Critical Analysis of Justice H. Pierce's judgment in the R. v. Smith Case [2002] O.J. No. 5018
Court File No. CR-2/02 Judgment: December 3, 2002

In our opinion the following statement's within Judge Pierce's judgment are either false, prejudicial, half truth's or out right lies. A few statements appear to be true, but not many.

Smith owned and operated two websites that featured visual images and videos depicting sexualized violence against women.

VIEW. This judge is ignoring the complete lack of sex right from the start.
 

The films fused sex and violence, portrayed the violence as being justified, and had no plot or characterization.

VIEW. I searched and could not find ANY sexual acts whatsoever. The characterization of victims as evil is standard in literature worldwide. I also searched and found NO requirement in law that a plot be present.
 

At trial, Smith admitted to ownership and distribution in an agreed statement of facts, but argued that the materials contained artistic or literary merit, or that they were within the community level of tolerance.

VIEW. Defense experts of high standing in the literary field testified there was artistic merit in Don’s materials. The fact that respected and qualified experts stated so requires the court to assume merit exists under their Supreme Court rulings.
 

The court accepted the evidence of Crown witnesses that exposure to the material had the potential to change attitudes toward women, cause psychological harm to anyone who had previously been a victim of sexual violence, and could do serious psychological harm to adolescents exposed to the material.

VIEW. This judge is delusional in her views equating "POTENTIAL" with "ACTUAL" harm. In my country I am duly licensed and do carry a firearm. Does that mean I should be prosecuted because my having the weapon MAY cause psychological harm to an IMMAGINED prior victim of gun violence. Her distorted logic seems to be based on fantasy not law.
 

Smith was 47 years old, married and had two young children.

VIEW. While a similar statement is common in most rulings the use of the past tense seems Freudian to me.
 

He had earned significant profits from the websites.

VIEW. This statement is made without ANY evidence to support it. I find NO mention of an accounting of the web site at all.
 

He had no criminal record and his wife was supportive. Smith sought a conditional discharge. The Crown was not seeking a custodial sentence, in part in consideration for the agreed statement of facts.
HELD: Smith was sentenced to a $100,000 fine and three years probation. Denunciation and deterrence were key considerations. Smith had intentionally drawn attention to these charges and remained the registered owner of the sites through the trial. These were not victimless crimes. Smith chose profit over dignity in making money from the sites, and he was able to pay a substantial fine. The terms of his probation required that he assign his ownership interest in the websites to the Crown, that he not access the internet or have internet access available in his home, and that he not operate or be associated with any website.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 11(b). Criminal Code, ss. 163(1)(a), 718, 718.2, 734, 734(5), 734.8, 736.
Counsel:
H. Leibovich and C. Bartlett-Hughes, for the Crown.
D. Sawchuk, for the defendant.

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1 PIERCE J. Donald Smith was convicted by a jury of two counts of making obscene material, one count of possessing obscene material for the purpose of distribution, and two counts of distributing it, contrary to Section 163(1)(a) of the Criminal Code of Canada.

2 The obscene material in four of the counts consisted of visual images and videos available on two Internet sites registered to and operated by the accused. One site was a free site; the second required payment of a membership fee in order to obtain access by password.

3 The material in the fifth count consisted of three short stories that were posted on the paid site. The Crown does not allege that Donald Smith wrote these stories.

4 The content of the written and visual materials focuses on simulations of sexualized violence against women. The purpose, as set out by Donald Smith on one of the sites, is "to show beautiful women getting killed."

VIEW. Exactly where and when did Mr. Smith make such a statement. I was a member of his site for 2 years and I never saw or heard any such statement.
 

5 Mr. Smith uses film and special effects enhanced by computer editing to make the visual materials. In them, women in a state of nudity or semi-nudity, are shot, stabbed, stalked, executed by bow and arrow, or shown in combat with swords and knives. In order to make these materials, he recruited models through newspaper advertisements in Winnipeg.

VIEW. What is the point of this statement? Is advertising for models and actress’s illegal? Not in any law book I could find. As far as nudity and violence are concerned that is a mainstay of the movie industry. Many films containing nudity and violence were filmed in Canada and citizens tax dollars [through the Canadian Film Board] aided these productions. Following this judges logic, or lack thereof, all members of the Film Board and Legislature are guilty of promoting sexualized violence and should be prosecuted. They themselves caused more "POTENTIAL" harm to society than Don Smith.

