What do Don and Lorna Smith have in common with Judge Diane Petit Baig? Both used to live in Fort Frances but were compelled to leave after being viciously treated by parts of the legal community and the general narrow-mindedness of this town which has way too many churches. Judge Baig has the last laugh | Attitudes to web porn changed long ago but not soon enough for Don Smith.
One day, Don Smith is making a living producing fantasy "snuff" films for sale on the Internet -- a sniper zeroes in on two women sunbathing topless, for example, the crosshairs of his rifle focus on their bare breasts moments before his bullets tear into their target -- and then, next thing Don Smith knows, he's busted.
But there was no sex in his flicks, his defence counsel would later argue, just nudity.
Lots of violence, yes, but no physical sex.
In the end, a jury in the Northern Ontario town of Fort Frances decided that Don Smith, who then lived in nearby Woodyatt, was nonetheless guilty of "undue exploitation of sex and violence" contrary to a section of the Criminal Code dealing with the corruption of morals, and Superior Court Judge Helen Pierce then pronounced sentence.
And it wasn't exactly light.
Smith, 47 on the day of reckoning, was fined $100,000, was placed on probation for three years, and was banned from having any access to the Internet.
Yesterday, Smith's fight against that 2002 conviction finally landed in the Ontario Court of Appeal at Osgoode Hall, where much of the focus was on the definition of what is not even defined in the Criminal Code itself.
And that's the definition of "explicit sex."
For example. Does "static nudity" or even "graphic nudity" amount to "explicit sex" or "explicit sexual activity" when there is no physical sexual contact whatsoever?
Smith's Toronto lawyers, Brian Greenspan and Peter Copeland, argued that, without any physical sex act, the evidence that convicted their client falls short of the Criminal Code's intent, and that his conviction should therefore be overturned and his fine wiped out.
As stated in a factum Greenspan and Copeland presented to the appeal court tribunal of Justices Marc Rosenberg, Janet Simmons and Susan Lang, the videos and visual materials which got their client busted by a joint Fort Frances OPP and Winnipeg police operation displayed images representing "nude or partially clad women who were subjected to violence by shootings with guns, or arrows, or inflicted by knives or sword."
But, the lawyers argued in the factum, none of the videos or visible material displayed sexual acts such as "intercourse, fellatio, cunnilingus, masturbation, spanking, caressing or other sexual touching, kissing or hugging," and "the perpetrators of the violence did not engage in sexual relations with their victims."
In fact, the lawyers argued there were numerous Hollywood films more graphic and more sexually exploitative than anything their client ever put on a CD-ROM -- like Kill Bill, said Greenspan, and Natural Born Killers.
Other Hollywood films noted in the factum for their "memorable" death scenes included Architects of Fear, China White and Friday the 13th.
The Crown's Jennifer Woollcombe, saw it differently, however, arguing that the lack of specific sex acts in Smith's videos did not mean there was no "explicit sexual activity" to support a conviction under the Criminal Code section dealing with "undue exploitation of sex and violence."
Take the sniper video, for example. And its plot line.
While the two women sunbathing were not totally nude, the two women whose murders were simulated inside the house were naked, Woollcombe said. One was brushing her hair, and the other was about to step into the shower when they were gunned down.
In that scene, said Woollcombe, their bodies were then "positioned" so that their legs were "splayed, with the camera focussing on their sexual organs."
And that, said Woollcombe, is "sexualized nudity."
At the end of the day, however, it was clear that all was far from being immediately clear -- what with Judge Rosenberg even pausing during the proceedings to himself pose the question of the day.
"What is the definition of explicit sex?" he asked.
Hours later, the court rose.
The judges deemed their decision had best be reserved.
It may be months before it is delivered.
A Northern Ontario man whose Internet websites depicted naked women being stabbed and shot to death cannot be convicted of obscenity because no specific sex acts were portrayed, the Ontario Court of Appeal was told yesterday.
"You don't have obscenity unless you have explicit sex coupled with violence," defence counsel Brian Greenspan told the court. "What we have here is nudity and violence. We have scantily clad women in conjunction with violence. There is unquestionably an abundance of violence in these videos -- but sexual activity is virtually absent."
