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Charge against website owner linked to Magnotta video raises questions about freedom of expression

While 19th-century law is rarely seen in the courts, it is often wielded at the Canadian border

Bestgore owner Mark Marek appeared before an Edmonton judge under Section 163 of the Criminal Code: Offences Tending to Corrupt Morals.

Dudley Do-Right has once again stepped in to save the preciously fragile Canadian morality.

Mark Marek, proprietor of all things gruesome, by way of his website Bestgore, has long clung to the fringes of the internet, purveying images of horrible car accidents, suicide and mutilation. But last year he found the gore jackpot: the alleged Luka Magnotta snuff film. The video went up and the response was a mix of horror, disgust and morbid fascination.

It didn't take long for the Mounties to get their morally depraved man. Problem is, they didn't appear to have any laws to charge him with. Hosting a link to a violent film isn't exactly a crime.

But on July 16, Marek appeared before an Edmonton judge under Section 163 of the Criminal Code: Offences Tending to Corrupt Morals. It is the second time the otherwise-forgotten law has been used in the past two years, sparking a flashpoint in the debate on the limits of freedom of expression.

Brenda Cossman has long followed the legality of obscenity, smut and corrupt morals in Canada. She is an Xtra contributor and a University of Toronto professor, as well as the director of the Mark S Bonham Centre for Sexual Diversity Studies. She tells Xtra that use of that section of the Criminal Code essentially stopped in the past decade as the legal system moved on to other, more serious, issues of exploitation, such as child pornography.

So when the news came out, Cossman's first reaction was, "Oh my god, I have to put my obscenity hat back on?"

She then penned an editorial for The Globe and Mail, asking, "Why are 19th-century laws being used against a murder video on a website?"

Cossman says the history of the law is pretty sordid. Its modern lineage comes out of a case in the late 1980s against Winnipeg porn proprietor Donald Butler. Police charged him with dozens of counts of distributing obscene material. The case made its way through the court system before coming before the top judges in the land. They decided on a harm test: pornography could be considered criminally obscene if it involved violence or undue degradation or dehumanization, but porn that did not fall under those characteristics, generally, was a rather inane type of obscene.

That definition of harm, Cossman notes, is still very "amorphous."

From then on, the law was used infrequently, usually on "weird and stupid things," she says. That’s because the Supreme Court had failed to base the so-called harm test on anything more than the judge's inclination or feeling. That was remedied later, in the early 2000s, when they set out a need to furnish the court with evidence of societal or direct harm. The test was properly set out in the Labaye case, in which the Quebec government tried to charge a group of swingers for indecency and operating a brothel. The court decided that the government had an onus to prove that obscene material infringes on a person's freedom ("blasting porn on Yonge and Dundas," as Cossman puts it), contributes to anti-social or sexist behaviour in the public, or physically harms the person depicted in the material.

Marek's case, evidently, falls under the latter provision.

But the tape that Marek posted to Bestgore wasn't exactly pornography — it was, allegedly, real. That makes this case "new and cutting-edge," Cossman says.

On his blog, Marek makes the case that his website warns viewers against violence. What he shows his readership, he argued on a now-deleted blog post, is akin to what the Government of Canada does in designing cigarette packages to curb smoking. The difference, he argues, is that Ottawa targets children specifically, whereas his site has two levels of disclaimers to warn users of the site's gruesome content.

That test of harm seems more designed for Québécois artist Rémy Couture, a filmographer renowned for his hyper-realistic special effects and makeup that has tricked more than one casual internet-goer into thinking that his home movies are real snuff films. Couture was brought up on charges of contributing to the corruption of morals, as the Crown alleged his work was not a professional trade, but rather a sick sexual fetish. A Montreal jury acquitted him in December.

Legal experts expect Marek to get off as well, as there is little physical evidence tying him to the posting of the video — only that he owns the site.

But while Marek and Couture provide two rare examples of this provision being used through the Criminal Code, it is often wielded at the Canadian border.

