The following list of links provides a good snapshot of what DrDon has been put through by a few corrupt individuals that I believe are infected with tunnel vision and noble cause corruption. 

LINKS:
1- Justice Pierce orders unlawful sentence against DrDon.
2- JAFA comments on Judge Pierce's reasons for sentencing DrDon.
3- Ontario Court of Appeal rules Justice Pierce sentence is unlawful.
4- JAFA comments on the 2005 Ontario Court of Appeal decision.
5- Supreme Court of Canada reasons for denial of the Crown's application for leave to appeal.
6- Frequenly Asked Questions archive
7- DRDON'S CASE HISTORY originally posted in 2001 on PSV and recently updated by JAFA.
 

DrDon's Documentary  and DVD Collection by  Todd Russell

Remember Smeagol in 'Lord of the Rings'. Smeagol resorted to underhanded sneaky tactics to turn one person against another. This conviction was the result of smeagol tactics which I define as hurtful mean manipulative tricks used to control others for selfish gain. Take for instance the above instruction. It is an "oxyMORON".   "Judge Smeagol" provided this faulty and confusing instruction to secure the conviction of an innocent man. The jury was effectively "smeagolled" by the judge.  He did it despite objections from the defense. He was told by the defense that the instruction contradicts Supreme Court of Canada case law and the Court of Appeal for Ontario decision of 2005 which says explicit sex requires sex acts at the extreme end of the spectrum of sexual activity, such as sexual intercourse and other non-trivial sex acts.  That makes it plain and obvious even to lay people that without sex acts there cannot be explicit sex depicted.

JAFA offers the following as an appropriate and accurate instruction that honors the Supreme Court of Canada's definition of explicit sex: 

I have followed this case from it's beginning and I read all of the applicable case law on obscenity, including DrDon's Court of Appeal for Ontario decision. I have read all of the informations provided to obtain search warrants(which I believe are worthless pieces of trash and none of the search warrants should have been authorized by the inexperienced JP). I have knowledge concerning applications made on behalf of DrDon in May 2007 and January 2008. I spoke to persons(anonymous) who were at his trial in May 2008. Since no media representatives covered the trial,  I feel it is my duty to inform the public about this serious injustice. In that regard, it is my informed opinion that the trial judge demonstrated a deliberate disregard of material facts while performing judicial acts  without jurisdiction.  He over-ruled the Criminal Code of Canada (section 485) which deems a case dismissed for want of prosecution if the Crown fails to summons an accused person within 90 days after loss of jurisdiction over that person (more on this below. Also look in DrDon's case history). The trial judge blocked the lawful conclusion of a case by denying the defence motion for directed verdicts of acquittal on all counts.  He performed voir dire gymnastics(to the private benefit of the prosecution).  He assisted the prosecution and the jury to secure DrDon's conviction.  He allowed the misapplication of the obscenity law and ignored objections by the defence.  He deliberately mislead the jury into believing that explicit sex does not require any sexual acts, thereby allowing the conviction for obscenity in the complete absence of any depictions of sexual acts. He did this while completely disregarding  the instructions set out by the Court of Appeal. ---comments by JAFA

These two photos illustrate just how far from reality a few police, Crown Attorney's, and judge's have wondered.  They chose to prosecute and punish  Don Smith and his family for him having done nothing  more  than  imitate what society has tolerated from other film producers for many years. The Photo on the left is from a 1954 film 'Taza, Son of Cochise' and the photo on the right is from a 1930's live stage performance.