Mr. Greenspan said that his client, Donald Smith, took care to research landmark obscenity decisions before he began making films such as Skinny Dip, Deadly Game and Scorpion. The films featured woman-hating snipers executing victims, with blood gushing and flesh ripping in slow motion.
Mr. Smith is appealing seven 2002 convictions for making, possessing and distributing obscene material. He was fined $100,000, put on probation for three years and prohibited from using his websites or the Internet.
Crown counsel Jennifer Woollcombe argued yesterday that Mr. Greenspan and co-counsel Peter Copeland are inventing a non-existent loophole in laws designed to capture violent material that degrades women in a sexual context.
Whether or not sex acts such as intercourse or oral sex are depicted, she said, there is an obvious sexual context to the films' innuendo-laden dialogue, suggestive poses, and scenes such as the insertion of weapons into the private parts of screaming women.
"What's not sexual about that?" Ms. Woollcombe asked. "There are clear depictions of sexualized nudity in those videos. At the end of the day, this is material where there are minimal plots and very little beyond sexualized violence. . . ."
Expert testimony at Mr. Smith's trial established that sexual sadists get gratification from injuries, gore and the sight of men exerting power over victims, Ms. Woollcoome noted. She said their perversions are psychologically validated and worsened by sadistic material.
"These offences are not victimless," she said. "Women, children and men who saw this material were at risk of having their attitudes toward others in Canadian society affected." Ms. Woollcombe also pointed to a 1997 Supreme Court ruling as being decisive on the obscenity issue. The ruling said that a film depicting a prison warden forcing female inmates to spank one another was obscene.
The law states that material depicting sex acts combined with violence is virtually always obscene. Other sexually explicit material may be found obscene if it depicts nudity or sexual activity in a "graphic and unambigious way."
In assessing obscenity, judges and jurors consider what the Canadian community would tolerate, bearing in mind the possible harm that could result from the material being available, and whether the harm is balanced by artistic merit.
Mr. Greenspan argued that mainstream movies such as Kill Bill and Natural Born Killers have more violence than Mr. Smith's fare.
About 2,000 subscribers paid about $50 to be members of Mr. Smith's sexual-sadism website.
(This summary is from Don Smith's appeal which will be heard February 8, 2005 in the Ontario Court of Appeal)
1. On March 15, 2000, Wayne Harrison ('Harrison") contacted Det.Cst. Paul Blais ("Blais") of the Emo OPP Detachment. [officer notes volume 5, page 2]
2. On March 15,2000 at 1445 hrs. Blais stated in his notes, "no sexual acts are depicted". [officer notes volume 5, page 2]
3. On April 6,2000, Harrison sought a legal opinion from the Toronto Crown Law Office in Ontario regarding the criteria for obscene material. [volume 1 page 14]
4. On April 12,2000, Blais entered the Smith's property without a warrant and conducted a perimeter search of the Smith's residence. [officer notes volume 5, page 4]; [volume 1, page 15] [Blais' testimony: preliminary hearing transcript]
5. On April 19,2000, Crown Attorney Robert Young ("Young") of the Fort Frances Crown Law Office was asked by Harrison if he would prosecute Mr. Smith for what he believed was obscene material on two websites. Young made no commitment to prosecute Mr.Smith and agreed to view a CD Rom made from the websites. Harrison sent the CD Rom to Young's office in Fort Frances. [volume 1, page 15]
6. On April 25,2000, Young, Blais, and other OPP officers viewed the CD and it's contents at the Fort Frances OPP Detachment. There was a discussion amongst the participants of the meeting regarding the legality of the materials. Young still did not make a commitment to prosecute Mr.Smith. [officer notes volume 5, page 5] [Loshaw's testimony: preliminary hearing transcript]
