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1. On March 15, 2000,
Wayne Harrison ('Harrison") contacted Det.Cst. Paul Blais ("Blais")
of the Emo OPP Detachment. Blais states in his notes, referring to
Mr.Smith's films, that the scenes are "mock" containing "nudity and violence"
and that "no sexual acts are depicted".
3. On April 6, 2000, Harrison sought a legal opinion from the Toronto Crown Law Office in Ontario regarding Mr.Smith's films and the criteria for obscene material. [volume 1 page 14] 4. On April 12, 2000,
Blais entered the Smith's property, without a warrant, to conduct a perimeter
search of the Smith's residence.
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
making obscene material. Harrison told Young that the Toronto Law
Office had provided him with the opinion that the materials were obscene.
Despite Harrison's comments, Young made no commitment to prosecute Mr.Smith.
6. On April 25, 2000,
Young, Blais, and other OPP officers viewed the contents of the CD, that
Harrison made from films shown on Mr.Smith's website, at the Fort Frances
OPP Detachment. Young sent the CD to Toronto for a legal opinion.
No charges were filed against Mr.Smith at this time. Blais stated
that between April 25, 2000 and October 2, 2000, there was no investigation
conducted by the OPP.
7. On September
5, 2000, Sgt. Loshaw ("Loshaw") of the Fort Frances
OPP viewed the website www.perfectshotsvideo.com.
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 allegations
concerning Mr.Smith made by his neighbors. 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. No criminal activity
was identified as having taken place.
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.
11. On September 18,2000,
Tina Selman, told Williams that she had seen Mr. Smith's
website and she expressed a concern over it's legality. Williams
consulted Loshaw who informed him that: the website had been
viewed; there was nothing criminal on the website; and FACS where
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.
12. By September 18, 2000, Young, Blais, Loshaw, Dennis and Williams knew that no criminal activity was found to be taking place on the part of Mr.Smith with respect to his films and website business, and they conveyed this opinion to several FACS staff members, Mr.Smith, his neighbors and concerned callers. JAFA'S NOTE: The links to disclosure on this page including the transcripts from the preliminary hearing, transcripts from various defence applications, and the transcripts from two trials bear out the facts as presented so far. It is clear that the OPP were looking for something, and to this point every officer acknowledged they had NOTHING! The Family and Children Service staff also had nothing. 13. On September 19, 2000, at 08:25 hrs. Williams met with Loshaw to discuss 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 welfare concerns. At 1011 hrs. Williams told Mr.Smith that the websites had been viewed by his superiors and that they had already determined that there was nothing criminal on the sites. Williams told Mr.Smith that the reason for their attendance was due to a few concerns expressed by neighbors who said that Mr.Smith let a neighborhood youth help him edit his website. Mr.Smith denied the allegation and advised Williams of a 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. Williams told Mr.Smith several times during the interview that the website was not a concern to police because it had been viewed by his superiors and they had found nothing illegal or criminal on it. Mr. Smith also told Williams that:
(i) he thoroughly researched the obscenity law on the internet prior
to producing
(ii) he was not doing anything illegal because nudity and violence
can be seen on
(iii) the host of the website (Internet Solutions) approved the content
for the web
(iv) if it was illegal that he wanted to know because he did not
want to be involved
(v) all of the actors were consenting adults.
(vi) no sexual acts were depicted in any of his materials.
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 he had received during the interview with Mr.
Smith.
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 the neighbor's son about making threats
against Mr. Smith. The youth admitted to having threatened Mr.Smith,
then he provide Williams with false and malicious statements concerning
Mr.Smith.
17. On September 29, 2000,
0830 hrs. Williams contacted Michelle George of FACS to inform her of the
information given by the youth regarding Mr.Smith. Williams told
Michelle George that he "consulted the pornography special
crimes unit and there is not enough evidence for a criminal charge".
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
did this despite his being informed by Loshaw and Dennis that no criminal
activity was found to have taken place.