Don Glut is the president of: Frontline Entertainment.  He provided this comment: What has happened to Don Smith is simply astounding (and also most distressing).  His plight reads like a transcription from the Dark Ages.  Yes, we have certain boundaries here in the USA, lines most of us dare not and would not cross. But for the most part, we are free here to create our work -- yes, even when that work ("art," if you prefer) falls within the realms of sex, horror or the hybrid that I have dubbed "horrotic." My best wishes to Don and hope that the outcome of this nasty case finds him vindicated and solvent -- and, equally important, that it does not establish a very dangerous precedent--  Don Glut:http://www.donaldfglut.com/

The Crown closed it's case Monday morning (May 26th) and the defence made a motion for directed verdicts of acquittal on all counts. The defence argued that all of the Crown's evidence and testimony related to the "distribution" charge in count 4 and none of the evidence related to the other counts which dealt with "making" and "possession". The defence argued that the distribution took place in the USA which is outside of the court's jurisdiction.  Case law was presented to support the defence position that the materials do not fall within the framework of obscenity set out in Rv.Butler due to the absence of explicit sex. Several arguments were presented and each argument supported the defence position that directed verdicts of acquittal were in order.  The judge could have picked any "one" argument to justify acquittals on all counts. 

On Tuesday morning(May 27th), the judge dismissed all of the defence arguments and denied the motion. The defence decided not to call any witnesses and asked the Crown to present their closing argument. Mr. Saliwonchyk asked the judge for 2 hours to put together their closing argument and the judge gave him 4 hours. At 2:00 P.M.  Mr. Saliwonchyk began  his closing argument by whinning about having to address the jury before the defense and how he would not get a chance to reply to what the defence says in their closing argument. So he asked the jury to  "imagine how I might respond".  Effectively,  Mr. Saliwonchyk asked the jury to read his mind and determine how he would respond to the defence.  Mr. Saliwonchyk ended his closing by telling the jury that "this your opportunity to draw a line in the sand for the rest of Canada". 

DrDon says his defence lawyer cited the law throughout his closing argument, which lasted for nearly 3 hours. He says the closing argument was "brilliant" and "left no stone unturned".  DrDon believed the jury could not possibly convict him after repeatedly hearing what the law has to say. "There is no explicit sex here, therefore you must acquit Mr. Smith",  the defence lawyer repeated several times during his closing. The jury was told the surrounding circumstances are irrelevant because the materials do not fall within the framework of obscenity and Rv,Butler says materials do not become obscene because of who they might be shown to, or the place and manner in which they are shown. 

In a rare move the judge did not allow input from either side prior to delivering his instructions to the jury. A pre charge conference was scheduled but during the conference the judge did not reveal what his instructions would be. Any objections had to be made after the judge's charge to the jury. The judge said he would bring the jury back into the courtroom to modify his instructions if he felt it was needed. During his charge to the jury the judge said exactly what the Crown wanted him to say. He told the jury, "even where there are no sexual acts, the materials can still depict explicit sex.......you have to take into account all of the surrounding circumstances". The first part of this  statement is an oxymoron. It makes no sense at all and It contradicts the Court of Appeal's instruction concerning the legal definition of explicit sex. The Court of Appeal stated: explicit sex requires sex acts at the extreme end of the spectrum of sexual activity,  displayed in a graphic and unambiguous fashion; the law catches only depiction's of sexual intercourse and other non-trivial sex acts; nudity alone is not enough; and sexualized nudity is not enough.  The second part of the  judge's instruction(above) contradicts Supreme Court of Canada case law which states  that the place and manner in which materials are shown or displayed is irrelevant. 

The defence raised numerous objections to the  judge's charge to the jury. The defence reminded the judge about the instructions given by the Court of Appeal for instructing the jury on the meaning of explicit sex.  But the judge denied the defence request to instruct the jury in this manner. The judge also denied the defence request to separate out the evidence for each of the charges even though the Court of Appeal instructed the judge to do so. The defence asked the judge to inform the jury that none of the expert testimony applied to the first three counts, as it was specific only to count four. The judge was also asked to inform the jury that Mr. Saliwonchyk was wrong to tell the jury this was their opportunity to draw a line in the sand for all Canadians.  However, the judge refused to change his instructions to the jury.

