Mr. Speaker, I am very pleased to speak to Bill C-270, an act to amend the Criminal Code (pornographic material), at second reading.

I would like to begin my remarks by stressing the bill's important objective. It is to ensure that those who make, distribute or advertise pornographic material verify that those depicted in that material are at least 18 years of age and have consented to its production and distribution.

As the sponsor has explained, the bill's objective is to implement recommendation number two of the 2021 report of the House of Commons Standing Committee on Access to Information, Privacy and Ethics. Specifically, that report recommends that the government “mandate that content-hosting platforms operating in Canada require affirmation from all persons depicted in pornographic content, before it can be uploaded, that they are 18 years old or older and that they consent to its distribution”.

This recommendation responds to ongoing concerns that corporations like Pornhub have made available pornographic images of persons who did not consent or were underage. I want to recognize and acknowledge that this conduct has caused those depicted in that material extreme suffering. I agree that we must do everything we can to protect those who have been subjected to this trauma and to prevent it from occurring in the first place. I fully support the objective of the committee's recommendation.

I want to say at the outset that the government will be supporting this bill, Bill C-270, at second reading, but with some serious reservations. I have some concerns about the bill's ability to achieve the objective of the committee's recommendation. I look forward, at committee, to where we can hear from experts on whether this bill would be useful in combatting child pornography.

The bill proposes Criminal Code offences that would prohibit making, distributing or advertising pornographic material, without first verifying the age and consent of those depicted by examining legal documentation and securing formal written consent. These offences would not just apply to corporations. They would also apply to individuals who make or distribute pornographic material of themselves and others to generate income, a practice that is legal and that we know has increased in recent years due to financial hardship, including that caused by the pandemic.

Individuals who informally make or distribute pornographic material of themselves and of people they know are unlikely to verify age by examining legal documentation, especially if they already know the age of those participating in the creation of the material. They are also unlikely to secure formal written consent. It concerns me that such people would be criminalized by the bill's proposed offences, where they knew that everyone implicated was consenting and of age, merely because they did not comply with the bill's proposed regulatory regime governing how age and consent must be verified.

Who is most likely to engage in this conduct? The marginalized people who have been most impacted by the pandemic, in particular sex workers, who are disproportionately women and members of the 2SLGBTQI+ communities. Notably, the privacy and ethics committee clearly stated that its goal was “in no way to challenge the legality of pornography involving consenting adults or to negatively impact sex workers.” However, I fear that the bill's proposed reforms could very well have this effect.

I am also concerned that this approach is not consistent with the basic principles of criminal law. Such principles require criminal offences to have a fault or a mental element, for example, that the accused knew or was reckless as to whether those depicted in the pornographic material did not consent or were not of age. This concern is exacerbated by the fact that the bill would place the burden on the accused to establish that they took the necessary steps to verify age and consent to avoid criminal liability. However, basic principles of criminal law specify that persons accused of criminal offences need only raise a reasonable doubt as to whether they committed the offence to avoid criminal liability.

I would also note that the committee did not specifically contemplate a criminal law response to its concerns. In fact, a regulatory response that applies to corporations that make, distribute or advertise pornographic material may be better positioned to achieve the objectives of the bill. For example, our government's bill, Bill C-63, which would enact the online harms act, would achieve many of Bill C-270's objectives. In particular, the online harms act would target seven types of harmful content, including content that sexually victimizes a child or revictimizes a survivor, and intimate content communicated without consent.

Social media services would be subjected to three duties: to act responsibly, to protect children and to make content inaccessible that sexually victimizes a child or revictimizes a survivor, as well as intimate images posted without consent.

These duties would apply to social media services, including livestreaming and user-uploaded adult content services. They would require social media services to actively reduce the risk of exposure to harmful content on their services; provide clear and accessible ways to flag harmful content and block users; put in place special protections for children; take action to address child sexual exploitation and the non-consensual posting of intimate content, including deepfake sexual images; and publish transparency reports.

Bill C-63 would also create a new digital safety commission to administer this regulatory framework and to improve the investigation of child pornography cases through amendments to the Mandatory Reporting Act. That act requires Internet service providers to report to police when they have reasonable grounds to believe their service is being used to commit a child pornography offence. Failure to comply with this obligation can result in severe penalties.

As I know we are all aware, the Criminal Code also covers a range of offences that address aspects of the concerns animating the proposed bill. Of course, making and distributing child pornography are both already offences under the Criminal Code. As well, making pornography without the depicted person's knowledge can constitute voyeurism, and filming or distributing a recording of a sexual assault constitutes obscenity. Also, distributing intimate images without the consent of the person depicted in those images constitutes non-consensual distribution of intimate images, and the Criminal Code authorizes courts to order the takedown or removal of non-consensual intimate images and child pornography.

All these offences apply to both individuals and organizations, including corporations, as set out in section 2 of the Criminal Code. Should parliamentarians choose to pursue a criminal response to the concerns the proposed bill seeks to address, we may want to reflect upon whether the bill's objectives should be construed differently and its provisions amended accordingly.

I look forward to further studying such an important bill at committee.

James Maloney

$586,903.00