section 163(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section criminalizes the possession, sale, exhibition, advertisement and disposal of obscene or indecent written matter, pictures, models, phonograph records, abortions, miscarriage drugs, and articles for restoring sexual virility or curing venereal diseases.

SECTION WORDING

163(2) Every one commits an offence who knowingly, without lawful justification or excuse, (a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever; (b) publicly exhibits a disgusting object or an indecent show; (c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or (d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.

EXPLANATION

Section 163(2) of the Criminal Code of Canada outlines various illegal acts related to obscene material, indecent shows, and harmful methods of inducing abortion or restoring sexual health. The section makes it an offense for anyone to knowingly possess or sell obscene material, including written matter, pictures, models, and phonograph records. Any act of publicly exhibiting disgusting objects or indecent shows is also considered unlawful under the section. Furthermore, the section makes it illegal to offer for sale, advertise, or publish advertisements for any means, instructions, medicine, drug, or article that intends to induce abortion or miscarriage. Similarly, advertising or publishing an advertisement for any means, instructions, medicine, drug, or article that claim to restore sexual virility or cure venereal diseases or diseases of the generative organs is also illegal under the section. The aim of this section is to protect public decency, morality, and health. It safeguards against the promotion and use of harmful, abusive, and exploitative material that can threaten the well-being of individuals, particularly women. The section criminalizes acts that can trigger mental and physical harm and ensure that anyone who violates these provisions is held accountable for their actions. Violating section 163(2) can result in harsh legal penalties, including fines, imprisonment, and restrictions on employment and travel. The section is a vital component of Canada's Criminal Code, regulating and managing acts that would otherwise be offensive, immoral, or harmful to individuals and the broader Canadian society.

COMMENTARY

Section 163(2) of the Criminal Code of Canada criminalizes various forms of sexual expression and reproductive healthcare. It is important to note that these offences are only committed if they are done knowingly and without lawful justification or excuse. However, the broad language of the section can be problematic in terms of what constitutes "obscene" or "disgusting," and what qualifies as a "lawful justification or excuse." Subsection (a) criminalizes the possession, sale, or public exposure of any "obscene" material, including written matter, pictures, models, phonograph records, or any other medium. The problem with this provision is that it does not define what is considered "obscene." This leaves the determination of what material is obscene in the hands of judges and juries, opening the door to subjective and inconsistent interpretations. Furthermore, the criminalization of possession raises concerns about freedom of expression and privacy rights, as individuals could potentially be charged for possessing privately owned materials that are not intended for public view. Subsection (b) prohibits the public exhibition of any "disgusting object" or "indecent" show. Again, the vagueness of these terms creates difficulties in determining what constitutes a "disgusting object" or "indecent" show. This subsection has been used in the past to criminalize BDSM events and other forms of consensual sexual expression that are deemed morally objectionable by some. Subsection (c) criminalizes the act of offering to sell, advertising, or having for sale any means, instructions, medicine, drug, or article intended or represented as a method of causing abortion or miscarriage. This provision violates a person's right to access and disseminate information about safe and legal healthcare options. It also puts individuals at risk of injury or harm if they are forced to resort to unsafe, back-alley procedures. Finally, subsection (d) prohibits the advertising of any means, instructions, medicine, drug, or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs. This provision has been criticized for contributing to the stigma and shame associated with seeking sexual health services, as well as limiting individuals' access to accurate information about reproductive healthcare. Overall, section 163(2) of the Criminal Code of Canada is problematic in that it criminalizes various forms of sexual expression and reproductive healthcare, using vague and subjective language that can result in inconsistent interpretations. These provisions also infringe upon individuals' rights to privacy, freedom of expression, and access to information and healthcare. It is important to recognize the potential harms of these sections and work towards reforming the criminal code to better reflect and respect the diversity of sexual and reproductive expression and needs.

STRATEGY

When dealing with Section 163(2) of the Criminal Code of Canada, there are numerous strategic considerations that must be taken into account to ensure that the accused receives the best possible outcome in their case. This section of the Criminal Code of Canada covers a wide range of offenses, such as possession of obscene materials, publicly exhibiting disgusting objects or indecent shows, selling or advertising abortion drugs, and advertising sexual virility or cure for venereal diseases. Therefore, dealing with this section of the Criminal Code requires a skilled and experienced defense lawyer. One of the primary strategic considerations when dealing with this section of the Criminal Code is to determine whether the accused had knowledge of the obscene nature of the material or show they possessed or exhibited. This is crucial because Section 163(2) requires the accused to have knowingly possessed or exhibited obscene material. If the defense lawyer can prove that the accused did not have knowledge of the obscene nature of the material, then the charges can be dismissed. For instance, if a person was found with obscene material on their computer, the defense lawyer could argue that the accused was not aware of the nature of the material and that it was downloaded without their knowledge. Another strategic consideration when dealing with this section of the Criminal Code is to determine whether the accused had a lawful justification for possessing or exhibiting the material. For example, if an artist had possession of obscene material to use for their artwork, then they could argue that they had a lawful justification for possessing the material. Furthermore, if the accused is charged with selling or advertising abortion drugs, the defense lawyer could argue that the drugs were not intended or represented as methods for causing abortion or miscarriage. In addition, the defense lawyer could argue that the accused did not have the intention of selling or advertising the drugs as a method of causing abortion or miscarriage. When dealing with charges related to advertising sexual virility or cure for venereal diseases, the defense lawyer could argue that the accused did not intend to misrepresent the product and that they were unaware of any false claims. Additionally, the defense lawyer could argue that the product was not intended to be used for such purposes. Finally, when dealing with an offense under Section 163(2), the accused's right to freedom of expression must also be considered. Freedom of expression is a fundamental right in Canada, and the accused must not be penalized for expressing themselves unless their expression falls under the definition of obscene or indecent material under the Criminal Code. In conclusion, to mount the best possible defense when dealing with Section 163(2) of the Criminal Code of Canada, a well-versed defense lawyer must consider several strategies. These strategies include proving that the accused did not knowingly possess or exhibit obscene material, demonstrating that they had lawful justification for possessing or exhibiting the material, proving that the drugs or products were not advertised or sold with the intention of causing harm, arguing that the accused did not misrepresent the product, and considering the accused's right to freedom of expression.