Canada's child pornography regulations flagged for inconsistencies, say internal memos

The federal Department of Justice has quietly agreed to amend the regulations on internet child pornography after Parliament Hill's legal fact checkers spotted problems with the law.

The back and forth between department officials and lawyers with the Standing Joint Committee on Scrutiny of Regulations — detailed in internal letters — shines a light on the imperfect science of drafting government regulations.

The regulations brought in by the Harper government in 2011 to accompany a new child pornography law require that Canadian internet service providers (ISPs) report child pornography to the police.

The regulations include a unique provision that asks a designated organization — the Canadian Centre for Child Protection — to review any online files flagged by ISPs or members of the public to determine if they constitute child pornography. The Manitoba-based charity is seen as the leading voice on the issue in Canada.

For that reason, the regulations require that all of the centre's personnel have "necessary security clearance and training."

That raised a red flag with lawyers at the standing joint committee, according to letters obtained by CBC News under the Access to Information Act.

Committee lawyers first wrote to senior Justice officials back in 2016 warning that the phrase "necessary security clearance" could lead to the charity's staff requesting high-level government security clearances. (The committee is basically Parliament's fact-checker, examining government regulations for legal flaws and redundancies.)

"The use of the term 'necessary security clearance' is imprecise and seems to give unnecessary discretion to the designated organization to determine what security clearance will be necessary," wrote committee lawyer Penny Becklumb in a follow-up October 2017 letter.

At first, the Department of Justice pushed back, arguing the phrasing referred to a police check or a psychological assessment — but ultimately decided the committee had a point.

A March 2018 briefing, which Justice Minister Jody Wilson-Raybould approved, recommends the offending paragraph be amended for "clarity."

Translation issues

The committee also found inconsistencies between the French and English versions and was worried some of the act's language was too subjective. The department has agreed to clean up those problems as well.

While it's normal for departments to argue with the committee, it does have a special power up its sleeve.

If a department and the committee staff find themselves at an impasse, the committee has the unique (and rarely used) ability to recommend "disallowance." If triggered, the regulation in question is kicked back to Parliament for debate.

The Department of Justice said it would move on the recommended changes "at the next available opportunity."

"The department continues to examine these issues, however, [it] is not in a position to confirm timing," said spokesperson David Taylor in an email.