164.1

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 or an advertisement of sexual services as defined in 164(8) or computer data as defined in subsection 342.1(2) that makes child pornography, a voyeuristic recording, an intimate image 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) 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), 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).

Non-appearance

(4) If the person who posted the material does not appear for the proceedings, the court may proceed ex parteto 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, a voyeuristic recording, an intimate image or an advertisement of sexual services as defined in subsection 164(8) or computer data as defined in subsection 342.1(2) that makes child pornography, the voyeuristic recording, the intimate image 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 163.1, a voyeuristic recording, an intimate image or an advertisement of sexual services as defined in subsection 164(8) or computer data as defined in subsection 342.1(2) that makes child pornography, the voyeuristic recording, the intimate image 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).

Other provisions to apply

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

When order takes effect

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

Annotations

• Part V

164.2

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.

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.

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).

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).

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).

Annotations

• Part V

164.3

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).

Hearing of application

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

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.

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.

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.

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.

Annotations

• Part V

165

165 [Repealed, 2018, c. 29, s. 13]

Annotations

• Part V

166

166 [Repealed, 1994, c. 44, s. 9]

Annotations

• Part V

167

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.

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.

Annotations

• Part V

168

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.

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.

Annotations

• Part V

169

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.

Annotations

• Part V

170

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.

Annotations

• Part V

171

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.

Annotations

• Part V

171.1

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.

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.

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.

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.

Annotations

• Part V

172

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.

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.

Annotations

• Part V

172.1

Luring a child

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(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.

Constitutionality

• The mandatory minimum sentence provided for in section 172.1(2)(a) as a sentence for offences under sections 172.1(1)(a) and (b) has been declared unconstitutional as it violates section 12 of the Charter and cannot be saved by section 1: R v Hood, 2018 NSCA 18.
• HOWEVER, the Supreme Court overturned the Ontario Court of Appeal's conclusion that this mandatory minimum was unconstitutional as it held that the basis upon which it so concluded was invalid given that section 172.1(3) was declared unconstitutional by the Supreme Court. In short, while expressing concerns about the constitutional validity of this mandatory minimum sentence, the Supreme Court declined to rule on it and overturned the finding of invalidity by the Court of Appeal: R v Morrison, 2019 SCC 15 at paras 143-153, 160, 161-192, 195-227.
• Subsequently, the Ontario Court of Appeal has upheld the constitutional validity of this provision: R v Cowell, 2019 ONCA 972.

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 one year; 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 six months.

Constitutionality

• Section 172.1(3) violates section 11(d) of the Charter and cannot be saved by section 1 - it is therefore of no force and effect: R v Morrison, 2019 SCC 15.

Presumption re age

(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 eighteen years, sixteen years or fourteen 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.

Constitutionality

• Section 172.1(4) does not violate section 7 of the Charter: R v Morrison, 2019 SCC 15. This conclusion is based, in part, on a reading of section 172.1(4) that recognizes this provision as limitation to a defeence - if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then a trier of fact is precluded from the defence that the accused believed the other person to be of legal age: R v Morrison, 2019 SCC 15 at para 83.

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 eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

Annotations

• There is only one pathway to conviction for offences in sections 172.1(1)(a), (b) or (c), namely, that the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage: R v Morrison, 2019 SCC 15 at para 83.
• To the extent that R v Levigne, 2010 SCC 25 suggested there were two pathways, that approach is not correct - especially in light of section 172.1(3) being declared unconstitutional: R v Morrison, 2019 SCC 15.
• With respect to s. 172.1(4),the qualifier "in the circumstances known to the accused at the time" should be read into the "reasonable steps" requirement. The requirement is also an ongoing one. Reasonable steps may include: (i) asking about the other person's age; (ii) noting the person's representations about their age; (iii) asking for and receiving proof of age; (iv) observing conduct or behaviour that indicates the other person's age; (v) communicating through a website that enforces age limits; and (vi) including language in one's ad that indicates they are looking for only adults: R v Morrison, 2019 SCC 15 at para 112.
• With respect to s. 172.1(4), the following principles govern this defence: (i) First, the accused bears the evidentiary burden of pointing to some evidence about reasonable steps taken - thus raising an air of reality; (ii) Second, if there is an air of reality, the Crown bears the onus of disproving the defence beyond a reasonable doubt - this does not mean that the Crown must prove beyond a reasonable doubt that the accused failed to take reasonable steps, however; and (iii) Third, regardless of whether there is an air of reality, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage: R v Morrison, 2019 SCC 15 at para 116-133.

172.2

Agreement or arrangement — sexual offence against child

172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) 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) with respect to another person who is, or who the accused believes is, under the age of 18 years;

(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or

(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.

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 one year; 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 six months.

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.

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.

No defence

(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c)

(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or

(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.

Annotations

• Part V

173

Indecent acts

173 (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

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

(b) is guilty of an offence punishable on summary conviction.

Exposure

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

Annotations

• Part V

174

Nudity

174 (1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

Nude

(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

Consent of Attorney General

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

Annotations

• Part V

175

Causing disturbance, indecent exhibition, loitering, etc.

175 (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

(b) openly exposes or exhibits an indecent exhibition in a public place,

(c) loiters in a public place and in any way obstructs persons who are in that place, or

(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,

is guilty of an offence punishable on summary conviction.

Evidence of peace officer

(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) or an obstruction described in paragraph (1)(c) was caused or occurred.

Annotations

• Part V

176

Obstructing or violence to or arrest of officiating clergyman

176 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who

(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent an officiant from celebrating a religious or spiritual service or performing any other function in connection with their calling, or

(b) knowing that an officiant is about to perform, is on their way to perform or is returning from the perform­ance of any of the duties or functions mentioned in paragraph (a)

(i) assaults or offers any violence to them, or

(ii) arrests them on a civil process, or under the pretence of executing a civil process.

Disturbing religious worship or certain meetings

(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

Idem

(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

Annotations

• Part V

177

Trespassing at night

177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

Annotations

• Part V

178

178 [Repealed, 2018, c. 29, s. 14]

Annotations

• Part V