It is my opinion that DrDon's persecutors are infected with "tunnel vision" and it's perverse by-product "noble cause corruption"(See the HOP Report regarding the number one cause for unlawful convictions in Canada). After hearing the complete story from day one I believe the judge and Crown attorney infected the jury with their tunnel vision and noble cause corruption. This resulted in DrDon being convicted without ever having violated the obscenity provision. ----commentary by JAFA

Barry Grant Ph.D.

DR.BARRY GRANT Ph.D. Is the Professor of Film Studies  and  Pop Culture at Brock University.  He privided DrDon and the court with his professional expert opinion concerning DrDon's works. He also gave his opinion  under oath  stating for example: there is no sex in Don's works; Don showed restraint in the use of gore effects; Don's materials are tame compared to many other works that have been available for more than 30 yrs. in Canada;  Don's special effects are well done and have artistic merit; Don's effects are better than some Hollywood produced effects found in films he has reviewed. But the Crown would not listen to a film expert.  They won't even listen to the legal experts that sided against them at the Court of Appeal for Ontario.

August 2007: Chief Justice McCartney gave a decision on all the applications heard in May. DrDon predicted Justice McCartney's decisions correctly. He denied all of the defence applications, brushing over many issues, and he failed to give reasons on many issues raised in the applications. It's clear to me that the judge and prosecutor have teamed up for the purpose of getting DrDon convicted.  Effectively, DrDon is not a defendant , he's a target!
---report by JAFA

May 2007: DrDon'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). DrDon says that he believes Chief Justice McCartney is favoring the Crown. DrDon says he  observed that: the judge was not prepared; had not read the applications; could not follow along; appeared confused; expressed frustration; got angry and blamed the defence lawyer for his own ineptitude; was not paying attention; and that he was clearly having difficulty understanding the legal arguments being made. Although the defence applications are based on solid legal principals and case law DrDon believes the judge will side against the applications. 
---report by JAFA

November 14, 2006: the pre-trial conference took place in which the scheduling of defence applications was discussed.
---report by JAFA

The king of parody and violent movies, The Terminator,  dropped by to encourage me to keep up the fight against  censorship in Canukistan. "Vutz crappen'n up dare in Canukistan DrDon? Maybe I take dem assholes out like in Terminator 1 when I shot the shit out of the MOFO's?   DrDon,  make sure you check out  Arnie's Pizza Shop. Tell all your visitors to come and see me. Tell dem to click the play button below my picture on diz page":   http://www.funnyjunk.com/pages/arnie.htm

September 14, 2006: DrDon received another summons. This time the summons was for the Superior Court in Fort Frances Ontario. This summons was issued nearly 4 months past the 90 day limitation set out in section 485 of the Criminal Code. The summons requires DrDon to appear in Fort Frances on September 18, 2006. It was served on Thursday which effectively gave DrDon and his lawyer only 2 court days notice. The indictment still has the same five charges despite Saliwonchyk having told DrDon on August 2  that he would correct the error and re-write the indictment.
---report by JAFA

September 8, 2006: Crown Attorney (Saliwonchyk) spoke to DrDon's lawyer. He insisted that either DrDon or his lawyer be present in Fort Frances on September 18 for a pre-trial conference.  Saliwonchyk threatened that he would issue a warrant for DrDon  to appear. Meanwhile Saliwonchyk had already issued a warrant the day before.  DrDon's lawyer was not aware that the warrant had already been issued at the time of this conversation.  DrDon's lawyer asked Saliwonchyk to hold off until the following week, at which time he would be able to fit into his schedule the pre-trial conference.
---report by JAFA

August 2, 2006: DrDon asked the Crown Attorney(Kent Saliwonchyk) to fix the indictment and remove the charge that he was already acquitted of. Saliwonchyk said he would fix it. Saliwonchyk then asked DrDon if he would appear in Fort Frances on September 18, 2006 and DrDon told him he that he was in the process of hiring a lawyer and therefore could not speak for his lawyer.
---report by JAFA