7. On September 5, 2000, Sgt. Loshaw("Loshaw") of the Fort Frances OPP viewed the website www.perfectshotsvideo.com. [Seized records from FACS page 00016] [volume 2, page 414]
8. On September 6, 2000, Loshaw met with Dennis to discuss the legality of the website and it's content. [Loshaw's notes volume 5, page 264]
9. On September 7, 2000, Loshaw met with Dennis and Blais to discuss the website and the allegations concerning Mr.Smith. At the conclusion of the meeting Dennis left a telephone voice message at Family and Children Services ("FACS") in Fort Frances. The Director of FACS in Fort Frances, Rita Chenier, states that Dennis said that the website was not illegal. Michelle George of FACS received a call from Loshaw on the same day. Loshaw provided Michelle George with the website address and informed her that the website was not illegal. FACS staff viewed the website, printed the pages, then placed them in their files. As a result of these events, no criminal activity on the part of Mr. Smith was identified as having taken place. [Loshaw's hand written notes volume 5, page 265] [Michelle George's Statement, Volume 2 Page 310] [Volume of FACS records page 16]
10. On September 8, 2000, FACS contacted Loshaw to tell him that the information did not meet child welfare eligibility and that they were not taking any action against Mr. Smith. [Loshaw's notes volume 5, page 266]
11. On September 18,2000, Tina Selman (a friend of the Webb's), told Williams that she had seen Mr. Smith's website. She expressed concerns over it's legality. Williams was informed by Loshaw of the following information: the website had been viewed; there was nothing criminal on the website; and FACS were unable to intervene based on the information provided. Williams states in his notes that "Blais was also advised". At 10:21 hrs. Williams called Tina Selman to notify her of the information he received from Loshaw. Then Tina Selman informed Williams of a rumor that Mr.Smith allowed Jason Webb to help him edit his website. [William's notes volume 5, page 291]
12. By September 18, 2000, Young, Blais, Loshaw, Dennis and Williams were aware that no criminal activity was found to be taking place with respect to the website and they had conveyed this to several wittnesses.
13. On September 19, 2000, at 08:25 hrs. Williams met with Loshaw to discuss the history of calls concerning Mr. Smith's website and the involvement of FACS. Williams and Blais were told by Loshaw not to visit the website while they were on duty. Williams and Cst.Chuck MacDonald were asked to attend the Smiths' residence to investigate child wellfare concerns. No investigation was being conducted regarding obscenity. At 1011 hrs. Williams told Mr.Smith that the website had been viewed, that there was nothing illegal on the website, and that the reason for their attendance was due to a few concerns expressed by neighbours who said that Mr.Smith let a neighbourhood youth help him edit his website. Mr.Smith denied the allegation and advised Williams of the recent incident between himself and this particular youth. Mr.Smith advised Williams that the rumors were motivated by malice on the part of the the youth and his father and that the youth had threatened to "punch him out" and to "shoot him", a few weeks prior. Mr.Smith asked Williams to give the youth a warning about his making threats. Williams told Mr.Smith several times during the interview that the website had been viewed and nothing illegal or criminal was found to be taking place on it. Mr. Smith then told Williams that: (i) he thoroughly researched the obscenity law on the internet prior to producing or posting any materials.
(ii) he was not doing anything illegal because nudity and violence can be seen on television.
(iii) the host of the website (Internet Solutions) approved the content for the web and told him it was not illegal;
(iv) if it was illegal that he wanted to know because he did not want to be involved in any illegal activity.
(v) all of the actors were consenting adults.
