Mark Marek, who posted the video allegedly depicting the murder of Jun Lin by Luka Magnotta on his Bestgore website, was charged on Thursday with "corrupting morals" under section 163(1)(a) of the Criminal Code. Much is being made of the oddity of the charge. Edmonton Police Staff Sgt. Bill Clark said that he had never heard of the charge before.
But Mr. Marek has actually been charged with old-fashioned obscenity. That is what section 163(1)(a) is all about. It prohibits making, printing, publishing, distributing or circulating "any obscene written matter, picture, model, phonograph record or other thing whatever."
And obscenity charges, although increasingly rare, are certainly not unheard of in Canada. Throughout the twentieth century, a not insignificant number of books, movies, comics, magazines and videos were charged and found to be obscene.
If the Edmonton police had said that they charged Mr. Marek with obscenity, there would have been a very different story being told. It would be a story about the uniqueness of using obscenity in relation to a video depicting a real murder.
But instead, the focus is on "corrupting morals," which continues to be the title of section 163. Indeed, there is a whole cluster of offences – sections 163 through 172 – that are called "Offenses tending to corrupt morals," and include immoral theatrical performances, the mailing of obscene matter, and a "householder permitting sexual activity."
This focus on "corrupting morals" does help to remind people of what section 163 was really about, namely, the rather old-fashioned idea that looking at images of sex and sexuality was morally corrosive. Dating back to the mid-19th century, obscenity was all about preventing access to sexual materials that would "deprave and corrupt."
By the late 20th century, the courts had changed the legal test for obscenity, focusing on harm instead of morality. Now, in order to be found obscene, there must be evidence that viewing the material causes harm. It is not evidence that is easy to come by. And as sexually explicit material has become ubiquitous – only three clicks on the computer away – it is harder to argue that it ought to be criminal.
Since the late 1990s, few obscenity charges have been laid. The last one (and the first in a long time) was brought in 2010, against Remy Couture, a Quebec special-effects film maker, who posted images and videos of gruesome murders, torture, sexual assault and necrophilia on his website. He argued that the images didn't cause harm, that they were artistic expression, that they were designed to highlight his skill as a special-effects artist. The jury acquitted him.
But the title of the section was never changed. Nor have some of its odder subsections. Corrupting morals under section 163 still includes "exhibiting a disgusting object," advertising a medicine, drug or article for causing abortion or miscarriage, curing venereal diseases or restoring sexual virility. There have been virtually no charges brought under these more obscure sections in recent decades. Yet they remain on the books.
The problem with the video posted by Mr. Marek is not one that is even remotely captured by the idea of "corrupting morals." It is a question of whether it is in the public interest to allow a video of a real murder to be published, or whether viewing the gruesome murder is harmful. It is a difficult and controversial question that has nothing to do with corrupting morals.
It is, however, the only provision in the Criminal Code that is remotely applicable, which in turns begs the question. Why are we wrangling a nineteenth-century law to deal with a twenty-first-century problem? Why do we still have a law called "corrupting morals" that includes the advertising of cures for "venereal disease?" Any takers in Parliament? No? Right, that's why.
It is time to scrap section 163 of the Criminal Code. In fact, its time to review all of the offences that "tend to corrupt morals," and scrap the likes of "immoral theatrical performances" and "householders permitting sexual activity." Its time to get nineteeth-century sexual morality out of the Criminal Code, and refocus on conceptions of harmful behavior with a twenty-first-century lens.
Brenda Cossman is Professor of Law at the University of Toronto.