section 164.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

The person who posted material may appear and oppose an order under subsection (5).

SECTION WORDING

164.1(3) The person who posted the material may appear and be represented in the proceedings in order to oppose the making of an order under subsection (5).

EXPLANATION

Section 164.1(3) of the Canadian Criminal Code is a provision that allows an individual who has posted material online to appear in court and oppose an order under subsection (5) of the same section. Subsection (5) allows for a court to make an order that requires a person to remove or delete material from the internet that is considered to be child pornography or otherwise harmful to children. Section 164.1 is a critical part of Canada's efforts to combat the sexual exploitation and abuse of children online. It recognizes the need to ensure that the internet remains safe for children and free from materials that are harmful to them. Section 164.1(3) ensures that individuals who have posted material that may be subject to an order under subsection (5) are not stripped of their rights to due process, including the right to oppose such an order in court. Persons who have posted material that may be subject to an order under subsection (5) must make the necessary arrangements to be represented in court, either by a lawyer or other legal representative. They can oppose the making of an order under subsection (5) by arguing that the material in question is not harmful to children or that the order would infringe upon their right to free expression. In conclusion, section 164.1(3) acknowledges the importance of ensuring that individuals who have posted material online are given notice and an opportunity to defend their actions in court. The provision strikes a balance between protecting children from harmful material and safeguarding the rights of individuals who use the internet for legitimate purposes.

COMMENTARY

Section 164.1(3) of the Criminal Code of Canada is a provision that allows a person who has posted material online to appear and be represented in legal proceedings that pertain to their online activity. This section provides the person with the opportunity to defend themselves against any accusations made against them and to present their case to the court. This provision is especially important in cases where a person has posted material online that is deemed to be offensive or harmful, and there is a request for an order under subsection (5) to remove or take down the material in question. Without this provision, the person who posted the material would not be given the opportunity to respond to the request and defend their right to freedom of expression. In essence, Section 164.1(3) provides an important safeguard against arbitrary censorship of online content. It recognizes the importance of free speech and communication in a democratic society and ensures that individuals are not silenced or censored without due process of law. However, it is important to note that the right to freedom of expression is not absolute and must be balanced with other rights, such as the right to privacy, the right to be free from discrimination, and the protection of vulnerable groups, including children. Section 164.1(3) does not provide a blanket protection for any and all content posted online but rather offers the person an opportunity to be heard and defend their actions. In cases where there is a conflict between freedom of expression and other rights, the courts must weigh the competing interests and come to a decision that seeks to balance these interests in the most just and equitable manner possible. In some cases, it may be necessary to restrict or remove certain types of content, especially where they are hateful or discriminatory in nature. Overall, Section 164.1(3) of the Criminal Code of Canada plays an important role in protecting the right to freedom of expression online while at the same time ensuring that other rights are protected as well. It provides an opportunity for individuals to defend themselves against accusations of wrongdoing and ensures that the principles of due process are respected in legal proceedings related to online content.

STRATEGY

Section 164.1(3) of the Criminal Code of Canada provides a unique opportunity for individuals who have posted material online to oppose the making of an order under subsection (5). This provision is particularly relevant in cases where individuals are charged with the possession, distribution, or production of child pornography. In such cases, the Crown may seek to obtain a forfeiture order that would require the individual to forfeit their computer, their cell phone, and any other devices that may contain evidence of the alleged offense. Strategic considerations when dealing with this provision include the hiring of a competent criminal defense lawyer, the making of early contact with the Crown to assess the strengths and weaknesses of the case, and the drafting of a comprehensive defense strategy that takes into account all relevant legal and factual issues. In addition, it may be advisable for individuals who have posted material online to seek the advice of a qualified expert in computer forensics to assist in the preparation of their defense. One strategy that could be employed in opposing the making of an order under subsection (5) is to argue that the order would be excessive and disproportionate to the alleged offense. This argument could be based on the fact that the forfeiture of personal property would significantly impact the individual's ability to earn a living, support their family, and live a normal life. Another strategy that could be employed is to argue that the order would violate the individual's constitutional rights and freedoms, particularly their right to privacy and freedom of expression. In order to successfully argue against the making of an order under subsection (5), it is important for individuals to gather as much evidence as possible in their defense. This may involve conducting a thorough examination of the electronic devices that were seized by the police, as well as interviewing potential witnesses and obtaining any relevant expert reports. Individuals should also be prepared to present a compelling argument in court that addresses all relevant legal and factual issues and that is supported by relevant case law and statutory provisions. In conclusion, section 164.1(3) of the Criminal Code of Canada provides individuals who have posted material online with an important opportunity to oppose the making of an order under subsection (5). By employing strategic considerations and effective defense strategies, individuals can increase their chances of successfully opposing such an order and protecting their rights and freedoms.