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Smith found guilty again
Friday, 30 May 2008 - 12:42pm
The guilty verdict came at the end of the nearly three-week trial, which began May 12.
Smith, who once resided in Woodyatt Township but now lives in Kenora, was found guilty on:
•two counts of making obscene matter (videotapes, and audio and visual representations made by electronic means and stored on a computer);
•one count of possessing obscene matter for the purposes of distribution (audio and visual representations made by electronic means and stored on a computer); and
•one count of distributing obscene matter via a website.
This was Smith’s second trial regarding the obscenity charges, which stem to an investigation by the Fort Frances OPP back in October, 2000.
In late 2002, a jury here found Smith guilty on 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 website.
The sentence included a precedent-setting $100,000 fine.
Smith also was ordered to revoke any interest in his website 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 website in the future.
But after the conviction in 2002, the defence appealed to the Ontario Court of Appeal, which was heard in the summer of 2005.
An order for a new trial on four of the five convictions was called, and Smith’s $100,000 fine was reduced to $2,000.
After that, both the Crown and the defence applied for leave to appeal to the Supreme Court of Canada.
That leave was denied in February, 2006 and, as a result, the order for the new trial on four counts remained.
This was followed by a series of pre-trial applications since May, 2007, with a number of applications by the defence to have charges stayed and evidence dismissed.
These applications were dismissed.
The trial then got underway May 12, with assistant Crown Attorney Kent Saliwonchyk as prosecutor, Kenora lawyer John Bilton representing Smith, and Justice Jack McCartney of Thunder Bay presiding.
During the course of the trial, Saliwonchyk called five witnesses, including:
•OPP Det. Sgt. Scott Gobeil, who presented evidence about the content being sold on Smith’s websites, as well as evidence about the videotapes and other materials seized from Smith’s residence during the investigation;
•retired Winnipeg Police Service Det. Sgt. Brad Doell, who presented evidence of what Winnipeg police found on Smith’s website in January, 2000;
•OPP computer crimes analyst Bob Gagnon, who presented evidence of his analysis of Smith’s computers;
•forensic psychiatrist Peter Collins, who touched on what individuals with psychosexual deviant tendencies would take from the Smith’s websites, and other certain videos and images; and
•Dr. Neil Malamuth, a UCLA psychology researcher who presented his research showing the effects of sexually-explicit or violent media has on individuals.
The Crown closed its case Monday. On Tuesday, the defence elected to call no witnesses.
A jury found former Rainy River District resident Donald Smith guilty on four counts related to making, possessing, and distributing obscene material yesterday at the Fort Frances Courthouse.
A date for Smith’s sentencing will be set on June 18.
Smith, who once resided in Woodyatt Township but now lives in Kenora, was found guilty on:
•two counts of making obscene matter (videotapes, and audio and visual representations made by electronic means and stored on a computer);
•one count of possessing obscene matter for the purposes of distribution (audio and visual representations made by electronic means and stored on a computer); and
•one count of distributing obscene matter via a website.
This was Smith’s second trial regarding the obscenity charges, which stem to an investigation by the Fort Frances OPP back in October, 2000.
In late 2002, a jury here found Smith guilty on 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 website.
The sentence included a precedent-setting $100,000 fine.
Smith also was ordered to revoke any interest in his website 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 website in the future.
But after the conviction in 2002, the defence appealed to the Ontario Court of Appeal, which was heard in the summer of 2005.
An order for a new trial on four of the five convictions was called, and Smith’s $100,000 fine was reduced to $2,000.
After that, both the Crown and the defence applied for leave to appeal to the Supreme Court of Canada.
That leave was denied in February, 2006 and, as a result, the order for the new trial on four counts remained.
This was followed by a series of pre-trial applications since May, 2007, with a number of applications by the defence to have charges stayed and evidence dismissed.
These applications were dismissed.
The trial then got underway May 12, with assistant Crown Attorney Kent Saliwonchyk as prosecutor, Kenora lawyer John Bilton representing Smith, and Justice Jack McCartney of Thunder Bay presiding.
