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Dr.
Don in his own words | Kirk Makin's report in Globe and Mail
was the only national coverage -- notice he spoke only with the
Crown) Scroll down | The appeal |
Smith weighing appeal
of guilty verdict
December 04, 2002, Staff,
Fort Frances Times
Woodyatt resident Don Smith
may file an appeal of his conviction and sentence last week with
the Ontario Court of Appeals.
"We're going to seriously
consider an appeal, particularly as far as the definition of
obscenity that was used here," Smith's lawyer, Darren Sawchuk,
said after Madame Justice H. Pierce imposed her sentence Thursday
morning.
"The sentence that was
imposed exceeds anything given out in an obscenity case in Canada,"
Sawchuk said.
"When you consider the
accused had taken steps to not cross the line, it's unfair,"
he added, referring to the fact Smith had-based on his research
of obscenity law in Canada-never considered material on his free
and paid Web sites as obscene.
Smith himself refused to comment
on the verdict and sentence.
A jury found Smith guilty of
creating and distributing obscene material over the Internet
last Wednesday afternoon. They had begun deliberating his fate
just before noon on Tuesday.
Justice Pierce ruled Smith,
47, must pay a $100,000 fine-far in excess of what Sawchuk had
noted was the average fine in other Canadian cases dealing with
obscene material ($1,000).
But the judge felt her decision
was justified, calling the material deemed obscene "a poison
to society" with the "power to change our perceptions."
"Why should women be portrayed
as victims? Or men? Are we, as a society, to choose profit over
dignity?" she remarked. "Mr. Smith did."
But Justice Pierce noted she
felt Smith did not feel he personally had any personal bias or
hatred against women.
Her decision was based on Crown
evidence that a mixture of sex and violence was dangerous to
adolescents, and viewers predisposed to sexually sadistic behaviour,
as well as to women, who may feel a lowered sense of self-worth
and increased fear of abuse if exposed to such material.
 The hefty fine was more in line with what
Crown Attorney Howard Leibovich, who was serving as co-counsel
on the case with Crown Attorney Christine Bartlett-Hughes, had
suggested.
Leibovich said $60,000 (U.S.)
would have been suitable, based on an approximate amount he had
determined to be equal to proceeds Smith made on the paid Web
site.
Smith's sentence also included
three years' probation.
As well, as of last Thursday,
Smith must revoke any interest in his Web site on which the material
deemed obscene was available, including any copyrights; not access
the Internet nor reside in a place where access to the Internet
is available; and not participate, in any way, in any Web site
in the future.
He also must report to a probation
officer as required, and must advise the OPP of any change of
address.
"From the Crown's perspective,
we're satisfied," said Leibovich, who opted not give any
specific comments on the verdict and sentence.
The jury announced its verdict
around 3:30 p.m. last Wednesday, finding Smith guilty of five
charges, including two counts of making videotapes featuring
undue exploitation of sex and violence, one count of possessing
similar material on a computer for the purposes of distribution,
and two counts of distributing obscene matter via a Web site.
He had been charged back in
October, 2000.
Justice Pierce noted the fine
and probation were standing orders and not in lien to any individual
counts.
Smith receives hefty
sentence
November 28, 2002, Staff,
Fort Frances Times
After being found guilty Wednesday
afternoon by a jury for creating and distributing obscene material
over the Internet, Woodyatt resident Don Smith was handed a precedent-setting
sentence Thursday morning at the Fort Frances Courthouse.
Madame Justice H. Pierce ruled
Smith, 47, must pay a $100,000 fine-far in excess of what defence
lawyer Darren Sawchuk had noted was the average fine in other
Canadian cases dealing with obscene material ($1,000).
Sawchuk noted after the judge's
decision Thursday morning that the fine, as well as the fact
Smith was unaware he'd been creating material considered "obscene"
by definition of Canadian law, was being "seriously considered"
as grounds to take the case to the Ontario Court of Appeal.
But the hefty fine was more
in line with what Crown Attorney Howard Leibovich, who was serving
as co-counsel on the case with Crown Attorney Christine Bartlett-Hughes,
had suggested.
Leibovich said $60,000 (U.S.)
would have been suitable, based on an approximate amount he had
determined to be equal to proceeds Smith made on the paid Web
site.
