section 163(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section defines the legal and factual questions regarding whether an act served the public good and whether it went beyond what served the public good.

SECTION WORDING

163(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

EXPLANATION

Section 163(4) of the Criminal Code of Canada is an important provision that addresses the issue of whether an act or conduct served the public good in the context of certain offenses related to pornography and obscenity. The section establishes a distinction between questions of law and questions of fact in relation to determining whether the act in question was serving the public good or not. The provision makes it clear that determining whether an act was in the public good is a question of law, while determining whether the act in question extended beyond what served the public good is a question of fact. This means that the courts have the power to decide whether an act is in the public good or not, based on relevant legal principles and factors that are deemed to serve the public interest. In essence, section 163(4) serves to balance two important interests: on one hand, the interest in protecting society from harmful or obscene materials that may cause harm to individuals or undermine public morality; and, on the other hand, the interest in allowing for freedom of expression and the arts. The legislation interprets that it is necessary to strike a balance between these two interests by allowing for certain artistic or expressive materials that serve the public good, while prohibiting those that go beyond what is necessary to promote the public good. In summary, section 163(4) honors the principles of freedom of expression and the rights of individuals to access to information while also seeking to protect society from harmful or obscene materials. Overall, the provision is an important tool to regulate the use of obscene or harmful materials while also ensuring that artistic or expressive material that serves the public good is not punished under the criminal law.

COMMENTARY

Section 163(4) of the Criminal Code of Canada is a provision that specifically addresses the issue of whether an act can be considered legal if it serves the public good but still goes beyond what is necessary to do so. On one hand, this provision acknowledges the importance of considering the public good in determining the legality of certain acts. On the other hand, it also recognizes the potential danger in allowing individuals and organizations to engage in activities that exceed what is necessary to serve the public good. The provision essentially creates a two-part test for determining whether an act is legal. The first part involves a question of law, which asks whether the act served the public good. This is generally a straightforward question that can be answered by examining the purpose and effects of the act. If the act is deemed to have served the public good, it may be considered legal. The second part of the test involves a question of fact, which asks whether the act went beyond what served the public good. This is a more complex question that requires a deeper analysis of the nature and extent of the acts in question. Depending on the circumstances, the acts may be considered illegal if they are deemed to have exceeded what was necessary to serve the public good. One potential issue with this provision is that it leaves room for interpretation and subjectivity. The determination of whether an act went beyond what served the public good may be influenced by various factors, including the individual perceptions and biases of those making the decision. This can lead to inconsistent and unfair application of the law, especially if certain groups are disproportionately targeted or treated differently. Another concern with this provision is that it may create a loophole for individuals and organizations to engage in potentially harmful or destructive activities under the guise of serving the public good. This could be particularly problematic in cases where the public good is broadly defined or difficult to quantify, such as in situations involving environmental protection or public health. Overall, while Section 163(4) of the Criminal Code of Canada attempts to balance the importance of serving the public good with the need to prevent harmful or unnecessary acts, there are potential limitations and challenges in its implementation. As with any law, it is important for lawmakers and legal professionals to continually evaluate and refine the provision to ensure that it achieves its intended goals while minimizing its unintended consequences.

STRATEGY

Section 163(4) of the Criminal Code of Canada pertains to the defense of public good regarding acts that would normally be deemed obscene or indecent. The section provides an opportunity for individuals to argue that their otherwise inappropriate actions were justified because they had a public good in mind. For this defense to be successful, the act in question must have had the propensity to serve the public, and there must be sufficient evidence that the alleged act went beyond what was necessary for public service. While the applicability of this section is primarily dependent on the circumstances of each case, here are some strategic considerations one might adopt when dealing with it. 1. Seek legal counsel For a defense of public good to be successful, it must align with the circumstances of the case, the acts committed, and the applicable law. Professional legal counsel is essential in navigating the complexities of the legal process, ensuring correct interpretation of the law, and providing advice on how best to present the arguments in the case. 2. Identify the public good the alleged act was intended to serve Under this section, the accused must demonstrate that their actions were motivated by the public good or their perception of it and that the public good served by their actions outweighed the harm caused by such acts. It is essential to identify precisely the public good the alleged act intended to serve, bring evidence supporting the claim, and demonstrate that it was genuinely intended for the community's benefit. 3. Understand what actions could fall under the section and how to frame the defense This section of the Criminal Code of Canada is rarely invoked, and its interpretation can vary depending on the circumstances of each case. It is essential to determine whether the actions in question fall under this section and how to frame the defense. For instance, if the accused is someone providing sensitive information to the public or public officials, such as leaks or whistleblowing, the defense must argue why the act serves the public interest and why the alleged act did not go beyond that which served the public interest. 4. Have compelling evidence to demonstrate that the act did not go beyond what served the public good While the question of law is whether the act served the public good, and that of fact is whether the act went beyond what served the public good, presenting strong evidence is essential to prove both. The defense must provide ample evidence to support the claim that the act did not go beyond what was necessary to serve the public good. 5. Consider the potential consequences of employing this defense Arguing public good can be a tricky defense. It may attract publicity and public attention that could bring unwanted consequences. The defense counsel must weigh the benefits of using this defense with the potential downside, such as negative public perception, disapproval from authorities, and additional scrutiny during future legal proceedings. In conclusion, section 163(4) of the Criminal Code of Canada is a useful tool for litigation when appropriate. Employing the five strategic considerations outlined above can improve the case's chances of success and ensure that justice is served. However, it is crucial to seek sound legal advice before employing any defense.