The Prohibited Importations Unit, a section of the CBSA, is the body responsible for determining whether titles — be they shipped or in personal possession — are a hazard to the sensibilities of Canada. Its responsibility is to determine whether the imported titles contravene the Criminal Code — whether they fall under the guise of hate speech or if they're inadmissible under Tariff 9899.

The Orwellian-sounding tariff is a ban on any material that, under Section 163(8) of the Criminal Code, tends to "corrupt morals." Specifically, "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene."

The Canadian government has taken that to mean that most things involving urine, scat, simulated violence, role-play incest and a whole host of illustrated content.

The CBSA releases quarterly lists of all those titles confiscated at the border — virtually all of them pornography and many of them gay. Once confiscated, they're sent to Ottawa, where bureaucrats determine whether they're an acceptable import or contributing to the moral decline of Canada.

As Xtra reported in 2009, CBSA has been turning off porn producers and fans alike with its censorship of their raunchy films.

But it's not always hardcore porn that gets caught in this dragnet — in two cases, CBSA officials held entrants to Canadian queer film festivals.

A spokesperson told Xtra that "CBSA officers have the legal authority under Section 99 of the Customs Act to examine personal baggage, conveyances and goods upon arrival into and on departure from Canada. This could include the examination of electronic storage devices that may contain obscene material, hate propaganda or child pornography."

For example, if you plan on coming across the border with a DVD copy of Urine Fist Fest, you'd better think again. Though if you have Bound, Bagged and Gagged, you'll probably be all right.

But it's not quite as clear-cut as it sounds. Mommy & Me 2, for example, is permitted. Seduced By Mommy 3, on the other hand, is a non-starter and will be confiscated at the border.

Bizarro Sex Loops Volume 26 is banned, but Volume 25 is allowed.

Most of the titles on the list are DVDs, but CBSA regularly confiscates literature — romantic novels detailing incest, comics that appear to feature some man-on-monkey action, and one comic entitled After School Slave Club. All were deemed inadmissible. Two magazines — editions of Stroke and Studflix — are generally allowed in, although one edition of Stroke has been banned.

"CBSA officers are trained in investigative, examination and questioning techniques," the spokesperson told Xtra. "A number of risk-based indicators guide officers in making decision to refer goods and individuals for further examination or investigation." No clarification of exactly what those indicators are was provided.

When material is confiscated, the importer will receive a written reason as well as the option to appeal.

One former CBSA employee, who chose to remain anonymous because former employees are not at liberty to discuss department guidelines, told Xtra via email that "there's a long list [of prohibited titles] that gets updated." She says those titles are "seized and destroyed, no questions asked."

She goes on to say that the guidelines are vague, yet the guards are told that things like spitting or urination are strictly off-limits. But, she said, there is plenty of "grey area."

"Officers apply the guidelines more or less liberally depending on their perspective," she says.

The former CBSA employee says that some Canadians are flagged for having "questionable materials." She remembers the case of one professor whose work led him to being flagged, where the other agents "were at the ready to arrest this man as a pedophile before he arrived," she says. He was prepared: he had letters from the university and the conference he was presenting at, confirming that he was not a pervert. He was released, "to the disappointment of many."

One of the more famous cases of Canada's obscenity laws being used at the border is that of Little Sister's bookstore in Vancouver. The store brought a constitutional challenge after numerous shipments of queer erotica were stopped at the border, spanning a decade. That case would go on to the Supreme Court in 2005 and help redefine how the laws on corrupting morals would be defined in Canada.

The majority of the justices found that "it is fundamentally unacceptable that expression which is free within the country can become stigmatized and harassed by government officials simply because it crosses an international boundary, and is thereby brought within the bailiwick of the Customs department . . . Their freedom of expression does not stop at the border."

In the end, the justices agreed that the obscenity tariff should be upheld but that the onus should be on the government to prove that the goods are obscene. Previously, it was up to those with the goods to prove that their material was fit for Canada's delicate sensibilities.

So if you're driving across the border, clutching your original 1999 first press of Dad Does It Best, you'd better have a good hiding spot.

Check out two more stories in Xtra's series on border issues:

Trans photographer alleges mistreatment at Canada-US border

Author Basil Papademos's encounter with Canada Border Services and his award-winning erotica