INTRODUCTION AND BRIEF DESCRIPTION
The section deems publications that exploit sex and other subjects like crime, horror, cruelty, and violence as obscene.
163(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
Section 163(8) of the Criminal Code of Canada provides a definition of obscenity that applies specifically to this Act. According to this section, any publication that predominantly exploits sex or sex in combination with other subjects such as crime, horror, cruelty, or violence is considered obscene. This means that such publications may not be distributed or exhibited in public places. The notion of "undue exploitation" in this section is key to understanding what constitutes obscene material. This phrase refers to a publication that goes beyond normal or acceptable levels of sexually explicit content. The term "dominant characteristic" indicates that a publication will be deemed obscene if it places excessive focus on sexual material or combines sexual content with other objectionable subjects. The purpose of this section is to protect public morality and prevent the distribution of materials that are considered offensive or harmful to society. The Criminal Code of Canada recognizes that obscenity can have a negative impact on individuals and society as a whole. As a result, the law seeks to regulate such material and restrict its availability. Overall, Section 163(8) outlines the standard for determining whether a publication is obscene within the context of the Criminal Code of Canada. The provision is designed to ensure that individuals and society are protected from objectionable or harmful materials.
Section 163(8) of the Criminal Code of Canada is a controversial provision that has sparked debates about the intersection of freedom of expression and the regulation of pornography. Essentially, this provision states that any publication that excessively exploits sex or combines it with subjects such as crime, horror, cruelty, and violence, is considered obscene under Canadian law. This is a broad and subjective definition that has been challenged on several grounds. Firstly, critics of this provision argue that it is too vague and open to interpretation, resulting in inconsistent application by law enforcement and judicial authorities. It is difficult to define what constitutes undue exploitation of sex or what level of violence and horror is excessive. Furthermore, different individuals may have different standards for what they perceive as obscene. This subjectivity can lead to uneven enforcement of the law and potential violations of individuals' rights. Secondly, some argue that Section 163(8) violates freedom of expression, a fundamental right protected under the Canadian Charter of Rights and Freedoms. According to this perspective, regulating pornography based on its content infringes on individuals' right to express themselves in ways that may be deemed offensive or taboo. While freedom of expression is not absolute, laws that restrict it must be carefully crafted and must meet a high threshold to be considered constitutional. Some argue that Section 163(8) does not meet this threshold, as it places undue restrictions on artistic and social expression. However, defenders of Section 163(8) argue that it serves an important purpose in regulating adult content that can be harmful and degrading, particularly towards women. They point to evidence that links pornography to increased sexual violence and harmful attitudes towards women. By regulating content that exploits sex and combines it with violent and degrading themes, Section 163(8) intends to protect vulnerable individuals from the potential harm of such content. Additionally, defenders of the provision argue that it is capable of being applied in a fair and consistent manner. While there may be subjectivity in determining what qualifies as obscene, this is not unique to Section 163(8). Similar subjectivity exists in many other areas of law, including determining what constitutes hate speech or obscenity in general. Courts are equipped to apply a legal test to determine if certain content qualifies as obscene, which includes considering community standards and the overall context of the publication. In conclusion, Section 163(8) of the Criminal Code of Canada is a contentious law that raises complex questions about freedom of expression, regulation of pornography, and harmful content. While it is important to regulate content that is harmful and degrading, any law that restricts speech must be carefully designed to ensure it balances important societal goals with individual rights. While Section 163(8) has its critics, it remains an important tool for Canadian law enforcement in regulating pornography and protecting vulnerable individuals from harmful content.
Section 163(8) of the Criminal Code of Canada is a provision that criminalizes the publication of obscene materials that exploit sex or related topics such as crime, horror, cruelty, and violence. The purpose of this section is to prevent the distribution of materials that are potentially harmful to society, especially young people. However, the application of this provision is often controversial, and there are strategic considerations that need to be taken into account when dealing with it. One of the primary strategic considerations for practitioners and clients is to understand the scope of the provision and how it has been interpreted and applied by the courts. Section 163(8) has been the subject of numerous legal challenges, including cases involving rap music lyrics, pornographic materials, and violent videogames. In these cases, the courts have had to balance the protection of free expression with the need to prevent harm to vulnerable individuals. Another strategic consideration is to be aware of the potential consequences of a conviction under Section 163(8). The penalties for violating this provision can be severe, including fines and imprisonment. Additionally, a conviction can have significant reputational and professional consequences, particularly for those in the creative industries. To mitigate these risks, practitioners and clients may employ various strategies, depending on the circumstances of the case. For example, they may argue that the materials at issue have artistic or literary value and are not intended to exploit sex or other harmful topics. They may also argue that the materials are protected by the right to free expression under the Canadian Charter of Rights and Freedoms. Another possible strategy is to work proactively to ensure that materials are not likely to be deemed obscene under Section 163(8). For example, practitioners and clients may engage in self-censorship, carefully reviewing and editing materials to remove any potentially offensive content. They may also seek the advice of experts, such as lawyers, public relations specialists, and communications professionals, to ensure that they are adhering to the highest ethical standards and reducing the risk of legal liability. In conclusion, Section 163(8) of the Criminal Code of Canada is a provision that requires careful consideration and strategic planning for practitioners and clients. By understanding the scope of the provision, the potential consequences of a conviction, and the strategies that may be employed to avoid legal liability, practitioners and clients can protect their interests while upholding the highest ethical standards.