INTRODUCTION AND BRIEF DESCRIPTION

The Attorney Generals consent is required for any proceedings under this section.

SECTION WORDING

136(3) No proceedings shall be instituted under this section without the consent of the Attorney General.

EXPLANATION

Section 136(3) of the Criminal Code of Canada is a provision that sets out the requirement for the Attorney General's consent before instituting proceedings under this section. This section refers to the crime of obstructing or violence to or arrest of an officer. An offense under this section involves a person obstructing or using violence against a peace officer or public officer who is engaged in the execution of their duties, or attempting to make such an arrest. The provision is crucial as it serves as a safeguard against arbitrary or improper use of the law by the authorities. The Attorney General's consent requirement provides a level of scrutiny and oversight before an individual or group can be charged for an offense under this section. It ensures that the decision to initiate proceedings is made after careful consideration by the Attorney General and is in the public's interest. Moreover, the provision also recognizes the need for the state to protect its agents who are charged with upholding law and order. The use of violence or obstruction can have serious consequences, leading to injury or death of law enforcement officers. Therefore, it is essential to ensure that these incidents are dealt with comprehensively and with due diligence. Overall, Section 136(3) of the Criminal Code of Canada is an important provision that regulates the use of force and obstruction against law enforcement officers. Its requirement for the Attorney General's consent ensures a level of oversight and scrutiny, which is essential in safeguarding the public's interest while recognizing the state's duty to protect its agents.

COMMENTARY

Section 136(3) of the Criminal Code of Canada plays a crucial role in ensuring that individuals are not wrongfully prosecuted for advocating or promoting the commission of an offence. This section provides that no proceedings can be instituted under section 136 of the Criminal Code without the consent of the Attorney General. Section 136 deals with the offence of advocating or promoting the commission of an offence, and the consent requirement in subsection (3) is crucial to ensure that the state does not overstep its constitutional boundaries in limiting freedom of expression. The offence under section 136 is often referred to as a 'hate speech' offence. However, this label is somewhat misleading, as section 136 includes more than simply hate speech. It is an offence to advocate or promote any offence, regardless of whether or not the offence is one of hate. This includes offences such as theft, vandalism, assault, and murder. The focus of section 136 is on the advocacy or promotion of criminal behaviour rather than on the content of the speech itself. It is important to note that section 136 does not criminalize the mere expression of an opinion or belief. Rather, it criminalizes the advocacy or promotion of an offence. This means that individuals are free to express their opinions and beliefs, even if they are controversial or unpopular, provided that they do not cross the line into advocating or promoting criminal behaviour. The consent requirement in subsection (3) is designed to ensure that the Attorney General is involved in the decision to prosecute under section 136. This provides an additional layer of protection for freedom of expression because it ensures that the decision to prosecute is not left solely to police or prosecutors, who may not always be sensitive to the importance of free speech. The consent requirement also ensures that political considerations are taken into account in deciding whether to prosecute under section 136. This is particularly important given the potential for section 136 to be used against political dissidents or those advocating for social change. By requiring the Attorney General's consent, the state ensures that prosecutions under section 136 are not politically motivated. However, there are also potential downsides to the consent requirement. The involvement of the Attorney General may create delays in the prosecution of section 136 cases, which could deprive victims of hate speech or other harmful behaviour of justice. Additionally, the Attorney General is a political actor, which means that the decision to prosecute under section 136 may be influenced by political considerations. This could lead to the selective enforcement of section 136, with some individuals being prosecuted while others are not. Overall, section 136(3) of the Criminal Code of Canada is an important provision in protecting freedom of expression while also ensuring that individuals who advocate or promote criminal behaviour can be held accountable. The requirement for the Attorney General's consent ensures that prosecutions under section 136 are not politically motivated, but there are also potential downsides to this system. Ultimately, the balance between protecting freedom of expression and preventing harmful behaviour must be struck carefully, with due consideration given to the principles of justice and the rule of law.

STRATEGY

Section 136(3) of the Criminal Code of Canada is a provision that requires the consent of the Attorney General prior to the start of proceedings under this section. This provision is designed to protect individuals from frivolous and vexatious prosecutions, and to ensure that the decision to prosecute is made with due consideration of all the facts and circumstances of the case. Lawyers, prosecutors, and law enforcement agencies must always consider a range of strategic options when dealing with this section. One key strategic consideration is the nature of the offence and its potential impact on the community and the victim. Some offences are particularly serious and may warrant greater scrutiny in the decision-making process. In these cases, prosecutors may be more likely to seek the consent of the Attorney General before proceeding with a prosecution. This strategy can be particularly useful in cases where the evidence is weak or the likelihood of conviction is low. Another important strategic consideration is the impact that a prosecution may have on the legal system and the community at large. Some prosecutions may be particularly contentious and may give rise to public protests or negative media attention. In these cases, prosecutors may need to consider the potential impact on the reputation of their office, as well as the political implications of their decision. Among the strategies that can be employed by prosecutors and law enforcement agencies in the context of Section 136(3) of the Criminal Code of Canada is the use of informal consultations with the Attorney General's office. This approach can be particularly useful in cases where the evidence is complex or the legal issues are difficult to navigate. By consulting with the Attorney General's office prior to starting proceedings, prosecutors can gain a better understanding of the legal framework and the potential implications of their decision. Another strategy that can be employed is to negotiate with the defence counsel or the accused person prior to charging them. This approach can be particularly useful in cases where the accused is willing to enter into a guilty plea or offer restitution. By negotiating with the defence counsel or the accused person, prosecutors can avoid unnecessary court proceedings, reduce the cost and resources associated with the case, and obtain better outcomes for victims. In conclusion, Section 136(3) of the Criminal Code of Canada requires the consent of the Attorney General prior to the start of proceedings under this section. This provision is designed to ensure that legal proceedings are fair and just, and to avoid frivolous and vexatious prosecutions. Prosecutors and law enforcement agencies must consider a range of strategic options when dealing with this section to ensure that legal proceedings are initiated in the appropriate manner and with due care and attention. Some of the strategies that can be employed include informal consultations with the Attorney General's office, negotiating with the defence counsel or accused person, and carefully considering the nature of the offence and its potential impact on the community.