INTRODUCTION AND BRIEF DESCRIPTION
This section states that a person cannot be convicted of an offense if their actions served the public good and did not go beyond what was necessary.
SECTION WORDING
163(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
EXPLANATION
Section 163(3) of the Criminal Code of Canada, commonly referred to as the "public good" defence, aims to balance freedom of expression with the need to protect vulnerable members of society from harmful and exploitative material. Under this section, a person cannot be convicted of an offence related to the production, distribution, or possession of obscene material, child pornography, or hate propaganda, if their actions served the public good and did not go beyond what was necessary to achieve that goal. The "public good" defence is intended to protect individuals engaged in legitimate artistic, scientific, or educational activities that may involve the creation or dissemination of controversial material. For example, a journalist investigating child exploitation may need to possess or view child pornography as part of their investigation. Similarly, a researcher studying hate speech may need to access and analyze such material to understand its impact on society. However, the "public good" defence is a narrow exception that requires a high threshold of justification. The accused must show that their actions had a clear and substantial public benefit, outweighing any harm caused by the prohibited material. They also need to demonstrate that they took reasonable steps to minimize the potential harm, such as keeping the material confidential and limiting its distribution. Overall, section 163(3) recognizes the importance of freedom of expression and the pursuit of knowledge while also ensuring that vulnerable members of society are protected from harm.
COMMENTARY
Section 163(3) of the Criminal Code of Canada functions as a defense mechanism for individuals accused of offences under this section. Essentially, this section provides a safeguard against prosecution for those individuals whose actions were deemed to serve the public good" and did not go beyond the scope of what was necessary to achieve this end. While this section has undoubtedly proven useful in protecting well-meaning individuals from prosecution, there is still considerable debate as to its interpretation and application. As with many aspects of the legal system, the determination of whether or not an individual's actions were in the public good is not without its complications. The idea of what defines the public good" can be highly subjective, and the need for such a defense inevitably leads to disagreements over what specific actions or situations warrant its use. Proponents of the defense argue that it serves as an important safeguard against the criminalization of individuals for actions that are beneficial to society as a whole, such as whistleblowers or journalists who expose corruption. However, detractors raise concerns about the potential for abuse, arguing that it could be used to justify criminal actions in the name of serving the greater good. The interpretation of the second component of Section 163(3), which requires that the acts alleged did not extend beyond what served the public good, can also be particularly tricky. The determination of whether an action went beyond what served the public good" is often subjective and requires careful consideration of the specific circumstances in which the action occurred. Furthermore, while this defense may be useful in some cases, it is not an absolute right, and there may be instances where an individual's actions should still be subject to criminal prosecution, even if they were intended to benefit society. One high-profile case that has raised questions about the application of Section 163(3) of the Criminal Code is the trial of Vice-Admiral Mark Norman, who was charged with breach of trust for allegedly leaking confidential information related to a government procurement contract. Norman argued that his actions were in the public interest, as he was attempting to bring attention to irregularities in the procurement process. In May 2019, the prosecution stayed the charges against Norman, citing a lack of reasonable prospects for conviction. Many observers saw this as a vindication of the idea of the public good" defense and a recognition of the important role played by whistleblowers in uncovering misconduct and corruption. Overall, Section 163(3) of the Criminal Code of Canada is an important provision that allows individuals to argue that their actions were in the public interest and should not be subject to criminal prosecution. However, the subjective nature of the public good" and beyond what served the public good" criteria means that this defense must be applied with care and consideration, so as to avoid potential abuse and ensure that justice is served. It is also important to remember that this defense is not absolute and should not be seen as a free pass to engage in criminal activity in the name of serving the greater good.
STRATEGY
Section 163(3) of the Criminal Code of Canada provides an exception to the offences under Section 163 of the Criminal Code. This section recognizes that certain acts may have been committed for the public good, and in such cases, the offender may not be convicted of the offence. However, this defence is a narrow exception to the offence, and it requires serious considerations before invoking it. When considering whether the public good defence may apply, a range of factors must be taken into account. Some strategic considerations include the nature of the alleged offence, the motive behind the acts, the extent to which the acts served the public good, and the potential consequences for the accused. Below are some strategies that could be employed to make the most of the exception provided under Section 163(3). 1. Evidence gathering: In defending against charges under Section 163 of the Criminal Code, it is crucial to present evidence of the public interest served by the alleged offence. Evidence gathering is a critical component of building a robust public interest defence case. It may involve conducting extensive research, obtaining expert opinions and gathering relevant data that quantifies the extent to which the acts served the public good. 2. Preparation: Preparing a well-structured and comprehensive argument is key in any case. In a case where the public good defence will be raised, it is essential to plan ahead and prepare a defence case that takes into account the special considerations of the case. This could involve engaging in discussions and consultations with the accused and their legal team to gain a full understanding of the facts and circumstances surrounding the case. 3. Engage with the Crown: Before invoking the public good defence in court, it is essential to engage with the Crown prosecutor to discuss the case's specifics. Discussions with the Crown prosecutor may help clarify whether the defence argument is valid and whether it is likely to be accepted by the court. The prosecutor may also provide useful insights that can help in structuring a strong public interest defence case. 4. Public relations: In cases that generate a lot of public interest, a well-structured public relations campaign may play an essential role in shaping public opinion. In cases where the court's decision may have lasting implications on a particular community or industry, generating public support through informative campaigns and lobbying relevant stakeholders may influence the court's decision. 5. Hire an experienced lawyer: Seeking the help of an experienced criminal defence lawyer can significantly enhance an accused person's chances of success. A lawyer with extensive experience in public interest defence cases and knowledge of the technical requirements under Section 163 of the Code can advise on the most effective strategies to employ and effectively present the defence argument to the court. The public good defence under Section 163(3) of the Criminal Code of Canada is a narrow and complex defence. Successfully invoking this defence requires careful consideration of several strategic factors. Employing effective strategies, including conducting thorough research, engaging with the Crown prosecutor, preparing a strong defence argument, implementing an effective public relations campaign, and hiring an experienced criminal defence lawyer, can significantly enhance an accused person's chances of success.