Hate Propaganda Warrants and Forfeiture Orders
| This page was last substantively updated or reviewed January 2016. (Rev. # 95267) |
General Principles
- Warrant of seizure
320 (1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda shall issue a warrant under his hand authorizing seizure of the copies.
- Summons to occupier
(2) Within seven days of the issue of a warrant under subsection (1) [warrant of seizure], the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty.
- Owner and author may appear
(3) The owner and the author of the matter seized under subsection (1) [warrant of seizure] and alleged to be hate propaganda may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.
- Order of forfeiture
(4) If the court is satisfied that the publication referred to in subsection (1) [warrant of seizure] is hate propaganda, it shall make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.
- Disposal of matter
(5) If the court is not satisfied that the publication referred to in subsection (1) [warrant of seizure] is hate propaganda, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.
- Appeal
(6) An appeal lies from an order made under subsection (4) [warrant of seizure – forfeiture] or (5) [warrant of seizure – return of property] by any person who appeared in the proceedings
- (a) on any ground of appeal that involves a question of law alone,
- (b) on any ground of appeal that involves a question of fact alone, or
- (c) on any ground of appeal that involves a question of mixed law and fact,
as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], and sections 673 to 696 [appeal of indictable offences, including to SCC] apply with such modifications as the circumstances require.
- Consent
(7) No proceeding under this section shall be instituted without the consent of the Attorney General.
- Definitions
(8) In this section,
...
"court" means
- (a) in the Province of Quebec, the Court of Quebec,
- (a.1) in the Province of Ontario, the Superior Court of Justice,
- (b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,
- (c) in the Province of Newfoundland and Labrador, the Supreme Court, Trial Division,
- (c.1) [Repealed, 1992, c. 51, s. 36]
- (d) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, in Yukon and in the Northwest Territories, the Supreme Court, and
- (e) in Nunavut, the Nunavut Court of Justice;
...
"genocide" has the same meaning as in section 318 [advocating genocide];
...
"hate propaganda" means any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319 [public incitement of hatred and wilful promotion of hatred];
...
"judge" means a judge of a court.R.S., 1985, c. C-46, s. 320; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 4, c. 17, s. 11; 1992, c. 1, s. 58, c. 51, s. 36; 1998, c. 30, s. 14; 1999, c. 3, s. 29; 2002, c. 7, s. 142; 2015, c. 3, s. 49.
[annotation(s) added]
- Warrant of seizure
320.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material that is hate propaganda within the meaning of subsection 320(8) [warrant of seizure – definitions] or computer data within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions] that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions] that is within the jurisdiction of the court, the judge may order the custodian of the computer system to
- (a) give an electronic copy of the material to the court;
- (b) ensure that the material is no longer stored on and made available through the computer system; and
- (c) provide the information necessary to identify and locate the person who posted the material.
- Notice to person who posted the material
(2) Within a reasonable time after receiving the information referred to in paragraph (1)(c) [warrant of seizure – hate prop – id persons], the judge shall cause notice to be given to the person who posted the material, giving that person the opportunity to appear and be represented before the court and show cause why the material should not be deleted. If the person cannot be identified or located or does not reside in Canada, the judge may order the custodian of the computer system to post the text of the notice at the location where the material was previously stored and made available, until the time set for the appearance.
- Person who posted the material may appear
(3) The person who posted the material may appear and be represented in the proceedings in order to oppose the making of an order under subsection (5) [hate propaganda – order of deletion].
- Non-appearance
(4) If the person who posted the material does not appear for the proceedings, the court may proceed ex parte to hear and determine the proceedings in the absence of the person as fully and effectually as if the person had appeared.
- Order
(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) [warrant of seizure – definitions] or computer data within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions] that makes hate propaganda available, it may order the custodian of the computer system to delete the material.
- Destruction of copy
(6) When the court makes the order for the deletion of the material, it may order the destruction of the electronic copy in the court’s possession.
- Return of material
(7) If the court is not satisfied that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) [warrant of seizure – definitions] or computer data within the meaning of subsection 342.1(2) [unauthorized use of computer – definitions] that makes hate propaganda available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b) [warrant of seizure – hate prop – no longer stored].
- Other provisions to apply
(8) Subsections 320(6) to (8) [warrant of seizure – misc provisions] apply, with any modifications that the circumstances require, to this section.
- When order takes effect
(9) No order made under subsections (5) to (7) [hate propaganda – disposing of seized items] takes effect until the time for final appeal has expired.
2001, c. 41, s. 10; 2014, c. 31, s. 13.
[annotation(s) added]
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