Fourth Session, 42nd Parliament

(2023) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, March 30, 2023

Afternoon Sitting

Issue No. 295

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Routine Business

Tributes

Lally Baring-Gould

Hon. M. Dean

Orders of the Day

Committee of the Whole House

Bill 12 — Intimate Images Protection Act (continued)

M. de Jong

Hon. N. Sharma

Report and Third Reading of Bills

Bill 12 — Intimate Images Protection Act

Committee of the Whole House

Bill 17 — Family Law Amendment Act, 2023

Hon. N. Sharma

M. de Jong

Royal Assent to Bills

Bill 12 — Intimate Images Protection Act

Bill 14 — Miscellaneous Statutes (Modernization) Amendment Act, 2023

Bill 15 — Vital Statistics Amendment Act, 2023

Bill 16 — Supply Act (No. 1), 2023

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Forests (continued)

Hon. B. Ralston

M. Bernier

D. Ashton

A. Olsen

T. Shypitka

M. Lee

Proceedings in the Birch Room

Committee of Supply

Estimates: Ministry of Environment and Climate Change Strategy (continued)

R. Merrifield

Hon. G. Heyman

T. Shypitka

E. Ross

THURSDAY, MARCH 30, 2023

The House met at 1:02 p.m.

[Mr. Speaker in the chair.]

Routine Business

Tributes

LALLY BARING-GOULD

Hon. M. Dean: Earlier this month we lost a cherished resident of Metchosin.

Lally Baring-Gould was born in Glasgow in Scotland in 1939. After

completing her BA at UVic, she met her first husband, Smokey, and they

had two sons, Ben and Nathan. In 1975, she married Bill and settled in

Cordova Bay. In 1992, she moved to Metchosin.

Lally was very much dedicated to preserving the rural character of

the district and other environmental issues. She had a very extensive

network of family and friends. She touched very many people and always

welcomed visitors to her house. There will be a celebration of life in

April.

I would ask everybody to join me in sending our condolences to the

family.

Orders of the Day

Hon. M. Farnworth: In this chamber, I call Committee of the Whole for Bill 12, the Intimate

Images Protection Act.

Then in Committee A, I call continued debate on the Committee of Supply

for the Ministry of Forests.

In committee room C, I call continued debate in the Committee of Supply

for the Ministry of Environment and Climate Change Strategy.

Committee of the Whole House

BILL 12 — INTIMATE IMAGES

PROTECTION

ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 12;

J. Tegart in the chair.

The committee met at 1:05 p.m.

On clause 1 (continued) .

The Chair: We’ll call the committee to order.

M. de Jong: Just before we pick up again with the last remaining…. I think

I’ve got a question about one or two more of the

definitions, and then

we’ll be able to move out of clause 1.

I wanted to ask this. In the case of a piece of legislation like

this that is tied fairly closely to the work of the working group of the

Uniform Law Conference of Canada…. My recollection is that in terms of

the processes within the government of British Columbia — this likely

predated the present Attorney General’s arrival on the scene — the

decision to move ahead with this legislation would have still triggered

the creation of what we call an RFL, or a request for legislation, which

would have made its way to legislative counsel to be turned into a piece

of legislation.

Is that correct? Is that the process that was followed in this

case?

Hon. N. Sharma: It did. It followed the process that we have here for creating

legislation in B.C., with an RFL.

M. de Jong: To be clear, that involved the creation of a request for

legislation, RFL, and the involvement of legislative counsel.

The third part of that question. Legislative counsel is still

housed within the Ministry of the Attorney General.

Hon. N. Sharma: Yes to all of those questions.

M. de Jong: The next term that is, I suppose, arguably one of the most

important in the body of legislation before us is the term “intimate

image.” Much turns on what the act deems to be an intimate image. It’s

here that we see reference to notions of altered images and also

unidentifiable images.

If I can break this down a little bit, when one reads some of the

commentary from the Uniform Law Conference of Canada report, it makes

reference, obviously, to the definition. It recommends a definition of

“intimate image.” That recommendation included what the government and

the Attorney have done, which is include in the definition a reference

to an altered image.

So for the record, an intimate image is: “a visual recording or

visual simultaneous representation of an individual, whether or not the

individual is identifiable and whether or not the image has been altered

in any way, in which the individual is depicted….” Then it lists five

ways that an individual can be depicted. I won’t read that out just

yet.

In deciding and recommending, and the government has accepted this

recommendation around altered images, the working group of the Uniform

Law Conference spoke about the increasing incidents of altered images,

video or sound. It used a term, and the term…. I’ve heard others use it,

and I hadn’t heard the term before, but it seems to be a key part of

this. It’s called a deepfake.

[1:10 p.m.]

The simplest question I can ask is: what is that? What is its

relevance to…? Although the term is not used, those recommending the

language in this definitional

section very much had a deepfake in mind

when they recommended this language.

Hon. N. Sharma: A deepfake is when an image of somebody is taken, altered and made

to look like the person is doing things, with blinking eyes and a moving

body in a way that’s not there. The use of technology right now makes it

so deepfakes can be very accurate in terms of how it shows and shows up

to look like the person, but the person is doing things that they never

did.

The definition. This is an example, with altered images, where we

took the Uniform Law Conference’s legislation, and we went through a

rigorous consultation process here. We added things to our process and

to our content to make it the most up-to-date as possible. So the

altered images provision is meant to include things like

deepfakes.

M. de Jong: Okay. Well, thank you.

In terms of the things that were added, are those…? The specific

five subsections included in this — is that what the Attorney is

referring to: sub (a) “engaging in a sexual act,” (b) “nude or nearly

nude”? When she says that the government chose to add things to that

definition, does she mean add specificity as laid out in subs (

a) through (

e) of the section?

Hon. N. Sharma: Yeah, there are some modifications between the model bill that the

member was referring to and what is before us today, in terms of the

specific language. Some of it’s convention, and some of it is addition

through our process.

We can go through specific ones if you…. It’s evident when you

compare the two, but if you have specific questions, I’m happy to

answer.

M. de Jong: Well, I won’t ask the general question, because I think that’s

unfair. It’ll be a bit unwieldy if I ask that now.

As it relates to the definition of “intimate image,” this really

key core defined term, can the minister summarize what she sees as the

significant differences between what the Uniform Law Conference was

recommending in its model legislation versus what is here?

Hon. N. Sharma: The most significant addition is “simultaneous representation.”

You’ll see, in subclause (e), simultaneous representation, which is

meant to capture things that are taken in real time and streaming, like

with TikTok or some of the other ways that things show up on media

platforms. That’s one way.

[1:15 p.m.]

There are other ways throughout that are worded differently

between the two, but that’s the most significant policy addition that we

saw needed to be added to the definition.

M. de Jong: What old guys like me would still refer to as a live broadcast

would be a simultaneous transmission.

All right. All of us have seen examples of photographs or videos

where someone’s face might be obscured. The technology to do that has

evolved, and it’s apparently relatively easy to do now. That could

qualify and be covered as an altered intimate image within the meaning

of this definition?

Hon. N. Sharma: Yes.

M. de Jong: The second part of the definition that someone — a layperson, at

least, and maybe even more than a layperson — would pause to consider is

the decision in the legislation — and again, to be fair, flowing, I

suspect, from the recommendation that was contained in the Uniform Law

Conference — to capture, in the provisions of the act…. Well, the key

phrase in the definition is “whether or not the individual is

identifiable.”

On the surface, a person might conclude that if the person is not

identifiable, then where is the risk? Where is the risk of harm in a

piece of legislation that examines the issue from the victim’s

perspective?

Why don’t we start there, because I think, in this day and age and

based on what we’re told is out there and sometimes posted, the fact

that someone — a claimant or an applicant — can proceed on the strength

of a photo that is not identifiable or where the individual is not

identifiable might strike some people as, at a minimum,

interesting.

Hon. N. Sharma: A person who is not identifiable in an intimate image still has a

reasonable expectation of privacy and can still bring an action under

this legislation. Privacy, sexual identity and sexual identification are

all still issues of concern for a person depicted in a photo, whether or

not their face is visible.

Limiting the definition to “identifiable images” would focus too

much on the reputational harm and fail to give consideration to the

social harms, including invasion of privacy, loss of sexual autonomy,

sexual objectification and emotional distress.

Unidentifiable people deserve the same protections as identifiable

people because you can experience emotional distress in both

cases.

We should also be mindful that, over time, information can be

pieced together, revealed in an image, or established, or at least, to

create a strong inference of the identity of a person and an

image.

M. de Jong: I’ll ask these few questions here, and then if I make the mistake

of asking them again around clauses 5 or 6, the Attorney will be

entitled to say: “Well, we answered that.” I won’t purport to repeat the

questions because I think they’re applicable in either of the

sections.

So a claimant or an applicant, and I probably should specify

which, but I’ll think about that for a moment while I’m speaking, comes

before the tribunal seeking to avail themselves…. Well, let’s say it’s

an applicant seeking injunctive relief in the first stage.

[1:20 p.m.]

They say to the tribunal: “Here is an intimate image that I am

seeking injunctive relief for, a takedown order.” On the surface, at

least, it’s unclear that that is a…. At least, for the tribunal, it is

unclear whether that is an image of the claimant.

At that stage, is the claimant…? Sorry, applicant. The terms are

important here. At that stage, is the applicant obliged to convince or

prove to the tribunal that, even though the image is not identifiable,

it is an image of them?

Hon. N. Sharma: The relevant provision in

section 5 states pretty clearly that the

applicant must satisfy the decision-maker that the image is an intimate

image depicting the applicant.

M. de Jong: All right. Well, that’s pertinent and relevant.

The significance of that, for the purpose of the definitional

section, is that people keep in mind…. Even though the image, on its

face, need not be identifiable with respect to an individual…. We

haven’t talked about, for example, an image of genital organs or a

region of the breasts. Even though a third party would not necessarily

be able to identify that image with an individual, that does not

preclude seeking relief under the act. But in seeking that relief, the

applicant needs to satisfy the tribunal that it is an intimate image of

them.

Hon. N. Sharma: Yes.

M. de Jong: The Attorney referred, a few moments ago, in sort of broad terms,

to the importance of the concept of a reasonable expectation of

privacy.

I take it that that is, thematically, what distinguishes much of

the approach here. The decision flowing, again, from the Uniform Law

Conference was to build this statutory tort around the notion of privacy

as opposed to harm. If I’ve got that correct at the moment, the Attorney

can confirm that. The reasonable expectation of privacy becomes a

fundamental part of what an adjudicator needs to look at in terms of

granting relief.

[1:25 p.m.]

Let’s start by asking for the Attorney and government’s view of

what constitutes a reasonable expectation of privacy, in terms of what

an adjudicator is going to look at.

Hon. N. Sharma: I’ll start by saying that the reasonable expectation of privacy

has kind of a rich series of case law, when it comes to the common law,

all the way up to the Supreme Court of Canada, and that’s ever-evolving

in different circumstances. What this legislation seeks to do is to

clarify the principles of a reasonable expectation of privacy and how

they apply to the non-consensual disclosure of intimate

images.

For example, it establishes that your reasonable expectation to

privacy is not lost if an image of yourself is distributed, or if you’ve

distributed it to one person. That person then can distribute it to

everybody. If you’ve only given consent to that one person, and that

person distributed it…. It basically sets out the bounds when it comes

to non-consensual disclosure of intimate images. In that sense, it’s

clarifying the role of the reasonable expectation of privacy with

relation to this matter.

M. de Jong: I’m going to do something now, perhaps at my peril, because as the

minister says, the lens through which this legislation was drafted and

is being advanced is that of someone that has either been victimized or

is threatened with victimization.

I will suggest this. In the age we live in…. Happily, because of

the views that society has properly formed about those who would seek to

victimize people, someone who becomes the subject of a claim under this

act is likely to, and perhaps appropriately, suffer some reputational

damage. It may be more than just that, so having some clarity

around….

