INTRODUCTION AND BRIEF DESCRIPTION
This section exempts people from being charged with criminal contempt of court if they print or publish matter in connection with judicial proceedings, or if they print or publish matter in certain specified circumstances.
SECTION WORDING
168(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.
EXPLANATION
Section 168(2) of the Criminal Code of Canada is an exemption clause that outlines certain circumstances where the offence of contempt of court, as described in section 168(1), does not apply. Essentially, if a person prints, publishes, or communicates any matter in connection with judicial proceedings, or in compliance with a court's direction or order, they are exempt from being charged with contempt of court. This includes publishing or printing material in law reports or technical publications intended for members of the legal or medical profession. The exemption exists to prevent the criminalization of legitimate reporting on court proceedings or the dissemination of information related to ongoing legal matters. It allows for the free flow of information within legal circles and serves to enhance the public's access to information and understanding of the court system. Importantly, the exemption does not give individuals free rein to publish just anything, as there are still restrictions in place related to privacy, defamation and other legal principles. Any publications or communications must be made in good faith and not intended to cause harm or undermine the integrity of the judicial system. Overall, section 168(2) strikes a balance between protecting the integrity of the court system and promoting the public's right to access information and engage with court proceedings in a meaningful way.
COMMENTARY
Section 168(2) of the Criminal Code of Canada provides certain exceptions to the offence of publishing a defamatory libel. This section is crucial in protecting freedom of expression and preserving the integrity of the judicial process. Subsection 168(1) of the Code sets out the offence of defamatory libel, which involves the publication of a statement that is likely to injure the reputation of an individual. This can include written or spoken words, as well as images or gestures. However, subsection 168(2) provides several defences that can be used to excuse certain types of publications. One of the main exceptions in subsection 168(2)(a) allows for the publication of matters related to judicial proceedings. This defence recognizes the importance of open courts and the public's right to know about legal proceedings. It also allows for the media and other members of the public to report on court cases and disseminate information to interested parties. However, this defence is not unlimited and publications must be relevant and necessary to the proceedings in question. Subsection 168(2)(b) provides another important defence by allowing for the publication of notices or reports under the direction of a court. This defence is particularly relevant in cases where court orders or judgments need to be disseminated to the public. It ensures that crucial court information can be shared without fear of criminal liability. Subsection 168(2)(c) provides two additional defences. The first, subsection 168(2)(c)(i), allows for the publication of cases in genuine law reports. This defence recognizes the value of legal scholarship and the need for comprehensive case reporting. It also ensures that individuals who access legal information through these publications are protected from potential libel claims. The second defence under subsection 168(2)(c)(ii) allows for the publication of technical legal or medical information intended for circulation among professionals. This defence is important in protecting professional discourse and promoting the sharing of knowledge amongst colleagues. It recognizes that certain types of technical publications may include statements that could be considered defamatory outside of a professional context. Overall, Section 168(2) of the Criminal Code of Canada plays an important role in balancing the right to free expression with the need to protect individuals from unwarranted attacks on their reputations. It recognizes the importance of open courts and the dissemination of legal information, while also providing exemptions for certain types of publications. This section is crucial in preserving the integrity of the justice system and promoting a free and open society.
STRATEGY
Section 168(2) of the Criminal Code of Canada provides exemptions to individuals who print or publish any matter in relation to judicial proceedings. However, when dealing with this section, there are several strategic considerations that individuals must bear in mind, especially when choosing to rely on the exemptions outlined in the provision. One of the primary strategic considerations is the scope and interpretation of the section. While the section provides exemptions to individuals who publish or print matter in relation to judicial proceedings, it is essential to understand the circumstances in which these exemptions apply. For instance, the provision provides an exemption for individuals who communicate matter to persons who are concerned in the proceedings, which indicates that the publication or printing must be relevant to the proceedings to qualify for the exemption. Therefore, individuals must ensure that the publication or printing is relevant and directly connected to the judicial proceedings to qualify for the exemption. Another strategic consideration is the potential impact of the publication or printing on the proceedings' fairness. Even if a publication or printing falls within the scope of the exemption, individuals must consider the potential impact of the print or publication on the proceedings' fairness. In this regard, individuals must avoid publishing or printing anything that could influence the jury or affect witness credibility, as this could have significant implications on the process and outcome of the proceedings. Furthermore, individuals relying on the exemption must ensure that they act in good faith and avoid any intentional or malicious publishing or printing of any matter that could prejudice or unfairly impact the proceedings. This requires careful planning and considerations to ensure that individuals do not exploit the exemption to negatively affect the justice system. In terms of strategies that could be employed, individuals seeking to rely on the exemptions under Section 168(2) of the Criminal Code of Canada should consider working with legal professionals to ensure that their publication or printing is compliant with the law and is relevant to the proceedings. Additionally, individuals could consider limiting the dissemination of the publication or print to the minimum required audience to avoid any unintended consequences. Conclusion In conclusion, while Section 168(2) of the Criminal Code of Canada provides exemptions that individuals can rely on when publishing or printing any matter in connection to judicial proceedings, it's vital to approach the provision with caution and consider the potential impacts on the fairness of the proceedings. Understanding the scope and interpretation of the section and acting in good faith can go a long way in ensuring that individuals are not in breach of the law and do not negatively impact the justice system. Working with legal professionals and limiting the dissemination of the publication or print are some strategies that individuals can employ.