, could be dealt with very quickly.

What's your opinion on that?

[Anaïs Bussières McNicoll]

I would say that part 4 is certainly less problematic.

However, part 1 is very important. I know that civil society groups spent a lo of time examining that part of the bill and that many of them are prepared to take a position on it, including ours.

[The Vice-Chair, Conservative, Larry Brock]

You have nine seconds left.

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

I can't do anything good in nine seconds.

Thank you, Madam McNicoll, for your testimony.

[The Vice-Chair, Conservative, Larry Brock]

Thank you, Mr. Van Popta.

Mr. Mendicino, you have six minutes, sir.

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

I think it's Ms. Brière.