Right to know: ’1 Lunatic, 1 Ice Pick’ puts obscenity back in limelight

OTTAWA – On May 25, 2012, an 11-minute video was posted to an Internet shock site, “BestGore.com”. The video was entitled “1 Lunatic 1 Ice Pick”.
It depicted a nude man tied to a bed frame in a dark room. Another man appeared to stab the naked man repeatedly with an ice pick and a kitchen knife. The video also showed acts of necrophilia and cannibalism.
The video was not investigated by authorities until four days later, when packages containing body parts were discovered, intended for the national headquarters of the Liberal and Conservative Parties in Ottawa.
Ultimately, the police charged 29 year-old Luka Rocca Magnotta with the murder of Chinese exchange student, Lin Jun, the victim allegedly depicted in the May 25 video.
Earlier this week, further charges were laid. The new criminal charge, however, was not laid against Mr. Magnotta. Instead, the alleged owner of BestGore.com, Edmonton’s Mark Marek, was charged with corrupting morals by distributing “obscene materials” — namely, “1 Lunatic 1 Ice Pick”.
This offence is contained in a little known provision of the Criminal Code. As it is so rarely used by authorities, and even more rarely prosecuted, most Canadians are unfamiliar with the scope of our obscenity laws.
Indeed, the investigating officer in the BestGore.com case, Staff Sgt. Bill Clark of the Edmonton police, reportedly noted that he doesn’t believe that his police service has ever laid such a charge before.
First of all, this is not a new offence. The section’s reference to making material available by “phonograph record”, among other methods, should be a tip off to its vintage. In fact, it dates back to Canada’s earliest criminal legislation, the 1892 Criminal Code.
The offence itself, however, has even older roots in the common law. In a 1663 case, the English Court of King’s Bench asserted that the court had a duty to act as “the guardian of public morals”. And, in 1727, the court ruled that publishing an obscene libel tended to corrupt the morals of the King’s subjects and as such was “against the peace of the King and government”.
The earliest test of the Canadian law came in 1962, when three Montreal men were charged in relation to an allegedly obscene book. The work of literature in question? D.H. Lawrence’s tale of sexual frustration and adultery, Lady Chatterley’s Lover.
That case reached the Supreme Court, where the judges were divided on their interpretation of the law. Although a majority of the court ultimately ruled that the book was not obscene within the meaning of the law, the Chief Justice disagreed, noting the book’s frequent use of “four-letter words” and the “great detail” in which the adulterous episodes were described.
Canadian courts weren’t the only ones to struggle with the definition of “obscenity” and its place in the criminal law.
Justice Potter Stewart of the U.S. Supreme Court famously wrote, when attempting to define the distinction between legal pornography and illegal obscene material: “I know it when I see it”.
Following those early decisions, Parliament sought to give greater guidance to courts in determining when material crosses the threshold and enters the realm of “obscene material”.

Today, the Criminal Code states that where a publication’s “dominant characteristic” is the undue exploitation of sex, or of both sex and “crime, horror, cruelty or violence”, it shall be considered obscene for the purposes of the criminal law.
Although it was acknowledged by the Supreme Court that this offence infringes on the Charter right to free expression, this limit was considered “reasonable” and the provision therefore passed constitutional muster.
In doing so, however, the Court provided a narrow interpretation of the Code’s obscenity definition. In this landmark decision, the Supreme Court linked the nature of the material — that is, the “undue exploitation of sex” — with the potential social harm that could result from the publication of such images, videos, etc.
Courts must consider whether the availability of such publications could “predispose” people to act in an anti-social manner, including the physical or mental mistreatment of women by men or vice versa.
Moreover, the Supreme Court held that the depicted exploitation of sex must be viewed in its full context. Is it, for example, essential to some wider artistic, literary, or other similar purpose?
In answering this question, courts must turn to the standards of the community and determine whether or not these depictions, when seen in the context of a larger work, would be tolerated by the community.
The Court concluded that since artistic expression rests at the heart of freedom of expression values, any doubt about the standards of the community must inevitably be resolved in favour of freedom of expression.
Finally, it should be noted that the Criminal Code provides for a full defence to an obscenity charge in circumstances where the “public good was served” by the publication of the impugned material. In such a case, and where it can be shown that the alleged acts “did not extend beyond what served the public good”, the accused must be acquitted.
It remains to be seen, of course, what route Mr. Marek will take in defending the charge laid in relation to “1 Lunatic 1 Ice Pick”.
Canadians should always remember, however, that much like the debate over Lady Chatterley’s Lover, social standards about acceptable material versus obscene depictions are products of their times. Social mores shift constantly and courts must always be on guard to ensure that one particular set of standards does not unjustly squelch free expression.
Freedom of expression is essential to a free society. And “I know it when I see it” is simply not good enough.
Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com.