INTRODUCTION AND BRIEF DESCRIPTION
Section 164(3) allows the owner and maker of seized obscene or illegal material to appear and oppose forfeiture in court.
SECTION WORDING
164(3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, a crime comic, child pornography or a voyeuristic recording, may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.
EXPLANATION
Section 164(3) of the Criminal Code of Canada provides individuals with the right to oppose the seizure and forfeiture of a matter alleged to be obscene, a crime comic, child pornography, or a voyeuristic recording. This section is important for protecting the fundamental rights of individuals, including freedom of expression and protection from unreasonable search and seizure. Under this section of the Criminal Code, if law enforcement seizes any material that fits the above descriptions, the owner and maker of the material have the right to be represented during the proceedings and defend their material. The purpose of this provision is to ensure that individuals have a fair chance to challenge the seizure and potential forfeiture of their material. For example, if an author of a comic book feels that their work has been unfairly deemed obscene and has been seized by the authorities, they can appear in court and argue against the forfeiture of their work. Similarly, if a person's personal recording has been seized under suspicion of being voyeuristic, they can appear before the court to explain the circumstances surrounding the recording and argue against forfeiture. In summary, section 164(3) is a vital component of the Criminal Code of Canada that provides individuals with the opportunity to defend themselves against the seizure and forfeiture of their alleged obscene, criminal, or voyeuristic materials. It ensures that individuals are not subject to unreasonable search and seizure and that their fundamental rights are protected.
COMMENTARY
Section 164(3) of the Canadian Criminal Code is an important provision that protects the rights of the owners and makers of materials that have been seized by the authorities under subsection (1), which may be alleged to be obscene, a crime comic, child pornography, or a voyeuristic recording. This provision permits such individuals to appear in the proceedings and be represented, in order to oppose the making of an order imposing forfeiture of the material. Forfeiture is a legal process by which the government takes possession of property that is used to commit or facilitate a crime. In the case of materials that have been seized under subsection (1) of this section, such forfeiture may be ordered on the grounds that the material is obscene, portrays criminal activity in comic form, depicts child sexual abuse, or the recording of individuals without their consent, in circumstances in which they have a reasonable expectation of privacy. However, an order of forfeiture can have serious consequences for the owner and/or maker of the material. In addition to the loss of the property, they may also face criminal charges and reputational damage. Therefore, it is critical that they have the opportunity to challenge the forfeiture in court, and to be represented by legal counsel who can make arguments on their behalf. It is also important to note that Section 164(3) of the Criminal Code of Canada affirms the principle of innocent until proven guilty. The fact that materials have been seized does not necessarily mean that they are in violation of the law. There may be legitimate reasons for owning or creating such materials, such as artistic or scientific value, and these reasons should be considered in any legal proceedings. Furthermore, the provision allows for a fair and just legal process, as it ensures that the accused has the opportunity to present a defense and the government must prove their case beyond a reasonable doubt. It also upholds the principles of natural justice, which state that an accused person has the right to a fair hearing, and to be heard before they are deprived of their property. In conclusion, Section 164(3) of the Criminal Code of Canada is a vital provision that protects the rights of owners and makers of materials that have been seized by the authorities. It affirms the principle of innocent until proven guilty, allows for a fair and just legal process, and upholds the principles of natural justice. By providing individuals with the opportunity to appear and be represented in court, it ensures that their rights are safeguarded and that justice is served.
STRATEGY
Section 164(3) of the Criminal Code of Canada provides some level of protection to individuals who own or create material that has been seized under subsection (1) and is alleged to be obscene, a crime comic, child pornography, or a voyeuristic recording. This section allows the owner and maker of the material to appear in the proceedings and oppose the making of an order for forfeiture of the matter. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that individuals should take into account. These considerations include the following: 1. Legal Representation: It is important for individuals to have legal representation when handling these proceedings. A lawyer with experience in criminal law and forfeiture proceedings can help individuals understand their rights, navigate the legal system, and build a strong case for opposing the forfeiture order. 2. Evidence: The success of an opposition to the forfeiture order may depend on the evidence presented to the court. Individuals will need to gather and present evidence that proves the material seized is not obscene, a crime comic, child pornography, or a voyeuristic recording. This evidence could include expert opinions, witness statements, and other documents that support the argument that the material is not illegal. 3. Jurisdiction: It is important to note that jurisdiction can play a key role in forfeiture proceedings. Depending on the circumstances, individuals may be able to challenge the jurisdiction of the court hearing the matter and have it transferred to another jurisdiction that is more favorable to their case. 4. Public Perception: The public perception of the material can also affect the outcome of the forfeiture proceedings. Individuals should consider how the material will be perceived by the general public and take steps to mitigate any negative public perception. Some strategies that could be employed when handling proceedings under section 164(3) of the Criminal Code of Canada include: 1. Negotiation: Individuals may be able to negotiate with the Crown prosecutor to reach a settlement that avoids forfeiture of the material. 2. Challenge the Search Warrant: If the material was seized as a result of an invalid search warrant, individuals may be able to have the evidence suppressed and the forfeiture order revoked. 3. Constitutional Challenge: Individuals may be able to mount a constitutional challenge to the legality of section 164(3) of the Criminal Code of Canada, arguing that it violates their rights to freedom of expression and association. 4. Appeal: If the forfeiture order is made, individuals may be able to appeal the decision to a higher court. In conclusion, section 164(3) of the Criminal Code of Canada provides some level of protection to individuals who own or create material that has been seized under subsection (1) and is alleged to be obscene, a crime comic, child pornography, or a voyeuristic recording. When dealing with this section, individuals should take into account various strategic considerations and employ strategies such as legal representation, evidence gathering, jurisdictional challenges, and negotiation to oppose the making of an order for forfeiture.