section 164.1(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a court to order the deletion of child pornography or voyeuristic recordings from a computer system if it is satisfied that the material meets the legal definition of such.

SECTION WORDING

164.1(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, it may order the custodian of the computer system to delete the material..

EXPLANATION

Section 164.1(5) of the Criminal Code of Canada outlines the power of a court to order the deletion of certain materials from a computer system. Specifically, this section applies if the court is satisfied that the material is child pornography, a voyeuristic recording, or data that makes child pornography or the voyeuristic recording available. To determine whether material falls under this provision, the court must consider whether it meets the definition of child pornography under section 163.1, which includes any visual representation of a sexual nature that depicts a person who is or appears to be under 18 years of age. A voyeuristic recording is similarly defined in subsection 164(8), as any visual recording that was made for a sexual purpose and in circumstances that would give rise to a reasonable expectation of privacy. Finally, subsection 342.1(2) makes it an offense to knowingly make available any data that can be used to commit a child pornography offense or a voyeuristic recording offense. If the court determines that the material meets these criteria, it may order the custodian of the computer system to delete the material. This can be a significant power, as it allows the court to prevent the spread of harmful and illegal content that could otherwise be easily shared and accessed through digital means. However, the court's power is also tempered by the requirement that it be satisfied on a balance of probabilities that the material meets the relevant definitions. This ensures that orders to delete material are only made where there is a clear risk to public safety and welfare, and that individuals' rights and freedoms are not unduly restricted.

COMMENTARY

The existence and distribution of child pornography is a serious problem that has been on the rise in recent years. The Canadian government recognized this issue, and a response was included in the Criminal Code of Canada. Section 164.1(5) of the Criminal Code of Canada provides for deletion of child pornography upon being proven to be such. This is a welcome provision as it not only helps protect the victims of child pornography but also serves as a deterrent to those who might be considering trading in such content. The first element of the section requires that the "material" in question meets the definition of child pornography under section 163.1 of the Criminal Code of Canada and/or is voyeuristic recording within the meaning of subsection 164(8) or data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available. This provision ensures that the definition of child pornography is met before any deletion order is made by the court. The second element of section 164.1(5) provides for the court to order the custodian of the computer system to delete the material. This provision ensures that the relevant parties have the responsibility of deleting such material, thus preventing it from being accessible to a broad audience. More importantly, the provision protects victims of child pornography, who are often subjected to a lifetime of psychological and emotional distress. The provision is well-crafted and evidences a proper balance between the privacy rights of individuals and the need to protect children from sexual exploitation. The provision does not allow on-demand deletion of materials solely based on suspicion, but instead, it sets out specific guidelines that require a balance of probabilities test before a deletion order is made. This ensures that the provision operates only in circumstances where there is evidence of illegal content, and there is no hindrance to the due process of law. Additionally, consideration had to be given to the possibility of unintended consequences. For example, custodians had to be defined such that their rights were clearly protected. Any unwarranted invasion of privacy in connection with the custodian's duties must be avoided. The legislation provides that the custodian of the computer system is only required to delete the material if the order is made. The mere possession of the material alone does not make the custodian liable. Finally, this provision creates an environment where Canadians can coexist knowing that our children are safe from sexual exploitation. It sends a message to child pornographers that the Canadian Criminal Justice System will not let them abuse the children of Canada with impunity. It shows that the government is committed to the protection of children and other vulnerable individuals. In conclusion, section 164.1(5) of the Criminal Code of Canada is an excellent provision aimed at removing harmful content from circulation. It is a step in the right direction as Canadian society stands firmly against child pornography. It establishes clear standards for accountability, and the provision provides an avenue for protection of the most vulnerable members of society.

STRATEGY

Section 164.1(5) of the Criminal Code of Canada empowers the court to order the deletion of child pornography, voyeuristic recordings, and data that make such materials available. The provision is part of the broader legal framework designed to protect children and vulnerable persons from sexual exploitation, abuse, and victimization. While the provision is geared towards enhancing the efficiency and effectiveness of law enforcement efforts against online sexual crimes, it raises several strategic considerations and challenges that need to be addressed. Firstly, the provision allows the court to order the deletion of the material without requiring the prosecution to prove beyond a reasonable doubt that the material contains child pornography, voyeuristic recordings, or data that make such material available. Instead, the court only needs to be satisfied on a balance of probabilities that the material falls within the legal definition of these offenses. This lower evidentiary threshold may lead to abuse of power, false accusations, and infringement of privacy and free speech rights. Therefore, one strategic consideration is to ensure that the provision is applied judiciously, based on credible and reliable evidence gathering and analysis techniques. Law enforcement agencies need to use digital forensic tools and techniques that meet the highest scientific and legal standards to determine the nature and extent of the material in question. They should also engage in thorough investigations that respect the rights and dignity of all parties involved, including the victims, the suspects, and third parties. Another strategic consideration is to balance the need for deleting harmful material with the need to preserve exculpatory evidence and protect legitimate rights and interests of the parties involved. For example, the provision may inadvertently lead to the destruction of evidence that could be used to exonerate a suspect or establish mitigating circumstances. To avoid this scenario, the court should use its discretion to determine whether the deletion of the material is necessary, proportionate, and reasonable under the circumstances. It should also ensure that the material is securely and irretrievably deleted to prevent its use in future criminal activities or in violation of third-party rights. In conclusion, Section 164.1(5) of the Criminal Code of Canada presents several strategic considerations and challenges when dealing with online sexual crimes involving child pornography, voyeuristic recordings, and data that make such materials available. Key strategies that could be employed to address these challenges include ensuring credible and reliable evidentiary standards, engaging in thorough investigations that respect human rights, balancing the need for deleting harmful material with preserving exculpatory evidence, and providing clear guidelines for the secure and irrevocable deletion of such material. By adopting these strategies, law enforcement agencies and the court system can promote public safety, protect vulnerable individuals, and enhance the rule of law in the digital age.