July 11, 2006: a summons was issued by the Provincial Court Office in Fort Frances. This summons was supposed to have been issued by Superior Court. Section 485 of the Criminal Code requires the Crown to get written permission form the Attorney General and to submit a new information because more than 90 days went by since the Supreme Court ruled. Therefore, according to section 485 neither the Provincial Court not the Superior Court has jurisdiction to summons DrDon at this time. The bogus summons contained five of the original charges. One of those charges had already been dropped in November of 2002.
---report by JAFA

DAVID CRONENBERG

Censors tend to do what only psychotics do: they confuse reality with illusion-- David Cronenberg is a horror film producer that has made films containing sex and violence in Canada. Don's materials contain no sex acts whatsoever (a fact duly noted by three Justices of the Court of Appeal for Ontario). David is praised and honored throughout Canada while Don gets shit on and punished. Why the discrimination? Because DrDon's a little producer, director, editor and effects artist and the Crown is hoping that you don't give a shit about him and what they do to him.

February 25, 2006: Now that the Supreme Court has denied the Crown's application for leave to appeal I offer my critique of the July 7, Court of Appeal decision for the benefit of my supporters and those interested in justice issues. 
---report by JAFA

February 23, 2006:  SUPREME COURT OF CANADA SAYS "NO" TO CROWN.  READ IT HERE.  The Supreme Court has acknowledged the obvious "The materials did not depict sexual acts".  This means that my materials never violated the law and the actions against me, my wife, and my brother where unjustified.
---report by JAFA

February 20, 2006:  the Supreme Court of Canada news release stated the following: "Smith’s websites portrayed in particular partially or totally naked women simulating extreme violence and death. The materials did not depict sexual acts."
---report by JAFA

November 1, 2005: the Crown submitted their application for leave to appeal to the Supreme Court.
---report by JAFA

Brian Greenspan is considered one of Canada's top legal experts on Criminal Justice. Here is what he had to say about the Crown's conduct:  "I am astounded that the Crown pursued criminal charges. I see nudity and violence but no sexual acts whatsoever. I don't even see any sexual touching of the women in your clips.    The violence is not as graphic as  Kill Bill  or  Natural Born Killers or many other programs. If your materials are illegal then the police will  be spending all their time shutting down theaters, video rental stores, and libraries across the country and they will have no time for serious police work."-- Toronto attorney: Brian Greenspan , July 2004.

October 6, 2005:  The Crown wants the Supreme Court to spell out for them the meaning of the term "explicit sex" in the context of adult obscenity because it has never been done before.
---report by JAFA

They conducted an oppressive and heavy handed criminal action against Don Smith. They ruined his family's finances,  ruined his business, put 17 women out of work,  humiliated Don and his family,  intimidated them,  ran them out of their home and community,  caused Don and his family severe mental suffering,  and for what purpose?  To get a law defined for them because they can't understand it? If they do not understand the law, then  they should not expect citizens to understand it and they should not be laying criminal charges until that fucking law is comprehendable by everyone. They could have presented a reference case without causing damage to citizens. They could have submitted a bill to Parliament  asking to have the law amended and defined as was done with the Canadianfirearms act?  Instead they chose a harmful, malicious, mean spirited, vindictive, vexatious course of attack which they executed in a heartless, cold, cruel and callous manner, and in such a way that one would only expect from a sadistic lunatic.  This treatment is typical of religious extremists and terrorists throughout the world.   When a little bit of power and authority is handed to them it makes religious extremists do crazy and insane things to other people that don't believe the way they do.  They spout off about brotherly love, compassion, kindness, human rights, caring, understanding, wisdom, justice, etc.  Then, in a hypocritical frenzy,  they use their powers to manipulate people and the law to  justify severe cruel and unusual treatment of innocent persons because they don't measure up to their moral standards.  They went beyond sadistic in Don's case. Not only do they lack empathy for the people that they have victimized,  they blame Don for their actions!

