INTRODUCTION AND BRIEF DESCRIPTION
Offenders of subsection (1) or (4) are guilty of an indictable offense and liable to imprisonment for a term not exceeding five years.
SECTION WORDING
162(5) Every one who commits an offence under subsection (1) or (4) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction.
EXPLANATION
Section 162(5) of the Criminal Code of Canada outlines the penalties associated with the offence of publishing, distributing, or possessing obscene material for the purpose of distribution. This section is designed to protect the public from the harms associated with the distribution and possession of sexually explicit materials, particularly materials that may be deemed offensive, harmful, or exploitative. Under this section, individuals who are found guilty of committing an offence under subsection (1) or (4) may face different types of penalties, depending on the severity of the offence. If an individual is found guilty of an indictable offence, they may face imprisonment for up to five years. An indictable offence is a serious criminal offence that is punishable by a prison sentence of over two years. Alternatively, an individual may be found guilty of an offence punishable on summary conviction. A summary conviction is a less serious criminal offence that is punishable by a shorter prison sentence of up to two years, a fine, or both. The penalties under this section are intended to deter individuals from distributing or possessing obscene materials and to hold them accountable for the harms associated with these acts. The severity of the penalty reflects the seriousness of the harm caused by the distribution or possession of obscene materials and sends a message that these interactions will not be tolerated in Canadian society. Overall, Section 162(5) plays an important role in protecting the public from the harms of obscene materials and ensures that individuals who engage in this behaviour are held accountable for their actions.
COMMENTARY
Section 162(5) of the Criminal Code of Canada pertains to the criminalization of the making, distribution, or possession of child pornography. The section specifies two modes of punishment that can be applied to the offender, depending on the nature of the crime. The first mode of punishment under section 162(5) of the Criminal Code of Canada is for an indictable offense, and a term of imprisonment for not more than five years. Indictable offenses are serious crimes that can potentially lead to longer prison sentences or significant harm to the victims. In this case, the production, possession, or distribution of child pornography is considered a severe felony that warrants harsh punishment. The second mode of punishment under section 162(5) is an offense that is punishable on summary conviction. Summary convictions are lesser offenses that do not require a trial, and offenders can be punished through a fine or a shorter prison sentence. The summary conviction of child pornography-related offenses may be less severe but still hold the offender accountable for their actions. The underlying reason for section 162(5) of the Criminal Code is to protect children from sexual exploitation and abuse. Child pornography is a heinous crime that adversely affects the physical, emotional, and mental health of the children who are portrayed in the images or videos. Moreover, it perpetuates the sexualization and objectification of children, which is a gross violation of their human rights. Section 162(5) makes it clear that the production, possession, or distribution of child pornography will not be tolerated in Canada. Through the provision of a strong deterrent effect, potential offenders are aware of the severity of the consequences that follow the commission of such crimes. Furthermore, the different modes of punishment allow the courts to tailor the sentence based on the specific circumstances of the crime, such as the number of images or videos involved, the age and vulnerability of the child, or the extent of the offender's prior record. While it is crucial to hold offenders accountable for their actions, addressing the underlying issues that result in child pornography is equally vital. The government must take proactive measures to prevent the creation and distribution of child pornography by targeting the root causes. This could involve providing greater awareness, education, and support to vulnerable communities, especially those who may be susceptible to online grooming and exploitation. In conclusion, section 162(5) of the Criminal Code of Canada provides a strong legal framework for punishing the production, possession, and distribution of child pornography. It outlines the two modes of punishment that can be applied to the offender, depending on the nature of the crime, as it seeks to protect children from sexual exploitation and abuse. However, it is equally essential to address the underlying issues that fuel child pornography to prevent such crimes from occurring in the first place.
STRATEGY
Section 162(5) of the Criminal Code of Canada is a crucial law regarding the production, distribution, and accessing of child pornography. The law is designed to protect children from exploitation and sexual abuse. When dealing with this section of the Criminal Code, there are various strategic considerations that one should take into account. One of the most crucial strategic considerations when dealing with Section 162(5) of the Criminal Code of Canada is understanding the criminal charges involved. Offenders charged with creating, possessing, or distributing child pornography can be convicted and sentenced under either summary conviction or indictment. Offenders prosecuted on an indictment, which is a more serious charge, face a maximum sentence of five years in prison, while those charged summarily face a sentence of up to six months in jail. Another crucial strategic consideration when dealing with Section 162(5) of the Criminal Code of Canada is understanding the definition of child pornography. Child pornography is defined as "any visual representation of a person who is or is depicted as being under the age of eighteen years, engaged in explicit sexual activity." It also includes written or audio content that promotes or advocates sexual activity with minors. This broad definition makes it crucial that the prosecution can prove beyond a reasonable doubt that the visual representation is an actual child. A third strategic consideration when dealing with Section 162(5) of the Criminal Code of Canada is the production and distribution of child pornography on different platforms. With the proliferation of the internet, offenders can produce and distribute illicit content on various online platforms, making it hard to track and prosecute them. Therefore, when prosecuting such cases, the prosecution team needs to employ tactics that will help track and build a case against the offender. Another critical strategic consideration is collaborating with other criminal agencies, both locally and internationally, in investigating and prosecuting child pornography offences. Because child pornography offences are borderless issues, it's important to work with international law enforcement agencies to investigate and arrest offenders. A final strategic consideration when dealing with Section 162(5) of the Criminal Code of Canada is the need for specialized training in investigating and prosecuting child pornography cases. Such cases require specialized training in handling victims as they are minors, understanding the criminal psychology of offenders, and creating a comprehensive investigation plan. In conclusion, when dealing with Section 162(5) of the Criminal Code of Canada, understanding the criminal charges involved, the definition of child pornography, the production and distribution of child pornography on different platforms, collaboration with other criminal agencies, and specialized training in investigating and prosecuting child pornography cases are critical strategic considerations. Employing these strategies will help to build a successful prosecution and ultimately protect children from exploitation and sexual abuse.