[1:30 p.m.]

Again, coming back to the working group’s report, they discuss

aspects of reasonable expectation of privacy and make the point that the

photograph of a person wearing a bikini on a public beach that

subsequently is distributed. In that case, there likely isn’t a

reasonable expectation of privacy. At least, I think that’s what they

suggest.

You can take that example further, I suppose. A photograph of a

person who is topless on that beach, who is then photographed on a

public beach, and that photograph is distributed. I don’t think it’s

fair for me to ask the Attorney to comment on every conceivable scenario

that is out there, but it suggests to me that there are a range of

factors that come into play, including the setting in which the image

was captured. Is that a fair comment?

I would say this. Someone that captures an image in a very public

setting and then posts that image would not want to find themselves on

the receiving end, necessarily, of a claim. Although there are

protections for the identity of the applicant or claimant, I don’t think

there are any such protections for the identity of the

respondent.

Hon. N. Sharma: I wonder if I could seek clarity from the member if we’re now on

section 2.

M. de Jong: We’re not, although I understand why the Attorney might think

that. The term “reasonable expectation of privacy” as it appears in the

definition of intimate image.

I am indifferent as to where we have this conversation and don’t

plan to repeat it in

section 2.

Hon. N. Sharma: Under

section 2 of the act, it sets out reasonable expectation of

privacy as to how it applies to this act. I can say that this is going

to be an evolving area of law that is fact specific, depending on

whether or not they would find that that reasonable expectation of

privacy existed in that scenario.

[1:35 p.m.]

The member brought up some examples. I think this one’s

illustrative in response to your example. For example, if a person is in

a public park or on a beach, like you mentioned, there may be a

conclusion that there’s not, in general, a general sense of an

expectation of privacy.

But if there’s somebody with a hidden camera or a hidden lens or a

telescopic lens — there are all those different forms of technology that

capture images that exposes that person in a way that they’re not

exposed; so for example, and unfortunately this happens, up a person’s

skirt, or something like that — I think then you could see a court or

adjudicator deciding that that has been tripped over to having an

element of a breach of a reasonable expectation of privacy to

it.

It’s going to be just like the area of the law right now, when it

comes to reasonable expectation of privacy. It’s going to be very fact

specific and based on the scenario that’s before the

decision-maker.

M. de Jong: Yeah, I saw that, again, referenced in the working group, the

phenomenon the minister has described of upskirting, which I take it is,

what she said, someone finding a way to manipulate a camera lens into

people’s intimate parts under their clothing.

Would it be fair to say, as a guide to the behaviour of people,

that a normal, unaltered photograph taken of a person in a public

setting where others are observing that person would generally not

attract a reasonable expectation of privacy?

Hon. N. Sharma: There are so many factors that could switch that over, so it’s

really hard to answer that question. Like, for example, if it was a nude

beach, but it was roped off and said “no pictures” — right? —that

changes that scenario. I just think it’s really hard to draw a line

around something without a full factual basis. But what I would say is

that if there’s any doubt, what we’re trying to say is that you should

have the person’s consent before you take the image or distribute

it.

M. de Jong: I think the last question on this issue…. In a circumstance where

an image has been captured…. Let us say a photograph, for these

purposes. It is captured in circumstances where an adjudicator would

find there is not a reasonable expectation of privacy at that time and

the image is subsequently distributed.

[1:40 p.m.]

Is the act constructed in a way generally that would allow the

person depicted in that image to argue the equivalent of this: “Yes, I

agree that at the time, I did not have a reasonable expectation of

privacy because I was on a public beach. I understand that, but I’m no

longer comfortable with having that image, and therefore, I wish to

invoke my reasonable expectation of privacy after the fact and have that

image deemed intimate for the purpose of the act and taken

down”?

Hon. N. Sharma: In one scenario, it’s inherent in the definition of “intimate

image,” and one of the components is that at the time, the individual

had a reasonable expectation of privacy. I think that’s one of the

scenarios you talked about. Then in that situation, it doesn’t form the

definition of an intimate image if that reasonable expectation of

privacy didn’t exist at the time that it was taken, right?

We do have provisions in here that talk about whether or not there

was a reasonable expectation of privacy, but there was consent. If the

person had consented at the time, under that circumstance, for

distribution, but they revoked that consent, then they’re able to pursue

a claim, because consent can change at any time.

M. de Jong: I think the Attorney has answered the question in a way that makes

sense to me. There is that distinction that where there is not a

reasonable expectation of privacy at the time, that is not something

that can be cured later. The definition of intimate image has not been

satisfied, therefore. In the second example, the definition has been

satisfied. Consent has been granted but then later, as provided. I think

the Attorney has helpfully drawn the distinction.

That’s it for clause 1.

Clause 1 approved.

On clause 2.

M. de Jong: The part of clause 2 that I just wanted to spend a moment

canvassing with the Attorney is sub 2(b)(ii) — which, read in its

entirety, again, comes back to this notion of a reasonable expectation

of privacy: “(

b) a reasonable expectation of privacy in an intimate

image is not lost only by reason of…(ii) consent of the individual to

the image’s distribution by a person other than the individual, at the

time and to the extent of that consent….”

I want to make sure I understand that. Is that to say that for an

image — coming back to the point the Attorney made a few moments ago —

if there is a reasonable expectation of privacy, you never lose that?

You are always entitled to that reasonable expectation of

privacy.

Though you can consent — in perpetuity, or for a particular

purpose, or for a particular period of time — to have that image

distributed, it has not lost its character as an image for which there

is a reasonable expectation of privacy. Am I understanding that

provision correctly?

Hon. N. Sharma: Yeah. Basically, as the member, I think, was getting to, it

establishes that the reasonable expectation of privacy in an intimate

image is not lost just because the image is consented to one person. You

can say that, for example, a person consented to the distribution to

another person, but that does not entitle that person to distribute it

to two others or three others.

It’ll be up to the decision-maker in the scenarios to decide the

extent of the consent. If it’s withdrawn, then that’s also covered in

the act.

Clause 2 approved.

On clause 3.

M. de Jong: I’m just going to draw the Attorney’s attention to subclause

3(2)(b). It just might be helpful to put on the record an example of

where an intimate image can be lawfully distributed without the consent

of an individual.

[1:45 p.m.]

Hon. N. Sharma: One example for that subclause is to capture things like a police

investigation.

M. de Jong: Right. An investigation, for which there was evidentiary

significance, to an intimate image, as defined in the act — nude or

nearly nude; engaging in a sexual act; exposing genital organs — so for

advancing the purpose of an investigation.

Then sub (

a) of that same subsection (2) speaks of it being

“impracticable in the circumstances to obtain the consent….” Does that

relate? It doesn’t seem to relate exclusively to law enforcement, court

proceedings or investigations. It seems to contemplate other

circumstances in which it might be impracticable to obtain consent. What

would an example of that be?

M. Lee: I wish to seek leave to make an introduction.

Leave granted.

Introductions by Members

M. Lee: I mentioned before question period that today we have visiting in the

precinct, in the assembly, three groups from Eric Hamber Secondary School,

in my riding of Vancouver-Langara. I met with the second group on the back

stairs, at the education entrance, and the Minister for Mental Health and

Addictions come by and say hi, as well as the member for West

Vancouver–Capilano.

Ms. Lemmon is here as the teacher with about 25 grade nine and 11

students from Eric Hamber Secondary, as I mentioned, the school that my wife

and her siblings, as well as my nephews, have gone to school at. I talked to

them about my Youth Advisory Council, my youth forum, this coming Saturday.

I hope that they can join at the Sunset Community Centre from 11:30 to

We are in process, here, with my good colleague the member for

Abbotsford West, debating with the Attorney General an important bill, as I

mentioned to the first group coming through, about legislation to ensure

that people like yourselves are safe from intimate images being circulated

It’s an issue, of course, not just for young people but in terms of

cyberbullying and other aspects of exploitation. We need to ensure that

people like yourselves are protected. This is the back-and-forth committee

review,

section by section, of that very important bill. I hope you enjoy

the rest of your tour. The member for Peace River North is now waving at you

as well. Thanks again.

[1:50 p.m.]

Debate Continued

Hon. N. Sharma: Really, I start by rooting it in the purpose of it. The purpose of

this is to not impede a matter that’s in the public interest.

You always are trying to seek consent, but if it’s impractical to

seek it and it’s impeding something, then, of course…. We carved out a

provision for that. For example, if the accused is in one of the images

or it’s a rushed matter…. There are certain scenarios that may come up

in a police investigation that make it so it’s impractical.

M. de Jong: Right. I’ll try one more time. Sub 2(

b) seems to embrace

everything and anything one can contemplate involving a police

investigation or a court proceeding, law enforcement. Sub (

a) seems to

contemplate…. The language is impracticable. The law enforcement

investigation, court proceedings, investigations have their own

exemption.

I’m just wondering if the Attorney and the government were

contemplating something beyond those kinds of investigations. A

circumstance would occur where it’s just not practicable, and that would

justify dispensing with consent.

Hon. N. Sharma: I’ll start by saying, again, that the idea behind the act is to

try to seek consent, if possible. The scenarios that we’ve carved out,

in terms of being impractical to seek consent…. As I mentioned before,

it could be things like…. Somebody is under investigation, and they’re

depicted in a video. It’s in the matter of that interest that there’s an

exception carved out to that consent.

It would be hard to think of every scenario that might come up

with. I guess the intent there is to make sure that the purposeful use

of the image or the distribution of the image — that’s not meant, except

for these scenarios — is protected.

M. de Jong: I’m going to move on and leave it with this observation. My

experience with the drafting of these things is, in a case like this….

On the one hand, in sub (b), there is a very specific exemption created,

and it relates to law enforcement investigations and court proceedings.

That’s one thing.

[1:55 p.m.]

The drafters, presumably on the instruction of someone, have

contemplated that there might be something else. I think the examples

the Attorney gave would all be captured by the three cases in sub

(2)(b). Someone has contemplated that there might be something. There is

something beyond these investigations that would justify dispensing with

consent.

If I could think of something, I would offer it up. I can’t think

of anything, and that’s why I’m asking the Attorney.

Hon. N. Sharma: It’s hard to go scenario by scenario of what might fit into this,

but I can give another example. If it’s the Crown deciding to lay a

charge on somebody — it’s incidental to an investigation — it may be

distributed. It’s captured under this if it’s impractical to get the

person’s consent.

Clause 3 approved.

On clause 4.

M. de Jong: Here’s where we come to the important concept of revocable

consent. A scenario in which an intimate image has been captured.

Consent has presumably been given to allow for distribution, and then

the person depicted in that intimate image has had a change of mind and

says: “I am withdrawing that consent.” That requires a response and

certain behaviour from the person to whom that consent has been

revoked.

The first thing I think I’d like to ask…. Again, this is one of

those questions that could be asked in clause 4 or 5, in either one. I

promise I won’t repeat it in clause 5.

In a situation where…. An intimate image has been captured.

Consent has been given to distribute it, and the individual depicted in

the intimate image subsequently has a change of mind and withdraws the

consent.

In a case where they have brought or are intending to bring an

application under clause 5…. Can that application be considered prior to

the revocation of consent? In order to bring that application, must the

applicant demonstrate to the adjudicator: “Yes, I initially gave

consent. I have now withdrawn that consent, and here is the evidence of

that”?

[2:00 p.m.]

Hon. N. Sharma: If I could please ask the member to clarify the question with more

specifics, I think it would help us.

[S. Chandra Herbert in the chair.]

M. de Jong: All right. I think the easiest way to do this is by way of

example. We have an applicant seeking to avail themselves of the relief

available under clause 5, some injunctive relief for a takedown

order.

I think my question is this. In a scenario where the applicant who

was captured in the intimate image…. So we have an intimate image. The

applicant has been captured in that intimate image but has initially

provided consent for its distribution and now has a change of mind for

whatever reason.