19. On September 30, 2000, pastor Shane Belding and Sr. Cst. Gobeil("Gobeil") became involved. Pastor Belding is a friend of Cst.Gobeil's pastor. Don and Lorna Smith attended the church where Gobeil attends but when they left the church they were shunned by the pastor and some church members, including Gobeil. 20. On September 30, 2000, 1335 hrs. Gobeil and Williams met with pastor Shane Belding("Belding") and Mrs. Smith. No statements were taken from Belding or Mrs. Smith. 21. On September 30, 2000, Williams' made up false allegations concerning Mr. Smith and said that Mrs. Smith had given them to him, when in fact she had not. The allegations Williams claimed that Mrs.Smith made against Mr.Smith are as follows:
(i) Mr.Smith hired prostitutes
22. On September 30,2000, Gobeil made up false allegations concerning Mr. Smith and said that Mrs.Smith had given them to him, when in fact she had not. The allegations Gobeil claimed that Mrs. Smith made against Mr.Smith are as follows:
(i) Kids seen what is on website
23. Gobeil and Williams made up six other allegations concerning Mr. Smith and both said that Mrs.Smith had provided them, when in fact, she had not made them. The allegations that Gobeil and Williams said were made by Mrs. Smith against Mr.Smith are as follows:
(i) she was fearful for her safety,
24. Mrs.Smith denies making any such allegations or statements. The statement that Mrs. Smith signed a few days later contains no such allegations. 25. Gobeil and Williams reported these false allegations to FACS, and to their superiors, to create concern 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 provided Collins with the false allegations and told him that Mrs.Smith had made them, when in fact she had not made any such allegations. 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. Furthermore, Collins was not qualified as a legal expert on matters of obscenity. [officer notes page 309-313] 27. On September 30,2000, Gobeil contacted Rob Nichol and informed him of the same allegations that 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". Williams and Gobeil prompted Collins, Nichols, and other high ranking OPP Officers to contact the Crown Law Office in Toronto to cause concern and to get approval for criminal actions against Mr.Smith. [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. 29. On October 3, 2000 the Smith's children, Shelby and Reed, were interviewed by FACS. Nothing of a criminal nature was disclosed by Mr.Smith's children.[FACS case records] 30. Gobeil and Williams repeatedly contacted FACS until the fall of 2001, and they provided FACS 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 that "based on the information provided to them they were unable to intervene in the Smith's family". 31 Despite having no evidence of any crimes being committed and despite being told by their superiors that the films and websites were not illegal, on October 12, 2000, Gobeil and Williams acted without probable cause by acquiring Arrest Warrants and Warrants to Search from a Justice of the Peace in Fort Frances on the basis of :
(i) false rumors and unverified allegations made by a 14 yr
old boy.
JAFA'S NOTE:None of the reasons listed provide a legal basis to form an opinion that criminal activity was taking place. Furthermore, the Justice of the Peace was not provided with a written legal opinion from a Crown attorney concerning any of Mr.Smith's materials being obscene. There is no recording of the meeting with the police officers and no record of her consulting the local Crown Attorney (Robert Young) prior to her decision to grant the warrants. 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
(ii) they laid false charges against Mr.Smith in front of his
children, and required
(iii) Mr.Smith was confined to a chair in his home for approximately
45 minutes
(iv) they fingerprinted and photographed Mr.Smith and later
on December 18, 2000,
(v) they removed large amounts of equipment, computers, camera's,
and movie
(vi) they took the Smith children's computer which had been
used for their home
(vii) they removed private personal videos and photos from 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, that this would cause serious damage to the Smith's reputations in their communities. Gobeil did this despite the fact that he knew that his superiors had deemed Mr.Smith's business as legal, and the F. B.I. in the United States had said that the website 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 disclosures to lawyers and the Crown, 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 by defence counsel 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".
