CBA expresses concern over proposed law restricting underage access to sexually explicit materials

Proposed law provides an 'arbitrary' age limit, CBA said

CBA expresses concern over proposed law restricting underage access to sexually explicit materials

The Canadian Bar Association has commented on a proposed federal law introduced by Parliament in November 2021 to protect young persons from serious harm arising from increased accessibility to sexually explicit materials.

While it generally supports the adoption of Bill S-210 or Protecting Young Persons from Exposure to Pornography Act, the CBA expressed concerns over some provisions in the bill.

In particular, the CBA said that the bill provides an “arbitrary” age limit. Under the bill, the term “young person” pertains to an individual under 18 years of age. On the other hand, the baseline age of consent to sexual activity in Canada is 16 years. The Criminal Code allows children as young as 12 to engage in sexual activity in certain circumstances.

“It is therefore discordant with the Criminal Code’s overall legislative scheme to permit an older young person to engage in sexual activity while making it simultaneously illegal to distribute documents depicting sexual activity to those same young persons,” the CBA said.

The CBA suggested that the proposed age limit be amended to forbid organizations from distributing pornography to young persons under 16.

The CBA also said that s. 6(2) of the bill, which outlines the defence of legitimate purpose, contains “confusing and overboard” language. Section 6(2) states, “No organization shall be convicted of an offence . . . if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts.”

“The word ‘legitimate’ is a synonym for ‘lawful’ and can only mean, within the context of legislation, that which is and that which is not ‘legitimate’ according to its words,” the CBA said. Moreover, “the listed qualifying descriptors of ‘science,’ ‘medicine,’ ‘education’ and ‘arts’ cover a large swath of human experience.”

The CBA added that in many instances, a material could be both artistic and pornographic, and if both, determining whether it is also “legitimate” may be an entirely subjective inquiry.

With this, the CBA suggested that the bill should specify the inapplicability of the legitimate purpose defence to the transmission of pornographic materials for entertainment or sexual gratification purposes, given that the word “legitimate” offers no guidance as to the proper application of s. 6(2) and the qualifying descriptors are broad and subjective.

The bill also includes provisions requiring pornography distributors to implement prescribed age verification methods to limit young people’s access to sexually explicit materials.

According to CBA, the bill lacks provisions on how the government will balance privacy and protection. These methods, the CBA noted, could reveal the identity of individuals accessing internet pornography and their specific sexual proclivities and interests.

The CBA also noticed that the bill does not provide any measures to ensure that the government will neither collect nor retain personal data.

If data must be collected, the CBA suggested that the bill be amended to include provisions ensuring that personal data will not be improperly retained, accessed or misused.

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