INTRODUCTION AND BRIEF DESCRIPTION
The Government of Canada can initiate and manage proceedings for an offense under subsection (1).
SECTION WORDING
104(3) Any proceedings in respect of an offence under subsection (1) may be commenced at the instance of the Government of Canada and conducted by or on behalf of that government.
EXPLANATION
Section 104(3) of the Canadian Criminal Code provides for the prosecution of individuals who commit offences under subsection (1). Subsection (1) addresses the offence of advocating or promoting the commission of terrorism offences. This means that if an individual is found to have encouraged or promoted acts of terrorism, they can be charged under this section. The wording of section 104(3) indicates that the Government of Canada has the exclusive right to initiate legal proceedings against individuals who are accused of violating subsection (1). This means that only the government can bring charges against an accused person, and the case can be conducted on behalf of the government by its legal representatives. The purposes of this provision are to ensure the consistency and impartiality of the legal system and to prevent private individuals or organizations from taking matters related to terrorism into their own hands. This also allows the government to respond promptly and decisively to any threat of terrorism. Section 104(3) is an essential tool in preventing acts of terrorism and protecting the country's safety and security. The government can act quickly to identify and prosecute those who are promoting or encouraging terrorist activity, and individuals can be held accountable for their actions under the criminal justice system. Ultimately, this section ensures that individuals understand the seriousness of promoting terrorism and that the government can take all necessary steps to protect Canadian citizens.
COMMENTARY
Section 104(3) of the Criminal Code of Canada grants the Government of Canada with the authority to commence proceedings and conduct prosecutions in respect of offences under subsection (1). While this section may seem straightforward and unremarkable at first glance, it has worrying implications when read in conjunction with other sections of the Criminal Code and the Charter of Rights and Freedoms. Subsection (1) of Section 104 outlines the offences related to what are commonly known as "terrorist activities." The section defines these activities broadly, including acts that are "in whole or in part, for a political, religious or ideological purpose, objective or cause" and that are intended to intimidate the public or compel a government, person, or group to do or refrain from doing something. These offences carry significant penalties, with some of them punishable by life imprisonment. The power granted to the Government of Canada by Section 104(3) is unusual in that it allows the government to initiate and oversee criminal proceedings. In most cases, criminal prosecutions are initiated by the police or other law enforcement agencies, and then conducted by the Crown attorney or prosecutor. By giving the government itself the ability to start and direct prosecutions, the law creates an inherent conflict of interest and raises concerns about impartiality and fairness. Moreover, this power in the hands of the government can be a tool for silencing dissent and violating the human rights of individuals. The broad definition of the offences in Subsection (1) of Section 104 - which includes acts "in whole or in part, for a political, religious or ideological purpose, objective or cause" - potentially encompasses legitimate activities such as peaceful protest and freedom of expression. If the government invokes this section to prosecute such activities, it would be an infringement of Canada's Charter of Rights and Freedoms, which enshrines these rights and protections. There are also concerns regarding the use of national security as a justification for invoking Section 104(3). Since national security is not well defined in the law, it could be used as a pretext for the government to target individuals and groups that are critical of its policies or actions, under the pretext of "protecting national security." The potential abuses of power that could arise from Section 104(3) underscore the need for safeguards and oversight to prevent the government from using this power arbitrarily or unfairly. Canada's legal system and institutions must ensure that individuals facing charges under this section receive a fair trial, free from political interference or manipulation. Moreover, any prosecution must be subject to rigorous review and oversight to ensure that the charges are legitimate and based on evidence and not motivated by political or ideological considerations. In conclusion, while Section 104(3) of the Criminal Code grants the government the authority to commence proceedings and conduct prosecutions for offences related to terrorist activities, it also raises significant concerns regarding the potential for abuse of power and infringement of human rights and civil liberties. It is crucial that the government exercises this power judiciously and within the limits of the law and that mechanisms are in place to ensure that individuals facing charges under this section receive fair and impartial treatment.
STRATEGY
Section 104(3) of the Criminal Code of Canada grants the Government of Canada the power to initiate proceedings and conduct cases in relation to offenses under subsection (1). This provision has significant implications for legal practitioners, accused persons, and the general public. When dealing with this section, there are several strategic considerations that must be taken into account. First, it is important to recognize the broad scope of offenses covered by subsection (1) of section 104. These include crimes against the safety of aviation, shipping, or railway facilities, or any other act that endangers or is likely to endanger the lives, health, or safety of others. Such offenses are serious in nature and can attract significant jail time if convicted. Therefore, the role of the prosecution is paramount in ensuring that justice is served and that the public is protected. Second, the Criminal Code does not specify the circumstances under which the Government of Canada may choose to initiate proceedings under section 104(3). It is within the sole discretion of the government to decide when and under what circumstances to take action. This makes it imperative for legal practitioners to remain constantly attuned to any changes in policy or strategy at the federal level that may affect their clients' cases. Third, the applicability of section 104(3) makes it essential to adopt a robust defense strategy from the outset of the case. The prosecution may have greater resources at their disposal, including specialized training and access to intelligence information, which can be utilized to build a compelling case against the accused. A skilled defense lawyer must be able to anticipate and counter these strategies through appropriate legal and factual analysis. One strategy that could be employed to counter the prosecution's case is to scrutinize the evidence presented by the government and challenge its credibility or reliability, particularly in matters pertaining to intelligence and national security. Additionally, it may be useful to collaborate with investigators to gather evidence that can demonstrate the innocence of the accused or mitigate their culpability. Another strategy is to seek the intervention of the court to limit the Government of Canada's power under section 104(3). For instance, counsel could seek a ruling that the government's actions towards the accused were unconstitutional, or that the Crown's application of the section violated the accused's fundamental rights or freedoms. In conclusion, section 104(3) of the Criminal Code of Canada presents significant legal challenges for legal practitioners, accused persons, and the general public. Legal practitioners must be acutely aware of the provision's broad scope and the potential strategic and tactical implications for their clients. By adopting robust defense strategies, challenging the credibility of the government's evidence, and seeking appropriate interventions from the court, defense counsel can successfully navigate this provision and secure the best possible outcome for their clients.