During the course of the trial, Saliwonchyk called five witnesses, including:
•OPP Det. Sgt. Scott Gobeil, who presented evidence about the content being sold on Smith’s websites, as well as evidence about the videotapes and other materials seized from Smith’s residence during the investigation;
•retired Winnipeg Police Service Det. Sgt. Brad Doell, who presented evidence of what Winnipeg police found on Smith’s website in January, 2000;
•OPP computer crimes analyst Bob Gagnon, who presented evidence of his analysis of Smith’s computers;
•forensic psychiatrist Peter Collins, who touched on what individuals with psychosexual deviant tendencies would take from the Smith’s websites, and other certain videos and images; and
•Dr. Neil Malamuth, a UCLA psychology researcher who presented his research showing the effects of sexually-explicit or violent media has on individuals.
The Crown closed its case Monday. On Tuesday, the defence elected to call no witnesses.
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Job Well Done
I was a member of the Jury that found Mr. Smith guilty the first time this case was brought to trial, and was very upset with the legal system when he had guilty charges over turned. This was and is a very sick thing that they were doing. I am glad he has been agian found guilty. It was said that the first jury was a bible thumping, mostly female jury, that they also agreed to by the way. I can't wait to here what Mr. Smith comes up with for this jury. To think this man is married with children. Congratulations to the Jury on a job well done.
Sick?
Just so you are for-warned, the Criminal Code of Canada prohibits a juror from discussing or disclosing the nature or the content of the jury deliberations not revealed in open court, even after the jury has been discharged. I'm not saying you violated this, but you might be getting close.
The Jurors Act allows people to be excused on religious grounds. If your religious beliefs are violated by your viewing certain types of adult materials, then you will be excused upon stating your concerns to the judge. Since the case was so well known in the community I doubt anyone could claim they did not know they would be viewing materials containing nudity and violence made for an adult audience. It's not too far fetched to assume that any religious persons on the Jury were there for one purpose alone. That purpose was to convict.
In a case such as the Smith trial which involves an alleged breach of Canada's moral law, any religious beliefs about morality inherently creates bias and partiality which leads to an unfair decision. The same could be said about the officers and prosecutors. If they have strong religious beliefs(which I believe they do)it causes all sorts of biases and prejudices concerning any kind of films with a rating above "G".
Add to the equation the real threat of criticism jurors might feel they will have to face from persons or special interest groups. This kind of pressure should not be under estimated. It does effect people's decision making.
As an adult I want to choose what I will watch and what I will not watch. I do not need the government doing it for me. Taking away that right infringes on every one's freedom.
It appears Mr. Smith did nothing more than what he saw hundreds of other film producers do over the past 40 years. He imitated scenes that have been repeated thousands of times in movies. The only difference was his unique special effects and the obvious low budget quality.
I wonder what Mr. Smith could produce with a 100 million dollar budget? Or how your town folk would receive him if he had spent millions of dollars in the community making similar films?
One commenter mentioned Quentin Tarantino. I find his films much more violent, sick, disturbing, disgusting, and even perverted in some cases. But I will still fight for his right, Mr. Smith's right, and even your right to freedom of expression, which also includes your right to voice your opinion.
However, if your opinion advocates denying someone else their right to freedom of expression, then I take exception, because the freedoms we all enjoy(except for Mr. Smith) have come at the cost of many lives. I say, "except for Mr. Smith" because he is the only one in Canada that is being prosecuted for the type of content and representation in his films, and that is discrimination.
If you don't like someone Else's expressive works, then you don't have to view them. Mr. Smith did not put his materials in any one's face or cause anyone to stumble upon them unexpectedly. It was his persecutors and the government that did that.
Finally, Mr. Smith did not violate the obscenity law as it is written. The convictions are the result of people deciding to move the line and change the law. That by the way is improper and unjust.
It would have been more appropriate to change the law through Parliament first, rather than crush a man and his family in such a heartless manner.
