More than four months after Bill C-34 was introduced (and about ten days after I posted about it), the government released its Charter statement for the Safe Social Media Act. While there was no doubt the government would insist its bill is Charter-compliant, the question was how it would defend the under-16 social media ban, which I have argued is unconstitutional and whose French counterpart the Constitutional Council struck down in August. On that front, the statement is noticeably weak, citing no evidence, case law, or foreign comparisons. In fact, by identifying less restrictive alternatives to the ban, it effectively concedes that less intrusive safeguards can adequately address the risks the ban is meant to target. In other words, this Charter statement makes the case against the government’s own bill.

While most of the Charter statement repeats the statement for Bill C-63, which also included the duty to act responsibly, the duty to make certain content inaccessible, and the creation of a Digital Safety Commission, the assessment of the ban and age assurance systems is new. The evidentiary foundation for the ban is a single unsupported assertion that “there is considerable social science evidence about the risks posed to young people by social media use,” followed by a list of harms from posting content that “may be effectively impossible to remove from the Internet, may spread virally, may feed algorithms that encourage problematic use, and may make the poster a target for grooming and cyberbullying.” The statement does not reference any studies, reports, or expert bodies in support of the contention nor does it engage with the experience elsewhere (such as Australia, where a similar ban has thus far proven ineffective).

In defending the ban, the statement relies on the Digital Safety Commission’s power to exempt services, arguing that the exemption “would allow operators to take measures to address risks to young persons and thus be exempt from the minimum age requirement.” However, as I wrote in June, the ban applies once the relevant provisions are brought into force and Cabinet designates the covered services by regulation. But the Commission’s age assurance standards, the Privacy Commissioner review and the exemption criteria will only come after the ban has been implemented. The net effect is that the ban and age assurance mandates for millions come first, regardless of whether the service has adopted measures to address safety risks. The statement does not discuss what that means for the Charter rights of millions of Canadians facing barriers to accessing lawful content, but the omission leaves the bill on shaky constitutional ground.

The statement also emphasizes that the scope of the ban is limited, noting that the requirement “is limited to having an account or being registered with a site, rather than anonymous browsing, reflecting the increased risks to young people that stem from the collection and use of data in feeding algorithms that determine content to be served, as well as risks that stem from the ability to post content.” But that means the ban does nothing about exposure to harmful content through browsing, one of the very harms the statement cites in support of the ban, and leaves that risk to the general duty that applies to all users. If the concern is largely limited to profiling and algorithmic choices that come with having an account, surely tools better suited to address that issue exist, such as restrictions on profiling and algorithmic recommendation, private-by-default settings, and limits on specific features such as unsolicited contact from adults. The bill already requires operators to integrate child protection design features set out in regulation, which is exactly this kind of measure. Given the availability of those measures, it is hard to see how a ban is minimally impairing.

The statement is surprisingly indifferent to the ban’s privacy implications under Section 8 of the Charter. It states that the Commission’s inspection powers, researcher access to operator data, and the preservation of data identifying users who posted violent content, have “the potential to intrude upon a reasonable expectation of privacy so as to engage section 8 of the Charter.” But age assurance technologies that would require millions of Canadians to hand over personal information to access lawful services? Those only “could be perceived as engaging section 8.”

Beyond that, privacy is an issue the statement tries studiously to avoid. The statement lists the bill’s conditions on age assurance data and says PIPEDA would continue to apply, but it never mentions the one external privacy check in the bill, the requirement in Section 122 to consult the Privacy Commissioner and consider its recommendations before issuing age verification guidelines or regulations. Perhaps that is because, as I wrote in June, Bill C-36 repeals the consultation provision, leaving Canadians with no independent review. The statement similarly does not refer to the Supreme Court’s recognition in R. v. Spencer of the privacy interest in keeping identity separate from online activity, which a national age assurance mandate puts at risk for anyone seeking to open an account.

As for the age restrictions more generally, the statement notes that courts have upheld them “in relation to voting, drivers’ licences, and consent to medical treatment and sexual intercourse.” But none of the examples involve restricting a minor’s own expression or access to a medium of communication. The section covering the bill’s most contested provision was also sloppily drafted, including a cross-reference to privacy protections “noted below” carried over from the preceding section with nothing following it, and a reference to “age-verification or age-verification measures.”

Charter statements are not legal opinions, and the government will undoubtedly say this one was never intended to settle the constitutional concerns. Yet the statement is the mechanism Parliament created for the government to inform MPs and the public about a bill’s effects on Charter rights, and on the social media ban it leaves the central questions unanswered: why exclusion must be the default, why implementation without safeguards in place is not fatal to the analysis, and why mandatory safeguards would not provide adequate protection for kids when the bill’s own design duties and exemption process accept that safeguards are capable of doing so. There is little doubt that Bill C-34 will ultimately face a court challenge if it becomes law in its current form, and the government will need a much better answer than the one it has provided in its Charter statement.