INTRODUCTION AND BRIEF DESCRIPTION
If materials seized under suspicion of being obscene, child pornography, voyeuristic recordings or crime comics are found not to be so, they must be promptly returned to their owner.
SECTION WORDING
164(5) If the court is not satisfied 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 shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.
EXPLANATION
Section 164(5) of the Criminal Code of Canada outlines the legal process that takes place if a publication, representation, written material, or recording is confiscated because it is suspected to be obscene, a crime comic, child pornography, or a voyeuristic recording. If a court investigates the confiscated item and determines that it does not fit into any of these categories, it must order that the item be returned to the owner promptly after the window for final appeal has passed. This section is critical because it helps safeguard individuals' legal rights and freedoms, particularly if they are creators or publishers of these items. Without this provision, these individuals could potentially face lengthy delays and unnecessary legal battles in securing the return of their confiscated materials, even if they are ultimately found to be legal and acceptable. Overall, Section 164(5) protects individual rights while still maintaining the necessary controls and limitations on certain types of questionable materials. As such, it serves as a critical aspect of the Canadian legal system that helps to maintain a fair and balanced approach to regulating the publication and distribution of controversial materials.
COMMENTARY
Section 164(5) of the Criminal Code of Canada is an integral component that ensures the protection of individual rights regarding freedom of speech and expression. The section addresses the seizure of materials that contain explicit content such as pornography, criminal activity or inappropriate conduct. This law permits the confiscation of these materials by law enforcement officials to ensure that they are not exploited by individuals with criminal intent. However, it is crucial to note that this should not be enacted as a blanket measure and that the court must ensure that there is sufficient evidence to warrant such an action. The section states that if the court is not satisfied that the materials seized meet specific criteria, it shall order that the confiscated material be immediately returned to the person from whom it was taken. The criteria include materials that are obscene, crime comics, child pornography or voyeuristic recordings. The court is responsible for ensuring that the confiscated materials meet these criteria before any action is taken. The section is an essential safeguard against the potential abuse of power by law enforcement officials by preventing them from arbitrarily seizing materials. This section serves to ensure that the rights of individuals are protected while also balancing the need for public safety and the prevention of criminal activities. Moreover, the section offers a newly available option for authors, graphic designers, and publishers in Canada to protect their works from being unlawfully confiscated. By challenging the validity of a seizure, they can utilize section 164(5) of the Criminal Code to ensure the prompt return of their materials. However, while this section offers protection for individuals and organizations from having their material unlawfully confiscated, it may also enable the proliferation of content that may not be suitable for public consumption. Law enforcement agencies must be vigilant in enforcing this section diligently and ensuring that it is not used erroneously. Any abuse of power or lack of due diligence in ascertaining that the criteria in subsection (1) are met could have severe consequences. It would infringe on the individual's rights and expose them to undeserved risk and harm. In conclusion, section 164(5) of the Criminal Code of Canada acts as a crucial check against arbitrary seizures of materials that are not obscene, crime comics, child pornography, or voyeuristic recordings. It ensures the protection of individuals' freedom of expression while also balancing the need to uphold public safety and deter criminal activities. The section provides a means for individuals and organizations to challenge the validity of any seizure and protect their works from unlawful confiscation. Nevertheless, it is essential to uphold the integrity of this section and ensure that it is regulated correctly to prevent exploitation and abuse of power by law enforcement officials.
STRATEGY
Section 164(5) of the Criminal Code of Canada creates an important safeguard for individuals whose property has been seized by law enforcement. This section allows for the return of seized material if a court is not satisfied that the material is obscene, a crime comic, child pornography, or a voyeuristic recording. When dealing with this section, there are a number of strategic considerations that should be taken into account. Here are a few of the key ones: 1. Timing: It is important to note that the material can only be returned after the time for final appeal has expired. This means that if a decision is being appealed, the material will not be returned until after the appeal has been heard and dismissed. Therefore, it is important to consider the timing of any appeals or legal challenges when dealing with this section. 2. Evidence: In order to convince a court that the material is not obscene, a crime comic, child pornography, or a voyeuristic recording, it may be necessary to provide evidence to support this position. This evidence could take many forms, such as expert testimony, analysis of the material, or other relevant information. 3. Legal representation: It is generally a good idea to seek legal representation when dealing with this section of the Criminal Code. A lawyer can help to navigate the legal process, provide advice on strategy, and advocate on behalf of the individual whose property has been seized. 4. Negotiation: Depending on the circumstances, it may be possible to negotiate with law enforcement or the Crown to have the material returned without going through the courts. This could involve providing additional information or agreeing to certain conditions. 5. Public relations: In some cases, it may be beneficial to engage in public relations efforts to address any reputational damage that has occurred as a result of the seizure of the material. This could involve issuing statements or engaging with the media to explain the situation and clarify any misconceptions. Overall, the strategic considerations when dealing with section 164(5) of the Criminal Code will depend on the specific circumstances of the case. However, by carefully considering the timing, evidence, legal representation, negotiation, and public relations aspects of the situation, it is possible to increase the chances of a positive outcome.