INTRODUCTION AND BRIEF DESCRIPTION
This section requires the consent of the Attorney General for proceedings to be initiated.
SECTION WORDING
385(2) No proceedings shall be instituted under this section without the consent of the Attorney General.
EXPLANATION
Section 385(2) of the Criminal Code of Canada is an important provision that imposes a significant constraint on the ability of private citizens or organizations to initiate criminal proceedings for certain offenses. Specifically, this section states that no proceedings can be instituted under section 385 without the consent of the Attorney General. Section 385 deals with several offenses related to child pornography, including possession, distribution, and importing or exporting. These are serious offenses that carry significant penalties, including imprisonment and fines. However, the requirement for the Attorney General's consent before proceedings can be instituted means that individuals or groups cannot take the matter into their own hands and initiate criminal proceedings against someone they suspect of committing these offenses. This provision reflects the importance that Canadian law places on the role of the judiciary and the government in prosecuting criminal offenses. Only the Crown, represented by the Attorney General, has the power to initiate and carry out criminal proceedings. This ensures that the justice system operates fairly and that individuals are not subject to arbitrary or unfounded accusations. The purpose of this provision is also to prevent vigilante justice. Without the requirement for consent from the Attorney General, a person could go after an accused person without any solid evidence or the necessary legal knowledge and could even harass or threaten the accused. By limiting who can initiate proceedings for these offenses, the law ensures that criminal investigations and punishments are administered lawfully and effectively. In conclusion, section 385(2) of the Criminal Code of Canada plays an important role in maintaining the integrity of the justice system, preventing vigilantism, and ensuring that criminal proceedings are initiated and carried out fairly and appropriately.
COMMENTARY
Section 385(2) of the Criminal Code of Canada is a provision that regulates the prosecution of criminal offenses related to the abduction of children under the age of 14 years. According to this rule, no proceedings can be initiated under section 385 of the Criminal Code of Canada without the Attorney General's consent. This provision recognizes the significance of crimes against children and the sensitivity required when dealing with such cases. The purpose of section 385 is to protect children from being kidnapped or unlawfully confined by another person. Such crimes against children are severe and can have long-lasting effects, both physically and emotionally. Children are vulnerable and require special protection from the law, as they cannot always understand or communicate the danger they are in. Therefore, this provision's inclusion in the criminal code strengthens the law's effectiveness in protecting children's rights and safety. Section 385 applies when a person takes or detains a child under the age of 14 without being authorized to do so by law or custodial right. In such cases, the person committing the offense can be charged, tried, and, if found guilty, punished under section 385 of the Criminal Code. However, this provision requires the involvement of the Attorney General to initiate the proceedings, which means that prosecutors cannot commence the proceedings without the Attorney General's consent. The requirement of the Attorney General's consent is crucial in safeguarding the rights of the accused and ensuring fairness in the administration of justice. It ensures that the prosecution is not brought for political or personal reasons but for the protection of the public interest. It also ensures that the prosecution is initiated only if there is sufficient evidence to support a conviction or if it is in the interest of justice to do so. Such cases require careful consideration of the facts and a balanced approach to protect the child's rights and the accused's rights, which the Attorney General can provide. However, the requirement for the Attorney General's consent can also be problematic in some instances. In cases where the Attorney General is reluctant to give consent, the delay in the proceedings can cause issues concerning the accused's right to a fair trial within a reasonable time. It could also leave the child in harm's way if no action is taken promptly. Therefore, it is essential that there are appropriate structures in place to ensure timely processing of such cases. In conclusion, section 385(2) of the Criminal Code of Canada plays a vital role in protecting children from being abducted or unlawfully confined by another person. The provision recognizes the severity of crimes against children, and the involvement of the Attorney General ensures the prosecution is initiated for the public interest and not personal or political gains. However, it is essential to have proper structures in place to ensure timely processing of such cases and that the rights of the child and accused are upheld.
STRATEGY
Section 385(2) of the Criminal Code of Canada sets out a requirement for the consent of the Attorney General before commencing any proceedings under this section. The section pertains to offenses committed in the context of sexual assault, specifically publication or broadcasting of information that might identify the victim. This provision a range of strategic considerations that might come into play when seeking to enforce the section effectively. One of the main strategic considerations when dealing with this section of the Criminal Code is the importance of securing the Attorney General's consent before proceeding on the matter. The Attorney General, as the chief legal advisor to the government, has a significant role to play in deciding whether to grant consent for any prosecution based on this provision. The Attorney General will need to assess the impact of the prosecution on the justice system and on the victim, among other factors, before granting consent. Another important strategic consideration is the timing of seeking the Attorney General's consent. The delay in obtaining the Attorney General's consent might compromise the chances of securing a conviction since preservation of electronic evidence, in particular, can be difficult if an investigation is delayed. Therefore, a prosecutor should consider seeking consent from the Attorney General at an early stage in the investigation. A further strategic consideration involves the use of alternatives to prosecution. If a prosecution is initiated, some strategic considerations may come into play during the trial process. Depending on the facts of the case, a prosecutor may wish to consider utilizing alternative forms of resolution, such as diversion programs or restorative justice, to settle the matter. Utilizing these alternatives may avoid the need for a trial wherein the victim could be not only exposed to trauma but also face the additional burden of having to testify in court. Another strategy that a prosecutor may employ is to work closely with the victim of the offense. In this respect, the prosecutor could involve the victim at the early stages of the proceedings by establishing regular communication and explaining the legal process. Increasing the victim's involvement in the proceedings may demonstrate that the justice system is focused on protecting them, and may assist the prosecutor in obtaining the victim's cooperation during the trial proceedings. Lastly, prosecutors should also be aware of how legal arguments on privacy, freedom of expression, and publication might arise when seeking to obtain a conviction under Section 385(2) of the Criminal Code. A prosecutor should consider how to address such arguments during a trial effectively. Additionally, they should seek legal precedents that give a roadmap on how judges are likely to interpret the section and articulate its scope and meaning. Overall, there are several strategic considerations that prosecutors might consider when dealing with Section 385(2) of the Criminal Code of Canada. An effective strategy will likely involve close coordination with the victim, early involvement of the Attorney General, exploring alternatives to prosecution, and anticipating potential legal arguments that could arise at trial. By employing a range of appropriate strategies, the prosecutor keen on enforcing this provision can ensure the protection of the victim's privacy while, at the same time, obtaining a conviction.