Mark Marek case will test the limits of freedom of expression in Canada

marek

By now you’ve probably heard about the case of Mark Marek. He’s the Canadian guru of gore whose website Bestgore.com peddles snuff films and all manner ugly of human depravity to millions of online users.

In a high profile case with connections to the ongoing trial of Luca Magnotta, alleged butcher of a gay Chinese student last summer in Montreal, Marek was contacted by someone with a horrific video of the savage murder and naturally couldn’t pass on posting such a juicy piece of unconscionable human misery. The video (1 ice pick, 1 lunatic) quickly went viral and became an internet sensation, and, to the horror of decent folks all over world, though not to Magnotta himself, the man most likely behind it became a household name.

Though Marek was released on bail by the Edmonton Police, it is only a matter of time before his case comes before a judge. At which point he will be prosecuted on the basis of an obscure section of Canada’s Criminal Code that deals with offences “tending to corrupt morals.” If that weren’t old fashioned enough for your tastes, the provision from the 1892 law still includes phonographs!

Marek has done himself no favours whatsoever with his bizarre rambling statements. Some are in his own words, such as when he claimed that “God and truth” are on his side. Others are through a spokesperson, like when he recently posted a long-winded and, at times, farcical letter in which he made this terribly humble assessment of his lot in life: “This charge represents the most severe violation of the most fundamental human right in modern history! ”

Gosh! I suppose he’s never heard of the holocaust!??! Oh wait; he’s also a holocaust denier. Alright then, let’s just forget about the loathsome scumbag at the centre of this case for a moment and deal with the principle of freedom of expression at stake in this matter.

The question remains: is it right for the state to attempt to censor the exercise of freedom of expression, in modern liberal democracy by means of an admittedly archaic provision of the obscenity laws?

First of all, let us dismiss the superficial similarities between this case and the case of Remy Couture, the Quebec special effects artist who was rightly acquitted by the Quebec Court of Appeals on charges of corrupting public morals. While both cases involve alleged crimes under section 163 of the code, there was no suggestion that Couture had ever remotely broken any hate speech laws. Nor, for that matter, was there ever any evidence that the videos he produced caused any harm to the participants or the public interest.

By contrast, Marek knows full well that the subjects of his videos harm those directly involved in their making. In other words, unlike Couture, this isn’t about disseminating phony violence, realistic though it might have been; these are bona fide snuff films in which people have been maimed, killed, tortured or worse.

The reality of freedom expression (section 2), as those who read my blog regularly know, is that it is not absolute in Canada and never has been. We have section 1 of the Charter precisely for this reason. So that free speech can be limited by law, provided the infringement is minimal, proportionate with the stated objective of the law, and “demonstrably justified, in a free and democratic society,” as the saying goes.

That is why the courts have ruled over and over again against child pornographers, hate speech and, in some cases, pornography that is degrading towards women. Marek’s website meets all these standards, and then some, and thus should not benefit from the legal protection afforded by the Charter to all Canadians.

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