With respect, Mr. Smith's movies are fake. You find them sick and that's your opinion. You are entitled to have that opinion. But what has been done to Mr. Smith and his family is not fake, and I find that to constitute the greater sickness.
Check Your Facts
This former juror did not reveal anything that wasn't revealed in open court. Your e-mail seems to be be bordering on threatening this former juror...I'm not saying you are in violation of this...but you might be getting close.
Secondly, the former juror was not saying they had any sort of religious affiliation, but stated that the films were sick, something that many people believe, religious or not. You are obtuse to suggest that only religious people, be it jurors, officers, prosecutors and/or "town folk" find this material disgusting and wrong.
Sorry
It was a friendly reminder, not bordering on a threat as you suggest. Try not to be so easily offended and please don't try to engage in mind reading. You cannot read minds regardless of what you might have been told or what you think. Clairvoyance has no place in a discussion that involves the law and how people have sought to vent their hatred on Mr. Smith and his family over some films made with adult actors.
It's captious of you to say I am obtuse. I did not suggest that only religious people, be it jurors, officers, prosecutors and/or "town folk" find this material disgusting and wrong.
Once again, you have read far too much into what I stated.
It's one thing to be disgusted at some one's creative works, but to vent hatred on the creator of that work is obtuse.
Smith railroaded again.
I am a retired and disabled law enforcement officer living in the USA. I am aware that several years ago the Fort Frances OPP consulted the Federal Bureau of Investigation(FBI), the Kansas Bureau of Investigation(KBI), and the US Immigration (ICE) about Mr. Smith's website, due to the fact that it was located on computers in Kansas. All three agencies concluded that Don had not violated any US laws. What does that tell you?
The Court of Appeal ruled the first trial judge gave Don an unlawful sentence. They also ruled the trial judge misdirected the jury about the meaning of explicit sex. The improper jury instruction was not an accident or a simple mistake. It was done in the face of objections by Don's defence lawyer who cited the law to the judge. But the judge ignored those objections and the law. Was the judge punished for her unlawful acts committed against Don?
Don, guilty again? For what? There is no explicit sex in Don's materials. Without explicit sex there can be no obscenity.
Even a simple minded person can understand that.
If I was Don Smith I would be feeling like Nicolas Cage in the movie The Wicker Man.
Yes, I think you people are that cruel to outsiders and you should be ashamed for sitting back and letting this injustice take place for a second time.
Quentin Tarantino better not show up in Fort Frances. You people are liable to burn him at the stake.
Anonymous
Umm, just so you know, the
Umm, just so you know, the trial wasn't in Kansas, so nobody really cares whether it is considered obscene in Kansas, or the USA.
Sad, Sad, Sad...
It is indeed sad that this farce has played out again in Fort Frances, and the whole thing smacks of a witch hunt.
As others have stated, there are far worse celluloid renderings than what Don Smith has gone up on trial for.
Why wasn't the material viewed in light of contemporary standards on the retrial? Answer: if it was, it would have been seen that the Smith material is not nearly as bad as stuff that is out there now. View any of the "Saw" or the "Hostel" movies, and you will see what I mean. Funny enough, those movies are available in video stores, and on the movie channel for anyone to see or rent, and without any real restriction. They are a lot more realistic and repulsive than anything that Don Smith ever did. And far worse is available a few mouse clicks away on the internet.
Whether or not it's your cup of tea is a moot point. No one forces you to watch; you can forego the experience if you want. The important thing is that you make your own choice. But to be able to do so, there has to be a choice to make.
Congratulations, Fort Frances, your hypocrisy is on display once again. I'd like to think that the verdict had more to do with preserving community standards (as dated as they may be), but I can't help but think that it was just a case where someone's nose got out of joint because Mr. Smith was making money from his offerings, and they just couldn't bear this fact. It seems to me that so much head in the sand activity has resulted in a lot of red necks as can be seen with this rather unfortunate incident.