Smith's sentence also includes
three years' probation.
As well, as of today, Smith
must revoke any interest in his Web site on which the material
deemed obscene was available, including any copyrights; not access
the Internet nor reside in a place where access to the Internet
is available; and not participate, in any way, in any Web site
in the future.
He also must report to a probation
officer as required, and must advise the OPP of any change of
address.
The jury announced its verdict
around 3:30 p.m. yesterday, finding Smith guilty of five charges,
including two counts of making videotapes featuring undue exploitation
of sex and violence, one count of possessing similar material
on a computer for the purposes of distribution, and two counts
of distributing obscene matter via a Web site.
Justice Pierce noted the fine
and probation were standing orders and not in lien of any individual
count.
Smith trial goes to jury
November 27, 2002, Staff,
Fort Frances Times
As of press time Wednesday,
a jury continued to deliberate the fate of Don Smith, a Woodyatt
man charged with creating and distributing obscene material back
in October, 2000.
Closing statements by both
the defence and the Crown on Monday afternoon drew the line that
the jury must determine if the material has artistic merit or
is harmful to the community.
During his closing statement,
defence lawyer Darren Sawchuk said the jury must keep in mind
that determining what is obscene is about "community standards."
"Canadian obscenity law
is about what you wouldn't tolerate allowing others to see. It's
tolerance versus taste that matters here," he argued.
"If you're left with any
doubt the materials seen fall below the lowest community standard,
then acquit."
Sawchuk reminded the jury the
defence's case is based on the testimony of experts, referring
to Dr. David Annandale, a professor of literature and film, and
Dr. Barry Grant, a professor of film studies and pop culture,
and is therefore "rational, not frivolous."
He noted Dr. Grant called the
video clips and movies Smith made "tame," while Dr.
Annandale said the written material evidence in question "didn't
fall below the standards set by the Marquis de Sade," one
of the sources referred to by Dr. Annandale as an example of
"the extreme end of horror."
And referring to the series
of five videos and one DVD-ranging from "slasher movies"
to hardcore pornography-that were viewed by the jury as another
part of the defence, Sawchuk said, "When you look at standards
of community tolerance, listen to what the experts said.
"Mr. Smith's movies may
have come close to the line. When we see that these other materials
go past the line, there is doubt," he added.
Determining whether or not
materials are obscene also depends on its artistic merit, said
Sawchuk, noting Dr. Grant and Dr. Annandale said both the video
and written materials had some artistic merit, whether for special
effects (in the videos) or as examples of the horror genre established
centuries ago (written materials).
"At the end of the day,
the issue isn't whether you, me, the judge, or anybody else thinks
the materials are in good taste. It's about tolerance,"
he concluded.
Meanwhile, Howard Leibovich,
serving as co-counsel on the case with Crown Attorney Christine
Bartlett-Hughes, started off his closing statement Monday afternoon
by defining "obscene" as that which unduly exploits
sex and violence and presents a substantial risk of harm.
Addressing the first aspect,
Leibovich stressed the indicted materials-both written and visual-all
have a common element of sex and violence.
"It's just nude women
being killed. No story," he remarked, adding that under
Canadian obscenity law, nudity is considered "sex."
He also questioned the veracity
of testimony by Drs. Annandale and Grant, saying the former said
the indicted written materials were "amateur and clumsy,
and couldn't be compared to the works of a professional,"
but then started comparing them to the work he wrote his thesis
on (Sade).
And he refuted Dr. Grant's
observation the indicted movie material probably would only be
of interest to those interested in special effects.
Citing Crown witness psychologist
Dr. Neil Malamuth, Leibovich reminded the jury the expert said
mass media images of violence against women could lead males
to greater possibility of violence against women, desensitization
against violence against women, and greater acceptance of myths
about violence against women, while women can be affected with
a lowered self-esteem and enhanced fear of violence against them.
"He never said it was
a direct cause. It just added to the risk level by changing attitudes,"
he noted.
Leibovich added another expert
called by the Crown, psychiatrist Dr. Peter Collins, said the
indicted materials would "be of great interest to a sexual
sadist," helping them fantasize through a medium (the Internet)
which validates that fantasy due to the fact others are doing
the same as they are.
