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Kirk Makin's report in Globe and Mail was the only national coverage -- (notice he spoke only with the Crown) Scroll down

Don Smith obscenity trial

Smith weighing appeal of guilty verdict

Woodyatt resident Don Smith may file an appeal of his conviction and sentence last week with the Ontario Court of Appeals.

Don Smith

"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.

Don Smith (left) himself refused to comment on the verdict and sentence.

A jury found Don 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 (reduced to $2K by Appeals Court) - 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.

Howard Liebovich

The hefty fine was more in line with what Crown Attorney Howard Leibovich (left), 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.


Man fined for obscenity over 'snuff film' Web site

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.


Smith receives hefty sentence

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

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

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

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.