In order to successfully advance their application under clause 5,

must they first demonstrate that they have revoked that consent? Is that

a prerequisite to securing relief under clause 5?

Hon. N. Sharma: I guess it starts off by saying…. We do have a process under

section 4 of revoking consent, and it involves communicating with the

person. Clearly,

an act of filing an application is also saying that the

consent is withdrawn, and there may be circumstances where it’s not

possible to communicate that there was no consent. For example, if it

was taken….

We mentioned earlier about the technology that can take pictures

of somebody without them knowing — up their skirt or something — and

then distribute it. You’re not going to be able to go find that person

and say: “I don’t consent to that.” So we have to keep in mind those

scenarios when we’re thinking about it. But clearly, the clearer way

also is making an application that that consent is no longer available,

but also, there is a provision under 4 that talks about the process of

revoking consent.

M. de Jong: Right. Again, I don’t want to belabour this, but I think it’s…. I

think what I’m trying to establish is that in cases where consent has

initially been given, absent a circumstance in which it is not

reasonably possible to revoke that consent as per the provisions of the

act….

[2:05 p.m.]

In a situation where a person does have the means to revoke that

consent and communicate it, it strikes me that it would be reasonable

for a tribunal to say and for us to say that prior to seeking tribunal

relief and injunctive relief, communicating that revocation of consent

would be a prerequisite. Is that how the act is intended to

operate?

Hon. N. Sharma: I just want to start by, I think, maybe bringing some clarity

about how this provision fits into the act — first of all, by saying

that in

section 4, its main purpose is to make it clear that consent is

revocable.

You can have a process where you consented and then no longer do.

That actually brings a very important level of clarity to that idea of

consent. Bringing an action or an application under this process does

not require you to have contacted that person and said: “You no longer

have my consent.” There are legal tests within the process, where you

can determine — and the respondent can make claims about — whether

consent was available or around. That’s a legal

determination.

I think the basic point of that provision is to make it clear that

it can be withdrawn. But then you also have to guard, in the process,

against scenarios where there may be a safety concern about notifying

the person who distributed the image.

There may be a power imbalance. There may be violence. There may

be tons of reasons where you would never require the person that is the

victim of this type of non-consensual disclosure — or in this scenario,

the applicant — to have undergone a process of saying: “Hey, you no

longer have my consent.” I just wanted to clarify that, in terms of the

way this fits into the act.

M. de Jong: Right, and fair enough. I think that is helpful.

I’m going to add this scenario, from a slightly different

perspective. Let’s try to take, maybe, a realistic example of the

relationship that has been in place for a number of years. The parties

have captured intimate images of one another and consensually placed

them on one of these Internet…. An “internet intermediary,” I think, is

the term. Life is good. There is a breakdown in the relationship, and

the parties separate,

part company, deal with it maturely and are on

their way.

Then suddenly one of the parties finds themselves on the receiving

end of an application or discovers that an application has been made

under clause 5, or becomes a respondent under clause 6. The claimant

says: “Well, I now revoke my consent. Yes, there was consent, but I’ve

decided to revoke it.” “Well, did you ever tell the other party?” “No,

but I am now, because I’ve commenced this action.”

I’m going to suggest that there can be a stigma attached to the

respondent in that case — who, in that scenario, hasn’t necessarily done

anything particularly bad.

[2:10 p.m.]

Yes, I agree. There may be circumstances in which the ability to

communicate revocation of consent is compromised and not practicable.

But I can think of other circumstances where it would be fairly

reasonable to expect that before seeking relief, communicating that

revocation, informing the other party: “The consent that I have given is

now at an end. Please take the steps necessary to respect

that.”

Hon. N. Sharma: Just some clarity from the member, if there’s a question there or

something that specifically just you want me to respond to.

M. de Jong: In the example that the Attorney gave, I think she made a partial

case for why it shouldn’t be necessary in certain instances for a

claimant or an applicant to demonstrate that they have revoked

consent.

I have tried to make the case, through a different example, for

why in other instances, it would be eminently reasonable to require a

claimant to demonstrate that they have communicated a revocation of

their consent: (

a) does she agree, and (

b) how does she believe the act

would operate to address that?

Hon. N. Sharma: The rest of the act and the point of it is to stop distribution.

So it would be available to the applicant, just like all of our justice

system, for them to seek remedy in the form that they feel is the most

appropriate for their issues.

In the example there, if a partner, on the ending of a marriage,

doesn’t want an order to stop the harm of distribution, then, of course,

it’s open to them to do that.

We’ll go later on, I think, when we get to those sections about

protections that are available to respondents in the process.

M. de Jong: All right, if we can stick with the rough example that I gave.

Let’s take a case where revocation of consent has actually been

communicated to the other party, to the person who distributed the

intimate image. Then sub 4(2)(

c) becomes relevant. If the individual

depicted in the intimate image has communicated “…that revocation to a

person who distributed the intimate image, the person who distributed

the intimate image must make every reasonable effort to make an intimate

image unavailable to others.”

What’s the Attorney’s view of what constitutes reasonable steps?

By that I mean…. An image has been posted on one of the Internet

intermediary platforms that we talked about earlier. I suppose it’s a

fairly straightforward thing to say…. The person who has initially

distributed it, they take it down off their Facebook site, for example.

Except in the intervening two months, the thing was distributed very,

very widely through whatever — those Internet networks that people have

via Facebook channels.

[2:15 p.m.]

How far does that obligation extend in terms of…? One can

contemplate circumstances in which simply taking it down from, let’s

call them, the host’s Facebook site is not going to make that image

disappear from the Internet. What is the nature of the obligation that

an individual has who has at one time distributed an intimate image with

consent and is then told: “I am withdrawing that consent”?

Hon. N. Sharma: Like many things in the law, the reasonable standard is applied to

the facts, and the facts will vary greatly.

For example, if there was consent to put something up on one

website and then it was distributed widely, then a decision-maker may

look at those facts and say, “In this scenario, what’s reasonable is for

the person to take it down from that website,” and they may not be as

liable for the rest of the distribution, for example. It’s going to

weigh depending on the facts of the scenario in front of them.

Whereas,

if there was no consent and it was posted, then, obviously, the

decision-maker is going to have, probably, a broader scope of

accountability for that distributor.

What the reasonable standard is will depend, basically, on the

facts of the case.

M. de Jong: Well, let’s explore that a little bit further. I think this might

become — well, hopefully, not too regular, but a fairly normal type of

transaction.

Again using the example of a relationship breaks down. The image

has been posted with consent and, therefore, distributed with consent.

The consent is withdrawn. We will call the person…. The distributor

takes the image down from his or her Facebook site. Does that person, in

the Attorney’s mind, acquire an obligation to go further than that and

to notify the host platform, the Internet intermediary? “I have received

revocation of consent to post this. I have taken it down, and I ask that

you do so, similarly, elsewhere on your platform.”

Hon. N. Sharma: That’s very likely an order that a tribunal or a court could make

with the individual. That is the obligation that is on them, to notify

the company and take down.

[2:20 p.m.]

It would be up to the decision-maker in that scenario. I’m sure it

will depend on the facts and the reasonableness and the actions to

mitigate, which are reasonable, in the scenario.

M. de Jong: I don’t think I’ve communicated this very effectively, because the

premise of my example is that these are two people who are trying to

manage through a breakdown in a relationship and do things responsibly,

and, quite frankly, don’t want to make an application, don’t want to be

the subject of an application and want to do this correctly.

How far does that obligation go on the part of the former

distributor who has now complied by taking down the intimate image on

their site but knows full well that 40 of his or her friends have got

the image and that it exists elsewhere on that platform and wants to do

what is reasonable to comply with the law?

Hon. N. Sharma: I’ll start again by saying that

section 4 is really there to make

it clear that consent can be revoked.

[2:25 p.m.]

If the parties have communicated and done those steps, it may be

that there is no application, as the member suggested — that reasonable

steps were taken. So there is no application before a tribunal or a

court.

The act as a whole does give guidance on what reasonable is. If

you look at subsection (5) — I’m sure we’ll get to it — it talks about

some of the efforts that a person could take that would set a reasonable

standard. Of course, it’s going to be factored in and fact

based.

I think that as we have this in place over a period of time, there

will be increasing decisions and an idea of what the standards, as they

develop, are in the jurisprudence.

M. de Jong: I couldn’t help but observe that there are a fair number of

younger people in the gallery who probably had no idea that debates in

this chamber were so exciting. Yet, ironically, the legal provisions

we’re talking about are probably more applicable to them than any other

segment of our society and a testament, in many ways, to how technology

has both simplified but also made our lives far more complicated. There

is a whole broad range of legal responsibilities that go with how we

utilize that technology properly.

Let’s go to clause 5.

Clause 4 approved.

On clause 5.

M. de Jong: One of the things that the Attorney, I believe, has tried to

emphasize throughout this discussion is about how this is…. There’s a

victim-driven component to how the act was put together. That lens has

been prevalent, providing, in the case of clause 5, speedy access to

redress and…. Lawyers would say “injunctive relief,” but everyone else

would say: “Getting the image out of the public domain.” That’s sort of

the heart and soul of what clause 5 is about: one of the two avenues for

remedy and relief.

What I’m interested in giving the Attorney an opportunity to do in

a fairly detailed way is explain how she sees the procedure for this. I

hope we can maybe collectively paint a bit of a picture of the 18- or

19-year-old young lady who has discovered that an intimate image of her

is inhabiting the Internet without her consent. Even if she knows who

the source of that distribution is, she may not know how to contact

them, want to contact them, is just aware that it’s out there and wants

it off the air. What is she going to do?

I understand that when we’re talking about procedure, the minister

can simply say: “Well, all of that needs to be worked out.” But maybe

what I’m asking the Attorney to take advantage of is to lay out on the

record what she expects and hopes and challenges these tribunals and

administrators to create, and how she sees this as working

effectively.

[2:30 p.m.]

Hon. N. Sharma: As the member noted, there’s still work to do on implementation,

but I’m happy to say this is an area that we’ve given a lot of thought

to, and I think it is valuable. Thanks for the opportunity to put on the

record about the thinking about what the process will be like for a

young person, as you mentioned, if they come forward.

The victim will start with, we’ll just say, the CRT process. So

how do you get an order from the civil resolution tribunal? The process

will start with the victim encountering a solution explorer. The

solution explorer is an artificially intelligent guided pathway, so it’s

designed specifically for this type of issue. It will help the victim

diagnose the problem, provide information, provide self-help steps,

off-ramps and other services and supports. Supports are really

important, because we know, oftentimes, they’re very vulnerable in this

situation and can have trauma and other mental health issues associated

with that. Information on the streams for the application

process….

The self-help tool, we think, will offer a fast and easy way to

address the intimate images. This is a tool that’s available 24-7. You

will be able to access it on your cell phone, and it will guide you

through the steps of giving notice to the wrongdoer or the Internet

intermediary, confirming the absence of consent to distribution and that

an application may be made under this statute, once it’s passed, if it

is passed, with the potential to result in damages and penalties to the

wrongdoer.

If the victim proceeds as an applicant for an expedited intimate

images protection order, the CRT will then screen the application to

ensure it’s not missing information. It’s within their jurisdiction to

do so. And it also provides the opportunity to see if the applicant

reports any special needs or limitations that require just additional

support — for example, if there’s visual impairment or other things that

require special tools.

Next, there’s a specially trained CRT case manager that will work

with the applicant to explain the timelines and the steps and to ensure

that the information is available and it’s ready to go for a quick and

focused adjudication. If there is a respondent — and I’m sure we’ll get

to that process at some point — to the application, the case manager may

do the same steps with that party. And then, finally, the

trauma-informed tribunal member will review the application and make a

determination on order that they deem appropriate.