6 The impugned films fuse sex and violence. In them, the male assailant is portrayed as being competent and a successful individual who can silence women with his violence, leave them on sexual display, and walk away without consequence.

VIEW. This is very misleading statement on the judges part. I believe that over 30% of all assailants portrayed were women. What is meant by "sexual display"? Is this some obscure legal term that only she is aware of? And since when is leaving the ending to a story up to the viewers imagination a crime?

7 The women in these films are easily manipulated, and in some instances, shown as being complicit in the violence. Because they are portrayed as "bad women" by being sexually loose; or attempting to use their sexuality to control men, violence against them is portrayed as being justified.

VIEW. This story line is in the Bible. "Bad women" as being sexually "loose". Violence against "bad women" justified? Just what does she think the destruction of Sodom and Gomorrah was all about anyway, parking tickets???

8 There is no plot or characterization in these pictures. They are themselves the entire context.

VIEW. Is there a legal point to be made here. Would the judge please show this dumb old cop where the law requires these things.

9 The short stories portray the brutal rape and killing or sexualized killing of women in the most graphic terms. Generally, the same formula has been applied. The stories reinforce the myth that women enjoy being raped; that they enjoy their victimization.

VIEW. It is pure hypocrisy to ignore these other works and single out Mr. Smith. The list of films available over the counter, Canada wide, proves society’s acceptance of nudity and violence. Why only Mr. Smith for prosecution and not the thousands or booksellers and video rental outlets? The answer is obvious, the industry has huge financial resources and Mr. Smith does not. They thought railroading him would be easy and a good way for them to make political points with conservatives.

10 While the Internet sites have a caution on the home page, and the paid site requires a deposit of $30 in U.S. currency in order to obtain password access, there is no effective screen to children. Evidence at the trial established over 2000 members joined the pay site between December 1, 1999 and February 16, 2001. Donald Smith received these proceeds.

VIEW. For many years there has been a fear of children using the parents credit cards without permission. While this is possible it is a PARENTING problem, not a legal one. Mr. Smith applied the industry standard in age verification. He obeyed the law and still was defamed. As for the earnings, is this judge so stupid as to not understand the difference between GROSS INCOME and NET PROFIT. I feel certain she knows the difference when she figures her taxes. Why did she forget it here? Prejudice, pure and simple.

11 The free Internet site was registered to Donald Smith in 1998; the paid site from May 15, 1999 onward. Both sites are still in operation on the Internet.

12 At trial, the accused did not take the issue with having made the material that was subject of the first four counts. He did defend the allegation that he possessed the stories in the fifth count. These stories were posted on a member's contribution portion of his website. There was, however, substantial evidence advanced by the Crown that the stories were found on Mr. Smith's seized computers.

VIEW. There is a great difference between possession and distribution. It is logical to assume that all of the 2,000 people the Crown referred to above also possessed the same stories. With out evidence of intent no crime can be committed.

13 The main issue in the trial was whether the materials contained artistic or literary merit, and whether they were within the community level of tolerance. Two expert witnesses in the area of film and literature were called from universities who testified in support of the defence. It was their evidence that the visual and literary works were part of an identifiable horror genre.

VIEW. The Supreme Court has already set a guideline. Is this judge too dense to follow it or just too bias and predisposed to inflict harm on Mr. Smith?

14 The Crown called expert psychological and psychiatric witnesses. They testified as to the risk of harm to society from both the visual and written materials.
 

Evidence that persons who were predisposed would be attracted to the materials was not contradicted. These include sexual sadists, and men aroused by sexual violence or domination over women.
 

VIEW. Again this judge shows her bias loud and clear. Evidence CANNOT be based on speculation.

That is called OPINION and, as we all know, every asshole has one. People who ignore deception by a witness part do NOT belong on ANY bench, except a park bench, maybe.

15 As well, expert psychological evidence established that Internet exposure is more powerful, as an individual may select his material and focus on it in the privacy of his home as often as he likes. Deviant fantasies and cognitive distortions are reinforced when there is validation from others on the net who share those fantasies.

