INTRODUCTION AND BRIEF DESCRIPTION
This section allows a court to order forfeiture of obscene, criminal, or voyeuristic content to the provinces attorney general.
SECTION WORDING
164(4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography or a voyeuristic recording, it may make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.
EXPLANATION
Section 164(4) of the Criminal Code of Canada deals with the forfeiture of certain materials that are considered explicit or harmful in nature. It empowers the court to declare any publication, representation, written material or recording as 'forfeited' to the Crown if it is deemed obscene, child pornography, voyeuristic recording, or a crime comic. The section enforces rigorous standards against the undesirable and socially harmful materials that negatively affect the moral fabric of the society. If a court determines that the material is of such nature, it would order that it is surrendered to the province's attorney general for disposal in any reasonable manner. Section 164(4) of the Criminal Code of Canada serves to protect society against harmful materials that may cause significant harm to vulnerable groups, including minors. It allows for the prohibition of material that has cultural, religious, and other unpleasant consequences. The provision is not meant to impede legitimate artistic or intellectual expression. However, it is important to note that the interpretation of material to be forfeited under this section could be subjective and must be decided on a balance of probabilities by the court. It must be based on a thorough understanding of the facts and the surrounding circumstances to ensure that the decision aligns with the rights of individuals and the broader interests of society.
COMMENTARY
Section 164(4) of the Canadian Criminal Code is a legislative provision that empowers the courts to order the forfeiture of obscene or illegal materials that promote or depict certain types of pornography, voyeurism, and crime comics. Under this section, the courts can declare such material forfeited to the Crown for disposal as the Attorney General may direct. This provision represents an important tool for law enforcement officials in prosecuting offences involving obscene or illegal materials, such as child pornography, voyeurism, and obscenity. The rationale behind Section 164(4) is to prevent the distribution and dissemination of certain types of media and to protect vulnerable members of society from exploitation and harm. Child pornography, for example, represents a heinous offence that exploits and victimizes children, while voyeurism involves the invasion of privacy and dignity of others. The production and distribution of obscene materials or crime comics may also have the potential to encourage criminal activity and contribute to the decline of social moral values. The forfeiture of these types of materials serves to send a strong moral and societal message that the possession and distribution of such material will not be tolerated by the courts. It also ensures that the material is not available for future use, limiting its distribution and damage to vulnerable individuals and the community at large. The Supreme Court of Canada has upheld the constitutionality of Section 164(4) in several high-profile cases, including the 1992 case of R. v. Zundel and the 2009 case of R. v. Labaye. These cases have established that the forfeiture of obscene or illegal materials is necessary to protect vulnerable members of society and to uphold public order and morality. However, the application of Section 164(4) has also been the subject of criticism. Some have argued that the provision is too broad and may stifle freedom of expression and artistic creativity. The courts have addressed this criticism by requiring a high threshold of proof to establish that material is obscene, and by limiting the application of the provision to materials that are clearly illegal and harmful. Overall, Section 164(4) serves an important function in protecting vulnerable members of society and upholding public morality and order. It is a crucial tool for law enforcement officials in cracking down on the production and distribution of illegal and harmful materials, while also supporting the values of freedom and expression within reasonable limits.
STRATEGY
Section 164(4) of the Criminal Code of Canada gives the court the power to declare certain publications, representations, written materials, or recordings as forfeited to the province if they are found to be obscene, a crime comic, child pornography, or a voyeuristic recording. Dealing with this section of the Criminal Code requires careful consideration of a number of strategic factors. Firstly, the individual or organization facing charges under Section 164(4) must decide whether to plead guilty or contest the charges. If they choose to plead guilty, they may be able to negotiate with the prosecution to minimize the penalty or the impact of the forfeiture order. For example, they may be able to negotiate to keep certain portions of the material that are not considered obscene or child pornography. On the other hand, if they choose to contest the charges, they may need to mount a legal defense that challenges the constitutionality of Section 164(4) or the interpretation of the material in question. This strategy would require substantial legal and financial resources, as well as a willingness to take the legal battle to higher levels of the court system if necessary. Another strategic consideration when dealing with Section 164(4) is the potential impact of a forfeiture order on the individual or organization's reputation, finances, and future prospects. For example, if a media organization is found to have published obscene material, a forfeiture order could result in a significant loss of revenue and public trust, as well as potential legal challenges from affected individuals or advocacy groups. Therefore, it may be worthwhile to invest in expert legal and public relations services to mitigate the damage from a forfeiture order. In addition, it is important to consider the potential criminal charges that may be associated with the material in question. For example, if the material is found to be child pornography, the individual or organization may face additional criminal charges that carry severe penalties, including imprisonment and lifetime registration as a sex offender. Therefore, it may be necessary to pursue a defense strategy that also addresses any potential criminal charges. Finally, the individual or organization should consider whether there are any alternative strategies that may prevent or mitigate a forfeiture order. For example, they may be able to argue that the material is of legitimate artistic or educational value, or that the forfeiture of the material would violate their freedom of expression rights under the Canadian Charter of Rights and Freedoms. Alternatively, they may be able to negotiate with the prosecution to agree to a non-forfeiture disposition, such as a fine or community service. In conclusion, dealing with Section 164(4) of the Criminal Code of Canada requires careful consideration of a number of strategic factors, including whether to plead guilty or contest the charges, the potential impact of a forfeiture order, the risk of additional criminal charges, and the feasibility of alternative strategies. By investing in expert legal advice and public relations services, and pursuing a comprehensive defense strategy, individuals and organizations can increase the likelihood of a positive outcome in their case.