Criminal Code of Canada - section 193(3) - Publishing of prior lawful disclosure

section 193(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that it is not a violation to disclose a private communication if it was lawfully disclosed in the course of giving evidence in legal proceedings.

SECTION WORDING

193(3) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)(a).

EXPLANATION

Section 193(3) of the Criminal Code of Canada is a provision that outlines an exception to the general rule against disclosing private communications. Private communication refers to a conversation between two individuals where there is an expectation of privacy. Under normal circumstances, it is an offense to intentionally disclose a private communication to a third party without the consent of all parties involved. However, subsection (3) of section 193 provides an exception to this rule. Under this section, a person who discloses a private communication or its content will not be subject to punishment if the communication was lawfully disclosed in the course of giving evidence in proceedings referred to in paragraph (2)(a). This means that if a person discloses a private communication in the course of giving evidence in a legal proceeding, he/she will not be guilty of an offense. The purpose of section 193(3) is to ensure that witnesses have the freedom to give evidence in legal proceedings without fear of being charged with any criminal offense. This exception is necessary to ensure that justice is done, and the truth is not suppressed due to fear of criminal prosecution. It also serves as an incentive for people to disclose information that they might otherwise have kept to themselves. Overall, this section is one of the many provisions in the Criminal Code of Canada that recognizes the importance of protecting the freedom of speech and ensuring that justice is served without repression.

COMMENTARY

Section 193(3) of the Criminal Code of Canada provides an exception to the general rule that it is illegal to intentionally intercept or record a private communication unless all parties to the communication have given their consent. Specifically, subsection (3) lays out circumstances in which a person may disclose information obtained from a private communication without being criminally liable for doing so. The first condition of this exception is that the person making the disclosure must be one of the parties to the communication. So if an outsider intercepts a private communication and reveals its contents, that would not be covered by this subsection. The second condition is that the disclosure must be restricted to information that was lawfully disclosed in the course of or for the purpose of giving evidence in certain kinds of legal proceedings specified in paras. (2)(a), such as criminal investigations, legal proceedings, and hearings of administrative tribunals. This exception recognizes that there may be situations where a person has a legitimate reason to disclose information obtained from a private communication to someone else, even if doing so would technically violate the law on interception of communication. For instance, a person who is threatened or blackmailed through a private communication may feel the need to disclose its contents to law enforcement in order to protect themselves or others. Similarly, a person who is involved in a legal dispute, such as a divorce or a contract dispute, may need to use private communications as evidence in their case. However, subsection (3) does not provide carte blanche for disclosing private communications. The exception is narrow and applies only to the specific circumstances outlined in the provision. To be covered by this subsection, the disclosure must be limited to the information that was already disclosed lawfully in the context of a qualifying legal proceeding. The person disclosing the information must not go beyond what is necessary to serve the purpose of that legal proceeding (such as providing information that is irrelevant to the matter at hand or disclosing more information than is needed to prove the point). In practice, the application of subsection (3) can be complex and may require the assistance of legal counsel. One potential issue that arises is how to determine whether a disclosure was "lawful" in the first place. For example, if a party obtained the information by intercepting a communication without consent, can they still rely on subsection (3) if they later disclose that information in a legal proceeding? Another issue is how to balance the privacy rights of individuals against the need for evidence in legal proceedings. Courts will typically consider the nature of the information being disclosed, the purpose for which it is being used, and the potential harm to the affected parties in deciding whether to allow the disclosure. Overall, section 193(3) of the Criminal Code of Canada serves an important function in allowing for some exceptions to the general rule against interception of private communications. However, it is important that any such disclosures be made carefully and thoughtfully, with the guidance of legal counsel where appropriate, to ensure that they comply with the law and do not unduly infringe on the privacy rights of individuals.

STRATEGY

Section 193(3) of the Criminal Code of Canada provides an exemption to a person who discloses private communication or parts thereof, or the substance, meaning, or purport of such communication, if the disclosure was made lawfully in the course of giving evidence in proceedings referred to in paragraph (2)(a). When dealing with this section, it is important for individuals to consider various strategic factors so as to avoid violating the law. One important consideration is determining whether the information being disclosed falls under the definition of a private communication. For instance, a private communication is one held between two or more persons with an expectation of privacy. If the communication is not private, then section 193(3) does not apply. Therefore, a strategy could involve seeking legal advice to determine whether the information being disclosed qualifies as a private communication. Another important strategy is to consider the purpose of the disclosure. Section 193(3) applies if the information is disclosed for the purpose of giving evidence in proceedings referred to in paragraph (2)(a). Therefore, individuals should consider whether the disclosure is necessary or relevant to the proceeding in question. For instance, if the information being disclosed is not relevant to the proceeding, it may not be protected under section 193(3). It is also important to consider whether the information being disclosed has already been lawfully disclosed. Section 193(3) applies only where the information disclosed was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence. Therefore, a strategy could involve conducting a thorough review of all the previous evidence and disclosures made to ensure that the information being disclosed has not been disclosed before. Lastly, individuals should consider the potential consequences of disclosing private communication or parts thereof. Disclosing private communication without proper authorization can lead to serious legal consequences, such as criminal charges and civil lawsuits. Therefore, individuals should weigh the risks and benefits of disclosing private communication to determine whether it is the best course of action. In conclusion, section 193(3) of the Criminal Code of Canada provides an exemption to individuals who disclose private communication in certain circumstances. However, in dealing with this section, individuals need to consider various strategic factors, including whether the disclosed information qualifies as private communication, the purpose of the disclosure, whether the information has already been lawfully disclosed, and the potential consequences of disclosing private communication. By taking these factors into account, individuals can navigate this section of the Criminal Code while avoiding violating the law.