I have more here, and then I’ll just go through…. Just to put it

all out there. So the victim then can provide copies of the

determinations or orders to the individuals or intermediaries, as

required, to prevent the distribution. And then if an order from the CRT

has been contravened, the tribunal may decide to order the contravening

party to pay administrative monetary penalties, after these people,

obviously, have had a chance to be heard. And the option will be there

to file and enforce orders with the Supreme Court, if

necessary.

M. de Jong: Okay. That’s a good start. It gives us something to work with.

Let’s try to break that down a little bit in terms of what that looks

like from the point of view of the 18-year-old young lady. I took from

the Attorney’s comments that there will be an online self-help mechanism

that young people are pretty adept at navigating in most

cases.

The Attorney then referred…. And I’m not trying to, again, be

mischievous or trip up the Attorney, but I thought in that sequence she

also referred to notifying…. And this was prior to talking about

obtaining an order. She talked about notifying the Internet intermediary

and/or the distributor, which left me with the impression that whoever

is developing this procedure….

I’ll draw an analogy. The last time someone hacked into my credit

card and I called Mastercard to tell them or there was a disputed

transaction, the first thing they said to me was: “Well, before we can

do anything, you have to approach that vendor.” What I thought I heard

was a reference by the Attorney that prior to obtaining it, there is

going to be some obligation on the part of the applicant to contact the

Internet intermediary or the distributor.

[2:35 p.m.]

Hon. N. Sharma: Just to clarify, it’s not a bar, and it’s not a requirement. It’s

just an option for the party at that stage. They will be given

information about the process, and one of the options is to do that. But

obviously, they’re entering a process, likely, to get a chance to get a

legal order for the protections that they seek.

M. de Jong: The whole exercise, I take it, with the CRT is intended to take

place online. Is there a visual hearing component, albeit a virtual one,

to the application, where, to use our example, the 18-year-old applicant

is speaking to someone virtually over the Internet to explain the nature

of the issue and the relief she is seeking?

Hon. N. Sharma: The CRT is designed, in our system, to be a low-barrier,

multichannel process. So it can be up to a hearing. It can be

document-driven, so just a document-driven process. There can be other

ways for the tribunal member to answer questions.

I think it really is driven by, probably, the complexity of the

matter and the determination of that tribunal member of what’s needed.

There are many options when it comes to resolution, up to an online

platform or online tools that are available.

M. de Jong: Would the Attorney agree with me, though, that what distinguishes

this particular type of action under clause 5 is (1), that it generally

will not involve another party? My sense is that unlike clause 6, the

provisions are designed, lawyers would say, to facilitate an ex-parte

application — that is, the other party…. There is no other party. That’s

the first thing.

Then the second thing is speed. So when we start hearing

descriptions of various possible channels…. The other term for that is

time, more time, as people decide what….

I actually thought what the Attorney was going to offer as an

objective in this was that when the 18-year-old girl submits the

application, the next day there was going to be a hearing in front of a

live person that said, “Yeah, here’s the order,” or “Here is not the

order,” because everything else starts to sound like we’re measuring in

days and weeks, which I would have thought defeats the purpose

here.

[2:40 p.m.]

Hon. N. Sharma: My response to the last question was directly related to the

question, which I thought was posed from the member, which is about the

ways the hearings can be obtained.

The answer about how the speed of the process is…. It’s very much

designed to be a fast process. For example, a real-time hearing

oftentimes takes a while, because you have to

schedule and do things

like that.

You could do something as much as online, submit your documents,

and the tribunal member can have enough information, just based on that,

to issue an order, which could be pretty quick. If there is a visual

impairment, you might need a phone call with the tribunal member. But

the idea is very much to do orders quickly.

M. de Jong: Is the Attorney prepared to set out for the committee her and the

government’s objective as to a response time for an application? Again,

in the example I’m using: the 18-year-old girl who discovers an intimate

image is on the Internet, or she has been threatened that it will be

placed on the Internet.

Is the Attorney prepared, on behalf of the government, to say:

“Our objective is to ensure that that application, once submitted, is

heard and ruled upon within X number of hours or X number of

days”?

Hon. N. Sharma: Obviously, implementation details are going to be worked out with

the civil resolution tribunal, but I can assure the member and the

public that timeliness will be a key factor when it comes to the rollout

and design of this process.

The intention of, for example, the Solutions Explorer, is for that

to be something that’s available 24 hours a day, seven days a week for

people to look through. So yeah, timeliness is a key component of how we

plan to roll this out with the CRT.

M. de Jong: I get it. You know, governments don’t like to be pinned down on

time frames. But the whole point here….

If you’re a lawyer in downtown Vancouver and have all of that

training and all of that background, you decide — and you have a client

that’s prepared to pay enough money — you can get into court the next

day and get an ex parte order. That’s not what we’re dealing with here.

We’re dealing with a different group of people who don’t have that

expertise, and constructing a system that is intended — and I accept is

fully intended — to accommodate that.

All I’ll say to the Attorney is that if governments don’t lay down

in a very public way what their expectations are, they’re destined to be

disappointed, and it won’t happen in a timely way despite everyone’s

best intentions.

I now will put words in the Attorney’s mouth, which I shouldn’t

do. I think what the Attorney is looking for is a system that is easily

navigated by that 18-year-old young lady so that when she gets online

and submits the application, assuming it is complete, she can get an

order the next day. I mean, I think that’s what the Attorney would like

to see and why she is commending this legislation.

[2:45 p.m.]

If that’s what the Attorney and the government like, then say it.

I understand that the Attorney doesn’t sit in the civil tribunal office.

But I think they need to know what the expectations of the House are

and, quite frankly, more importantly, what the expectations of the

Attorney General are.

Yes, there’s a risk. There’s a risk it won’t happen, and then guys

like me will come along and give the Attorney hell for not having hit

the objectives. But if we don’t tell them what our expectation is, then

I can guarantee it won’t be hit. It’ll be another process that is

fraught with delays and doesn’t accomplish the objectives.

Anyway, that’s my attempt to prompt the Attorney not to be shy

about telling the House and, by extension, others what her expectations

are and what her hope and objective is for the speed with which this

process is undertaken.

Hon. N. Sharma: I think I have been clear in setting out my expectations for this

process. I’ve said clearly that we want to…. What’s in the legislation

is a timely and victim-driven process that provides many protections for

the victim. The goal is to have not only the orders and the access to

justice be low barrier, like the 24-7 Solutions Navigator, but also the

process to be low barrier and expedited.

I’ll be working with the civil resolution tribunal — me and my

team — over the next few months to have this process set up. The

expectations I think are clear about timeliness.

M. de Jong: Okay. There’s a fine line between clear and vague, and I won’t try

to bridge that today. I think I understand. I accept that the Attorney

wants this done in a certain way and hopes that 18-year-old young lady

can get a quick response. I would urge her to be very specific, and if

she’s not prepared to do so publicly, then do so privately with these

panels to ensure they understand what her and the House’s expectations

are.

Just a couple more questions, then, about the application process

itself. I presume, but the Attorney can confirm this, that the body of

material that an applicant would have to submit will include the

intimate image itself.

[2:50 p.m.]

Hon. N. Sharma: The applicant must show to a tribunal member that the image is an

intimate image depicting the applicant. That’s the legal wording of what

they have to show. I mean, in many scenarios, it’ll probably involve the

image. But you can imagine some scenarios where we have protection,

sometimes, where a written description of the image is less harmful to

the person but may be sufficient for the tribunal member to give the

order. I don’t want to say that in every situation, that would involve

the image. Just to say that the legal test is the decision-maker has to

be satisfied that the image depicts the applicant.

M. de Jong: Maybe I should ask the question this way. To facilitate the ease

of access, there is going to be a checklist of things — name, contact

details — that an applicant needs to include to initiate this ex parte

application before the CRT or one of the other tribunals. We focused on

the CRT for these purposes. To guide the applicant, there’s going to be

a checklist.

I’m suggesting that even though there may be exceptional

circumstances where the tribunal can’t see the image, or maybe the

applicant doesn’t have access to the image, but in general, there would

be a box that says that the tribunal who is ruling on this matter needs

to see the image.

The reason I ask that, and the minister may be thinking the same

thing, is that even that step may be traumatic for an applicant. Yet

that notwithstanding, it would seem to me that it will be a necessary

step in most cases for the tribunal to render a decision.

Hon. N. Sharma: We’re still working out the details. It’ll be probably by

regulation or process with the CRT that a lot of that shows up that the

member was talking about. But, I mean, it’s reasonable and likely that

that will be part of the process. But you could also think of scenarios

where you just send a link to the website rather than the image. There

are other ways to maybe fulfil the evidence for that legal

standard.

M. de Jong: Right. That’s a fair point. Coming back to what the Attorney said

earlier, in rendering its decision, whether the image is provided by the

applicant or it is the tribunal that secures access to it by a different

channel, in virtually every case, in rendering a ruling it is going to

need to see the image. I think that that’s my point. It sounds like the

Attorney agrees with that.

[2:55 p.m.]

Hon. N. Sharma: It’s quite possible and likely. But I want to say that I don’t

want to foreclose any other potential ways of meeting the legal standard

out there that may be less harmful to the applicant. We may come up with

regulations in the process.

M. de Jong: All right. Well, I’m sufficient to at least ask, having said that,

what might that be? What might those…?

In a case where a tribunal is being asked to make a ruling about

an image, what alternatives might exist that would preclude the need for

the tribunal to see the image?

M. Lee: I seek leave to make an introduction.

The Chair: Please proceed, Member.

Introductions by Members

M. Lee: This is the third group from Eric Hamber Secondary School that I’d

like to welcome to this chamber.

I had the further opportunity to welcome them on the back steps with

the member for Abbotsford South, who tried to misdirect them. You’re getting

waves there from the government members.

I must say — I didn’t say this on the back steps, but I’ll say it now

— that it does give me some bittersweet sense to be in this chamber and with

this school group because this is my last introduction for Eric Hamber

Secondary School in this chamber prior to the tabling of what we expect to

be the Electoral Boundaries Commission final report, at which point, Eric

Hamber Secondary School will no longer be, technically, in the riding which

I represent, for the last six years, Vancouver-Langara.

Many families, of course, and students will still live in my

constituency, and I look forward to that, but I won’t have probably the

technical ability to make this introduction. I hope you enjoy the balance of

this debate on Bill 12, intimate images.

The member for Abbotsford West, the shadow minister for Justice, is

quizzing in detail,

section by section, a very important bill to protect

people from the circulation of intimate images. We know that that has been a

concern, including amongst young people, with some unfortunate incidents

causing a lot of harm to people, including in a cyberbullying way and other

exploitation type ways. The Attorney General and her team are conferring,

and they’ll be addressing the response to my colleague, the member for

Abbotsford West.

I hope you have a good rest of your tour and that you’ll consider

attending my youth forum on Saturday, April 1, from 11:30 to 2 at Sunset

Community Centre. I’ve given that information to your teacher. Also,

consider my youth advisory council as well. Enjoy the rest of your

tour.

The Chair: Go, Griffins. I think that’s the team.

M. Lee: Yes. Go, Griffins.

Debate Continued

Hon. N. Sharma: Okay. I believe I mostly answered the question but just to bring

further clarity. There are examples in Provincial Court, in family law,

where there is a particularly sensitive or vulnerable very young child,

where there are incidents of intimate images, where they’ve done things

or processes like asked for affidavit evidence describing the

images.

[J. Tegart in the chair.]

Then, in that case, the judge would determine whether or not it’s

necessary to disclose the actual image or not. This is just an example

of a protection, where there’s a building up of an evidentiary basis for

describing an image rather than entering it. That was the reason that I

said likely that the member is right. The image will be part of the

determination, but there may be scenarios, especially with very young

children and images that the tribunal or the court may want to protect

the child from disclosure.

M. de Jong: Okay. I accept that. I mean, I think that’s a reasonable

response.

