Criminal Code of Canada - section 319(6) - Consent

section 319(6)

INTRODUCTION AND BRIEF DESCRIPTION

The Attorney Generals consent is required to initiate proceedings for an offense under subsection (2) of section 319 of the Criminal Code of Canada.

SECTION WORDING

319(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

EXPLANATION

Section 319(2) of the Criminal Code of Canada has been inserted to prohibit hate propaganda in the country. It restricts the promotion or publicizing of hatred against certain identifiable groups based on their race, ethnic origin, religion, sex, or sexual orientation. The prohibition is intended to protect individuals and communities from the harmful effects of hate speech that could lead to discrimination, violence, and other forms of harm. However, Section 319(6) of the Criminal Code of Canada places a limitation on the initiation of proceedings for an offence under subsection (2) without the consent of the Attorney General. This means that the Attorney General must give consent before any legal action can be taken on a hate propaganda case. The section also gives the Attorney General the privilege to decide whether or not to pursue the prosecution, thereby maintaining executive control over such cases. The rationale for this limitation is to prevent the unnecessary or frivolous use of hate propaganda provisions for political, ideological, or other reasons that are not in the best interests of the public. This section ensures that the prosecution of hate propaganda cases is selective and can only be initiated when there is sufficient evidence to warrant a successful prosecution. It also upholds the principle of freedom of expression and prevents the abuse of power by law enforcement agencies or individuals who might use these provisions inappropriately. In conclusion, this section is an essential provision in the Criminal Code of Canada as it ensures that the prosecution of hate propaganda cases is undertaken judiciously and only when there is enough evidence to prove that an offense has been committed. It also upholds the principles of freedom of expression and protects individuals and communities against the harmful effects of hate propaganda.

COMMENTARY

Section 319(6) of the Criminal Code of Canada serves as a crucial safeguard against the infringement of fundamental freedoms in Canada. The provision requires the Attorney General's consent before any proceeding for an offense under subsection (2) of section 319 can be instituted. Subsection (2) sets out the offense of hate propaganda, which involves the promotion of hatred against an identifiable group. The provision recognizes the inherent danger of the state's power to restrict freedom of expression and aims to ensure that it is exercised only in limited circumstances where it is truly necessary. It acknowledges the important role that free speech plays in a democracy while recognizing the harms that can arise from hate speech. The requirement for the Attorney General's consent acts as a protection against arbitrary prosecutions and ensures that hate speech prosecutions only occur when there is a legitimate need to do so. This provides an important check on the possibility of abuse of the law. It also ensures consistency in the decision-making process, as the Attorney General's office is likely to have a clearer view of the broad policy considerations that may be at play in such cases. The role of the Attorney General in giving consent to hate speech prosecutions is an important one, as it ensures that the decision to prosecute or not prosecute is based on legal considerations rather than political ones. The Attorney General has a duty to act independently, free from political influences or pressures, and to make decisions about prosecutions based on the evidence and the law. This provision also ensures that the government is accountable for the decisions it makes with respect to hate propaganda prosecutions. The Attorney General is a member of the government and must answer to parliament for his or her decisions. This provides an important layer of democratic accountability to the process of prosecuting hate speech. While the provision is intended to serve as a safeguard, it is not without its criticisms. Some argue that it creates a cumbersome and lengthy process that results in a chilling effect on free speech. Others argue that it places too much power in the hands of the Attorney General and that the provision should be removed entirely in favor of prosecutorial discretion. However, these criticisms do not hold up to scrutiny. The requirement for the Attorney General's consent does not prevent legitimate prosecutions from occurring - rather, it ensures that the state's power to restrict freedom of expression is only exercised in limited circumstances where it is truly necessary. It also ensures that the decision-making process is based on legal considerations rather than political ones. Overall, section 319(6) of the Criminal Code of Canada serves as an important protection against arbitrary prosecutions and ensures that the state's power to restrict freedom of expression is exercised only in limited circumstances where it is truly necessary. While some may criticize the provision as creating a cumbersome process that results in a chilling effect on free speech, these criticisms do not hold up to scrutiny. The requirement for the Attorney General's consent ensures accountability and serves as an important safeguard in protecting democratic values.

STRATEGY

Section 319(2) of the Criminal Code of Canada prohibits hate propaganda, which can be identified as any promotion or advocacy of hatred against a specific group of individuals based on their ethnicity, religion, race, or sexual orientation. However, prosecuting an offence under this section requires the Attorney General's consent. This provision is in place to prevent frivolous or vexatious accusations of hate propaganda that could otherwise clog up the criminal justice system. In light of this provision, there are several strategic considerations when dealing with section 319(6) of the Criminal Code of Canada. Firstly, it is important to note that the Attorney General's consent is not automatic. It means that the Crown must make a formal request for the Attorney General's consent, and if the Attorney General agrees, they will issue a written consent to proceed with the prosecution. The Crown prosecutor should also consider that the Attorney General's consent can be used as a political tool by certain politicians. Consequently, prosecuting an offence under section 319(2) could attract unwanted political attention, and the Attorney General may be wary of approving such a prosecution. Another consideration is the potential for backlash from the community targeted by the alleged hate propaganda. The Crown prosecutor should evaluate the magnitude of public reaction that could result from the prosecution, and whether such reaction could jeopardise the safety of the witnesses, their families, or even the prosecutor's team. When considering strategies that could be employed in light of section 319(6) of the Criminal Code of Canada, one possible approach is to liaise with the Attorney General's office early in the investigation. This helps to assess the likelihood of consent and helps the prosecutor to anticipate what supporting evidence to collect before filing the official request for consent. Another strategy is to consider the public interest in prosecutions of this nature. If the alleged hate propaganda had a significant impact or led to public unrest, the argument for prosecution may be stronger. Demonstrating the importance of the case can help garner public support for the prosecution, which could in turn increase the chances of receiving the Attorney General's consent. In conclusion, prosecution under section 319(2) of the Criminal Code of Canada requires the Attorney General's consent. There are several strategic considerations to weigh up before proceeding with a prosecution, including the possibility of political interference, potential for backlash from targeted communities, and the cost-benefit of the prosecution. By employing the right strategies, the Crown prosecutor can improve the chances of obtaining the Attorney General's consent and securing a successful prosecution.