Such materials, being available
on the Internet, would be of most risk to adolescents, who are
most impressionable when developing psychosexual behaviour.
While Sawchuk had pointed out
in his closing statement that benign materials could be abused
by sexual sadists, Leibovich stressed "that's not the point.
You can do something about violence against women."
"I say if there is undue
exploitation of sex and violence with artistic merit, it is obscene.
There can be no doubt, this is dirt for dirt's sake," concluded
Leibovich.
"I submit this will cause
harm to the community. I submit you find this material obscene."
Leibovich also said police
evidence provided by Det. Sgt. Robert Gagnon of the OPP's Electronic
Crime Unit proved that Smith undoubtedly is guilty of one of
the five counts against him-distributing obscene matter (in this
case, three stories) via a Web site.
Madame Justice H. Pierce spent
about two-and-a-half hours Tuesday morning giving her charge
to jury, before they began deliberating around 11:45 a.m.
As she reviewed the evidence
brought forth by counsel, Justice Pierce reminded the jury to
keep in mind just what is the meaning of "tolerance,"
adding they must remain objective.
"It's a standard of tolerance,
not taste, you are determining here-what Canadians would not
abide by letting other Canadians see," she remarked.
Likewise, she asked jurors
to consider artistic merit-for example, what is the dominant
purpose of the work, the importance of visual effects in it,
does exploitative sex have a role-when going over the case for
Smith's defence.
Justice Pierce noted the jury
only has to find one piece of indicted material obscene, not
all of them, to find Smith guilty.
Smith is facing five charges,
including two counts of making videotapes featuring undue exploitation
of sex and violence, one count of possessing similar material
on a computer for the purposes of distribution, and two counts
of distributing obscene matter via a Web site.
The defence is asking his client
to be acquitted on all counts.
The trial got underway here
Oct. 28
Literature expert takes stand
at trial
By Duane Hicks, Staff writer,
November 22, 2002
The trial
of Don Smith, a Woodyatt man accused of creating and distributing
obscene material in October, 2000, continued at the Fort Frances
Courthouse yesterday with an expert in horror literature taking
the stand for the defence.
Dr. David
Annandale, a professor of literature and film at the University
of Manitoba and a published horror author, recounted horror literature
stemming back to the 18th century.
He also
viewed several mpegs from Smith's pay-per-view Web site-short
video clips featuring semi-nude or nude women being shot.
While Dr.
Annandale noted the clips certainly have no plot, they would
be acceptable to be used in his class as examples of "extreme
horror" or when discussing "what are the more appropriate
roles of art."
When asked
by Crown Attorney Christine Bartlett-Hughes if his students would
find the clips offensive, Dr. Annandale replied, "I teach
'A Clockwork Orange.' Some people think it goes too far, others
don't.
"But
people often believe in freedom of speech until they find something
they don't like."
The cross-examination
of Annandale continued today, with closing statements by both
lawyers expected early next week.
Smith is
facing five charges, including two counts of making videotapes
featuring undue exploitation of sex and violence, one count of
possessing similar material on a computer for the purposes of
distribution, and two counts of distributing obscene matter via
a Web site.
The Crown
already has called its four witnesses-investigating officer Cst.
Scott Gobeil of the Fort Frances OPP, psychiatrist Dr. Peter
O. Collins, psychologist Dr. Neil Malamuth, and Det. Sgt. Robert
Gagnon of the OPP Electronic Crime Unit.
The defence's
witnesses, called forth by lawyer Darren Sawchuk, so far have
included Smith's wife, Lorna, and Dr. Barry Grant, a professor
of film studies and pop culture at Brock University.
The jury
selection and pre-trial for this case began Oct. 21, with the
trial getting underway Oct. 28.
Madame Justice
H. Pierce is presiding.
Man fined for obscenity
over 'snuff film' Web site
By KIRK MAKIN, JUSTICE REPORTER,
December 3, 2002 Print Edition, Page A9
The first prosecution in the
country for Internet obscenity has ended in a conviction and
a major fine for a Northern Ontario man who created a Web site
featuring simulated snuff films.
A jury in Fort Frances decided
there was no artistic merit to a series of short films depicting
semi-naked women dying in agony after being shot or knifed to
death.
