I make it very clear that injusticebusters coverage of this case is in the public interest and that Don Smith, who, along with his family, have been badly abused by the system and, having seen what that system can do to an innocent family are complying with all court orders and, through their lawyer, have requested that I remove any material which might jeopardize them further.
There have been many misunderstandings about this case which the public should know. It was started by a vicious rumour mill within the church which Don Smith attended. There was never any child pornography -- or anything which could have been construed to be child pornography on the website. Yet the community of Fort Frances, and the members of the jury, were led to believe that there was such material.
The judge's sentencing fiat stated she was imposing a harsh sentence to protect women from "further exploitation." No women were exploited on the site. Hysteria about child pornography and the confusion among pornography, violence, nudity, internet stalking and all seamy, scary things that go bump in the night has been further confused by the newest legislation from the federal government. How did this all start, anyway?
On April 12, 2000, Det.Cst.B entered DrDon's property to conduct a perimeter search without a warrant. He ignored two "No Trespassing" signs that were posted in plain view by DrDon.
On September 29, 2000, Sr. Cst. W told FACS that he had "consulted the ponography special crimes unit" (of the OPP), and that "there is no grounds for criminal charges".
On September 30,2000, ("Sr.Cst. G") became involved. He spoke with a fundamentalist pastor ("pastor B") who knew DrDon and his wife. The pastor provided false allegations to Sr.Cst. G and to Sr.Cst. W regarding DrDon. Seven days prior, on September 23, pastor B spoke with DrDon and his wife at which time he said the following:
(i) he knew that the police had visited DrDon's home;
(ii) he knew about the website;
(iii) he said the website involved pornography (in his opinion);
(iv) he knew the police were trying to have Children's Aid involved;
(v) and he knew the police were trying to have the children removed from their home.
Pastor B knew lots of things that could only have come from a police source. Sr. Cst.G and at least one other police officer attend another church that is run by ("pastor C"). Pastor B and Pastor C are very good friends. Coincidence or not, Pastor B was provided with information that can only be attributed to originating from a police source. Sr.Cst.G and Sr.Cst.W reported the false allegations made by pastor B as having been made by DrDon's wife!!
DrDon's wife says she never made any such allegations, and her signed statement bears out this fact. On the other hand, pastor B signed a statement that provides evidence that he made the allegations, not DrDon's wife.
The religious beliefs and religious morality of Sr.Cst.G, pastor B, and pastor C are in opposition to what DrDon presents on the internet and this leads to strong motive for them to try and shut DrDon down at all costs.
On October 13, 2000, despite being told by their superiors that the website is not illegal, and despite being told by the FBI that DrDon's materials and website are not illegal, Sr. Cst. W and Sr. Cst. G arrested DrDon based on:
(i) the false allegations provided by pastor B;
(ii) false police reports in which allegations were attributed to coming from DrDon's wife when in fact they did not, (iii) hear say. DrDon offered to shut down his website, but the cops would not let him near his computers. The cops took all of DrDon's equipment from his home and left him with nothing to work with.
Would something like this happen to Tom Savini, Stephen King, or how about David Cronenberg… or the Broccolis of James Bond films?
The following week DrDon spoke with a lawyer who advised him not to shut anything down (meaning his websites). Several lawyers that DrDon consulted over the following months told him that the charges are "bogus" and his materials are not obscene according to case law. This confirmed DrDon's previous legal opinions. No lawyer has ever suggested to DrDon that he should shut down his websites.
On or about November 1, 2000, DrDon came back on line with a new laptop computer. He immediately began quoting case law from his past research (R v Butler). The case law says that "explicit sex" and violence will almost always constitute an offence. It does NOT say nudity and violence is an offence. The Supreme Court of Canada seemed to agree with DrDon when they gave the R v Sharpe decision on January 26, 2001. In that decision they defined "explicit sex" as "sex acts at the extreme end of sexual activity," which includes, "sexual intercourse and NON trivial sex acts". In fact, the word "sex" appears by itself, or with modifiers, about 34 times in the first few paragraphs of the R v Butler case law decision which leaves no doubt that DrDon respected a legal line that he did not cross in his productions.