The Crown says that "explicit sex" is something that the majority see as more broad than that which the Court of Appeal for Ontario has defined.  That is not true.  Reasonable thinking Canadians understand the difference between "nudity" and "explicit sex".  If the Supreme Court wanted the obscenity provision to encompass  "nudity"  they would have used the term in conjunction with "explicit sex"  and they would have shown how nudity relates to community standards and the "undue exploitation of sex."  But the terms "nude", "naked", or "nudity" do not appear in the R v. Butler decision.  Should we believe that the Supreme Court deliberately left nudity out of their decision to set a trap for unsuspecting film makers?  I give the Supreme Court more credit and offer them more respect than what the Ontario Crown does in this regard.

It does  not take a genius to figure out the meaning of explicit sex.  Just look at the context in law.  The impugned  material in R v.Butler  was hardcore sex videos. In R v. Jorgensen the video tapes involved hardcore anal sex.  By using the term "explicit sex"  the Supreme Court was referring to materials depicting people involved in explicit sexual acts.  The Supreme Court used the term "sex" in relation to sexual acts, not in the sense of  simply distinguishing one gender from the other.  They added the modifier "explicit" to make it plain and clear that the activity of sex must be clear to the viewer.  They did not  speak  about  depiction's  of "explicit females or males",  nude or otherwise.   "Explicit sex" referred to in R v.Butler  and "explicit sexual activity" referred to in  R v. Sharpe  were used in the context of  describing  sexual  activity  such as sexual  intercourse  and  other non-trivial sex acts.  The  Supreme  Court  says that:

Even if  this  broad  definition was applied to adult materials,  my  materials  would  still  not fall  within  those  standards. Common sense dictates that nudity in relation to materials made with adult actors have a higher degree of acceptability than those made with children. 

The Crown says that the judge's jury charge concerning the definition of obscenity was correct and that even if it was not correct the jury would still have found Don guilty based on the evidence.  However,  the conviction really came as a result of an improper jury instruction which incorporated the broader concept of nudity from a child porn law. The Crown and the trial judge also tainted the jury with their personal bias and prejudice.  Furthermore, they confounded and confused the jury with psycho babble from so called expert social scientists(with an extreme right wing view).  It  wouldn't matter what the jury was told regarding legal  definitions, they were instructed to convict regardless.  With a female prosecutor, a female judge, ten female jurors, female court clerks, and the Crown pinning women against a male that they type cast as a sexual sadist responsible for harming women, the conviction resulted from gender bias and prejudice. The conviction had nothing to do with the law as it was written, the evidence or the facts of the case. The conviction was wrong,  period.
---report by JAFA

September 30, 2005: The insanity continues on Bay Street in Toronto. The Crown has filed their Application for  Leave to  Appeal to the Supreme Court of Canada.  DrDon has 30 days to respond  with a cross application.  DrDon was preparing his own  Application  for  Leave  to  Appeal  when the Crown notified him in mid September that they intended to file.  The Crown's move actually improves DrDon's chances of having the Supreme Court grant leave and hear what he believes are some important issues such as culpability of website owners for third party postings of written materials.
---report by JAFA

September 16, 2005: The Crown plans to appeal the four  convictions  which were set aside by the Court of Appeal for Ontario on July 7, 2005.  The three justices: Rosenberg, Lang , and Simmons all agreed with the decision  which dealt with a question of law concerning the meaning of "explicit sex" in Rv.Butler, and more correctly, the lack of a definition for "explicit sex" in any Canadian Law!  The Crown hinged their case on a very narrow prosecutorial theory which says that "nudity and violence" is sufficient for criminal liability. They used this narrow theory to justify harsh, heavy handed actions and draconian punishment, which they asked Judge Pierce to impose, and which  she cheerfully did in total disregard for the hardship she placed on DrDon, his wife and two children. The appeal court ruled that the crown's arguments were vague, unhelpful, nebulous, and too overly broad. They also ruled that  part of the trial judge's sentence was unlawful. In many people's minds that means that she (the judge) broke the law. But judge's are unaccountable to anyone in Canada for their unlawful decisions.
---report by JAFA

Winnipeg Manitoba actress and model Linly Spears