The only reason I brought it up is that I think we should be up

front about the fact that for the vast majority of applicants beyond a

certain age, there is going to be an expectation that they share with

the tribunal the image or images, at least an image, that is causing

them distress or they’ve been threatened with posting. We’ll leave that.

I’m satisfied with the response the Attorney has given on that

point.

[3:00 p.m.]

Further on in clause 5, when we get into subsection (2), and (

c) starts to talk about some of the authorities that the decision-maker

has.

Our example has been with the CRT, so let’s stick with that just

for the ease of our conversation here today. In sub (c), it contemplates

an order for an Internet intermediary or other person or organization to

do certain things, including removing intimate images from the platform

and that sort of thing.

To be clear, there is no requirement and, dare I say, no

expectation, that the Internet intermediary would be a party or even

receive notice of this application.

Hon. N. Sharma: That’s right.

M. de Jong: I’m just going to jump ahead again with a pledge not to repeat the

question. Is that different than the next section? In a situation where

a claim for damages might be made, is there a distinction between

clauses 5 and 6 with respect to the need to notify an Internet

intermediary?

Hon. N. Sharma: Maybe I’ll explain it in relation to both of those provisions just

to help bring some clarity to it.

The first thing is that

section 5 is all about stopping the harm,

so reducing, taking down the images, getting the orders necessary to

prevent further distribution. In that situation, there’s no naming or

notice to the — for this example raised by the member — Internet

intermediary.

When it goes to the damage

section — so to claim damages — that’s

more of a claim, just like a civil claim for damages. In that case,

there are notice requirements. Likely somebody could pursue damages

against an Internet intermediary in that scenario.

M. de Jong: Still in 5(2)(c), there is a description of the orders that the

decision-maker can provide. That is removing the intimate image,

deleting or destroying the intimate image or something called

de-indexing, which the minister’s staff kindly informed me relates to

the non-retrievability as part of a search. I’m obliged to them for

explaining that to me earlier.

The question, of course, that emerges from that relates to the

enforceability of the order that is achieved from the decision-maker,

the tribunal or the courts. Here’s what the Uniform Law Conference had

to say about that.

[3:05 p.m.]

It’s not lengthy, so I’ll just read it into the record. “A court

order under

section 4” — in their act; I believe they were referring to

what is now our clause 5 — “will allow an applicant or respondent,

depending on the order, to seek takedown or de-indexing of the content

directly from the internet intermediaries hosting the content, by

sending the order to counsel at the intermediary’s corporate office.

Most internet intermediaries prohibit users from posting unlawful

content. Therefore, a court order under

section 4” — our clause 5 —

“will serve as compelling evidence that the intermediary’s terms of

service have been breached.”

There’s then reference to some Supreme Court jurisprudence, and

then this observation: “In the working group’s opinion, most internet

intermediaries are likely to comply with takedown or de-indexing orders

issued under the act…. As a matter of practice, most major

intermediaries comply with local law. Therefore, there is no reason to

believe that these companies will resist content removal.”

I guess the question that one is obliged to ask is: does the

Attorney share the working group’s optimism about the willingness of

Internet intermediaries located outside of this jurisdiction — outside

of our provincial jurisdiction, outside of Canada — to honour the orders

that emerge from within B.C.?

Hon. N. Sharma: I want to thank the member for the question. I think it’s a really

important one, because we’re existing in British Columbia — an

international issue. A lot of these issues or claims have no borders

when it comes to their impact, but also, the companies that operate….

The reason I do share the optimism of the clause that the member read is

for a few reasons.

First and foremost is the activism and the advocacy of people like

Carol Todd, who have organized on an international level, to bring

attention to the harms related to this issue and specific websites that

have been established on an international level — one called, I believe,

Take It Down — that assist survivors of this type of sexual violence to

get things taken down. Also, a lot of the larger websites and companies

are trying to address this type of harm.

What we’re doing with this legislation is sharpening our tools in

this province to protect people and to set out pretty clearly what is

unlawful conduct in our province when it comes to distributing these

images by setting that clear standard and setting up a process to go to

these Internet intermediaries and say: “This is unlawful distribution

and needs to be taken down.” I am optimistic. I do believe that that

will have the intended consequence of having that stuff taken

down.

M. de Jong: Thanks to the Attorney. The working group, as part of their

optimism, referred to the ability to send notice of orders to the

Internet providers, Internet intermediaries corporate offices. Do

agencies like Facebook and Twitter have corporate offices in British

Columbia?

[3:10 p.m.]

Hon. N. Sharma: Thanks for the question. I don’t know where all of the offices are

located for the, probably, many Internet intermediaries that may be…. An

issue may be delivered to them under this process. What I would say

is….

If there is a B.C. office, it’s, obviously, a clearer delivery.

That being said, once an order is made, an attempt to reach them, in

every possible way, whether there’s a Canadian office or an online way

to contact them or other offices, to issue the order, I think, would be

necessary.

M. de Jong: Maybe another way to ask the question, recognizing the

international dimension to this, is….

We have these platforms. I mentioned two — the Attorney has

mentioned the same ones — that I believe are, ultimately, headquartered

in, let us say, common-law jurisdictions. I think, in both those cases,

the ultimate corporate headquarters are in the U.S. but in a common-law

jurisdiction.

Is the Attorney at all concerned that the enforceability of the

orders that might derive from this legislation becomes more difficult in

the case of — I don’t know what they are, although I’m told they exist —

platforms and Internet intermediaries that are based in non-common-law

jurisdictions or parts of the world where the rule of law may operate in

a significantly different way than we might appreciate here?

[3:15 p.m.]

Hon. N. Sharma: I just want to thank the member for this really important

question. I know, as someone who practises law, the member is aware of

the complications with international enforcement and, I think, brings up

a good point about how to enforce against countries that may not have

the same kind of legal protections or common law as we do.

I think there are a few important provisions in this that at least

strengthen the ability or the position of the applicant. One is monetary

penalties but also access to the enforcement mechanisms of the B.C.

Supreme Court when it comes to enforcing their orders. We can’t be

certain that the legislation will be effective against every foreign

actor, but it will give survivors more tools to address them and better

options when it comes to seeking them out. I think this is certainly

something that we’re happy to do for survivors: give them better options

and better tools, including access to the B.C. Supreme Court to enforce

orders that are made under this.

M. de Jong: Thanks. Valid and important points that the Attorney has made. But

I guess we have to follow the line of questioning through to its logical

conclusion.

The 18-year-old young lady has secured an order from the

tribunal to take down an intimate image that has been posted without her

consent. She avails herself further of the rules that allow that to be

registered as an order of the Supreme Court of British Columbia, and the

internationally based Internet intermediary — and I won’t name one,

because I don’t think that would be fair — says, “Yeah, that’s great,”

and ignores it. Anything that can be done? Anything that that person can

do in those circumstances?

Hon. N. Sharma: I think it is difficult in those scenarios, the one that you’ve

identified. The position that we’ve taken with this legislation and even

the act of stepping forward to create a new system of justice for people

in the scenario is to do what we can within our legal tools and to

strengthen our justice system. As I mentioned before, these orders would

give access to monetary penalties and also the processes in the Supreme

Court that we have for enforcing orders.

[3:20 p.m.]

I think those are ways that we thought, and we knew, that we could

strengthen the tools available to survivors, but there are scenarios

that are very difficult.

M. de Jong: Well, notwithstanding the challenges, I think that is a

wonderfully honest response. Thank you.

I think it’s important for people to know that as we create these

avenues within British Columbia, our jurisdiction is limited. We don’t

need to do…. Happily, we have reciprocal enforcement agreements with

many countries, so there are some avenues, but for those Internet

providers that may seek to hide out in jurisdictions that don’t have the

same sense of responsibility or respect for the rule of law, it will

ultimately be difficult. Enforcing orders, even in other jurisdictions

with whom we have those agreements, is a challenging task as

well.

I appreciate the Attorney recognizing that for all of the sound

intentions, there are some limits that extend beyond what this place,

this jurisdiction, can accommodate and address.

Limitation periods. There are some different provisions as it

relates to monetary penalties, but for clause 5 — and pursuing an order

in relief under clause 5 — how do the limitation provisions apply? The

Attorney has very capable and informed staff, but I hope she’ll go

beyond saying that the usual limitation periods apply.

What I’m really looking for is…. Again, going back to our example,

is there a limitation period for that 18-year-old young lady who has

discovered this intimate image that has been posted without her consent?

Is there a limitation period within which she must seek redress under

this provision?

Hon. N. Sharma: I’m going to start my answer by saying the regular Limitation Act

in B.C. will apply, but I’ll give some more details when it comes to

that.

[3:25 p.m.]

Under that regime, when you think about how it might apply to

these scenarios…. First of all, I’ll start by the exceptions that are

under the Limitation Act, particularly for minors. All of those

exceptions would apply.

The next one is discoverability. In the scenario where the person

hasn’t discovered that it was out there, of course, she’d be captured by

those protections on the Limitation Act.

Then the other principle under the Limitation Act that may be

implicated in the facts is continuing fact. So the fact that the image

is still up there for maybe — let’s say it’s five years. It’s still

ongoing harm and ongoing, basically, breach to that victim, so then that

would also be protected under the Limitation Act. So it would extend,

potentially, the period for limitations.

M. de Jong: Okay. Thanks. That’s helpful.

Discoverability. We’ll come back to our example. An 18-year-old

young lady finds out that this intimate image has been posted. If it’s

taken down, I suppose she could still seek injunctive relief to make

sure it’s not reposted, but the likelihood of her doing so begins to

diminish if it’s outside of the public domain. In that case, is it one

year that she would have to seek that?

Now, we’re talking about under clause 5. She has discovered it. It

is taken down. She has one year or two years to seek relief under clause

Hon. N. Sharma: Just to start, maybe with a head nod, you were talking about a

claim under

section 6 and damages?

Interjection.

Hon. N. Sharma:

Section 5. Maybe, then, I need a question of clarity to the

member.

Are you saying…? In the scenario you’ve given us, you’ve said that

the image has been taken down. So maybe I need clarity to understand

which order the person would be seeking under

section 5.

M. de Jong: Right. An 18-year-old discovers an intimate image has been posted

without her consent. It then comes down. I’ve acknowledged that the

likelihood of her seeking an order under clause 5 diminishes, but it is

still conceivable that she would seek injunctive relief. Plus, the

possibility of a threat that it might be reposted….

Even that’s not a great example, because I presume the limitation

would run from the moment the threat was made. I’m trying to establish

the difference between a case where the images come down and she might

want injunctive relief to protect against its reposting versus a case

where the image is still there, in which case, I take it, as long as the

image is up, she maintains the ability to seek relief under clause 5. As

long as the image is up, she falls within the limitation

period.

[3:30 p.m.]

Hon. N. Sharma: Okay. I’m giving a lot of disclaimers on this answer.

It depends on whether or not there are other sections of the

Limitation Act that the person might be able to avail themself of and

the very complicated scenarios that people have. I would say, barring

any other exception, the limitations would start the minute the image is

taken down, unless there’s something else that prolongs that time

period.

I’m sorry. I already gave all the disclaimers. So subject to

discoverability and all those other things.

M. de Jong: I understand the need to reference those disclaimers as it relates

to this complicated area of the law.

I think the last question I would have around this, as it relates

to clause 5, goes as follows. We’ll take our example. The image has been

posted. It has been posted for two years. It’s an intimate image.

There’s no consent. The 18-year-old endures, takes no step, becomes 19.

Now she is 23, and it suddenly is presenting a different problem to her,

in terms of securing employment. Her life has taken on a different…. The

image has been posted throughout.

Has she lost, through the passage of that time, the ability to

avail herself of relief under clause 5?

Hon. N. Sharma: I think the protection that the person described could avail

themself of is

section 4. So the fact that consent was withdrawn for

that image. That might be one way. I think there may be some legal

arguments, in that regard, related to continuing harm, depending on the

facts.

