Criminal Code

Marginal note:Warrant of seizure

• 164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material, namely child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography available, that is stored on and made available through a computer system within the meaning of subsection 342.1(2) 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.

• Marginal note:Notice to person who posted the material

  (2) Within a reasonable time after receiving the information referred to in paragraph (1)(c), 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.

• Marginal note: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).

• Marginal note: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.

• Marginal note:Order

  (5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography available, it may order the custodian of the computer system to delete the material.

• Marginal note: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.

• Marginal note:Return of material

  (7) If the court is not satisfied that the material is child pornography within the meaning of section 163.1 or data within the meaning of subsection 342.1(2) that makes child pornography available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

• Marginal note:Other provisions to apply

  (8) Subsections 164(6) to (8) apply, with any modifications that the circumstances require, to this section.

• Marginal note:When order takes effect

  (9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.