Public Safety Committee on May 27th, 2024

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. MacDonald.

Ms. Michaud, it's over to you for two and a half minutes.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Mr. Ripley, I want to go back to the definition of sexually explicit material. My colleague Mr. Genuis raised a good point. If there's a concern that nudity or a sex scene in a film or series will be considered sexually explicit material if Bill S‑210 comes into force, it raises questions about the sexually explicit material that already exists. Some movie scenes are already considered as such.

That's why I'm not sure what your concern is.

[Owen Ripley]

Thank you. That's a good question.

The Criminal Code includes that definition, but it also refers to other types of offences. Showing sexually explicit material to a child could very well violate the Criminal Code in a particular context, but it also mentions other Criminal Code offences. That's the answer to your question. It's not just a matter of setting limits. It's not the same thing.

As I mentioned at the outset, the government is also concerned about the mix of criminal law and regulatory law. If the intent is to create a regulatory framework, the positive obligation to limit access to pornography for children should be clarified. A regulatory framework should then be developed with appropriate penalties. However, the way the bill is currently drafted, it isn't clear whether Parliament's intent is to create a criminal offence or to establish a regulatory framework.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

How do you think the bill should be clarified in that regard?

[Owen Ripley]

If Parliament intends to create a regulatory framework, it should clearly establish a positive obligation and then use the tools that are usually used in a regulatory context, such as administrative monetary penalties.

However, the bill creates a new offence, for which certain defences are provided, but it also allows the agency responsible for enforcing the act to seek an order to limit access to certain websites. That means we could find ourselves in a situation—the bill confirms this—where websites that provide many types of content, including pornography, would be blocked. The question is whether website blocking is an appropriate and proportionate response that respects the rights of Canadians to access information and content. However, with all due respect to the committee, the government does not believe that website blocking is a proportionate response to the framework proposed here.

[The Chair, Liberal, Ron McKinnon]

Thank you.

We'll go now to Mr. MacGregor for two and a half minutes, please.

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

Thank you, Mr. Chair.

The testimony today has been interesting. I think it's led the committee down a few different paths as we consider Bill S-210.

Mr. Ripley, we've heard a lot about the potential pitfalls with the term “sexually explicit material” as referenced in the Criminal Code and how it could be overly broad. If we go down further in the bill—still on page three, in proposed subclause 6(2)—it says:

No organization shall be convicted of an offence under section 5 if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts.

Wouldn't that “legitimate purpose” phrase, from the department's standpoint, save streaming companies like Netflix, since they would be under the arts category? How do you interpret that section?

Does that add further clarity to the concerns you raised about the definition of sexually explicit material?

[Owen Ripley]

Thank you for the question.

My understanding is that this type of exception is also drawn from the Criminal Code context in a situation whereby, again, you want to make sure that someone does not have a criminal prosecution for engaging in one of these activities. The government isn't clear how this would necessarily be interpreted.

In a context where—again, from the government's read of the bill—it would apply to a very wide range of Internet services, from search engines to Internet service providers and from social media to websites, you are creating a good deal of business uncertainty by saying that Netflix and Disney+ are going to have to make the case that it's the arts—

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

Can I just interrupt?

Is that because the term “legitimate purpose” is open to interpretation? Is that the problematic element?

[Owen Ripley]

The challenge, to me, would actually be communicating that, for example, entertainment content on those streaming services falls under the arts. It would be incumbent upon them to show it.

I would also just highlight from the previous exchange that there is no defence about believing the person accessing the content was 18 or over. The way the bill is structured is it is an offence to make this kind of content available. The defence is whether you have deployed one of the prescribed age verification technologies set out in the regulations.

Again, it is a very binary framework that is being set up. The entity that is going to be charged with administering it has very few enforcement mechanisms available to deal with the kind of nuances you are bringing up.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. MacGregor.

Thank you to all of our witnesses for being here tonight and for bearing with us until this late hour.

Thank you to our analysts and interpreters, as well, and to all of our staff.

With that, I believe we have a consensus that it's time to adjourn. We are adjourned.