(vi) no sexual acts were depicted in any of his materials. [officer notes volume 5, page 292 - 295]
14. On September 19, 2000, 1155 hrs. Williams updated Loshaw regarding the meeting with Mr.Smith. At 1400 hrs. Williams called FACS and spoke with Michelle George to provide her with the information received during the interview with Mr. Smith. [officer notes volume 5, page 296]
15. On September 19, 2000, 1645 hrs., Michelle George advised Williams that they were "unable to do anything with the information provided". [officer notes volume 5, page 296 - 297]
16. On September 21, 2000, Williams spoke with Jason about making threats against Mr. Smith. Jason admitted to having threatened Mr.Smith and then he made false and malicious statements to Williams about Mr.Smith. [officer notes volume 5, page 298 - 303]
17. On September 29, 2000, 0830 hrs. Williams contacted Michelle George of FACS to inform her of the information given by Jason regarding Mr.Smith. According to FACS case records Williams told Michelle George that he "consulted the pornography special crimes unit and there is not enough evidence for a criminal charge". Williams spoke to Michelle George despite his knowledge that there was no evidence of Mr. Smith being involved in any criminal activity. [FACS case records page 9] [officer notes volume 5, page 303-304]
18. On September 29, 2000, 1330 hrs., Williams contacted Dr. Peter Collins of the Behavior Sciences unit of the OPP and requested a threat assessment on Mr. Smith. Williams took this action based on unverified allegations and rumors, and in spite of the fact that Loshaw and Dennis had already informed him that Mr.Smith's website had nothing criminal on it and no criminal activity was found to have taken place. [officer notes volume 5, page 305 - 306]
19. On September 30, 2000, Sr. Cst. Gobeil("Gobeil") became involved in the investigation. Gobeil and Williams' actions were calculated to bring criminal charges against Mr. Smith, to cause the destruction of Mr. Smith's business interests, to inflict financial losses, to publicly humiliate, and to inflict mental suffering on Mr. Smith.
20. On September 30, 2000, 1335 hrs. Gobeil and Williams met with pastor Shane Belding ("Belding") and Mrs. Smith. No statements were recorded or signed by Belding or Mrs. Smith during this meeting.
21. On September 30, 2000, Williams's improperly stated in his notes that Mrs. Smith made the following allegations which Mrs. Smith denies having ever made:
(i) Mr. Smith hired prostitutes (ii) She was concerned that Mr. Smith's fetish was escalating
(iii) she was concerned for his behavior
(iv) she was concerned for her saftey
(v) there may be sexual abuse [officer notes page 309-313]
22. On September 30,2000, Gobeil improperly stated in his notes that Mrs. Smith made the following allegations which Mrs. Smith denies having ever made: (i) Kids seen what is on website
(ii) kids seen naked women
(iii) Mr.Smith hired prostitutes
(iv) Mr.Smith made his wife and kids go downstairs while he filmed prostitutes.
(v) Mr.Smith may have sexually abused his daughter, Shelby.
(vi) Mr.Smith did not believe he was doing anything wrong. [officer notes page 50-55]
23. Furthermore, Gobeil and Williams improperly stated in their police reports that Mrs.Smith provided them with the following statements(which are entirely denied by Mrs.Smith):
(i) she was fearful for her safety,
(ii) she was fearful for the well being of her children.
(iii) she said that her daughter, Shelby, may have been sexually abused by Mr.Smith.
(iv) she said Mr.Smith hired prostitutes from Winnipeg for filming.
(v) she said her and the children were forced by Mr.Smith to stay downstairs while he filmed prostitutes.
(vi) she said that the Plaintiffs children were exposed to the website materials.
24. Mrs.Smith denies making any such statements. The statement Mrs. Smith signed a few days later contains no such allegations.
25. Gobeil and Williams reported these allegations to FACS and to their superiors in order to foster a sense of urgency over the safety of the Smith's children and to facilitate the acquisition of Arrest Warrants and Warrants to Search the Smith's residence.
26. On September 30,2000, Williams contacted Dr.Peter Collins to inform him of what he said were "new allegations". Williams told Collins that Mrs.Smith had made the allegations when in fact she had not made them. As a result of the allegations conveyed by Williams to Collins, Collins changed his opinion and said that the materials were obscene, however, Collins never provided that statement in writing until July 13,2001. [officer notes page 309-313]
27. On September 30,2000, Gobeil contacted Rob Nichol and informed him of the same allegations as Williams had reported to Collins and which Gobeil also improperly attributed to having been made by Mrs. Smith. Rob Nichols changed his opinion and stated that Mr. Smith is "likely producing and distributing obscene materials". [volume 1 page 66]
28. On October 2, 2000 Mrs.Smith gave a statement to Williams because of pressure from Belding. Mrs.Smith's statement contains no such allegations as reported by Gobeil and Williams. Mrs. Smith states that Belding wanted Mr.Smith's websites shut down and that he made the false allegations in the hope that Gobeil and Williams would begin criminal proceedings against Mr. Smith.
