Canadian Bill S-209

Canadian Bill S-209 is a bill introduced by Hon. Sen. Julie Miville-Dechêne, and is an updated version of Bill S-210, which was killed during the Parliamentary prorogation in early 2025. The bill, named "An Act to restrict young persons’ online access to pornographic material" , is the Canadian Governments attempt to restrict pornographic material to young people (defined as Canadians under the age of 18, page four of this document). The bill has key differences between the original and updated version, and mandates the use of government-approved Age Verification or Age Estimation services to access 'pornographic material', or risk the hosting website to be completely removed from the Canadian Internet.

How it works

General Overview

The bill, introduced in May of 2025, aims to target organizations, as described on page four of this document, to force the usage of government verified Age Verification or Age Estimation services to access any online website that 'makes available' 'pornographic content'. Under Section 5, an Organization is guilty of an offence if:

"5 Any organization that, for commercial purposes, makes available pornographic material on the Internet to a young person is guilty of an offence punishable on summary conviction and is liable, 15 (a) for a first offence, to a fine of not more than $250,000; and (b) for a second or subsequent offence, to a fine of not more than $500,000."

What is 'making available'?

In the document, making available is defined as:

"making available includes transmitting, distributing or selling. (rendre accessible)".

This definition is extremely broad, and does not specify just pornographic sites. As seen in the next section, 'pornographic material' is also extremely broad.

What is 'pornographic material'?

As defined in the aforementioned document;

"pornographic material means any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts, but does not include child pornography as defined in subsection 163.1(1) of the Criminal Code. (matériel pornographique)"

This definition is not just limited to pornography, but nudity in general.

Why it is a problem

By including general nudity as the definition of pornography, you include material on sexual health, gender orientation, sexual orientation, and reproductive health. This limits adult and young persons from accessing this material without having to consent to age verification or estimation services, and if you are a young person, you cannot access this content online at all.

Even though Section 12 outlines very strict requirements for Age Verification or Age Estimation services, nothing online is impervious to leaks or hacks. Uploading sensitive information such as facial biometrics, age, address, social security codes, or public health insurance numbers to an online service puts the user at risk of identity theft, doxxing, and potential blackmail if such information was leaked or hacked.

Defenses

Under the Act, there are two listed defences;

"Defence — age verification or age estimation 7 (1) It is not a defence to a charge under section 5 that the organization believed that the young person referred to in that section was at least 18 years of age unless the organization implemented a prescribed age-verification 30 or age-estimation method to limit access to the pornographic material made available for commercial purposes to individuals who are at least 18 years of age."

And;

"Defence — legitimate purpose (2) No organization shall be convicted of an offence under section 5 if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts."

The first defence, in plain English, says that a company CANNOT use the defence that they thought someone was over the age of 18, having not used the Age Verification or Age Estimation services. The second defence is more easy to read, and prohibits the conviction of an offence of 'making available' 'pornographic content' for the legitimate purpose of science, medicine, education, or arts.

This sounds great, however in Canadian Law, defences can only be claimed after a charge has been laid. So an organization who provides such material for a purpose of science, medicine, education, or arts, much be brought to a federal court first to them lay their defence. But as described in the next section, there are some steps that must be taken before anyone goes to court.

Progression of Regulation, with an example.

If you are an internet website providing information on reproductive health for the sake of science and education, and a claim is made to the Enforcement Authority (EA), or the EA investigates you for 'making available' 'pornographic content', you will be served with a Non-Compliance Notice if;

"Notice 9 (1) If the enforcement authority has reasonable grounds to believe that an organization committed an offence under section 5, the enforcement authority may issue a notice to them under this section."

Remember, under Section 5, an offence is committed by 'making available pornographic content'. Also remember that the term 'making available 'is highly broad, and 'pornographic content' is defined as general nudity. Additionally, the EA must only have 'reasonable grounds', and no proof of evidence. So, having met these terms, the notice will be structured as such:

"Content of notice (2) The notice must state (a) the identity of the organization; (b) that the enforcement authority has reasonable grounds to believe that the organization has committed an offence under section 5; (c) the steps that the enforcement authority considers 20 necessary to ensure compliance with this Act; (d) that the organization must, within 20 days after the notice is issued, take the steps referred to in paragraph (c); (e) that, if the organization fails to take the steps referred to in paragraph (c) within the period set out in paragraph (d), the enforcement authority may apply to the Federal Court for an order requiring Internet service providers to prevent access to the pornographic material by young persons on the Internet in Canada; and (f) that the organization may make representations to the enforcement authority in relation to any element of the notice within the period set out in paragraph (d)."

But because you fall under the defence of Defence — legitimate purpose (2), you don't have to comply with the Age Verification or Age Estimation services, and twenty days pass. After this twenty day period, the EA submits an appeal to a Federal Court to block any and all internet access in Canada to your website, without a hearing, and before you can submit your defence.

So, because you were providing online sexual health education services in Canada, your website was shut down, and you will be going to Federal Court spending countless dollars of your own, and of taxpayers, to prove that you are in fact providing your service within the frame of education.

Charter of Rights Violations

In a Youtube video by a Canadian privacy lawyer David Fraser, he outlines two Canadian Charter of Rights and Freedoms violations of this bill, the right to lawful access of information and to anonymity. The specific amendments in the charter are as follows:

Right to access lawful content:

- Section 2(b) - Right to Freedom of Expression. Courts have interpreted this to include the right to receive and access content, even if it's controversial (like pornography), as long as it's legal under Canadian law.

- Section 7 - Life, Liberty and Security of the Person. “Liberty” has been interpreted to include personal autonomy, which could arguably include the freedom to make personal decisions about consuming legal adult content.

Right to anonymity:

- Section 2(b) - Right to Freedom of Expression. The right to express oneself, including the right to receive and share information, possibly anonymously. Courts have recognized that anonymity can be an essential part of expression, especially online or when expressing controversial views. In some cases, courts have allowed individuals to use pseudonyms in court filings or remain anonymous to protect their freedom of expression.

- Section 8 - Search and Seizure. Asserts a reasonable expectation of privacy, including digital privacy - like IP addresses, search histories, or online identities. This section has been the main Charter basis for protecting anonymity online. In R. v. Spencer (2014), the Supreme Court ruled that Canadians have a reasonable expectation of privacy in their internet activity, including who is behind an IP address. That means police need a warrant to obtain subscriber info from ISPs.

Changes from S-210

In the video, David Fraser outlines changes from S-210. The main changes are:

- Definition changes of pornographic content, from Sexually Explicit Content in the Canadian Criminal Code to "pornographic material means any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts, but does not include child pornography as defined in subsection 163.1(1) of the Criminal Code. (matériel pornographique)"

- Additions of Age Estimation services, in conjunction with Age Verification Services, throughout the document.

- Changes in Section 12(2) for the requirements of Age Verification or Age Estimation Services.

- Changes in citations within the document with respect to other changes.