The "Corrupting morals" section of Canada's Criminal Code is seldom used by police but that's the charge the owner of a website now faces for posting the infamous Luka Magnotta video more than a year ago.
Mark Marek, who operated the Best Gore website, was arrested and charged with one count of corrupting morals under section 163 of the Criminal Code.
Edmonton Police Staff Sgt. Bill Clark told reporters on Wednesday that he'd "never heard of that charge before." Clark also said he thinks it "may be the first time that it's ever been laid in Edmonton."
Corrupting morals is not defined in the Criminal Code, though the concept was, historically at least, linked to this section.
The first subsection of 163, under which Marek is charged, refers to the distribution of obscene matter.
Under the next section, it's an offence if someone, "makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic."
Corrupting morals with comic books
Much of the language in Section 163 dates back to 1949 and a North American obsession with the dangers of comic books.
E. Davie Fulton, who would go on to be a federal Progressive Conservative cabinet minister, and a two-time contender for the party leadership, introduced a private member's bill following a senseless killing by two boys in northern B.C. in 1948. The crime shocked people and the investigation discovered that the boys were avid readers of crime comics.
"The equation seemed obvious: crime comics caused criminal behaviour," writes John Bell in History of Comic Books in English Canada. That online essay is on the Library and Archives Canada website. During the boys' trial, both the Crown prosecutor and the judge spoke out against the comics.
The Liberal government welcomed Fulton's bill and took up the cause, introducing their own rewrite to give it more bite, according to Bell.
The House of Commons unanimously passed the bill and it became law in 1949.
Crime and restoring sexual virility
The origins of section 163 date back to 1892, when Parliament first passed criminal legislation on obscenity, which it then referred to as something "tending to corrupt morals."
According to the current Criminal Code, corrupting morals can also include "exhibiting a disgusting object," advertising a medicine, drug or article for causing abortion or miscarriage, curing venereal diseases or restoring sexual virility.
In the age of Viagra and Cialis, that law remains on the books. However, the drug manufacturers should know section 163 also says it's not an offence if it "served the public good."
The sexual virility language was added to the Criminal Code in 1913 but the abortion language dates back to the original 1892 version.
That may all be part of the corrupting morals section but the focus of that section is on obscenity. University of Toronto law professor Brenda Cossman says that the corrupting morals title does remind people of what the section is really about, "a very old-fashioned idea that somehow looking at sex of any sort is going to lead people to moral hell in a handbasket."
Canada's obscenity legislation has always been about moral regulation, she argues.
Now, she says it is almost impossible to think about using the criminal law "to stop what people can get in three clicks of their computer." That wasn't the case in the time when the alleged obscenities were in magazines and videos.
Cossman told CBC News that while "it sounds bizarre to be charged with corrupting morals … there's nothing else in the Criminal Code that they could use to charge" Marek.
Through the 1980s, pornography was the main target of section 163. Until then, a successful prosecution had to prove the defendant had violated community standards. That's when there was a shift to where a successful prosecution under an obscenity charge required real proof of harm, particularly harm towards women.
The key ruling was the Supreme Court's ruling known as the Butler decision in 1992. Cossman explains that the purported purpose of section 163 went from upholding morals to "preventing the harm that comes from viewing this kind of material."
Cossman is also the director of the Bonham Centre for Sexual Diversity Studies and the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging.
Difficult to get convictions
She says it is now difficult to get convictions under Section 163.
A 2012 case of a charge of corrupting morals against a Montreal special effects artist, Remy Couture, involved about a 1,000 images and two short videos on his website, depicting gruesome murders, torture, sexual abuse, assaults and necrophilia.
Couture testified in Quebec Superior Court that the work, which he described as a "fake diary of a serial killer," was to highlight his special effects skills, that no one was harmed in the production and that it was artistic expression.
The jury found him not guilty.
Marek's case may hinge on the fact that the Magnotta body parts video depicts "a real murder," as police officer Clark describes it. Cossman says when what's shown is real, "it raises a different set of issues."
On the other hand, Marek may use the defence of public good argument in section 163 and argue that posting the video led to it being quickly connected to Magnotta and to his arrest last June. However, Toronto lawyer Gil Zvulony told CBC Radio's David Gray that he doesn't think "that defence would fly in court."
Zvulony said the police had to go after Marek "because it was so out there, so public … and they had little choice but to step in."