M. de Jong: I am eternally grateful and somewhat embarrassed, given the nature

of the question I’m about to ask, which I think will be the final one on

this section.

I raised this with the staff. It has to do with sub (5) of clause

5. It’s just the language. Sometimes we see this, and sometimes we

don’t. This is a reg-making power that allows for…. In sub (5), the line

that interests me is the final one: “…after considering any prescribed

factors….”

The question is more a case of legislative drafting. When we say

that, does that mean…?

I’ll let the Attorney make sure she knows where I’m at here. I

think she’s found it.

Today, in terms of the canons of construction and

interpretation,

statutory

interpretation…. Does that mean that the decision-maker can

only consider factors that are prescribed? Or does it mean they can

consider factors that are prescribed and anything else that that they

want to consider?

[3:35 p.m.]

When I read it, it seems fairly directive. It says there will be

regulations that lay out what you may take into account. Those are the

things that you may take into account and nothing more.

Hon. N. Sharma: After talking about legislative drafting and the wording…. I’m

assured that the intent of that wording is not to limit. It’s drafted in

a sense that wouldn’t limit it to only those prescribed factors. It

signals that there may be prescribed factors. That is the intent of that

language.

If there will be regulation, which there may not be with this

particular clause, then it may give factors for them to consider. But

the way it’s drafted is not limiting it only to those prescribed

factors.

Clause 5 approved.

The Chair: I note that we haven’t had a break. I want to check with the

minister if anyone requires a five minute…. Take five?

Okay.

We will recess for five minutes.

The committee recessed from 3:37 p.m. to 3:47 p.m.

[J. Tegart in the chair.]

The Chair: We’ll call the committee on Bill 12 back to order.

On clause 6.

M. de Jong: We’re now on to, really, the second new avenue for claim that the

act provides for, and that is the one that includes the possibility of

an applicant receiving damages. I think maybe the general question here

for the minister is to summarize, as best she can, the significant

differences between this and the previous section, where it’s injunctive

relief.

By that I mean, presumably, in this case, for reasons that we’ve

already discussed, there will be a respondent. There is an obligation to

notify those people whom an applicant is seeking damages from and the

nature of the relief that can be claimed and against whom that relief

can be claimed as part of an action under clause 6.

[3:50 p.m.]

Hon. N. Sharma: I’ll start by talking about the distinctions between the two

processes. As we already went over in

section 5, that’s really about an

expedited order process to take down. It’s very different than the claim

for damages in

section 6. I’ll point out some of the significant

differences.

To start with, an individual or the public can think of this much

like a civil claim for damages, the levels of court being the civil

resolution tribunal, the Provincial Court and the Supreme Court, which

are available to them to make damages. The notice provisions and all of

the general provisions with respect to civil claims would

apply.

Notably, it isn’t tied to whatever the orders are in the

application. It could be a broad claim for damages that are quite apart

from the expedited order. All that needs to be the basis of it is that

an image was distributed without their consent. We also left it open to

the heads of damages that may be pursued in the matter that are

available in our court system for civil claims. It is very much like a

civil claim for damages.

M. de Jong: All of the answer is helpful, but the last part provides the

helpful segue into my next question. This is: in a legal world where

there are other available torts, other available causes of action known

within the common law, to facilitate a claim for damages in

circumstances like this, what is the gap that the minister and the

government believe exists and that this particular statutory cause of

action is intended to address?

[3:55 p.m.]

Hon. N. Sharma: One of the things that was an underlying goal in putting together

this piece of legislation was to bring clarity into some uncertainties

in the law.

There is uncertainty, when it comes to the unlawfulness of

non-consensual disclosure of intimate images, at common law. While there

is a new common law tort that has been recognized in other provinces,

we’re not aware of its recognition in this province. Similarly, actions

of invasion of privacy, intentional infliction of nervous shock, breach

of confidence and some other torts can be onerous to argue.

Subsection 6(1) says that if somebody is depicted…. If an intimate

image of a person is distributed without their consent, they may claim

relief for that. So it sets out a claim for damages, specifically for

that act. Does that help?

M. de Jong: Yes, in part, it does, because the Attorney has touched on some of

the existing torts around violations of privacy, the disclosure or

public disclosure of private facts. In terms of the clarity…. It’s a

question; I’m sorry. I might make it as a statement, but I mean it as a

question.

The lack of clarity may have related more to the question of what

applicable damages might be sought — the question of damages being

suffered or injury being suffered, in this case. I understand that the

Attorney says that we have removed any doubt, by virtue of the

specificity of our definition of the disclosure of an “intimate image.”

I’m going to suggest that there wasn’t a lot of doubt, in Canadian tort

law, that that represented tortious behaviour.

Where I thought that there might be more uncertainty and that the

section seeks to bring some additional clarity is around the issue of

damages and the heads of damages, as the minister put it, that might be

applicable. But that’s a question, and the minister may disagree with me

in that regard.

[4:00 p.m.]

[S. Chandra Herbert in the chair.]

Hon. N. Sharma: Thanks for the question. I think the overall goal of this…. I take

the member’s point about…. It lists the types of damages, in the

broadest sense, that may be available in a civil claim. The point of

this

section is just to bring clarity on the law — that these types of

damages are available to a victim of the non-consensual disclosure of

intimate images. That’s the real goal of listing it out.

M. de Jong: Insofar as the clause contemplates an order for the assessment and

an order for damages, depending on…. The quantum of damages being sought

determines, not exclusively, but helps determine which decision-maker,

to use the language of the act, the claimant must file in. Now, they can

always file in the Supreme Court of British Columbia, I take it, but

depending on the amount of damages claimed, they may be obliged to file

in the Supreme Court of British Columbia. Is that correct?

Hon. N. Sharma: Yes.

M. de Jong: Again, to be clear, contrary to the process that we’ve discussed

at some length in clause 5, there’s not the same dedicated attempt…. I

don’t mean this in a negative way. These are existing processes, whether

it be the CRT or the Provincial Court or the Supreme Court, and by

necessity…. The reality is the Supreme Court process is more technical,

more complex and doesn’t absolutely require the involvement of counsel,

but for many people, it’s a more difficult thing to navigate.

At this

stage, at least, aside from the overall attempt through the CRT and

others to provide access, there’s no attempt in this clause of this bill

to provide an expedited or easier point of entry into the Supreme Court

of British Columbia for the collection of damages.

Hon. N. Sharma: Yeah, that’s correct. This is meant to make it clear that the

individual in this matter has a claim for damages. The member quite

rightly pointed out the level that they may pursue it at, depending on

the claim for damages that they seek. That process is as it is for other

civil claims.

M. de Jong: Again, a limitation regime applies, triggered by discoverability

beyond which a claimant would be precluded from advancing a claim for

damages?

[4:05 p.m.]

Hon. N. Sharma: I think it’s the similar discussion that we had previously. There

may be some exceptions to the limitation period that the individual may

be able to avail themselves of, continuing harm or discoverability, if

it’s still up.

But that’s correct. The limitation periods would apply.

Clause 6 approved.

On clause 7.

M. de Jong: In the case of an application on behalf of a deceased, in general

terms, what would the limitation period be for someone seeking to

advance a claim? Is it the same…? Well, it wouldn’t be necessarily the

same. The person is deceased. What limitation regime would govern an

application on behalf of the deceased under

section 5, and is it

different than…? Well, sorry. I’m trying to lump these questions

together to move us along a bit.

For a claim being brought on behalf of a deceased under

section 5,

what is the applicable limitation period? Is a person precluded from

bringing an application on behalf of a deceased person under clause 6 by

virtue of other existing law?

Hon. N. Sharma:

Section 7 only applies to

section 5, so it would only be for the

takedown of the image or orders related to that of the deceased

individual.

When it comes to claims for damages, I think the member is

correct. There’s existing law that talks about the things that are

available for people and/or estates that may be pursuing that and limits

to what can be done there.

M. de Jong: With respect to clause 5, then, and a takedown order, how long

from discoverability does someone acting on behalf of a deceased person

have to bring that application generally?

Hon. N. Sharma: Assuming that the impetus for seeking a

section 5 order is that

the image is still being distributed or is available publicly, then the

limitation period for it would continue. You would assume that a

continuing harm would apply to that. I would say that with a disclaimer

here about the law related to limitations and deceased.

But in terms of the harm done or the limitations period, I think

there’d be a potential ability to rely on the continuing harm of the

image that’s still up.

Clause 7 approved.

On clause 8.

[4:10 p.m.]

M. de Jong: I guess the obvious question here…. Given the dialogue we’ve had

as it relates to the exposure and vulnerability of younger people and

the recognition for some young people, as traumatic as it is to see an

intimate image of themselves being distributed and what that means for

their peer group, the trauma can extend to what the implications are for

family life at home. I take it that the

section is intended to provide a

regulatory authority that people can initiate action under these

provisions at an age younger than they normally would be able to do

independently.

I know that the regulation will ultimately appear. But I’m sure

that the minister has already received some information and has got

something in mind as to what the specific age will be at which an

applicant can proceed on their own or with the assistance of someone

other than a parent. Is she able to share some thoughts with the

committee around what she believes the appropriate age would

be?

Hon. N. Sharma: When it comes to a minor at this stage, we intend, if this

legislation is passed, to actually have consultation with a lot of the

front-line groups and people that are seeing this come up to determine

what the appropriate age is. Sometimes what we found is that it’s not

necessarily 18. It may be older. It may be younger. We want to actually

hear from people before we set that. I don’t have any further

information at this point for the member.

M. de Jong: We are talking, though, about an age below the age of majority,

because we’re talking about minors here. I guess the interest one would

have is how low that number is likely to go. I think we’re all, sadly,

aware of the remarkably young age at which young people can be caught

and victimized in that way. We have some very direct and pertinent

examples of how that tragedy can unfold at a very young age.

The challenge for the minister, though, in setting that age, which

I suppose ultimately needs to be a number — whether it’s 17 or 16 or 13,

it will ultimately have to be a number — is balancing that notion that I

described a few moments ago about the embarrassment that a young person

might have about confronting a parent or parents versus the desire that

parents would have to know and hopefully offer support and be

there.

[4:15 p.m.]

It’s not the only area of public policy where this conundrum

presents itself, where the sins of society visit upon people at a

younger and younger age. You want to equip them with the means to seek

redress and assistance yet not preclude or exclude parents from being

there to play a role.

I expect this legislation is going to pass shortly and may even be

in line to receive royal assent, and I’m sure the minister would like to

have it up and operational as quickly as possible. So I take it that the

consultation is going to be swift, because she’ll want to have the

regulations in place quickly.

I guess my submission to her is, in addition to the need to equip

young people, to not lose sight of the fact that there are many parents

out there who don’t want to be left out, in terms of being able to offer

support. To do that, they need to know what’s going on as

well.

The last thing on this clause: this provision, as I understand it,

applies specifically with respect to applications under clause 5, and

the usual rules around age and ability to commence an action apply with

respect to clause 6. Is that correct?

Hon. N. Sharma: Thanks for the question. Yes, you’re correct that the regular

guardianship rules would apply to claims under

section 6.

It’s important to just add a little bit to what I said before: the

section 8 provisions are meant to be in addition. So it’s another

option, and the member had very important comments about parents and

their roles in that. When we think about “a prescribed class” of people

that may be able to do this — if it’s an older sibling, or if it’s a

teacher or something — I think it’s meant to be somebody that’s close to

the person, another option for a minor to come forward with.

Clause 8 approved.

On clause 9.

M. de Jong: Hon. Chair, whenever we are confronted by reverse-onus provisions,

it’s worth taking a moment just to understand precisely how they are

intended to operate. Here’s my understanding. Rather than ask an

open-ended question, I’ll presumptively give the Attorney how I think it

operates. If I’m wrong, she can tell me.

