section 162(7)

INTRODUCTION AND BRIEF DESCRIPTION

This section determines whether an act serves the public good, with the motives of the accused being irrelevant.

SECTION WORDING

162(7) For the purposes of subsection (6), (a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and (b) the motives of an accused are irrelevant.

EXPLANATION

Section 162(7) of the Criminal Code of Canada is an important provision that deals with the limitations of the criminal law concerning the public good. The section outlines the legal test that must be applied when individuals are accused of violating the public good. Specifically, it establishes that the question of whether or not an act serves the public good is a question of law, while the question of whether or not that act extends beyond what serves the public good is a question of fact. The section also states that the motives of the accused are irrelevant. This means that whether an individual acted with good or bad intentions is not a factor in determining whether or not their actions were lawful. Instead, the focus is on the impact of their actions on the public good. It is important to note that the public good is a broad and flexible concept. It is not defined in the Criminal Code, but rather is left open to interpretation by the courts. This allows judges to consider the specific circumstances of each case when determining whether or not an act serves the public good. The limitation imposed by this section is designed to ensure that the criminal law is only used when necessary to protect the public good. It ensures that the motives of individuals are not used to criminalize actions that are ultimately beneficial to society. The legal test established by this section helps to strike a balance between protecting the public and ensuring that the criminal law is not abused.

COMMENTARY

Section 162(7) of the Criminal Code of Canada highlights an important aspect of Canadian law: the protection of public good. This section provides an interpretation of subsection (6), which pertains to situations where a person has taken an action that would normally be considered a crime, but has done so in order to further the public good. Such actions are known as defences of necessity or duress, and the principle is well-established in Canadian law. Subsection (7) places an important limitation on these defences, by emphasizing that it is a question of law whether an act serves the public good, but a question of fact whether the act extends beyond what serves the public good. In other words, the legal principle of public good is not sufficient on its own to justify an otherwise illegal action. The courts will also take into account the specific circumstances of the case, and determine whether the actions taken were necessary and proportionate to the harm being prevented. This distinction between questions of law and fact is an important one, as it recognizes that different types of legal issues require different types of expertise. Questions of law are generally decided by judges, who are trained in interpreting legal principles and applying them to specific cases. Questions of fact, on the other hand, are decided by juries or judges who sit as triers of fact. These individuals are responsible for weighing the evidence presented in court and determining what actually occurred in a given case. One potential issue with subsection (7) is that it places a greater burden of proof on the accused than might be necessary. By requiring the accused to show not only that their actions served the public good, but also that they did not extend beyond what was necessary, the section could make it more difficult for people to successfully assert a defence of necessity or duress. This could be particularly problematic in cases where the harm being prevented is immediate and severe, and time is of the essence. However, there are also good reasons for requiring a more stringent standard for these types of defences. Allowing individuals to take illegal actions in the name of the public good can be a slippery slope, and could potentially lead to abuses of power and violations of individual rights. By requiring a more thorough analysis of the circumstances surrounding the allegedly illegal action, the courts can ensure that such defences are only used in cases where the harm being prevented is truly significant and the action taken was truly necessary. Finally, subsection (7) also makes it clear that the motives of the accused are irrelevant in determining whether a defence of necessity or duress is valid. This is an important principle, as it helps to ensure that the law remains consistent and impartial, regardless of the specific individuals involved in a case. Allowing the motives of the accused to influence the outcome of a legal proceeding could result in inconsistent and unfair decisions. In conclusion, subsection (7) of the Criminal Code of Canada is an important provision that seeks to balance the protection of the public good with the need to uphold the rule of law. By distinguishing between questions of law and fact, and requiring a thorough analysis of the circumstances surrounding an allegedly illegal action, the section helps to ensure that defences of necessity or duress are only used in cases where they are truly warranted. At the same time, the provision also reinforces the idea that the law should be applied impartially, regardless of the motives of the accused.

STRATEGY

Section 162(7) of the Criminal Code of Canada is a provision that criminalizes the publishing, dissemination, advertisement, or sale of obscene materials, with the exception for acts that serve the public good. The provision raises various strategic considerations when dealing with it, particularly when a person is facing charges under it or when advising clients who may engage in such activities. One strategic consideration is the need to assess the nature of the materials involved in the alleged criminal activity. To determine whether an act serves the public good, the court must consider the nature of the materials, their artistic or educational value, and their potential impact on society. Therefore, if a person is engaged in activities that may be caught by the provision, their lawyer or advisor will need to assess the artistic or educational value of the materials involved, as well as their potential impact on society, in order to determine whether they qualify for an exemption under the provision. Another strategic consideration is the need to present evidence that the act alleged does not go beyond what serves the public good. This involves demonstrating that the materials in question are not harmful to society, but instead have a positive impact on it. This usually involves presenting expert testimony or evidence from relevant persons or organizations that demonstrate the harmlessness or potential benefit of the materials. The requirement that the accused's motives are irrelevant under the provision is another strategic consideration. This means that the court cannot consider whether the accused intended to serve the public good, or whether they acted with good faith and intent. Therefore, when dealing with a charge under the provision, the accused's lawyer or advisor will need to focus on presenting evidence that the materials in question serve the public good, rather than on the accused's motives. One strategy that could be employed when dealing with a charge under the provision is to negotiate with the prosecutors for a plea deal that involves an admission of guilt to a lesser charge. This is particularly useful when the prosecution has a strong case against the accused, but may be open to reducing the charges if the accused cooperates or takes responsibility for their actions. Another strategy that could be employed is to present a Charter challenge to the provision, arguing that it violates the right to freedom of expression or other constitutional rights. This is a more drastic strategy, and requires an in-depth analysis of the relevant case law and legal arguments. However, if successful, it could result in the provision being declared unconstitutional, and the charges against the accused being dismissed. In conclusion, Section 162(7) of the Criminal Code of Canada is a provision that raises various strategic considerations when dealing with it. Lawyers and advisors will need to assess the nature of the materials involved, present evidence that the act alleged does not go beyond what serves the public good, and focus on presenting evidence of harmlessness or potential benefit of the materials. Additionally, they may consider negotiating a plea deal or mounting a Charter challenge to the provision.