29. On October 3, 2000 the Smith's children Shelby and Reed were interviewed by FACS. As a result of the interview with Shelby and Reed, nothing of a criminal nature was disclosed.
30. Gobeil and Williams, repeatedly contacted FACS and provided them with false and unverified allegations concerning Mr.Smith in an effort to cast suspicion on Mr.Smith and to facilitate the removal of his children from their home. Gobeil and Williams persisted despite the fact that FACS had reported several times based on the information provided to them, that they were unable to intervene in the Smith's family.
31 Despite having no evidence of any crimes being committed and despite their being told by their superiors that the website had been viewed and it was not illegal, on October 12, 2000, Gobeil and Williams acted improperly and without probable cause by acquiring Arrest Warrants and Warrants to Search from a Justice of the Peace in Fort Frances on the basis of the following:
(i) false rumors and unverified allegations made by Jason Webb.
(ii) hearsay, gossip, rumors, and allegations reported by Tina Selman (iii) false and defamatory allegations made by Belding.
(iv) rumors and allegations reported to Loshaw by Laura Mutz.
(v) no written expert legal opinion stating that the materials were obscene.
(vi) a report from the Winnipeg Police called Appendix "D" in which the writer fails to name himself.
(vii) Det.Cst.Campisi's opinion based on her personal experience of only two years in a Child Pornography Unit.
(vii) Williams' grounds for belief based on: he viewed the webiste; Mr.Smith told him that he makes movies at his home and on his computer; he saw the computer equipment at Mr.Smith's home; Jason told him he saw obscene material being produced and circulated the web site; Mrs.Smith told him Mr.Smith made movies and took photographs and did special effects on his computer.
(viii) Williams spoke to Dr. Peter Collins who viewed the site, offered no opinion at that time, and referred Williams to Rob Nickel of the OPP Child Pornography Unit.
(ix) Rob Nickel's opinion that the material is disturbing, graphic, and violent.
(x) Gobeil's religious motivations, personal bias, and prejudices against Mr.Smith.
(xi) prejudicial and bias investigative procedures in which Gobeil and Williams failed to allow Mr.Smith the opportunity to answer the false allegations.
(xii) police reports in which Gobeil and Williams both claimed that Mrs.Smith made statements that she denies having made and are not verified by her signed statement of October 2, 2000.
(xiii) the Justice of the Peace took only 45 minutes to read over some 60 pages of material making up the information to obtain the warrants and in the course of deciding to issue the Warrants, the Justice of the Peace did not view the materials or the website.
32. On October 13, 2000, the search warrants were executed simultaneously at Mr.Smith's residence as well as at William Smith's residence in Winnipeg. In the course of executing the search warrants the Police Defendants carried out the following acts which were meant to inflict mental suffering on the Smith's, shut down their business activities, and to cause damage to their economic interests:
(i) approximately nine police officers appeared at William Smith's home, and eight police officers appeared at Mr.Smith's residence. The large number of police officers overwhelmed, shocked, and traumatized Mr. Smith, Shelby, Reed, and Billy when only two or three officers could have effectively carried out the task at each residence.
(ii) they laid false charges against Mr.Smith in front of his children, and required Mrs.Smith to drive home from her place of work in Emo Ontario in order to take care of Shelby and Reed while Mr. Smith was arrested and transported to Fort Frances by Williams and Blais.
(iii) Mr.Smith was confined to a chair in his home for approximately 45 minutes during which time Mr.Smith was not allowed to use his phone to contact a lawyer without delay as is required under section 10(b) of the Canadian Charter of Rights and Freedoms, and they wrongfully detained Mr.Smith for seven hours in a jail cell from 11:00 am until 6:00 pm.
(iv) they fingerprinted and photographed Mr.Smith and later on December 18, 2000 Billy was also fingerprinted and photographed in Fort Frances.
(v) they removed large amounts of equipment, computers, camera's, movie props, firearms, and toy guns, from their homes.
(vi) they took Mr.Smith and Mrs.Smith's children's computer which had been used for their home school for the previous 21 months.
(vii) they removed private personal videos and photos from Mr.Smith and Mrs.Smith's home.
