Seizure and Forfeiture of Obscene or Child Pornographic Materials
General Principles
Warrant of Seizure
- Warrant of seizure
164 (1) A judge may issue a warrant authorizing seizure of copies of a recording, a publication, a representation or any written material, if the judge is satisfied by information on oath that there are reasonable grounds to believe that
- (a) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording;
- (b) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is an intimate image;
- (c) the publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene, within the meaning of subsection 163(8) [obscenity – obscene publication];
- (d) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography as defined in section 163.1 [child pornography]; or
- (e) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is an advertisement of sexual services.
[omitted (2), (3), (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12.
[annotation(s) added]
[omitted (1)]
- Summons to occupier
(2) Within seven days of the issue of a warrant under subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials], 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 maker may appear
(3) The owner and the maker of the matter seized under subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials], and alleged to be obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, may appear and be represented in the proceedings to oppose the making of an order for the forfeiture of the matter.
[omitted (4) and (5)]
- Appeal
(6) An appeal lies from an order made under subsection (4) [warrant of forfeiture for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] or (5) [disposal or return of materials seized under s. 164] 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) If an order is made under this section by a judge in a province with respect to one or more copies of a publication, a representation, written material or a recording, no proceedings shall be instituted or continued in that province under section 162 [voyeurism], 162.1 [distribution of intimate images], 163 [obscenity], 163.1 [child pornography] or 286.4 [advertising sexual services] with respect to those or other copies of the same publication, representation, written material or recording without the consent of the Attorney General.
[omitted (8)]
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12.
[annotation(s) added]
Definitions
Section 164(8) sets out definitions:
164
[omitted (1), (2), (3), (4), (5), (6) and (7)]
- Definitions
(8) In this section,
"advertisement of sexual services" means any material — including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material — that is used to advertise sexual services contrary to section 286.4 [advertising sexual services]; (publicité de services sexuels)
"court" means
- (a) in the Province of Quebec, the Court of Quebec, the municipal court of Montreal and the municipal 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 Trial Division of the Supreme Court,
- (c.1) [Repealed, 1992, c. 51, s. 34]
- (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; (tribunal)
"crime comic"'[Repealed, 2018, c. 29, s. 12]
"intimate image" has the same meaning as in subsection 162.1(2) [distribution of intimate images – definition of intimate image]; (image intime)
"judge" means a judge of a court; (juge)
"voyeuristic recording" means a visual recording within the meaning of subsection 162(2) [voyeurism – definition of "visual recording"] that is made as described in subsection 162(1) [voyeurism – forms of offence]. (enregistrement voyeuriste)
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12.
[annotation(s) added]
- "Obscene"
The meaning of "obscene" is found in s. 163(8).[1]
- "Voyeuristic Recording"
Forfeiture
164.
...
- Order of forfeiture
(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] is obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, it may 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, representation, written material or recording referred to in subsection (1) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] is obscene, child pornography, a voyeuristic recording, an intimate image or an advertisement of sexual services, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.
...
R.S., 1985, c. C-46, s. 164; R.S., 1985, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 3, c. 17, s. 9; 1992, c. 1, s. 58, c. 51, s. 34; 1993, c. 46, s. 3; 1997, c. 18, s. 5; 1998, c. 30, s. 14; 1999, c. 3, s. 27; 2002, c. 7, s. 139, c. 13, s. 6; 2005, c. 32, s. 8; 2014, c. 25, ss. 6, 46, c. 31, s. 4; 2015, c. 3, s. 46; 2018, c. 29, s. 12.
[annotation(s) added]
Copying, Deleting and Identifying Data From Computer System Custodians
- Warrant of seizure
164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — namely, child pornography as defined in section 163.1 [child pornography], a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) or data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, a voyeuristic recording or an advertisement of sexual services available — that is stored on and made available through a computer system as defined in 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) [order to identify subject of obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials from computer system], 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) [order to delete obscene materials, intimate images, advertisement of sexual services, child pornography, or voyeurism materials from computer system].
- 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 child pornography as defined in section 163.1 [child pornography], a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) [seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials – definitions] or data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, the voyeuristic recording or the advertisement of sexual services 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 child pornography as defined in section 163.1 [child pornography], a voyeuristic recording or an advertisement of sexual services as defined in subsection 164(8) [seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials – definitions] or data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, the voyeuristic recording or the advertisement of sexual services available, the court shall order that the electronic copy be returned to the custodian of the computer system and terminate the order under paragraph (1)(b) [order to render inaccessible obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials from computer system].
- Other provisions to apply
(8) Subsections 164(6) to (8) [warrant of seizure for obscene materials, intimaite images, advertisement of sexual services, child pornography, or voyeurism materials] apply, with any modifications that the circumstances require, to this section.
- When order takes effect
(9) No order made under subsections (5) to (7) [order to delete obscene materials, intimate images, advertisement of sexual services, child pornography, or voyeurism materials from computer system – order for destruction] takes effect until the time for final appeal has expired.
2002, c. 13, s. 7; 2005, c. 32, s. 9; 2014, c. 25, s. 7.
[annotation(s) added]
On March 9th, 2014, s. 164.1 was amended by Bill C-13.