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 of September 30, 2000. 37. On February 03, 2001, Gobeil met with Belding to help him amend his September 30th statement. Gobeil asked Belding to clarify issues unrelated to the investigation in an attempt to obstruct the Smith's proposed civil action against Belding. 38. 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. 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. In March of 2001, the Smith's filed a law suit against the OPP. 41. On September 18,2001 a pre trial conference was held in Fort Frances. Mr.Smith told Judge Clark that he had not violated the law. There was no resolution and preliminary hearing dates were set for March of 2002 42. Shortly after the pre trial conference, Gobeil and Williams filed a law suit against the Smith's. Gobeil and Williams maximized the impact of the their action by filing it in Toronto. Gobeil and Williams knew that Mr. Smith was capable of defending their action if they filed it in Fort Frances. They also knew that filing their action in Toronto would have a substantial impact on the Smith's ability to defend themselves against the criminal charges at trial. 43. On October 31, 2001, only weeks after the September 18, 2001 pre trial conference it was officially announced that Helen M. Pierce of Sault Ste. Marie was appointed a Judge of the Superior Court of Justice of Ontario in Thunder Bay. She would have received notice of the appointment prior to the official announcement. Madam Justice Pierce received a Bachelor of Social Work from the University of Western Ontario in 1975 and a Bachelor of Laws from Queen's University in 1980. She was admitted to the Bar of Ontario in 1982 and practiced family law including handling child protection matters for the Children's Aid Society and Nog-da-win-da-min, a native family services agency in Sault Ste. Marie. So, Ms.Pierce was a family law lawyer with a background in social work. She had no criminal law experience. A few months after her appointment to the bench she was assigned as the presiding judge for Mr.Smith's trial. She could not have been more "taylor made" as a judge that would side with the Crown. After years of dealing with cases of abused women and children she would likely have developed biasis and prejudices. The manner in which she instructed the jury and her draconian, harsh and unlawful sentencing of Don Smith are demonstrative of those biasis and prejudices developed through her social work experience and family law practice. The appointment goes beyond judge shopping and it is highly suspicious in light of: (i) the timing of her appointment only weeks after Don Smith's pre trial conference;
45. A trial was held in between October 22 and November 28 2002 in which convictions were entered on 5 counts and an extremely draconian sentence was imposed. (acquittals were entered on two counts for making private materials that were not illegal). 46. Brian Greenspan and Peter Copeland represented Don Smith on appeal on February 8, 2005. 47. On July 7, 2005 the Court of Appeal for Ontario rendered it's decision(see link below). A portion of Judge Helen Pierce's judgement was deemed unlawful. Four convictions were set aside and a new trial was ordered. 48. On September 28, 2005, the Crown filed an application for leave to appeal to the Supreme Court. 49. On November 7, 2005, Mr.Smith filed a Cross Application for Leave to Appeal. 50. On February 23, 2006, the Supreme Court of Canada denied the Crown's Application for Leave to Appeal and subsequently denied Mr.Smith's cross application. The Supreme Court of Canada Case Summary states that: Smith’s websites portrayed in particular partially or totally naked women simulating extreme violence and death. The materials did not depict sexual acts.51. On May 27, 2006 Mr. Smith provided six weeks Notice of Claim to the Attorney General's Office in Ontario. The Notice of Claim is required under the Proceedings Against the Crown Act where a civil remedy is sought against the Ontario Provincial Police. 52. On June 14, 2006 the attorney General's office made up a letter to Mr.Smith in which they acknowleged recieving the Notice of Claim on May 30, 2006. 53. On July 11, 2006 a new summons was issued by the Provincial Court Office in Fort Frances. The summons issued well past the 90 day limit as set forth in section 485 of the Criminal Code of Canada and it was issued by the wrong court. Section 485 of the Criminal Code deems the case dismissed for want of prosecution because the Crown failed to summons Mr.Smith for a new trial after the Supreme Court gave it's decision on February 23, 2006. JAFA'S NOTE: The Crown's retaliation against Mr. Smith for having filed a Notice of Claim continued in complete disregard for the Criminal Code of Canada (secion 485). 54. On July 14, 2006 Mr. Smith was served with the above mentioned Provincial Court Summons which demanded that he appear in Fort Frances to answer to five charges even though Mr.Smith had already been acquitted on one of the five charges. The other four charges were the four convictions that the appeals court set aside. 55. On September 7, 2006 The Crown Attorney, Mr. Kent Saliwonchyk, issued a second summons calling for Mr. Smith to appear in Fort Frances on September 18, 2006. The second summons also contained an indictment consisting of the same five charges, despite Mr.Saliwonchyk having told Mr. Smith on August 2, that he would correct the error and re-write the indictment. 