(viii) they wrongfully detained Billy for approximately four hours.
33. On October 13, 2000 Gobeil was involved in a news conference with Det. Sgt. Harrison and Det.Sgt. Johnson of the Winnipeg Police. The use of the media by Gobeil, Harrison, and Johnson, was a deliberate attempt to gain public support for their actions through morality and to publicly humiliate, defame, and vilify Mr. Smith and his brother William Smith. Gobeil knew, or should have known, that this would result in serious damage to the Smith's reputations in their communities. Gobeil took part in this news event despite the fact that he knew, or should have known that the F. B.I. in the United States had said that the webiste did not violate any U.S. laws. As a result of these actions the Smith's were denied their right to presumption of innocence and they were subjected to severe humiliation and were made to appear guilty in the public eye.
34. On October 13, 2000 Williams told Mr. Smith that, "private materials will remain such", however, Mr. Smith's and Mrs Smith's personal videos and photos have been viewed and copied numerous times by Gobeil and Williams. Gobeil and Williams included the Smith's private materials in disclosure materials and held them in evidence for more than two years. Gobeil and Williams sent these private photos and videos to Dr. Malumuth in the U.S.A. for his evaluation. This was done despite warnings being given that the use of the Smith's personal materials would be unconstitutional.
35. On November 16, 2000, Cst. Williams was told by Det. Sgt. Scott Mills of the OPP Proceeds of Crime Unit that Mr.Smith's business "does not fall within the definition of a criminal enterprise". (SEE Lorna's copy of Officer Notes Volume 5 page 351). Other copies of this disclosure volume containing officer notes have this information deliberately blacked out.
36. On January 24, 2001, Mr. Smith told Gobeil and Williams that he was going to bring a civil action against Gobeil's friend Belding(a church pastor) for breach of confidentiality with respect to information he disclosed to police in his statement on September 30, 2000.
37. On February 03, 2001, Gobeil met with Belding to help him amend his previous statement. Gobeil asked Belding questions that had nothing to do with his criminal investigation but were intended to obstruct the Smith's proposed civil action.
39. On February 15,2001 Gobeil and Williams charged Mrs. Smith under the same section of the CCC. and brought additional charges against Mr. Smith and his brother William Smith without lawful justification, proper legal foundation, or proper legal precedent.
39. On February 21, 2001, a fourth computer containing solicitor-client privileged communications was seized. Gobeil and Williams failed to afford Mr. Smith's lawyer reasonable notice of the privileged communication that was contained on the computer. As a result Gobeil and Williams copied, viewed, and reviewed solicitor-client privileged materials which is a criminal code violation under section 488.1(8) CCC.
40. On September 18,2001 a pre trial conference was held in Fort Frances. Mr.Smith told Judge Clark that he did not believe that he had not violated the law. There was no resolution and preliminary hearing dates were set for March of 2002
41. Shortly after the September 18,2001 pre trial conference Hellen Pierce was appointed to the Superior Court. Ms. Pierce was a family law lawyer with no experience in criminal law. She became the only female judge of nine judges sitting on the Ontario Superior Court N.W.District.
42. During the trial Judge H. Piece displayed bias and partiality in favour of the Crown by: (i) she denied the defence motion for unreasonable delay despite a 25 month delay in bringing the case to trial.
(ii) she allowed the Crown to enter prejudicial evidence which was irrelevant to the charges.
(iii) she denied Mr.Smith's right to make full answer and defence.
(iv) she denied two defence requests for a mistrial.
(v) she improperly instructed the jury regarding defence experts' testimony.
(vi) she failed to instruct the jury that the benefit of doubt raised in the artistic merit defence (through expert testimony) was to go to the artist.
(vii) she ignored evidence adduced during the cross-examination of Crown witnesses.
(viii) she imposed a draconian sentence that punishes Mr.Smith's wife, children and entire family.
This is an historical archive of injusticebusters.com. Exceptionally, if someone is finally able to prove innocence then the article(s) can be amended to state this or articles may be changed/added to insure continuity.
The opinions expressed in this article are those of the late Sheila Steele.