Brian Greenspan is a busy guy. Too busy, it seems, to have filed the necessary paperwork to proceed with Don Smith's appeal against conviction. He expects to have the paperwork done by the end of January with an anticipated hearing in March or April. (As of August, 2004, this had not been done)
The entire attitude towards porn on the Internet has settled into a much more tolerant state since Smith's trial. An article in the Nov. 24 Guardian, Kind of Blue, discusses Fleshbot.com, an enterprise which is making it owner famous, and possibly rich.
Helen Pierce and Christine Bartlett-Hughes, along with Howard Leibovich took a self-righteous moral position as they prosecuted Smith -- they were particularly outraged that the website was a progitable business. This holier than thou approach played well to the Bible-thumping jury. Rights and fairness were the furthest things from their minds as they raised the unanimous chorus to convict. Don Smith's defence lawyer, Darren Sawchuk, was embarrassed and incompetent. He was uncomfortable with the whole notion of what Smith had been doing but more than eager to take Smith's money.
Smith is now broke. He was never rich. He had a good living, a nice home -- which he and his wife built themselves -- and a vision of the world lightyears ahead of those in the community in which he lived.
Brian Greenspan will have a field day with this case. Look for another malicious prosecution lawsuit.
…In Germany, the Nazis came for the Communists, and I didn't speak up because I wasn't a Communist.
…Then they came for the Jews, and I didn't speak up because I wasn't a Jew.
…Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist.
…Then they came for the Catholics, and I didn't speak up because I was a Protestant.
…Then they came for me, and by that time there was no one left to speak for me.
-- Pastor Martin Niemoller
TORONTO April 22, 2003 - On April 17 Don Smith's lawyer, Brian Greenspan presented the appeal court with reasons why Don Smith's sentence should be stayed as he awaits his appeal from conviction on obscenity charges. Today, Judge A. Feldman returned her decision: No.
No. Don Smith could not have a computer in his house, even though his wife is a pharmacist who uses the Internet to keep up to date in her profession and he has two school-aged children, one of whom is being home-schooled. She reiterated the judgment of Helen Pierce: that Smith's crime of obscenity was so egregious that his sentence was not out of line. The general theme of Pierce's judgment, with which Feldman concurred, was that Smith's website promoted violence toward women and that his sentence would discourage him and others from doing harm to women.
She went further, citing other cases where convicted persons were not allowed to have the Internet in their place of residence for the duration of their conditional sentences. One of the cases she cited was R. v. Cohen. Injusticebusters knows that Judge Feldman is mistaken in this case and she may also be mistaken in the others (R. v. Fox, 2002 and R. v. Shan, 2002).
We wonder how many other mistakes she made. She claimed that trial judge Pierce made none. This prosecution has become a persecution, reminiscent of the McCarthy era of the late forties and fifties when thousands of citizens had their lives ruined because of alleged communist associations. Many people who barely knew what communism was were swept into the hysteria. The same ignorance persists regarding pornographers.
Don Smith's website was a legitimate enterprise which harmed no one. Adults purchased memberships and gained access to the material. There were no models under 18. There were no victims. Two of the models testified at trial that they were well paid and did not feel exploited -- except by the police in Winnipeg who publicly released their names. Smith's trial was all about hearsay and hysteria in a community populated largely by fundamentalist Christians. Although he was convicted for having done great harm, not a single witness was produced to say s/he was harmed in any way. None of the subscribers to the website's services were brought forward, either.
Helen Pierce told the jury to regard the testimony of Smith's expert witnesses (in graphic arts and literature) as having opinions no more valuable than any other person while pointing to the Crown's expert, who testified that there is a direct connection between the viewing of pornography and the committing of sex crimes as credible. Smith's experts relied on academically vetted papers while the Crown's expert could offer little more than rumour to support his opinion.
• On November 27, 2002 Don Smith of Fort Frances, Ontario was found guilty on four counts of obscenity related to the website whose entrance page I had formerly reproduced here. (The site had two levels of warnings before one came to the Special Effects "snuff" videos.)
• On November 28 he was sentenced to three years of probation, a fine of $100,000, the surrender of copyright of the material on his website to the government of Ontario and a banishment from the Internet for three years. He is also forbidden to create any material which could possibly be used to construct of an Internet site.
• Previous fines for obscenity offences were one thousand dollars per count. Smith's fine is 25 times this.
• On December 5, I was contacted by Smith's lawyer who asked me to remove the material because the Ontario Crown was threatenening to pull Don's conditional sentence -- which would mean he would go to jail. I have complied. Coincidentally the feds also introduced legislation today which is supposed to protect children from pornographers. There are far fewer children threatened by pornographers than are threatened by poverty. The situation of hungry, neglected children in Canada is the real obscenity.
• Judge H. Pierce instructed the jury to give no more weight to the two experts Smith hired for his defence than they would to any other person. Dr. Barry Grant from Brock University testified that Smith's special effects' site was artistic and innovative; Dr. David Annandale from the University of Manitoba testified that stories contributed to the site and published by Smith did not violate the standards set for recognized literary material in the horror genre. Her instructions make a mockery of the practice of calling experts.
• Christine Bartlett-Hughes, the prosecutor, is a dangerous crusader and the judge went along with her advice to use the definition of child pornography as outlined in R v. Sharpe, adapting it slightly since this case did not involve children! There were never any children portrayed on the Perfectshotsvideo site.
• As a public service, injusticebusters had published the stories Smith is being punished for, but we have taken these down as well, since I was told Smith would have his probation revoked and be sent to prison if I continued to post them. We would note that now that the stories are sealed from public view, it will be much easier for fevered imaginations to speculate about what they might contain.
The graphics below are all owned by the government of Ontario as of Nov. 28. We already had them, though, and we can't imagine what the government of Ontario is going to do with them. They're big on destroying evidence in Ontario, though. The infamous Bernardo tapes, for instance. Don Smith created the images using special effects and properly paid professional models (two of whom testified at his trial). He was learning a craft and was becoming more accomplished. The Crown brought forth no evidence that any women were exploited in the creation of Don Smith's art.