56. On September 8, 2006 Mr. Saliwonchyk spoke Mr. Smith's lawyer and insisted that either him or Mr.Smith be present in Fort Frances on September 18 for a pretrial conference. Saliwonchyk threatened that he would issue a warrant for Mr.Smith to appear, HOWEVER, he had already issued the warrant the day before. Mr. Smith's lawyer was not aware that the warrant had already been issued the previous day, nor did Mr. Saliwonchyk tell him. Mr.Smith's Lawyer asked Mr. Saliwonchyk to hold off until the following week, at which time he would be able to schedule a pre trial conference with him. Saliwonchyk agreed, however, he had already instigated the issuance of the warrant the previous day and he did not wait until Mr.Smith's lawyer got back to him. 57. On September 14, despite the conversation between Saliwonchyk and Mr. Smith's lawyer on September 8, Mr.Smith received the summons to appear in Fort Frances for a September 18 pre-trial confernece. This was done despite Mr.Smith's lawyer having not received any disclosure from the crown regarding their case. 58. September 18, 2006: Mr.Smith and his lawyer attended the Fort Frances courthouse as a result of the summons served on September 14, 2006. This summons was vexatious and an abuse of process in light of the fact that it was served 2 court days prior to the hearing(Sat. and Sunday don't count). 59. The Crown attorney had scheduled a pre-trial conference for September 18th and a new trial for October 23rd 2006. The scheduled pre-trial conference ended up being nothing more than a first appearence for Mr.Smith since no time for preparation had been given to his lawyer. A new pre-trial conference date was set for November 14, 2006. 60. It was stated for the court record that the Crown "waited in the weeds" from July 7, 2005 to July 11, 2006 before initiating the new trial process and that any delays in proceeding with a new trial lies squarly at the feet of the Crown. 61. On September 18, 2006 Don was finally given a revised indictment that excluded the one charge that he had already been acquitted on four years earlier. The charge in question concerned private materials! Having this charge hanging over Mr.Smith's head for two months was meant to cause Don and his wife mental anguish. 62. In May of 2007 Don's defence presented arguments on several applications such as: unreasonable delay; re-election; void for vagueness; quashing of 4 warrants; exclusion of evidence(not a complete list). 63. In mid-august 2007, Chief Justice McCartney gave a decision on all the applications heard in May. He denied all of the defence applications, brushing over many issues, and failed to give proper reasons for his denials. 64. In January 2008, the defence presented an application to quash the indictment based on section 485 of the Criminal Code of Canada which clearly states that when there is loss of jurisdiction over an accused, there is a 90 day limitation period to regain jurisdiction. After 90 days the Criminal Code deems the charges dismissed for want of prosecution. 65. The Supreme Court ruled on the leave to appeal applications on February 23, 2006 and Don was not compelled to make any court appearence until a new summons was issued. Hence, the Superior Court had no jurisdiction over Don until they served him with a summons. The 90 days went by and the time limit ran out on May 25, 2006. 66. As noted in paragraph 53, the new summons was not issued until July 11th and that summons was null and void because it was issued by the wrong court. It also violated s. 485 of the criminal code which states after the 90 day limit special written permission from the Attorney General is required, and only upon the laying of a new information (the old charges and information cannot be used). 67. The judge over ruled the Criminal Code of Cananda(an Act of Parliament) and denied the defence application to quash the indictment which was based on s. 485.CCC. 68. The trial began on May 12, 2008. The defence objected to the content and to various omissions in the judge's charge to the jury. The judge failed to heed the intructions of the Court of Appeal decision regarding the jury charge, therby guiding the jury to give an unjust verdict. The judge failed to separate out the evidence for each charge. The judge failed to instuct the jury on the proper legal definaition of explicit sex. 69. The judge stated to the jury "even where there are no sexual acts, the materials can still depict explicit sex". This statement was not given by the court of appeal for instructing the Jury. The court of appeal said that explicit sex requires sex acts at the extreme end of the spectrum of sexual activity that is shown in a graphic and unambiguous fashion. The court of appeal aslo stated that the law catches only depictions of sexual intercourse and other non-trivial sex acts. 70. The judge's jury charge was neatly tailored to result in Don's conviction. 71.
Don's defence lawyer(not the same one as the first trial) planned his case
from the beginning for the Court of Appeal. He overturned every rock
to find every issue he could. He filed applications and put every objection
on the record. The result is a record breaking number of grounds for appeal
which will be posted soon.
JAFA NOTES: This is a perfect example of how mean spirited right wing
religious fanatics and politically motivated extremists will use their
power and knowledge of the system to inflict people that do not bow to
their views.
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