DrDon's business partner sent him a copy of the R v Sharpe decision minutes after it was released. DrDon read it and telephoned Sr. Cst. G. DrDon told Sr. Cst G that this decision ended the matter rather decisively. Sr.Cst. G told DrDon that he would be speaking with the Crown Attorney about the decision. DrDon also told Sr.Cst. G that he was going to sue pastor B who had provided the false allegations which led to the charges.
On February 3, 2001, Sr.Cst.G met with pastor B and helped him amend his statement in an effort to protect him from DrDon's proposed lawsuit for breach of confidentiality. DrDon believes this was a blatant act by Sr.Cst.G to help his friend thwart DrDon's proposed civil action. The amended statement contained several questions presented to pastor B by Sr.Cst.G. The questions and answers had nothing to do with the criminal investigation. The questions and answers were specific to DrDon's proposed civil action.
On February 15, 2001, instead of conceding and withdrawing the charges, more charges were laid. This time they charged DrDon's wife. Shortly after the new charges were laid the Crown offered to withdraw all charges against DrDon's wife and brother if DrDon would provide a guilty plea. DrDon was offered a conditional discharge and no criminal record. The so called "deal" required DrDon to take down his website and put up a "Victory page for Ontario", including an "apology", that would have to be on the web in the place of DrDon's website for one full year.
DrDon discussed the deal that the Crown was offering him with his wife and brother. He would have sacrificed himself for them if they wanted him to, but they would not allow him to violate his own conscience. DrDon believes he is innocent. A guilty plea would violate that belief. The answer they got from DrDon and his family was a $10,000,000.00 law suit. A few months later DrDon discontinued the lawsuit until after the trial and the determination of the charges. However, DrDon continued to sue pastor B.
The new charges included counts for the distribution of three stories which were posted by members. Case law once again is on DrDon's side. Case law says that "The offence of distribution of obscene material requires more than offering obscene material by one or more individual transactions. The case law holds that a retailer is not required to know the contents of every video, book or magazine in its store and is therefore not generally involved in distribution". The Supreme Court of Canada decision known as R v Butler states that, "In determining whether they are obscene, the impugned materials must therefore be presumed available to the Canadian public at large....".
Those stories were NEVER made available to the general Canadian public. They were only available to consenting adults who read DrDon's disclaimer and then purchased a membership with their credit card. Once again, DrDon knows his stuff and his persecutors come out looking stupid. The Supreme Court of Canada has also said that, " if their is any doubt as to whether or not the materials have artistic merit the decision must fall on the side of freedom of expression". The R v. Sharpe decision of March 26,2002, delivered by The Honorable Justice D. W. Shaw of the Supreme Court of British Columbia states that stories such as this are not illegal. The stories must "advocate and counsel" the reader to do the activity described or depicted before there is a violation of the criminal code. The Supreme Court of Canada expanded the definition of artistic merit on January 26, 2001. Judge Shaw acquitted Robin Sharpe for the charges related to his written materials. But the cops and the Crown prosecutor will not concede to their errors and withdraw the charges. They are holding DrDon accountable to a higher standard than that which the Supreme Court of Canada and the Supreme Court of British Columbia have already set for child pornography.....yet DrDon's materials were made with consenting adults!!
On February 15, 2001, DrDon asked his lawyer to review the stories that he was charged for distributing. When DrDon received that legal opinion, the stories were removed, but only as a precautionary measure, because his lawyer was not sure about them. This was done approximately 9 days after the new charges were laid.
On February 21, 2001, DrDon had his new computer taken away from him during the second raid on his home which was conducted by the Proceeds of Crime Unit of the Ontario Provincial Police. The officer's notes disclosed to DrDon state that the Proceeds of Crime Unit Manager told the local cops in Fort Frances that DrDon's website "does not fall within the definition of a criminal enterprise". Sr.Cst. W and to Sr. Cst. G were told this in November 2000, but the Proceeds of Crime Unit boys came three months later to exercise warrants at DrDon's home, bank, and his wife's car.
DrDon's lap top had solicitor client privileged email communications on it. Section 488.1(8) of the criminal code says,"No officer shall examine, make copies of, or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2)". Authorities cannot copy or view any solicitor client privileged communications without first affording reasonable notice for an application to be made for their exemption from evidence. The police violated this law by copying and viewing DrDon's emails. They even sent copies to DrDon for disclosure. This action also violated DrDon's right to remain silent.