VIEW. Fantasies are not illegal. Selecting and viewing materials like Don Smith's in one's own home is not illegal. This sounds like thought control Justice Pierce.

16 Crown witnesses testified that this exposure has the potential to change attitudes towards women, such that violence toward women is tolerated, and is seen as entertaining.

VIEW. Thoughts and opinions have always had the potential to change attitudes. That is what the Charter of Rights is there to protect. If the judge believes otherwise she should be removed from the bench as a danger to society. A judge that ignores the law cannot be trusted to enforce it fairly and impartially.

17 A further risk of harm is the effect that the exposure of women to sexually violent material has, where women are the victims. That is, it may have a negative impact on their self-esteem, as well as on their sense of safety or equality.

VIEW. The judge’s bias trial and sentence is the real crime here. Her political agenda is painfully clear to even the most casual observer.

18 Finally, the Crown's evidence established that access to these materials by adolescents could have a powerful negative effect, if it comes at a time when sexual identity and sexual fantasies are formed. Children are not equipped, as adults are, to resist or moderate the effect of these materials.

VIEW. Your Supreme Court says materials do not become obscene simply as a result of who might see the materials or where the materials might be shown. Once again, this is a parenting issue and has nothing to do with the LAW or Don Smith, or his web sites.

Here, read it again Justice Pierce, and leave Don Smith alone:

In making this determination with respect to the three categories of pornography referred to
above, the portrayal of sex coupled with violence will almost always constitute the undue
exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the
risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor
dehumanizing is generally tolerated in our society and will not qualify as the undue
exploitation of sex unless it employs children in its production.

If material is not obscene under this framework, it does not become so by reason of the
person to whom it is or may be shown or exposed nor by reason of the place or manner in
which it is shown.
R v. Butler: Supreme Court of Canada.

20 These cases are not binding on me, .......

VIEW. A judge who ignores the precedents and makes her own laws is incompetent at the very least, deranged at most.

..........and do not replicate either the type of material or the commercial aspects of production and distribution in this case.

21 The accused has no criminal record, before these convictions. His wife, who is also charged with similar offenses, is supportive, and he enjoys the support of some friends. The Crown is not seeking a custodial sentence.
 

VIEW. Pretrial agreements are not part of the trial unless agreed to by both parties. These agreements should NOT have entered into her considerations.

22 The accused contends that he did not put the Crown to the expense of an extended trial, and narrowed the issues in an agreed statement of fact, which was filed at the trial.

23 Correspondence filed by the Crown at the sentencing hearing, clearly establishes the consideration for the agreed statement of fact consisted of the Crown agreeing:

1) not to pursue counts one and two that involved material depicting Mr. Smith's wife;

2) not to bring a proceeds of crime application after the trial, should the accused be found guilty;

3) not to seek a custodial sentence in the event of conviction.

In addition, both the accused and the Crown benefited from a shortened trial.
 

24 I refer to the purposes and principles of sentencing set out in Section 718 of the Criminal Code of Canada. In this case, denunciation and deterrence, both of the accused and others, are required.

However, I do not accept the Crown's submissions that these offenses are motivated by bias, prejudice or hate towards women, which should be treated as an aggravating circumstance pursuant to Section 718.2 of the Code. I am not satisfied there is evidence on this point.

VIEW. Even a stopped clock is correct twice a day. This is one of her RARE moments.

25 Deterrence for Donald Smith must take into account the profitability in making, possessing, and distributing obscene material. I am not satisfied that a nominal fine will achieve this. It would only represent a licensing fee. Nor am I satisfied that Donald Smith has been subject to stigma in being convicted of these offenses that will deter him.

VIEW. It sounds like she is off the rails again. There was NO evidence showing ANY PROFIT at all to Mr. Smith. What else would she want done to Mr. Smith? Drawn and quartered, burned at the stake, tarred and feathered?

26 I found in an earlier defence motion pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms, that Mr. Smith has, if anything, drawn attention to these charges, by running a commentary about this case on his website, posting a family picture in that location, receiving funds from subscribers to support his defence, delivering fliers concerning the case to local coffee shops, and similar behavior.

VIEW. The police, Crown prosecutors all rushed to defame Mr. Smith on television and in the newspapers. Why is it wrong for him to speak out in his own defense?

