section 163(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that the motives of an accused are not important in relation to this section of the Criminal Code.

SECTION WORDING

163(5) For the purposes of this section, the motives of an accused are irrelevant.

EXPLANATION

Section 163(5) of the Criminal Code of Canada is a provision that outlines the irrelevance of an accused's motives when it comes to charges under this section. This essentially means that the intentions or reasons behind the criminal activity are not taken into consideration when determining guilt or sentencing. Section 163 of the Criminal Code of Canada deals with offences related to obscenity and child pornography. Subsections 163(1) to (4) state the specific activities that are deemed criminal under this section, including the possession, distribution, and production of obscene material, child pornography, or material advocating for sexual activity with minors. The Supreme Court of Canada has confirmed that the constitutional issue of freedom of expression can arise with respect to certain subsections of section 163. However, subsection 163(5) provides a clear exception to this, stating that the accused's motives are irrelevant. This provision serves to protect individuals from being able to use their reasons for engaging in criminal activity as a defense or justification. For example, if an individual is caught with child pornography on their computer, it doesn't matter if their motive for possessing it was to conduct research on the issue or to increase awareness of the harms of such material. The person will still be charged and potentially face penalties under the law. Overall, section 163(5) reinforces the severity of offences related to obscenity and child pornography, emphasizing that these actions are unacceptable regardless of the accused's reasoning or intent.

COMMENTARY

Section 163(5) of the Criminal Code of Canada is a significant provision that deals with the distribution, possession, and creation of indecent material. This section states that for the purposes of the section, the motives of the accused are irrelevant. This means that regardless of whether the accused had good or bad intentions, they can still be charged and convicted. This provision was added to ensure that anyone engaged in the production, distribution, or possession of indecent material will be held accountable regardless of their motive. Indecent material is any visual representation of sexual activity that is deemed obscene, immoral, or indecent. The Criminal Code of Canada takes a strong stand against indecent material as it can be harmful to individuals and society as a whole. The creation and circulation of such materials can cause severe harm to people, particularly minors, and can lead to sexual exploitation. Section 163(5) is particularly vital when it comes to indecent material, as it ensures that people who engage in such behavior cannot use the excuse that they were producing or distributing the material for educational purposes or research. The section is designed to ensure that all those who engage in indecent material-related activities are held accountable regardless of their intent. The main purpose of this section is to prevent people from using the excuse of providing public good or educational purposes to circulate or create indecent material. This means that the only criterion for determining the guilt of the accused is whether they engaged in the production, circulation, possession, or distribution of indecent material. The section was enacted to provide a strong deterrent effect against individuals who would produce or disseminate indecent material. In some cases, the motives of an accused can be crucial while determining whether they should face charges or not. For example, if someone steals something to feed their family, their motives can be taken into account when deciding on charges. However, this is not the case with indecent material-related offenses. Regardless of the reasoning or motivation behind creating or distributing indecent material, it is still illegal under the Criminal Code. Section 163(5) is intended to make it clear that the production, circulation, possession, or distribution of indecent material is a serious offense that will be punished accordingly. This is essential for creating a safe and healthy society, where people are not exploited or harmed by the creation or circulation of indecent material. In conclusion, Section 163(5) of the Criminal Code of Canada is a necessary provision that underscores the seriousness of indecent material-related offenses. It ensures that all those who create, distribute, or possess indecent material regardless of their motivations are held accountable for their actions. The section reflects the Canadian government's resolve to create a society that is safe and free from exploitation of all kinds.

STRATEGY

Section 163(5) of the Criminal Code of Canada specifies that the motives of an accused are irrelevant for the purposes of this section. This means that in cases where this section is applicable, the accused's reasons for committing an offence under this section cannot be used as a defence or justification. Section 163 of the Criminal Code of Canada pertains to offences concerning the distribution, creation and possession of child pornography. For legal practitioners, interpreting and applying section 163(5) of the Criminal Code can be tricky. However, there are some strategic considerations that they can take into account when dealing with this section. One of these considerations is the importance of conducting a thorough investigation into the case. By conducting a comprehensive investigation, legal practitioners can gather as much information as possible to build a strong case against the accused. Another strategic consideration is the use of forensic evidence. Forensic evidence, such as computer and mobile phone data, can be used to prove the accused's guilt beyond a reasonable doubt. Legal practitioners can also use expert witnesses to provide testimony on the forensic evidence, increasing the prosecution's chances of securing a conviction. Furthermore, legal practitioners should be aware that the prosecution has the burden of proof. This means that the prosecution must prove the accused's guilt beyond a reasonable doubt. To do this, legal practitioners should present a compelling case with strong evidence, including witness statements, forensic evidence, and other relevant documentation. In terms of strategies that could be employed when dealing with section 163(5), one approach is to try to refute any potential defence that the accused may raise. This could involve presenting evidence that undermines the accused's claim that they did not know the material was child pornography or that they did not possess it with the intent to distribute or publish it. Another potential strategy is to focus on the harm that child pornography causes to vulnerable youth. By highlighting the emotional, psychological, and physical harm caused by child pornography, legal practitioners can appeal to the judge and jury's sense of morality and persuade them to convict. Ultimately, legal practitioners must carefully consider their strategies when dealing with section 163(5) of the Criminal Code of Canada. To be successful in prosecuting cases of child pornography, legal practitioners must conduct thorough investigations, present strong evidence, and adopt strategies that effectively refute any potential defences raised by the accused.