The cops carried on an intense investigation until September 2001. They tried to have DrDon's children removed from the home. They even visited DrDon's X-wife which he has had nothing to do with in 20 years. She provided the police with false allegations which led them on another "wild goose" investigation. When they finally realized their investigation was going nowhere, Sr.Cst. W and Sr.Cst. G sued DrDon, his wife, and his brother over some commentary, a cartoon, and a newspaper clipping that were posted on the website. They claimed these articles were defamatory and they are seeking $3 million dollars each in damages despite the fact that the articles posted were true, the commentary was posted in self defence, the cartoon does not mention their names, the newspaper article was already a front page issue presented to the public, and they have no damages! In fact, instead of demoting the two cops for their negligence, these two cops were promoted!
DrDon believes that the cops filed their lawsuit in order to drain his financial resources so that he would be less able to afford an expensive jury trial. DrDon thinks that a jury would be best suited to decide whether or not his materials have artistic merit or whether they meet the meaning of obscenity in the Criminal Code of Canada.
The cops filed their action 1200 miles away in Toronto. DrDon believes they did this to add further pressure on him and to place a greater drain on his financial resources which they knew would effect his ability to defend his case at a jury trial. DrDon believes that all these actions demonstrate that these cops have had an "oblique motive" for pursuing DrDon from the begining.
DrDon believes that all the delays are the fault of the Crown and that his right to "be tried in a reasonable period of time" has been violated. DrDon's lawyer attempted to narrow the issues in March and April 2001, but the Crown was unwilling to cooperate. In early November, 2001, an agreement was finally reached. The Crown had the oppotunity to make the same agreement with DrDon and his lawyers back in March of 2001 but they stalled and would not make an agreement to narrow the issues at that time. The preliminary hearing could have taken place in April, 2001, instead of March, 2002. The unreasonable delays are the result of the Crown prosecutor who refused to remove DrDon's private (constitutionally protected) materials from evidence.
A very low, heavy handed, and injurious act by the Crown was to list DrDon's private home videos and photos as items in evidence (complete with graphic commentary and descriptions). For more than a year the Crown made it clear that they intended to use these private videos as evidence against DrDon and his wife despite their being told by a lawyer that this would be unconstitutional. In March or April 2001, the Crown consented to having these private materials sent to the USA for review by a social scientist. This was an invasion of privacy and violated DrDon's and his wife's civil rights. Private photographs and videos were included in disclosures which were sent to lawyers, police officers, DrDon's brother, and DrDon's wife. These were cruel acts which were meant to hurt DrDon and his wife and it demontrates "ill will" on the part of the Crown prosecutor. DrDon and his wife were deliberately forced to suffer through a whole year with their private materials in evidence and fearing the Crown would use them in a public courtroom. This was cruel and unusual punishment for DrDon and his entire family to have to go through. The Crown finally withdrew these personal materials from evidence for the purpose of the preliminary hearing In November, 2001.
From March 4 to 8, 2002, a preliminary hearing was held. The lower court judge "rubber stamped" the case for the Crown and a pre trial conference is now scheduled for Superior Court in early July.
It seems that the literal and common sense interpretation of case law (and the English Language) as stated in R v Sharpe and R v Butler was completely ignored by the court. Apparently there is a very low threshold that the Crown must pass when presenting evidence in a Provincial Court preliminary hearing. Anyone can see that there is no evidence for obscenity charges in DrDon's materials.
The time that has passed causes prejudice to DrDon's case. The case is old. Witnesses such as models have moved on with their lives, memories fade, gossip spreads, and DrDon's financial resources get rapidly eaten up, especially with the cops filing a civil action. All this is prejudicial to DrDon's ability to make full answer and defence, and it is a denial of his civil rights.
This case is loaded with evidence of personal biases, prejudice, discrimination, improper conduct, improper motivations, disregard for individual civil rights and freedoms, negligence in performance of investigations, and much more disgusting and reprehensible activities on the part of DrDon's persecutors.
DrDon believes that he exercised due diligence prior to producing and posting on the net. The police even told him it was not illegal.
This is an historical archive of injusticebusters.com
The opinions expressed in this article are those of the late Sheila Steele.