The debate over the government’s proposed social media ban for under 16s has raised several difficult questions, including doubts about whether it will work, which services it will cover, and what risks to privacy mandating age verification could create. But beyond the operational questions is a more fundamental one: is the ban constitutional? Bill C-34 contains some signals that the government knows there are serious constitutional vulnerabilities, given the obvious implications for freedom of expression that come from blocking an entire cohort of Canadians from accessing information and expressing themselves on social media. The bill contains several provisions that are seemingly designed to act as safeguards that could be used to argue that the ban is proportionate. These include guidance on age verification technologies to address privacy concerns, promises that the verification obligation does not require measures that “unreasonably or disproportionately” limit expression, a requirement that the new Digital Safety Commission consider freedom of expression, equality, and privacy when it establishes regulations and guidelines, and the ability for services to seek a ban exemption if they can demonstrate adequate safeguards for children.

Even with these measures, the ban might still be found to be unconstitutional. But if you think they provide a plausible argument that the ban can be justified (as Emily Laidlaw argues here), the problem is that none will be operational when the ban takes effect. In other words, there is a major disconnect between the law the government says it is establishing and the one it plans to implement. If the safeguards are not implemented and millions of Canadians are required to verify their age to express themselves on social media, I believe the ban is likely to face an immediate court challenge and that a court will rule that it violates the Charter of Rights and Freedoms.

The starting point for the constitutional analysis is not seriously contested. The ban on its face infringes Section 2(b) of the Charter, since freedom of expression includes the right to seek, receive, and impart information, and a law that creates conditions of access for everyone and blocks those under 16 from lawful platforms limits those rights. As I argued in the Illusion of Protection post, children are rights holders, not merely objects of protection, a position echoed by the Canadian Civil Liberties Association, the Justice Centre, and free expression scholars across the country. The real question is not if the ban violates Section 2(b), but rather whether the infringement can be justified under Section 1 of the Charter, with the analysis likely to turn on minimal impairment and the final proportionality balance.

The Department of Justice has yet to release a Charter statement on Bill C-34, but Laidlaw offers the best defence of the bill, though she acknowledges it is at best a close call. Her argument is based on the real risk of harm from social media and the safeguards in the bill. She points to data that makes the case of real harms from social media, noting that under the Supreme Court of Canada’s Irwin Toy decision, even contested studies may be sufficient to demonstrate a valid policy objective. Yet as Laidlaw herself acknowledges, Irwin Toy, which upheld a ban on television advertising directed at children, does not fully translate to a social media ban, since that case restricted what advertisers could say to children rather than what children themselves could express.

Moreover, the reasonableness of the measures would rest on two safeguards found in Bill C-34: the privacy protections in Section 27 and the ability for social media companies to seek an exemption in Section 29. Taken together, she argues the ban is a “pause,” and there are protections against disproportionate harms to privacy. Others have been less convinced, as Emmett Macfarlane argues that the ban is nowhere near minimally impairing and Robert Diab reaches a similar conclusion in media reports on the issue.

The problem with relying on the Bill C-34 safeguards is that the government has already admitted they won’t take effect before the ban is implemented. As I noted last month, if the bill were to pass tomorrow, there would be no regulated social media services, no safety standards, no age verification standards, and no mechanism to obtain an exemption. The government says it will need between 12 and 18 months just to establish the Commission, with its plan to start the ban as soon as the Commission is launched, but before any of the safeguards have been established. Indeed, developing the standards for age verification and exemptions can only come after the Commission is up and running, a process that will surely take at least a year, and a review of a social media service seeking an exemption will take at least another year after that. The net effect is that the safeguards will not be operational until years after the ban takes effect, opening the door to the possibility of a court being asked to consider whether the ban is constitutional days before millions face restrictions on their expression without any of the safeguards designed to make the case for proportionality in place.

The imbalance becomes even more pronounced when weighing the law’s benefits against its harms. The harms are certain, immediate, and irreversible, as the verification infrastructure exposes millions of identity documents to providers largely beyond the reach of Canadian privacy law, a risk demonstrated by the Discord breach that leaked roughly 70,000 government-issued IDs last fall. Privacy alone may not decide the case, but the verification mandate is not only a privacy cost. A law that conditions access to social media for online expression by requiring proof of identity limits expression itself for Canadians of all ages. The benefits, by contrast, are speculative at best, given mounting data from Australia that suggests a ban is ineffective.

This points toward the likely litigation strategy of a court challenge seeking to stay the ban before it comes into force. Such a challenge would ask the court to hold the government to the conditions it set for itself: no ban until the Commission exists, the exemption is available to qualifying services, and the standards designed to keep verification proportionate are in place and applied. The irreparable harm at the centre of any stay application is the verification infrastructure itself. Once millions of Canadians have handed their identity documents to third-party verifiers, the privacy loss is permanent, regardless of the outcome of the litigation, and a ruling that the ban was unconstitutional will come too late for those already exposed.

No one doubts that protecting children online is a pressing objective. But the government has crafted a bill in which millions will face mandated verification before a single safeguard or exemption meant to justify the ban takes effect. There are convincing arguments that addressing broader social media risks is a better regulatory model than the ban, but granting a stay on the ban on constitutional grounds requires only an assessment of the law as it will actually operate. If the government sticks with its current plan, the safeguards and exemption said to justify the ban will not be operational and the courts should stay the ban at least until they take effect.