1.    The Appeals Court made no references to evidence that they relied upon as proof that I distributed the three stories. The charge was possession for the purpose of distribution, not merely possession. The crown's factum contains no references to evidence to support the charge of distribution with respect to the written materials. 

2.   The Appeals Court justified holding the one conviction for the third party written materials by stating that the Crown had demonstrated that the stories have no artistic merit. That is blatantly false and there is no justification for having made that ruling in light of the facts presented to them.  The Crown's factum mentions no arguments, issues, or facts concerning the artistic merit evidence given by Dr.David Annandale. The Crown did not present any reply evidence to the artistic defence that was presented at trial. The Crown argued in their factum that the written materials are obscene and that they were found on my computers.   The law clearly states that if there is any doubt  (concerning artistic merit) the decision must fall on the side of freedom of expression. The Crown could not prove their case due to the artistic merit evidence that we produced at the trial which we also included in our factum for the Appeals Court. The decision to hold the conviction under these circumstances, and with no evidence presented by the Crown to support the actual charge, is ludicrous.

3.    At my trial one witness said he gave his original statement to police while being under pressure and feeling intimidated by the OPP Officer. At the trial he did not adopt his statement as an accurate reflection of the circumstances.  My wife contested the Crown's interpretation of her original statement to police as well. These two witnesses' testimonies were specific to the issue of the distribution charge relating to the three stories.  The Appeals Court  dealt with these issues by brushing them off and stating, "On any new trial,  the appellant may address this concern to the trial judge".  However, the Appeals Court failed to grant a new trial on that count.  It gets better folks....just read on.

4.    The appeals court decision is flawed because Paragraph 46 contains an oxymoron that goes against the general rulings within the decision:  "Even where no sexual act is depicted, material may still depict explicit sex".  Prior paragraphs leading up to para 46 convey a totally different message: "Explicit sex requires sex acts at the extreme end of the spectrum of sexual activity...the law catches only depiction's of sexual intercourse and other non-trivial sexual acts”. You cannot have explicit sex without having sexual acts at the extreme end. Likewise, you can't have the undue exploitation of sex without explicit sex acts coupled with violence or, without having explicit sex that is degrading and dehumanizing.  The following paragraphs contradict paragraph 46:  30; 35; 36; 37; 38; 41; 47.  This is not the kind of scholarly work that Canadians expect from their legal experts.

5.    Paragraph 49 contains an error. The word ambiguous should be unambiguous. "The jury may be instructed that explicit sex captures portrayals at the far end of the spectrum, displayed in a graphic and ambiguous way".  I noticed this error immediately upon the first reading. I informed my lawyer of the error on the day of the decision. But 7 months later, on February 16, 2006, just a few days before the Supreme Court denied the Crown's application for leave to appeal, the Crown and the Court were reconciling this error. 

6.    The Appeals Court did not accept the Crown's arguments that nudity, graphic nudity, or sexualized nudity met the criminal standard. They ruled as follows: it is not appropriate to incorporate nudity from the definition of explicit sexual activity in child pornography into the concept of  explicit sex in adult obscenity...... the Code criminalizes only adult pornography that involves the undue exploitation of sex because only the undue exploitation of sex promotes harm......the Sharpe definition of explicit sex cannot be taken as authority for the proposition that adult nudity, with nothing more, amounts to explicit sex for the purposes of determining whether material depicting adults is obscene.........Something more than mere adult nudity is required to demonstrate a reasoned apprehension of harm........mere nudity is insufficient to amount to explicit sex within the context of adult obscenity,.......sexualized nudity is a nebulous term and therefore unhelpful.  Incorporating this vague concept into the obscenity analysis would potentially capture an overly- broad range of material. ......Sexualized nudity, without more, cannot amount to the explicit sex for the purposes of the Criminal Code.........Violence alone is not obscene.  That some people derive sexual gratification from the depiction of other people’s pain does not, of itself, make a depiction obscene. It is the undue exploitation of sex, or of sex and  violence, that makes material obscene...........This instruction created a real danger that the jury would believe that nudity alone would suffice to ground an obscenity conviction with respect to the audiovisual material.  This instruction was in error. Accordingly, in my view, there must be a new trial.  The above is exactly what I have stated from day one. Just when I thought that someone finally is going to do the right thing after having acknowledged the right thing,  they go and order a new trial!  What purpose does ordering a new trial serve after having dealt with each argument raised by the Crown in favor of my position?  The ordering of a new trial in view of all of the above rulings against the Crown's positions  is ludicrous and unjustifiable. Once again, this is not the type of scholarly work that is expected from this level of court.

Conclusion:  There is no reasonable ground for having held the conviction for the distribution of three stories posted by third parties and there is no justification to have ordered a new trial. Acquittals should have been entered on all counts. They ignored some of our grounds for appeal, brushed over most of our grounds for appeal, and they ignored the plain sense interpretation of S.C.C. case  laws.