Obscenity Prosecutions

Obscenity Prosecutions

DATE: May 20, 2008

SUBJECT: PROCEDURE IN RESPECT OF PROSECUTIONS PURSUANT TO SECTIONS 163, 163.1, 165, 167, 168 OF THE CRIMINAL CODE OF CANADA

PURPOSE:

The purpose of this practice memorandum is to formalize the procedure governing prosecutions under sections 163, 163.1 165, 167 and 168 of the Criminal Code of Canada. 

BACKGROUND:

Generally, carriage of all prosecutions and the provision of all pre-charge advice are within the control of the Crown Prosecutor’s office in whose jurisdiction the offence is or will be alleged to have occurred.  This general rule is subject to a number of qualifications and exceptions, including those noted below and those noted in Special Prosecutions (Sensitive and Complex Prosecutions) and in the guidelines respecting appeals and applications to the Court of Appeal of Alberta and the Supreme Court of Canada (Criteria for Appeals to the Court of Appeal of Alberta, Appeals to the Supreme Court of Canada  and Procedure for Initiating Appeals to the Court of Appeal of Alberta).

In 2003, Alberta Justice became the first prosecution service in Canada to devote specific resources to combating so-called cybercrimes.  Cybercrime refers generally to crimes that are perpetrated through the use computers, the Internet, e-mail or other forms of electronic communication, and includes a broad range of offences such as the possession and distribution of child pornography, online fraud, defamation, hate crimes, voyeurism, and counseling offences.

Designated Crown prosecutors within the Special Prosecutions Branch have been assigned to the prosecution of all types of cybercrime.  Also, the position of Technology and Internet Crimes Coordinator has been created for the purpose of coordinating the prosecution of all such cases.

PROCEDURE:

The determination of whether to commence a prosecution of an offence pursuant to sections 163, 163.1 165, 167 or 168 Criminal Code shall be made in the following manner.

  1. Before laying an Information, a peace officer who has received and investigated a complaint with respect to an alleged offence pursuant to the provisions of sections 163, 163.1, 165, 167 and 168 of the Criminal Code shall refer the matter to the responsible Chief Crown Prosecutor for his or her determination as to whether a prosecution should be commenced.
  2. The Chief Crown Prosecutor, upon receipt of the investigator’s documentation, shall determine whether a prosecution should be commenced.  In making this determination, the Chief Crown Prosecutor shall apply the guideline The Decision to Prosecute.
  3. If the Chief Crown Prosecutor’s initial review of the documentation reveals that the matter is one which would be prosecuted by Special Prosecutions (see guideline Cybercrime Prosecutions), the matter shall immediately to be referred to the Technology and Internet Crimes Coordinator.
  4. The investigator may only lay an Information if the Chief Crown Prosecutor or the Technology and Internet Crimes Coordinator determines that a prosecution should be commenced.
  5. Chief Crown Prosecutors are strongly encouraged to consult with supervisors and colleagues, including the Technology and Internet Crimes Coordinator, before deciding to prosecute any case in which they are unsure of whether the evidential and/or public interest thresholds are met.
  6. On a determination being made as to whether to commence a prosecution, the Chief Crown Prosecutors shall submit a report to his or her supervisor, so that the experience of each office can be shared.  A further report shall be submitted at the conclusion of any prosecution.
  7. If it is decided to commence a prosecution, the provision of disclosure is to be guided by the practice memorandum Disclosure of Material Which Constitutes the Offence Itself.
  8. No Crown prosecutor shall become involved in the “pre-screening” of any potentially objectionable matter through the request of any distributor, publisher, exhibitor, or vendor of such material, nor shall any Crown prosecutor provide any legal or other opinion, written or otherwise, respecting such material to any distributor, publisher, exhibitor, vendor, or other such persons.