Criminal Code (R.S.C., 1985, c. C-46)

Marginal note: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, 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) 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) 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 as defined in section 163.1, 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) 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.

• 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 as defined in section 163.1, 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) 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).

• 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.

Marginal note:Forfeiture after conviction

• 164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing

  • (a) was used in the commission of the offence; and

  • (b) is the property of

    • (i) the convicted person or another person who was a party to the offence, or

    • (ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.

• Marginal note:Third party rights

  (2) Before making an order under subsection (1), the court shall cause notice to be given to, and may hear, any person whom it considers to have an interest in the thing, and may declare the nature and extent of the person’s interest in it.

• Marginal note:Right of appeal — third party

  (3) A person who was heard in response to a notice given under subsection (2) may appeal to the court of appeal against an order made under subsection (1).

• Marginal note:Right of appeal — Attorney General

  (4) The Attorney General may appeal to the court of appeal against the refusal of a court to make an order under subsection (1).

• Marginal note:Application of Part XXI

  (5) Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under subsections (3) and (4).

Marginal note:Relief from forfeiture

• 164.3 (1) Within thirty days after an order under subsection 164.2(1) is made, a person who claims an interest in the thing forfeited may apply in writing to a judge for an order under subsection (4).

• Marginal note:Hearing of application

  (2) The judge shall fix a day — not less than thirty days after the application is made — for its hearing.

• Marginal note:Notice to Attorney General

  (3) At least fifteen days before the hearing, the applicant shall cause notice of the application and of the hearing day to be served on the Attorney General.

• Marginal note:Order

  (4) The judge may make an order declaring that the applicant’s interest in the thing is not affected by the forfeiture and declaring the nature and extent of the interest if the judge is satisfied that the applicant

  • (a) was not a party to the offence; and

  • (b) did not acquire the thing from a person who was a party to the offence under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.

• Marginal note:Appeal to court of appeal

  (5) A person referred to in subsection (4) or the Attorney General may appeal to the court of appeal against an order made under that subsection. Part XXI applies, with any modifications that the circumstances require, with respect to the procedure for an appeal under this subsection.

• Marginal note:Powers of Attorney General

  (6) On application by a person who obtained an order under subsection (4), made after the expiration of the time allowed for an appeal against the order and, if an appeal is taken, after it has been finally disposed of, the Attorney General shall direct that

  • (a) the thing be returned to the person; or

  • (b) an amount equal to the value of the extent of the person’s interest, as declared in the order, be paid to the person.

165 [Repealed, 2018, c. 29, s. 13]

166 [Repealed, 1994, c. 44, s. 9]

Marginal note:Immoral theatrical performance

• 167 (1) Every one commits an offence who, being the lessee, manager, agent or person in charge of a theatre, presents or gives or allows to be presented or given therein an immoral, indecent or obscene performance, entertainment or representation.

• Marginal note:Person taking part

  (2) Every one commits an offence who takes part or appears as an actor, a performer or an assistant in any capacity, in an immoral, indecent or obscene performance, entertainment or representation in a theatre.

Marginal note:Mailing obscene matter

• 168 (1) Every one commits an offence who makes use of the mails for the purpose of transmitting or delivering anything that is obscene, indecent, immoral or scurrilous.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply to a person who

  • (a) prints or publishes any matter for use in connection with any judicial proceedings or communicates it to persons who are concerned in the proceedings;

  • (b) prints or publishes a notice or report under the direction of a court; or

  • (c) prints or publishes any matter

    • (i) in a volume or part of a genuine series of law reports that does not form part of any other publication and consists solely of reports of proceedings in courts of law, or

    • (ii) in a publication of a technical character that is intended, in good faith, for circulation among members of the legal or medical profession.

Marginal note:Punishment

169 Every one who commits an offence under section 163, 165, 167 or 168 is guilty of

• (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

• (b) an offence punishable on summary conviction.

Marginal note:Parent or guardian procuring sexual activity

170 Every parent or guardian of a person under the age of 18 years who procures the person for the purpose of engaging in any sexual activity prohibited by this Act with a person other than the parent or guardian is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

Marginal note:Householder permitting prohibited sexual activity

171 Every owner, occupier or manager of premises, or any other person who has control of premises or assists in the management or control of premises, who knowingly permits a person under the age of 18 years to resort to or to be in or on the premises for the purpose of engaging in any sexual activity prohibited by this Act is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

Marginal note:Making sexually explicit material available to child

• 171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

  • (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

  • (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

  • (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

• Marginal note:Punishment

  (2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of six months; or

  • (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

• Marginal note:Presumption

  (3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

• Marginal note:No defence

  (4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

• Definition of sexually explicit material

  (5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

  • (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

    • (i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or

    • (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;

  • (b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

  • (c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

Marginal note:Corrupting children

• 172 (1) Every person who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and by doing so endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than two years; or

  • (b) an offence punishable on summary conviction.

• (2) [Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 6]

• Definition of child

  (3) For the purposes of this section, child means a person who is or appears to be under the age of eighteen years.

• Marginal note:Who may institute prosecutions

  (4) No proceedings shall be commenced under subsection (1) without the consent of the Attorney General, unless they are instituted by or at the instance of a recognized society for the protection of children or by an officer of a juvenile court.