The real crime
I wish I was picked for the jury. If I were on that jury, to be fair, my personal repugnance for the video's subject matter would have to be tempered with the fact that not everyone is as much of a prude as I am.
I wouldn't let my feelings about the guy's films result in acts of hatred toward him. I can hate what his films represent but using him as a whipping boy and blaming him for all the real violence is stupid. The only real violence I see is his being driven from the community along with his wife and children and all the other damages forced upon him.
I can see all the "scape goat" defences flooding the courts when defence lawyers start quoting the Smith case because it supports "the movies made him do it" defence.
Then watch the Crown attorney's bring in experts to say that movies don't make anyone do anything(hypocrites).
What a crock this case is. Someone should do a serious investigation into the several million dollars it has cost the legal system to go after Mr. Smith. That's where the real crime is. Meanwhile our citizens' homes, cottages, businesses, cars, boats, etc. are being broken into and ransacked for drug money and the police are out surfing the web for some guy's films.
You are dead on. Why is all
You are dead on. Why is all this money being spent to go after Mr. Smith? Is it because we don't like him or what he did? Those are not valid reasons. Too bad Smith couldn't have been tried in Toronto (or better still not at all). He might have received justice in Toronto. Could the law continue this witch hunt against him while turning a blind eye to programs such as Kink that are on our TV's for anyone to see? (They aren't even Pay per View). A child or young babysitter could accidentally find themselves viewing this smut. At least with Smith's you had to be an adult with a credit card and pay money to view the video. (I hope you weren't that stupid). What we don't like we condemn. It's human nature and a good safeguard but the courts must be fair and not let some do it while others are vilified. It was not okay what they did to Mr. Smith. That was not justice. You hypocrites renting the porno movies in your hotel rooms and cruising the "adult" aisles of the video stores might be singled out next. Leave the guy alone , it's not likely he will ever make another video. Not in a country that only lets "the chosen" and wealthy have rights.
hold on to your assumptions
Its not just the female 'bible thumpers' that disagree with this kind of garbage. I am a 26 yr old unmarried male with no religious affiliation and I think this junk is a disgrace to human beings. Who would be so sick as to like this stuff anyway?
Who, What?
Did you see it? If you did it's because you had the freedom of choice. Why shouldn't others be able to choose as you did? Are you special?
Who watches? Just go to the local video rental store and observe all the nice people renting R rated and Adult videos. Also note that the operators are not being charged, nor are the people that rent the movies. None of them are being dragged through the courts and run out of their communities.
The points being made are it's unfair, it's a witch hunt, it's a waste of tax payer resources, it's cruel, it's discrimination, etc.
Don't let your gut reaction crush your sense of fair play. If we as citizens are going to justify charging people for doing things we don't like, then we will all get locked up.
The Intolerance demonstrated in the Smith case gives a black eye to Fort Frances. That's history now. It's done.
You think it's OK what they did to Smith. I suppose your cure consists of death camps for all the people that YOU think are sick.
Anyone reading the first
Anyone reading the first reply to the former juror would take it as threatening. I am not clairvoyant and I don't believe the person replying to that post was, but the way it was worded I would have to concur that he was borderline threatening. If all the jurors were bible thumping women then maybe Don's lawyers should have done a better job in the jury selection process. This was not a hung jury and all 12 of them must have agreed so although I have not seen the videos and I choose not to, I must have faith in the judicial system. If 12 of my peers chosen randomly from across the Rainy River District think he was guilty then there must have been enough evidence given to convince them of that fact.
I don't agree with you.
I was in law enforcement for 17 years. I was disabled performing my duties on the job. I still ride with the County Sheriff once in a while. As a former L.E.O. I know what a real threat is. The comment you refer to is not even close to threatening. I take the explanation in the reply at face value and have no reason to doubt the person's integrity. I don't read any hostility in the reply.
Did you read the court of appeal decision? The jury in the first trial was misdirected. That means the convictions were ill got. After reading the decision you may change your mind about having faith in the system.