Madam Justice Helen Pierce
of the Ontario Superior Court imposed a $100,000 fine against
Donald Smith, 47, late last week and sentenced him to three years
probation. As part of his probation order, he is prohibited from
having Internet access. Mr. Smith must also revoke any interest
in the snuff Web site he operated.
"It is the first Internet
prosecution in Canada that I'm aware of," Crown counsel
Christine Bartlett-Hughes said in an interview yesterday. She
was extremely pleased with the size of the fine because it will
rob Mr. Smith of much of his profit and deter others with similar
ideas.
The amount of the fine far
exceeded what defence counsel Darren Sawchuk said has been the
average fine for obscenity prosecutions -- $1,000.
According to the evidence,
prospective "members" of Mr. Smith's Web site could
pay $30 to gain access to a library of short film clips produced
by Mr. Smith and his brother.
The clips typically showed
a predator surprising a woman showering or sun-bathing. The victim
was knifed or shot at close range in the breast or genitals.
Special effects were used to heighten the simulated blood and
gore.
Ms. Bartlett-Hughes said that
while she couldn't furnish a precise figure reflecting Mr. Smith's
profit margin, it was "substantially more than" $100,000.
She said one of the major issues
in the case was whether the combination of nudity and violence
depicted in the clips met the Criminal Code definition of obscenity.
Mr. Smith maintained that he
was unaware his Web site might violate obscenity laws. Some of
the experts who testified at the six-week trial backed the defence
theory of artistic merit.
One witness -- a professor
of film studies -- testified that the videos were relatively
tame on the spectrum of violent slasher films that are available
nowadays.
Ms. Bartlett-Hughes's co-counsel,
Howard Leibovich, told the jury the films unduly exploited sex
and violence and presented a substantial risk of harm to viewers.
Literature expert takes
stand at trial
By Duane Hicks, Staff writer,
November 22, 2002
The trial
of Don Smith, a Woodyatt man accused of creating and distributing
obscene material in October, 2000, continued at the Fort Frances
Courthouse yesterday with an expert in horror literature taking
the stand for the defence.
Dr. David
Annandale, a professor of literature and film at the University
of Manitoba and a published horror author, recounted horror literature
stemming back to the 18th century.
He also
viewed several mpegs from Smith's pay-per-view Web site-short
video clips featuring semi-nude or nude women being shot.
While Dr.
Annandale noted the clips certainly have no plot, they would
be acceptable to be used in his class as examples of "extreme
horror" or when discussing "what are the more appropriate
roles of art."
When asked
by Crown Attorney Christine Bartlett-Hughes if his students would
find the clips offensive, Dr. Annandale replied, "I teach
'A Clockwork Orange.' Some people think it goes too far, others
don't.
"But
people often believe in freedom of speech until they find something
they don't like."
The cross-examination
of Annandale continued today, with closing statements by both
lawyers expected early next week.
Smith is
facing five charges, including two counts of making videotapes
featuring undue exploitation of sex and violence, one count of
possessing similar material on a computer for the purposes of
distribution, and two counts of distributing obscene matter via
a Web site.
The Crown
already has called its four witnesses-investigating officer Cst.
Scott Gobeil of the Fort Frances OPP, psychiatrist Dr. Peter
O. Collins, psychologist Dr. Neil Malamuth, and Det. Sgt. Robert
Gagnon of the OPP Electronic Crime Unit.
The defence's
witnesses, called forth by lawyer Darren Sawchuk, so far have
included Smith's wife, Lorna, and Dr. Barry Grant, a professor
of film studies and pop culture at Brock University.
The jury
selection and pre-trial for this case began Oct. 21, with the
trial getting underway Oct. 28.
Madame Justice
H. Pierce is presiding.
Film
expert brought in for Smith trial
By Duane Hicks, Staff writer,
November 13, 2002
A professor
of film studies and pop culture was called to the stand as an
expert witness yesterday at the trial of Don Smith, the Woodyatt
man accused of creating and distributing obscene material on
the Internet in October, 2000.
Under examination
by defence lawyer Darren Sawchuk, Dr. Barry Grant of Brock University
revealed his credentials as a scholar familiar with horror movies,
having penned essays and edited books on the genre.
