Copying, Deleting and Identifying Data From Computer System Custodians
General Principles
- 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, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, a voyeuristic recording, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy 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, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, the voyeuristic recording, the intimate image, the advertisement of sexual services or the advertisement for conversion therapy 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, an intimate image, an advertisement of sexual services or an advertisement for conversion therapy, or computer data as defined in subsection 342.1(2) [unauthorized use of computer – definitions] that makes child pornography, the voyeuristic recording, the intimate image, the advertisement of sexual services or the advertisement for conversion therapy 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; 2021, s. 24, s. 2.
[annotation(s) added]
On March 9th, 2014, s. 164.1 was amended by Bill C-13.