section 174(3)

INTRODUCTION AND BRIEF DESCRIPTION

No action can be taken under this section without the approval of the Attorney General.

SECTION WORDING

174(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

EXPLANATION

Section 174(3) of the Criminal Code of Canada is an important provision that governs the prosecution of offences related to nudity in public places, voyeurism or other sexual offences. The section prohibits any individual from engaging in any indecent act or exposure in a public place. This includes nudity, masturbation, or any other act that is considered obscene or offensive in public. Under this section, no proceedings can be commenced without the consent of the Attorney General. This is a legal requirement that ensures that the decision to prosecute is made by a duly appointed public official, rather than a private citizen or a police officer. The consent of the Attorney General is necessary to initiate legal action against an individual who has committed an offence under this section. The purpose of this provision is to prevent frivolous or malicious prosecutions by individuals who may have a personal vendetta against another individual. This provision ensures that the decision to prosecute is made by an independent and impartial public authority. It also safeguards the rights of accused individuals by preventing them from being subjected to unnecessary legal proceedings. In summary, Section 174(3) is an important legal protection that ensures that any prosecution under this section is initiated only after careful deliberation and consideration by the Attorney General. It is a safeguard against frivolous or malicious prosecutions and ensures that the legal process is fair and impartial for all parties involved.

COMMENTARY

Section 174(3) of the Criminal Code of Canada is a safeguard that prohibits the commencement of any proceedings under Section 174 without the consent of the Attorney General. This provision is put in place to ensure that charges are not brought frivolously, and that the Attorney General has carefully considered all the facts before proceeding. This section provides transparency, efficiency, and fairness in the prosecution of offenses related to child pornography. The publication, distribution, and possession of child pornography are serious offenses that have far-reaching consequences not just on the victims but also on the offenders and society as a whole. These offenses are a violation of children's dignity and rights, cause emotional trauma that can last a lifetime, and can be used to groom or exploit them. As such, the prosecution of individuals for such offenses must be handled with care and responsibility. Section 174(3) ensures that the Attorney General is not only aware of the offense but is also mindful of the legal requirements when making decisions about whether to prosecute. The consent of the Attorney General to proceed with charges provides a balance between the right of the accused to a fair trial and the protection of the public. The Attorney-General may withhold or grant consent in the interest of justice, taking into consideration the nature of the offense, the evidence available, and the circumstances surrounding the accused. Moreover, Section 174(3) provides transparency. It is a clear statement of the government's intention to prioritize child safety and prosecute individuals who engage in child pornography-related activities. It also assures the public that prosecutions under this section are based on careful consideration of the necessary legal elements, backed by evidence, and consistent with principles of fundamental justice. By requiring that proceedings be commenced only with the Attorney General's consent, Section 174(3) promotes efficiency in the justice system. The consent requirement ensures that frivolous proceedings are not initiated in court, which could be a waste of resources and time for both the prosecution and the defense. This section also ensures that proceedings are not stayed by the court due to procedural errors or deficiencies, which could delay justice and undermine public confidence in the administration of justice. Finally, Section 174(3) ensures fairness in the prosecution of offenses related to child pornography. It ensures that the accused is not subject to unfounded accusations and that the prosecution has met the evidentiary threshold required in criminal proceedings. It also encourages the use of alternative justice processes such as diversion programs or restorative justice that may be more appropriate for certain cases. In conclusion, Section 174(3) of the Criminal Code of Canada is a crucial safeguard that ensures that proceedings related to child pornography are conducted with the utmost care, responsibility, and fairness. It seeks to balance the rights of the accused with the need to protect children from exploitation and abuse. It is an excellent example of how the criminal justice system can prioritize the most vulnerable members of society.

STRATEGY

Section 174(3) of the Criminal Code of Canada is an important legal provision that poses strategic considerations for prosecutors, defense attorneys, and the accused. This provision mandates that no proceedings shall be commenced under this section without the consent of the Attorney General, which imposes a significant hurdle for prosecuting offences under this section. In this essay, we discuss the strategic considerations when dealing with this section of the Criminal Code of Canada and several strategies that could be employed to navigate this provision. First, it is essential to understand what section 174 of the Criminal Code of Canada entails. This section prohibits the dissemination of obscene materials or exhibitions in public and aims to protect society's moral fiber. The section considers any publication, show, or performance, which offends against public decency to be an offense. An offense under this section carries severe penalties, including jail time and hefty fines. As such, it is vital to take into account the Attorney General's consent before instituting proceedings under this section. One of the primary strategic considerations is the burden of proof that comes with obtaining the Attorney General's consent. Prosecutors seeking to bring charges under this section must provide compelling evidence to warrant the Attorney General's consent. This evidence must demonstrate that the accused disseminated obscene material or exhibited in public an offensive show or performance. Thus, a prosecutor must conduct a thorough investigation to establish critical pieces of evidence before seeking the Attorney General's consent. Another strategic consideration is the timing of the application for the Attorney General's consent. Defense attorneys may delay proceedings by filing various motions and applications. As such, a prosecutor must decide when to make an application for the Attorney General's consent. This is usually after establishing a solid case with sufficient evidence to ensure the maximum chances of success. Thirdly, prosecutors may require input from the authorities responsible for regulating the media and artistic works. Typically, the authorities have guidelines on what is acceptable under the law, and a prosecutor may rely on these guidelines to make their case. For example, the Ontario Film Review Board has established guidelines on what constitutes obscene material in film and television. The fourth strategy that could be employed is to use previous court rulings as a guide. In-law, the doctrine of precedent provides for binding and persuasive precedents. This means that a precedent set by a superior court regarding the interpretation of a law or rule on one case can influence with the decision in another. Thus, a prosecutor or defense attorney may rely on previous court rulings on section 174 of the Criminal Code of Canada to guide their course of action. Another strategic consideration is the potential media attention that may result from cases under this section. Lawyers on both sides must handle such cases discreetly to avoid attracting public outcry or undue influence. Judges may also be sensitive to public mood and may recycle some flexibility in their rulings under such situations to avoid seeming unresponsive to public concerns. In conclusion, section 174(3) of the Criminal Code of Canada is an essential legal provision that poses strategic considerations for lawyers and judges. The strategies employed may include gathering compelling evidence, understanding the guidelines provided by the authorities regulating the media, utilizing previous court rulings as a guide, and managing public opinion. Prosecuting or defending cases under this section of the Criminal Code of Canada is a delicate matter that requires lawyers to exercise finesse in their approach.