Montreal police are investigating the owner of the Best Gore website, which hosted a video of Luka Rocco Magnotta allegedly stabbing and dismembering Jun Lin, a 33-year-old Chinese national.
Police told CBC News there is a good possibility charges will be laid.
Asked about the video at a press conference Tuesday morning, Montreal police confirmed they are working with Edmonton police but declined at first to comment on possible charges.
But Commander Ian Lafreniere later told CBC News the charge could be publishing obscene material.
"We do have a video that was posted on the web. For us, we believe it's the right one, but now we have to prove it, so [there are] some legal issues also about this," Lafrenière told the press conference.
The site is owned by Edmonton-based Mark Marek, who has defended his website's role in the unfolding drama and says it provided a public service.
"[B]ecause the video was posted in the first place ... the Best Gore community was able to identify the perpetrator four days before the discovery of the torso in Montreal and the foot in Ottawa," Marek said in an email exchange with CBC News last week, before Magnotta's arrest. "Had the police not ignored the reports made at the time, they would have likely caught the perpetrator red-handed, while still in the apartment."
"Due to a mishap outside of Best Gore's control, the report was dismissed as not credible and [the] perpetrator not checked up on, allowing him to carry through with his deed of mailing the body parts off and disappearing without a trace," Marek said. "If not dismissed by the police, [it] would have likely taken the perp off the street."
Roger Renville, a Montana-based civil litigation lawyer, told CBC News last week he had come across the 10½-minute video on the website on May 26 and reported it to Toronto police the next day along with other law enforcement agencies in Canada and the U.S., but says his concerns were dismissed.
Marek defends website
Toronto police say the only record of a caller they have came late Sunday night, and that caller did not provide a web address. Police say they directed the caller to Crime Stoppers.
Marek said the video came to him from a contributor on May 25 and was posted the same day, and said that he and most of his site's members felt the video was real.When asked about possible charges, Marek told CBC News in an email on Tuesday that he stands by his website's role in educating the public about the dangerous side of human nature.
In a message posted Tuesday on Best Gore, Marek described himself as a whistleblower and said the website helps to "expose evil-doers for who they really are."
"People deserve to know what’s really out there," he wrote.
Criminal lawyer David Butt told CBC News that "simply serving a market that's out there" would not amount to a legal defence.
Butt said the courts look at "a combination of sex and violence that exceeds community standards of tolerance," in determining if something is obscene, and that a person's motivation for publishing that material would not be a factor.
Gil Zvulony, a Toronto internet lawyer, told CBC News the laws against obscenity should apply in this case and should trump any questions of free speech.
"I haven't seen the video, but based on the descriptions, it contains sex, violence, murder in the most despicable manner," Zvuloney said. "I don't think there's really any question that this is the kind of video we as a society do not want out there."
He also questioned why police in Edmonton didn't shut down the site as soon as it came to their attention.
"With the internet, if the fire isn't put out immediately, the genie is out of the bottle," he said.
Any law changes need 'balance'
Obscenity laws have traditionally only been used only in cases of explicit sexual material, not representations of death or murder. The case has opened a new debate about whether the current law is sufficient or should be changed, said David Fraser, an internet and privacy lawyer at McInnes Cooper in Halifax.
"Certainly there are provisions that are archaic, and maybe obscenity is not the right kind of language to be using in this context," he said.
Fraser noted that any changes to the law must find a balance.
"But there are two things that worry me," he said. "One is that we would need to make sure we are getting the balance right because we don't want to inadvertently capture legitimate newsgathering and news reporting and legitimate expression that needs to be out there to provide information.
"And the second part is that I'm concerned when you have important discussions like this take place in a heated and emotional environment that you often don't get it right."
Magnotta, 29, is suspected of killing Lin, a university student in Montreal, and mailing his body parts to Canadian political parties.
Magnotta is in a Berlin jail following his arrest at an internet cafe there Monday. Berlin police said Tuesday Magnotta won't fight extradition to Canada to face charges including first-degree murder.