Corrupting Morals (s. 163) Charges in Canada: Offences, Defences, Punishments

What is a charge of Corrupting Morals?

Corrupting morals is covered under 163 of the Criminal Code of Canada. Corrupting morals occurs when a person knowingly, without lawful justification or excuse, possesses, creates, or distributes obscene material, whether it is written, photographic, or otherwise. Obscenity has been held by the Supreme Court has an unreasonable exploitation of sexual violence.

Corrupting Morals is a hybrid offence, therefore it can be prosecuted by way of indictment or summarily.

Examples 

Some examples of a charge of corrupting morals may include the following:

• Performing an obscene act in front of a group or audience of people.
• Selling or distributing obscene videos which contain sexual violence and cruelty.
• Selling or distributing written material or photographs which contain sexual violence and cruelty.

Defences

The defences available to a charge of Corrupting Morals are entirely dependent on the facts of your case.

However, some defences to a charge of Corrupting Morals may include:

• The accused was wrongly identified as the person who committed Corrupting Morals
• The accused’s actions were protected under section 2 of the Canadian Charter of Rights and Freedoms, and did not pass the test for obscenity
• The accused’s actions were artistic merit and did not contravene community standards.

Punishment

A charge of Corrupting Morals is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding two (2) years less a day, and/or a $5000 fine, 

Punishments for Corrupting Morals is dependent on whether the crown prosecutor proceeds by indictable or summary conviction offences. There are no mandatory minimum penalties for this offence, however a fine cannot exceed a monetary amount of $5000, and a term of imprisonment cannot exceed two years less a day.

Overview of the Offence 

According to s. 108 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of Corrupting Morals under s. 163 is established by proof, beyond a reasonable doubt, of the following:  

• The accused created distributed, or possessed obscene material

The Guilty Mind (Mens Rea)

The mens rea for a charge of Corrupting Morals under s. 163 includes proving, beyond a reasonable doubt, that:

• The accused had knowledge of the obscenity and intended to create, distribute, or possess the material

Defences

How to Beat a Charge of Corrupting Morals

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a charge of Corrupting Morals:

Factual innocence

A strong defence against a charge of Corrupting Morals is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you created, distributed, or possessed obscene materials.

Identity

Depending on the circumstances of your case, a possible defence to a charge of Corrupting Morals may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed the prohibited acts of obscenity.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Section 2 of the Charter covers freedom of expression. There are tests the Supreme Court of Canada has recommended (community standards and artistic merit). There is a balance which must be struck relative to freedom of expression which can be limited in a free and democratic society, however depending on the circumstances of your case, this may be discussed during a consultation with a lawyer.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of a Corrupting Morals charge.

Frequently Asked Questions  

What does Corrupting Morals mean?

Corrupting Morals is obscenity in the form of creating, possessing, distributing, or selling obscene photos, videos, writing, or other forms of content. The Supreme Court has categorized it has explicit sex with violence, and subjecting people to degrading or dehumanizing treatment in a manner which exceeds community tolerance.

Is Corrupting Morals an indictable offence?

Yes, Corrupting Morals is a hybrid offence, meaning the crown prosecutor can proceed either by indictable or summary offence.

Can you go to jail for Corrupt Morals?

If you are convicted of Corrupt Morals, you can go to jail. A charge of corrupt morals carries a maximum sentence of no more than two (2) years less a day. Therefore, there is a possibility that you can go to jail for a charge of corrupt morals.

Published Decisions

R v. Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452

The accused was the owner of a boutique video store in the city of Winnipeg, Manitoba, which sold and rented “hardcore” pornographic videotapes and magazines, as well as sexual paraphernalia. The accused was charged with 173 offences of selling and distributing obscene material.

The result was a landmark decision by the Supreme Court of Canada analysing the constitutional validity of section 163 of the criminal code and the objective of morality in society. The SCC found that although section 163 may restrict section 2 rights under the charter, it is allowed, however there are limits to obscenity, noting it could ultimately encourage degrading views of women and promote violence.

You can read the full decision here.

Johnson v. R., 1973 CanLII 198 (SCC), [1975] 2 SCR 160

The accused was a performer at a cabaret in the city of Calgary, Alberta. She was charged with several offences, including under section 163 of the Criminal Code, for dancing on a well-lit stage in front of approximately 16 males/ 20 tables, and subsequently removing articles of her clothing until she was nude, and visible to the audience. The Supreme Court overturned the Court of Appeal, quashing the conviction under section 163 by distinguishing the difference between “immoral performance” and “indecent performance”.

You can read the full decision here.

R v. Graham, 1977 ALTASCAD 90 (CanLII)

The accused’s participated in a performative act on a small stage infront of an audience at Chez Pierre in the city of Edmonton, Alberta. This included removal of clothing items and simulation of sexual acts in the nude. The accused’s were charged under section 163 of the criminal code, convicted, and their appeals were later dismissed. The court of appeal held the lower courts were correct in that the” performance was obscene by the community standards” at the time.

You can read the full decision here.

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