What happened this time remains to be heard but I know for a fact that those materials are not illegal in the USA, and they do not show any sex acts so they are not illegal in Canada. At the moment Don and his lawyer are not talking. Let's not rush to judgement. The matter may not be over. Let's wait and see.
A matter of opinion
One doesn't have to be a police officer to know what a 'real' threat is. Besides, perhaps that reply WAS from someone in law enforcement.
As an ex-law enforcement officer, your standards should be higher, after all we trust in the police to safeguard our communties.
Is the fact that its LEGAL in the US supposed to convince us that its alright? THAT fact alone is even more reason why we should try to curtail this behaviour. Let me remind you, Canada and the US are two separate countries, and we have different laws. You all may be ok with perverts taking over the media but...umm... maybe we have higher standards.
Where will it stop?
I don't agree with this type of 'entertainment' no matter what the format.
So there should be no restrictions whatsoever on "freedom of expression"? Thats absurd.
What about the rights of all those people who don't want to be subjected to those types of "entertainment"? Its everywhere. Shopping centres, grocery stores, television, film, magazines, even on the radio. There is so much disgusting stuff that is accepted as 'entertainment'.
And don't be so naive as to believe that an 'Over 18 Only' warning does anything to prevent minors from viewing.
Some people try to 'fight the system' no matter what the fight is about. Whether they themselves really believe in the cause or not.
Not enough people realize that society is on a downward spiral and its the acceptance of behaviours such as this that aid in the downfall.
I trust that the jurors have/had sufficient evidence to warrent their decision. Good job.
Its everywhere!
1. You said," I don't agree with this type of 'entertainment' no matter what the format"
RESPONSE: You have the right to view it or not. That's what freedom and rights are all about. But to justify the ill treatment of fellow citizens simply because they make something that you find offensive is anti-democratic. Your disagreement is not proper justification for ruining someones life.
2. You asked, "So there should be no restrictions whatsoever on "freedom of expression"? "Thats absurd."
RESPONSE: No one suggested that. The law does put restrictions on freedom of expression. But the law is not a license to punish people over creative works simply because they offend a person or group. This concern does not justify the improper use of the law and the subsequent ill treatment of Mr. Smith and his family.
3. You acknowledge that, "Its everywhere. Shopping centres, grocery stores, television, film, magazines, even on the radio.
RESONSE: I agree with you that it's everywhere, but that doesn't apply to Smith's materials. They were available in a members only password protected website with the exception of a few previews that would get a 14A rating. This concern presents no justification for the treatment Mr. Smith is receiving, in fact it demonstrates the injustice of the whole situation.
4. You Said, "There is so much disgusting stuff that is accepted as 'entertainment'."
RESPONSE: I agree with you that there is so much disgusting stuff that is accepted as entertainment. Being that it's accepted in the mainstream is why Fort Frances should not have wrongly convicted Mr. Smith a second time. This concern does not justify the ill treatment of Mr. Smith and his family.
5. You said, "And don't be so naive as to believe that an 'Over 18 Only' warning does anything to prevent minors from viewing"
RESPONSE: The requirement of a credit card prevented underage people from accessing. Your concern does not justify the treatment issued to Mr. Smith and his family.
6. You said, "Not enough people realize that society is on a downward spiral and its the acceptance of behaviours such as this that aid in the downfall"
RESONSE: It sounds to me like a few fanatics existing in a "backward-time-warped" community have taken it upon themselves to use the law improperly to show Mr. Smith and the rest of Canada that they are intolerant hypocrites.
What troubles me is that you, and other people who hold to your beliefs and opinions, justify the improper use of the law to single out one person for punishment.
David Cronenberg's 1996 movie 'Crash' contains nudity, sex and violence.
What did Canada do to him?
In 2002, he was made an Officer of the Order of Canada, and in 2006 he was awarded a place in Canada's Walk of Fame.
But Fort Frances ran Don Smith and his family from their community. And people like you are proud of it. That should change things in Canada. NOT!