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 2.

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 on social media.

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 5?

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, 2023.

Committee of the Whole House

BILL 17 — FAMILY LAW
AMENDMENT ACT, 2023

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, 2023.

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, 2023.

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.