Dr. Grant
explained the evolution of the horror film genre, detailing Alfred
Hitchcock as one of the turning points in modern horror cinema,
with the identification as the movie's "monster" in
this case being an "all-American boy.
"What
is the attraction of these types of films?" asked Sawchuk.
"If
someone goes to horror films, they expect to see scenes that
will shock them, horrify them, mortify them," replied Dr.
Grant.
"In
an age where violence can be seen on the news every night, films
had to become increasingly graphic," he added. "Popular
films have always been an expression of the culture from which
they come.
"For
instance, Westerns were contemporary re-imaginings of the past."
"In
terms of those films that shock, frighten, or horrify us, are
there common themes?" continued Sawchuk.
"Yes,
horror films tend to focus on victimization of women," testified
Dr. Grant. "In our culture, women have been coded as weaker,
more emotional, and more vulnerable than men.
"In
horror films, it creates a greater effect to have women running
from a monster, screaming, as opposed to a man."
He added
nude female victims in horror movies became common by the early
1970s as the public's acceptance of pornography and the increasing
nudity in mainstream films made it profitable.
"With
changes in special effects, how did things change?" asked
Sawchuk.
"Special
effects became an art in itself. They were the raison d'être
these films in the first place," replied Dr. Grant. "It
was easier to show more explicit violation of the body."
"What
role do [special effects] play in the films?" inquired Sawchuk.
Citing a
comparison between the 1951 version of "The Thing from Another
Planet" and the 1982 remake, Dr. Grant pointed out special
effects have come to take a take up a "large percentage
of the screen time."
"What
is about these films that makes them attractive?" asked
Sawchuk.
"Some
people might care about the plot. But most people are interested
in, to borrow a term from the pornography industry, 'the money
shots'-the shots showing the violation," Dr. Grant testified.
"How
film A's effects might compare with film B," he added.
"How
pervasive is this?" said Sawchuk.
"There
is a large subculture in Canada and the U.S. for these types
of films. Fans support a large network of fanzines, like Fangoria
and Necronomicon," said Dr. Grant.
Dr. Grant's
testimony continued today.
Meanwhile,
the examination of Smith's wife, Lorna, wrapped up earlier yesterday
as the jury of 10 women and two men watched the last in a series
of five videos and one DVD, before which she had testified where
the movies could be rented or purchased at district businesses,
on-line, or at large retail outlet stores.
These movies
contained either graphic violence, graphic sex, or a mix of sex
and violence-ranging from a horror movie to a pornographic film
to a major Hollywood action thriller.
Crown Attorney
Howard Leibovich, who's serving as co-counsel on the case with
Crown Attorney Christine Bartlett-Hughes, first questioned Smith
about her knowledge of her husband's role in his pay-to-use Web
site and how aware was she of the content of the site.
Referring
to the videos Smith had shown to the jury last Tuesday and yesterday,
Leibovich asked what were the similarities or dissimilarities
between those and the visual material on her husband's web site.
Smith noted
that although the Internet clips were obviously much shorter
than the films shown, most of them do contain nude women, usually
portrayed as being shot in the breast or lower abdomen by a man
who simply walks away after the murder.
"We
were looking for films with similar special effects. But that
wasn't the only focus, it was the sexuality," she said,
adding many of the films were much more graphic than anything
on her husband's Web site.
"So
you couldn't find any material like your husband's, with a man
killing a woman and walking away?" asked Leibovich.
"In
length? No," replied Smith, who was the first witness called
by Sawchuk.
Further
testimony, addresses, submissions, and charges to the jury likely
will take the trial into another week.
Smith is
facing five charges, including two counts of making videotapes
featuring undue exploitation of sex and violence, one count of
possessing similar material on a computer for the purposes of
distribution, and two counts of distributing obscene matter via
a Web site.
The jury
selection and pre-trial for this case began Oct. 21, with the
trial getting underway Oct. 28.
The Crown
already has already four witnesses-investigating officer Cst.
Scott Gobeil of the Fort Frances OPP, psychiatrist Dr. Peter
O. Collins, psychologist Dr. Neil Malamuth, and Det. Sgt. Robert
Gagnon of the OPP Electronic Crime Unit.
Madame Justice
H. Pierce is presiding over the trial.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