It seems to me, having read this and having regard for the

definitions, that what is trying to be achieved here is as follows. If

an image is an intimate image such that it qualifies under the

definition by depicting an individual as “(

a) engaging in a sexual act,

(

b) nude or nearly nude, or (

c) exposing the individual’s genital

organs, anal region or breasts,” now, except for one other component, we

have an intimate image. The other component is “a reasonable expectation

of privacy….”

[4:20 p.m.]

For that final component, the burden shifts to the respondent to

demonstrate that there was not a reasonable expectation of privacy. Have

I got that right? If we have an image that otherwise qualifies as an

intimate image, then the part of that definition for which the burden

shifts to the respondent is the part about reasonable expectation of

privacy.

Hon. N. Sharma: Yes.

M. de Jong: That’s fine on 9.

Clause 9 approved.

On clause 10.

M. de Jong: We now get into defences available to a respondent. Can I say

this? I have been thinking about…. Clause 10 says: “A respondent is not

liable under

section 5 if….” Then it goes on to describe. We have been

talking about clause 5 really in the context of there not being a

respondent. Yet the language suggests that at least in some instances,

there might be.

Am I misreading? Am I confusing that somehow?

Hon. N. Sharma: Just to go into further detail about how

section 5 is laid out, an

applicant can choose to name a respondent or not. In that situation,

there may be a respondent named, so that would put them….

Another situation where there would be a respondent is…. Let’s say

that somebody that’s affected by an order wants to contest it, so they

come forward — that’s under

section 5, as well — to contest it. Then

they’re automatically placed as a respondent in that category. So that

captures that, and then you can see how

section 10 would

apply.

M. de Jong: So consent becomes a really key feature of the ability to proceed

with an action and a defence to an action. The act is silent as to the

manner in which consent must be given. I take it the intention here is

to recognize that consent can be communicated in many ways, and an

adjudicator or decision-maker may find that there was a verbal consent,

may find that there was passive consent or implied consent.

[4:25 p.m.]

In this case, I was a little bit surprised that…. Again, to be

fair, I don’t think the working group had anything specific to say about

this, but I thought that the Attorney might be seeking, in the case of

consent, something demonstrative — written or verifiable verbal

consent.

It strikes me that what we will see now, eventually, are cases

where the respondent says: “Hey, for the following reasons, I thought I

had consent.” The Attorney has left it to the courts, and I take it that

is a purposeful decision on her and the government’s part to leave it to

the courts to decide what constitutes appropriate and reasonable

consent.

Hon. N. Sharma: The short answer is yes. We intentionally did not include a

definition of consent and that the courts would determine based on the

facts.

Clauses 10 and 11 approved.

On clause 12.

M. de Jong: Going back to the beginning of our discussion, the commencement of

the clauses in the bill, we talked about how an Internet intermediary,

based on the definition, certainly includes the large platforms, the

Facebooks and the Twitters. I think we also established that, by virtue

of that definition, a website with an interactive chat room could also

be captured.

Is the message here that….? Is it intended to establish certainty

around the fact that if you are operating a website that includes an

interactive platform to which people can post information or images, no

matter how big or small you are, you had better make sure that you have

a process in place for ensuring that you are not inadvertently

contributing to the distribution of intimate images?

[4:30 p.m.]

Hon. N. Sharma: The purpose of…. This was drawn on advice from the Uniform Law

Conference. It talked about the real goal and orientation of this type

of legislation, which should be on removing the harm and victim

focused.

In that sense, we didn’t want it to be a lightning rod for larger

claims to fight out the battles that happen between Internet companies,

which can be long and protracted. What this does or says is that if you

take reasonable actions, your liability is limited. But if you don’t,

then you’re not. That was the purpose of that provision.

M. de Jong: A sound reminder from the Attorney.

I think the point I was trying to explore with the Attorney is….

With these large platforms, who face the challenge of having millions of

images posted every day and, for that reason, have constructed and

designed these pretty elaborate monitoring…. Not foolproof, I expect.

They make these investments because they recognize — in most instances,

I hope — that these and similar liability provisions exist.

My question was less about them than the realization…. Look, you

can have, on a regional or localized basis, a site that suddenly becomes

very popular in a regional area. A website that includes an

interactive…. They may not have developed similar monitoring and

safeguards.

I think what I was asking of the Attorney General is to confirm

that if you fall within the definition of an Internet intermediary…. It

doesn’t mean you have to be Facebook or Twitter. It means you have

created a platform. It might be to sell your goods or sell your services

or social activities or whatever. But if it includes an interactive

component to which people can post, you are now an Internet

intermediary, for the purpose of this act, and can, therefore, attract

liability.

If you want to avoid that liability by availing yourself of the

defence available in clause 12, you will need to establish that you have

some reasonable level of monitoring. I’m less concerned, in this case,

about the larger centres than the fact that, by virtue of the definition

of “Internet intermediary,” others may discover that they attract a

liability as well.

[4:35 p.m.]

Hon. N. Sharma: I would start by saying, in the example that the member provides….

If it is a website or some regional Internet intermediary, and they are

involved in or implicated in the non-consensual disclosure of intimate

images, then, if there is an order for an individual….

I’m sure that’s a scenario. It would come up. Somebody said to

them: “You’re distributing my images in a non-consensual way.” Then,

absolutely, they need to take individual action for that person to take

down those images if there’s an order in that regard.

That would be without any complicated monitoring technology. That

would just be a direct takedown, and we would expect them to take

reasonable steps to do that.

Clauses 12 to 21 inclusive approved.

On clause 22.

M. de Jong: Way back when we started, we had a preliminary conversation about

the interaction between the Criminal Code provisions and what’s being

created here. The Attorney provided some initial data around the number

of complaints and charges that have been laid and how that has

influenced somewhat the development of this.

I presume this is the

section that makes clear that that existing

process can continue. Charges can be laid. Police can prosecute parallel

to the pursuit of a civil claim. That is provided for. The Attorney, I’m

sure, will confirm that.

What I wanted to ask was: was the Attorney able to secure any

additional information? I think the number she gave at one time was that

there had been 22 charges. Have we had any convictions? Has anyone been

convicted in British Columbia, under the Criminal Code provisions, for

the non-consensual distribution of intimate images?

Hon. N. Sharma: The first comment about the purpose of this is correct.

We do have more data for you. I’ll just read it.

In B.C., there were 50 non-consensual distribution of intimate

images charges laid — 47 adults and three youth. That was under the

Criminal Code,

section 162.1(1). In 2021, the case outcomes for the 37

adult cases were 16 guilty and two not guilty findings, as well as five

stays of proceedings and three other. Eleven are not concluded. That’s

the extent of the data that I was able to provide.

M. de Jong: It sounds like, along the way, in the last two years, there have

been 16 either admissions or findings of guilt with respect to Criminal

Code charges under the relevant provisions.

Hon. N. Sharma: That’s correct. In 2021, it was 16 guilty, two not guilty, five

stays of proceedings, three other and 11 not concluded. That’s for

adults.

Clause 22 approved.

On clause 23.

[4:40 p.m.]

M. de Jong: I’m going to offer the Attorney…. Well, she always gets the last

word in these proceedings. I’m going to invite her to take advantage…. I

think this will be the last clause that I pose any questions

on.

It’s not an unprecedented clause. It is an unusual one insofar as

it dates the effective date back to the date of introduction of this

legislation, which means, as the Attorney, I think, pointed out

somewhere along the way, maybe in her first reading remarks…. I think in

her first reading remarks….

If someone is out there…. We’ll come back to our example. If

someone is posting or has posted or is threatening to post, today, an

intimate image of that 18-year-old girl and causing her horrendous

distress and victimizing her, they’d best not think that somehow these

provisions won’t apply until, maybe, moments later, when they, sometime

in the future…. I’m sure the Attorney will want to make clear that when

this legislation passes, as it will shortly, that anyone that has

engaged in that activity since this bill hit the floor of this chamber

risks finding themselves on the receiving end of an order.

I’ll leave it at that and thank the Attorney and her staff for

their participation and assistance in these committee

proceedings.

Hon. N. Sharma: Thanks for giving the opportunity to talk about this. As I said

clearly, not only to the public when we introduced this but also

throughout our communications on this, we want to start now by deterring

all of those would-be distributors of non-consensual intimate images

that this legislation is designed to put them on notice that as of the

day of first reading they could be liable for the orders and the

remedies under this piece of legislation.

We want the victims of this type of sexualized violence to know

that we are doing everything we can in our justice system to make sure

that they have the remedies and tools they need to stop the harm from

this type of behaviour.

With that, I just want to thank the member for the questions and

the team here that were with me today.

Clauses 23 to 31 inclusive approved.

Title approved.

Hon. N. Sharma: I move that the committee rise and report the bill complete

without amendment.

Motion approved.

The committee rose at 4:44 p.m.

The House resumed; Mr. Speaker in the chair.

Report and

Third Reading of Bills

BILL 12 — INTIMATE IMAGES

PROTECTION

ACT

Bill 12, Intimate Images Protection Act, reported complete without

amendment, read a third time and passed.

Hon. M. Farnworth: I call Committee of the Whole, Bill 17, Family Law Amendment Act,

Committee of the Whole House

BILL 17 — FAMILY LAW

AMENDMENT ACT,

The House in Committee of the Whole (Section

B) on Bill 17;

S. Chandra Herbert in the chair.

The committee met at 4:47 p.m.

The Chair: We will take a short recess as we prepare for the correct

staff to be in place.

The committee recessed from 4:47 p.m. to 4:52 p.m.

[S. Chandra Herbert in the chair.]

On clause 1.

The Chair: All right. Thank you, Members. I’d like to get started with

the short time we have here.

We’re looking at Bill 17, the Family Law Amendment Act,

Hon. N. Sharma: I’d love to just introduce the team that I have here with me that

will be supporting me. We have Darryl Hrenyk, legal counsel, and Aurora

Beraldin, legal counsel.

M. de Jong: So three components of this legislation as it relates to the

division of family assets. This is the first one, which touches upon

pets and how pets are dealt with and creates the defined term “companion

animal,” which, according to the definition, is an animal that is

primarily for companionship.

I’ll probably deal with clauses 1 and 2 together, since they both

kind of relate to the same thing — a companion animal. And then, in

clause 2, we’re told what a companion animal doesn’t include. It doesn’t

include a guide or service dog, an animal that is kept as part of a

business or an animal that is kept for agricultural purposes.

I suppose it’s possible for us, since we’re going down this road

and defining this, to think of circumstances where an animal might

fulfil both purposes. By definition, this would be for families residing

in more rural settings.

[4:55 p.m.]

Hard to imagine someone in downtown Vancouver having an animal

that fulfils, at their home, an agricultural purpose, although I suppose

they have chickens now in the West End, as the Chair reminds

me.

There were two kinds of animals, two examples, which readily came

to mind for me, where there might be a crossover. One is a herder dog,

which is obviously there, in part, for an agricultural purpose but, in

most cases, becomes a pretty closely aligned member of the family and a

companion.

Well, I’ll give you both examples. We’re going to move along here

to other matters shortly. In certain parts of British Columbia, you may

have situations where families have horses which fulfil more than just

an agricultural purpose. They become pretty intimate members of the

family circle as well.

Those are two examples — and there are probably others — where you

can think of a situation where there would be a crossover. How does the

definition operate — or does it? — to address situations where an animal

is there for an agricultural purpose but is very much a family

pet?

Hon. N. Sharma: The key part of this definition, which I want to draw everyone’s

attention to, is the word “primarily.” So “primarily for the purpose of

companionship.”

If a party in a dissolution of a marriage wants to bring forward a

claim that the herder dog or the horses, which the member mentioned as

examples, are primarily for the purposes of companionship, they could

bring that claim and seek an order from a judge that that should be

captured. Then maybe there would be…. If there was opposition to that

finding, then it would be up to that person to claim other

categories.

