When I first wrote about the arrival of Bill S-210 in the House of Commons back in December, I dubbed it the most dangerous Canadian bill you’ve never heard of and warned that “Senate private members bills rarely become law, but this bill is suddenly on the radar screen in a big way.” Nearly six months later, the bill is closer than ever to becoming law as the Conservatives improbably appear to be doubling down on support and seeking to limit witness testimony through filibuster tactics that could result in a full House vote without any amendments. For those new to the bill, the government has called it “fundamentally flawed” since it contemplates measures that raise privacy concerns through mandated age verification technologies, website blocking, and extends far beyond pornography sites to include search and social media. While the government has opposed it (save for a small number of Liberal MPs), the bill received full backing from Conservative, NDP, and Bloc MPs to send to the Standing Committee on Public Safety for further review. Now that it is there, the Conservative MPs have used filibuster tactics to block all witness testimony on the bill.

I appeared before the Senate committee that studied the bill in February 2022, where I argued that “by bringing together website blocking, face recognition technologies, and stunning overbreadth that would capture numerous mainstream services, the bill isn’t just a slippery slope, it is an avalanche.” The basic framework of Bill S-210 is that it creates an offence for any organization making available sexually explicit material to anyone under the age of 18 for commercial purposes. The penalty for doing so is $250,000 for the first offence and up to $500,000 for any subsequent offences. The enforcement of the bill is left to the designated regulatory agency – which could become the CRTC – to issue notifications of violations to websites and services. Those notices can include the steps the agency wants followed to bring the site into compliance. This literally means the government via its regulatory agency will dictate to sites how they must interact with users to ensure no underage access.

While the focus of MPs is on sites like Pornhub, the bill is not limited to pornography sites. Rather, it applies to any site or service that makes sexually explicit materials available. This could include search engines, social media sites such as Twitter, or chat forums such as Reddit, where access to explicit material is not hard to find. All of these sites would be required to implement age verification technologies, which raises serious privacy concerns and potential face scanning requirements.

In addition to the age verification requirements, the bill also envisions mandated website blocking that is focused on limiting user access and can therefore be applied to websites anywhere in the world with Canadian ISPs required to ensure that the sites are rendered inaccessible. In fact, the bill not only envisions the possibility of blocking lawful content or limiting access to those over 18, it expressly permits it. Section 9(5) states that if the court determines that an order is needed, it may have the effect of preventing access to “material other than sexually explicit material made available by the organization” or limiting access to anyone, not just young people. This raises the prospect of full censorship of lawful content under court order based on notices from a government agency. 

I raised many of these concerns on a Law Bytes podcast with the creator of the bill, Senator Julie Mivelle-Dechêne. Mivelle-Dechêne indicated that the committee hearings would offer a good opportunity to address the concerns and raise potential amendments (those could include a threshold to eliminate the application of the law to popular search and social media sites). Yet it appears that the Conservatives plan to filibuster committee hearings to prevent any witnesses from actually testifying. There have been two committee hearings devoted to the bill thus far and both have been filibustered, thereby preventing any testimony from Mivelle-Dechêne or government officials. At the first hearing on May 6^th, Conservative MP Garnett Genuis raised a point of order for considering a subcommittee report on agenda and procedure before proceeding with the witnesses. That led to delays and a House vote ended the entire hearing without any witness testimony. Three days later on May 9^th, once again Genuis raised the subcommittee report, leading to nearly two hours of filibustered discussion and no witness testimony.

Meanwhile, over at the Standing Committee on Access to Information, Privacy, and Ethics, the committee discussed Bill S-210 with Conservative MPs confirming their support. The committee isn’t actually studying the bill, but the bill took centre stage after Liberal MP Iqra Khalid stated:

So when I see rhetoric around the implications of the Charter of Rights and Freedoms and what our Constitution is in the future, it really makes more very alarmed. In the context of what social media impacts, digital IDs, for example, the proposition thereof, in terms of what political parties and the Leader of the Opposition is saying, it really alarms me.

That sparked a response from Conservative MP Damien Kurek, who jumped immediately to Bill S-210:

What’s interesting is there was some support from all parties, but functionally what this motion and Ms. Khalid seems to be doing is somehow stand up for the very companies that she just stated she didn’t trust. She wants to stand up and allow them to distribute violent, pornographic material to minors. That is astounding, shocking, and quite frankly, absolutely disgusting. I’ve taken great interest in Bill S-210 because of how the detrimental effects that a young person being exposed to violent, explicit material can have on a young person’s mental health, and their ability to form productive relationships. For the Liberal Party to be doing the bidding of a company like MindGeek that runs sites like Pornhub that is willfully – and the Privacy Commissioner referenced earlier today how they’ve just completed a study on some of the privacy concerns with that – astounding that they would be opposed to this, something that united all Senators.

Kurek continued – later supported by Conservative MP Michael Barrett – and made the Conservative strategy on Bill S-210 clear: filibuster the actual study of the bill and claim opponents are siding with pornography sites. Of course, a study of the bill would reveal that the actual bill raises serious risks of targeting general purpose search, social media, and chat sites. The bill is scheduled to be reported back to the House in early June, which means that a couple of more filibustered hearings would prevent any expert testimony. As a result, the bill might well be sent back unchanged with no substantive study and provisions that raise enormous privacy and freedom of expression risks intact.

Whether you agree or disagree with the bill – I obviously think it is needs significant changes – surely everyone can agree that proper study is in the public interest. The Conservatives’ support for the bill remains puzzling given that the actual bill – not the fictional “it’s just about Pornhub” version – runs counter to the party’s longstanding emphasis on Internet freedoms. Yet seeking to stop witness testimony is incredibly dangerous and makes a mockery of prior Internet regulation hearings on Bills C-11 and C-18 when Conservative MPs emphasized the need for more extensive witness testimony. They were right then and wrong now. Bill S-210 should be defeated, but before doing so, it demands proper study. Stop the filibuster and extend the hearings to ensure that children, freedom of expression, and privacy are all protected.