I will also note that if an animal is considered to be for an

agricultural purpose, then the regular property division, I guess, would

apply. You wouldn’t seek an order for it, but there would be a division.

That would be considered agricultural property and has a value when it

comes to that.

H. Sandhu: May I seek leave to make an introduction, please.

Leave granted.

Introductions by Members

H. Sandhu: I have some very special guests in the gallery here, joining us for

the first time: my maternal uncle Nashan Singh Khosa, my auntie Amerjit Kaur

Khosa and my sister-in-law Ravinderjit Kaur Khosa. Adage Khosa is my nephew.

Along with them is family friend Vikramjit Singh.

My uncle had a stroke while driving in his car and ended up in a ditch

a few years ago. He had, four times, a near-death experience. So for me,

having the ability to introduce him is an amazing feeling. We thought we

lost him. He ended up with many deficits, losing speech and mobility, but

he’s still full of life. His entire life was dedicated to social work and

helping marginalized people. He played a big role, after my dad passed away,

in our lives.

Would the House please give them a warm welcome and make them feel

very welcome here in the House.

Hon. N. Sharma: I move that the committee rise, report progress and seek leave to sit

again.

Motion approved.

The committee rose at 5 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted

leave to sit again.

Committee of Supply (Section C), having reported progress, was granted

leave to sit again.

Mr. Speaker: The House will be in recess for five minutes.

The House recessed from 5:01 p.m. to 5:05 p.m.

[Mr. Speaker in the chair.]

Mr. Speaker: I’ll call the House back to order.

Committee of the Whole (Section A), having reported progress, was granted

leave to sit again.

Mr. Speaker: Members, Her Honour is in the precinct. Please remain seated while we

wait for her to come here.

Her Honour the Lieutenant-Governor requested to attend the House, was

admitted to the chamber and took her seat on the throne.

[5:10 p.m.]

Royal Assent to Bills

Law Clerk:

Intimate Images Protection Act

Miscellaneous Statutes (Modernization) Amendment Act, 2023

Vital Statistics Amendment Act, 2023

In His Majesty’s name, Her Honour the Lieutenant-Governor doth assent

to these acts.

Supply Act (No. 1), 2023

In His Majesty’s name, Her Honour the Lieutenant-Governor doth thank

His Majesty’s loyal subjects, accepts their benevolence and assents to this

act.

Hon. J. Austin (Lieutenant-Governor): Thank you very much.

ÍY SȻÁĆEL NE SĆÁLEĆE . As

always, it’s great to see you and to join you today.

I understand you’ve had an extremely busy week, and another busy week

next week. But I do hope you’ll have time to enjoy some time with family and

friends over the Easter break.

[5:15 p.m.]

One thing that the pandemic has taught me is how important it is to

express the appreciation that you feel for others without delay and without

reserve. As always, I want to thank you for your truly splendid work and to

wish you all the very best always.

HÍSW̱ḴE SIÁM .

Her Honour the Lieutenant-Governor retired from the chamber.

[Mr. Speaker in the chair.]

Hon. R. Kahlon: I move that notwithstanding Standing Order 2, when the House next

adjourns, it stands adjourned until 10 a.m., Monday, April 3,

Motion approved.

Hon. R. Kahlon moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m., Monday, April 3.

The House adjourned at 5:17 p.m.

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of Supply

ESTIMATES: MINISTRY OF

FORESTS

(continued)

The House in Committee of Supply (Section A); R. Leonard in the

chair.

The committee met at 1:04 p.m.

The Chair: I call Committee of Supply,

Section A, to order. We are

meeting today to continue the consideration of the estimates of the

Ministry of Forests.

On Vote 30: ministry operations, $483,568,000

(continued) .

[1:05 p.m.]

Hon. B. Ralston: When we left off, the member had posed a question. He attributed a

quote to the immediately past Premier. We haven’t been able to locate

that. I can say that he will be in Victoria this evening at a

fundraising event, and if the member wanted to come and question him

directly, he’d be welcome to attend.

The business cycle for the forest industry has not been rescinded.

I think there are some new elements in what has taken place in recent

years — certainly the effect of wildfires, particularly in the Interior,

and the effect of the pine beetle epidemic. These are well known but

have been particularly acute in continuing in recent years.

I’m not quite sure what the member was looking for in his

question. But I think that’s contrasting it to a statement that, as far

as we know, is hard to verify. That’s the best we can do.

M. Bernier: The minister has been around here long enough to know that there’s

been lots of discussion on the commentary of the former Premier, on his

verbal support for the forestry sector, by saying that no mills would be

shut down under an NDP government. I do find it interesting that this

minister isn’t aware of his own commitments that his government

makes.

But I’ll leave that to the side for now because I think it’s

really important to talk about the fact that there are huge pressures

right now in the forestry sector, and they’re not just because of

markets. There are a lot of attributing factors. Absolutely, there are.

But let me just read into the record some that I found here. I’ll let

the minister go afterwards and find the actual quotes of what the former

Premier said on the supports for forestry. If he wants to back that off

and say no, they were completely planning on closures, then he can maybe

say that instead.

I look at some companies, like West Fraser. These are public

comments. These are not anything that I’m sharing out of school or

anything like that. West Fraser said: “Government policy decisions have

impacted the amount of available fibre in this province.”

Skeena Sawmills: “The adjustments to government’s policies lately

have put pressures on permitting and fibre access.”

Aspen Planers: “We’ve gotten into a situation now, under this

government, where we’ve run out of logs because we have not had any

cutting permits approved by this government.”

Conifex: “B.C. Ministry of Forests’ policies and practices,” under

this government, “which position sawmills in the B.C. Interior region at

the high end of the industry cost curve” are non-affordable.

I mean, there’s a common thread here that we are hearing from

companies around the province. Now, not all of those are prime areas,

but pretty close when we talk about the pressures that we’re seeing on

the landscape. We’ll get into some of those pressures in a little bit

when we talk about old growth and some of the objectives that we want to

try to understand of this government.

I guess my question to the minister…. I’ve read these quotes.

We’re hearing about the pressures. I know he wants to talk about cost

pressures and things out of government’s control. But what we’re hearing

from a lot of companies is it’s actually a lot to do with government

policy, lack of clarity when it comes to the direction of this

government or the uncertainty that’s being created by policy that

doesn’t really have enough descriptive to it where companies know what

direction this government is going to go.

In light of the fact that I did put here that the former Premier

said no mills were closed, this minister is trying to say, I guess, that

they can’t find that quote, which means there was planning, maybe, for

all these mills to close. I’m not sure where the minister wanted to go

with that one, where his thought process was. How many more mills do we

plan on seeing closed in the 2023 calendar year, with the estimation of

how many jobs will be lost?

[1:10 p.m.]

Hon. B. Ralston: I think it’s important to put some of the member’s assertions into

context.

West Fraser. Their company adjusted earnings before interest,

taxes, depreciation and amortization in 2022 were…. They made $3.131

billion. They had a good year last year. The other companies: Interfor

made over $1 billion, $1.059 billion; Canfor made $1.512 billion. That

was in the context of the timber prices that we discussed, very

profitable.

[1:15 p.m.]

For the longer-term context, there was a report done by a

legislative committee about ten years ago — I don’t know whether the

member served on it; I can’t recall — that talked about the emerging

crisis in the Interior in the mid-term timber supply. That was predicted

and foreseen, as long ago as that — and, probably, before that as well.

That did confirm, through a parliamentary committee, the challenge that

we have now encountered.

Companies are aware of that and are making their plans based on

that kind of forward knowledge. To say that we, referring to the

government, are going to close mills, I think, is an unfair and

inaccurate attribution.

I do want to talk a little bit about some of the other companies

that have been referred to. Skeena Sawmills, out of Terrace — I just had

a meeting with them, coincidentally, this morning, and we’re aware of

their challenges. They set that out, and we’re working with them to

bring some positive news in Terrace. Their challenge is not timber

supply, particularly.

On Aspen Planers, there has been a series of events in that timber

supply region. In the Merritt timber supply region, the annual allowable

cut decreased from 1.5 million cubic metres a year to 1.2, and an

apportionment decision is currently underway. The cumulative effects — I

mean, there has been mountain pine beetle, and there have been

catastrophic wildfires — have added significant complexity to the

operations.

Aspen Planers. I would say the member’s note or information is a

little outdated. They were recently the successful bidder on a large

B.C. Timber Sales bid in the Kamloops business area for 43,784 cubic

metres. In addition, 209,763 cubic metres in cutting permits were

approved at the beginning of March. They’ve since been successful on two

more B.C. Timber supply bids, giving them more fibre

certainty.

I know there have been challenges there. I think the member knows

something about that, but the ministry, the community and the Indigenous

nations who are participants are working their way through that

challenge. I think we’re beginning to see the other side of that

challenge.

M. Bernier: I did read into the records some specific quotes from companies

who are obviously frustrated, because they’re worried about the future

of their mills and their employees, which means the futures of

communities. I’ll get to some of the specifics in some of these

communities in a moment.

I want to go back. I can’t let the minister off the hook that

easily on some of his commentary. When the minister is talking about the

collective earnings of different conglomerates, different companies, he

conveniently picked national companies that, yes, publicly reported

earnings, profits, last year.

He conveniently left out how those profits would be divided up

through territorial aspects — British Columbia, for one. When we talk to

these companies, they’re attributing some of their mill closures and the

lack of investment in British Columbia…. Yes, they’re making money, but

they’re making it in other jurisdictions.

The cost pressures in British Columbia…. We’re one of the

highest-cost jurisdictions in North America in this sector. Yes, a

company might have made eight-figure or nine-figure dollar amounts more

in profits, but not in British Columbia.

Does the minister want, maybe, to correct me on that? Is he

telling me…? For the numbers that he just put on the record, the

billions of dollars of profits, was it in British Columbia where they

made that revenue?

[1:20 p.m.]

Hon. B. Ralston: As the member has pointed out, that’s a global number. But those

companies did well on their B.C. operations because of the prices that

we talked about in 2021 and 2022. I put the numbers, the hard numbers,

into the record previously. I think that’s undeniable. They did very,

very well in British Columbia as well.

M. Bernier: We can debate the profits of these primary companies, which is not

a good use of time, but it is important to highlight and reflect on the

fact that the majority of these profits in these companies are made

outside of British Columbia. That’s public knowledge, when you look at

the documentation that these companies release.

Also, everybody is very much aware of the fact that British

Columbia is the highest-cost jurisdiction. When you look at some of the

announcements that these companies, different companies, are making —

and I’m speaking mostly to your large primaries that are your national

companies — they continue to talk about investments that they’re making

as companies, but they’re not in British Columbia, the majority of

them.

These large investments that they’re making are on the east coast,

a lot in the United States. They’re diversifying their portfolios. They

already were, but some of these companies, over the last five, seven or

ten years, have been starting to buy companies and operations in other

parts of North America. That’s where they’re putting their investments

now.

We’re not seeing it just in forestry. As the former Minister of

Energy and Mines, this new Minister of Forests is well aware of the cost

pressures that British Columbia faces when it comes to our resource

sector and the fact that boards, when making investment decisions, look

at that.

I’m trying to figure out, when this government talks about the

future of forestry in British Columbia and they’re trying to be positive

about it…. But I’ll canvass a little later about what they’re actually

going to do about it. Words are one thing. Policy decisions to actually

give certainty to lower cost pressures are another.

In the last five years in the province of British Columbia, we’ve

lost almost 14,000 direct jobs, that I can find, in the forestry sector.

That’s 14,000 more than this government, I think, said that we would

lose.

My question to the minister was not how many more mills this

minister is going to close. But I was highlighting the pressures,

through government policy, that are attributing partly to some of the

decisions that companies have to make in the province of British

Columbia.

To the minister’s knowledge, through his discussions, how many

more mills does he think may close this year, and how many more jobs

will be lost?

[1:25 p.m.]

Hon. B. Ralston: The member’s question invites me, I th