27 He remains the registered owner of the site.

VIEW. This statement of the judge is inaccurate. Don Smith registered the web name and will always be listed as registrant. To say Mr. Smith "OWNS’ is like saying Henry Ford owns all the Ford plants, after all he registered them!!!

28 Notwithstanding the charges, he continued to operate and profit from it. He claims he has "transferred" his rights in the sites to a concern in California that now runs them. Apart from his statement to this effect, there is no evidence to support this. He did acknowledge, during a voir dire, that the California site has paid his legal fees to the extent of $1000 to $1500 per month since September of 2001.

VIEW. This further proves that Mr. Smith had NO CONTROL over the web sites. The judge carefully avoids stating the total amount of donations made by the California company.

29 At the beginning of trial, the accused consented to an order removing material from the website relating to the prosecution of this case, though he did not acknowledge he was the site administrator.

VIEW. What part of "without prejudice" does she not understand. That agreement is null and void if the judge fails to approve of it. If she feels it was not valid then she had absolutely no right to even consider or mention it. All pretrial negotiations are inadmissible in any court. Not only did the Crown violate this agreement but did so with the cooperation of a self centered egotistic judge. Judges are supposed to be unbiased, THIS ONE SURE WASN’T!!

30 In this case, experts for both the Crown and defence, agree that women are the invariable targets of sexualized violence in the horror genres that apply to literature and films. A survey of the materials filed by the defence in this case, supports that view. The targets of the sexualized violence in Donald Smith's materials are always women.

VIEW. She has just proven the defense case of artistic merit. The Crown agreed that the "invariable targets" of the "horror genres" are mostly women. By that statement the Crown has placed Mr. Smith work into a recognized and accepted category of film and literature.

31 These are not victimless crimes. The undue exploitation of sex and violence directed at women is a poison in our society. It comes to us increasingly in films, literature and on the Internet. It has become acceptable and increasingly graphic entertainment. It has the power to change our perceptions, our attitudes towards each other. It may even prompt us to act on these negative attitudes. And then to justify ourselves.

32 This poison threatens to overrun our conviction that the individual has dignity and worth.

VIEW. "Tunnel Vision", and and it's incidious by-product, "Noble cause corruption"  infects police, prosecutors, judges, and juries. That's according to the Heads of Prosecutions Committee in Canada.  Click here andGo read the damm report Justice Pierce,  it's about people just like you.

33 And why should women be portrayed as victims? Or men? Why should one person be allowed to represent pain being inflicted on another in a sexual way and sell it as entertainment? Are we as a society to substitute profit for dignity?

VIEW. This is true from the Bible to Baise Moi, from Bambi to Caligula, without heroes and victims no story exists.

34 Donald Smith chose profit over dignity. His purpose was to make money from these websites. That is his evidence.

VIEW. Mr. Smith should be applauded for attempting to become a useful member of the community. He developed a skill in computer graphics and computer generated special effects. He consulted attorneys and LAW ENFORCEMENT who all concurred his web product was LEGAL. The bias of the judge shines brightly here.

35 His was a business plan, a commercial enterprise. He has been able to afford the purchase of an expensive sailboat, and vehicle in the past year, and has enjoyed vacations since these charges have been laid, though he states he is without income. He and his family enjoy a large home, which was free of mortgage before the most recent purchases of a vehicle and boat. I am satisfied Donald Smith can pay a substantial fine.

VIEW. How's that? He was on disabiltity. He retrained himself, started a website, became a contributing tax payer and contributing member of his family as well as society, and you just took his carreer from him. That means he has no ability to pay. What is wrong with you judge?

36 The punishment must be in proportion to the gravity of the offence and the degree of responsibility of the offender.

VIEW. This judge appears to be the greatest offense to the public here. If the police tell you your product is legal and your attorney agrees what else can a responsible person do?

Sentence is imposed as follows: (Portions of the following sentence are deemed unlawful by the Court of Appeal for Ontario)

1. Donald Smith is fined $100,000. The fine shall be paid before the expire of the term of probation, set out below. I draw the attention of the accused to Sections 734 to 734.8 and Section 736, being the fine option program found in the Criminal Code of Canada. In default of payment, imprisonment shall be in accordance with Section 734(5) of the Criminal Code of Canada.

2. He shall be placed on probation for a period of three years, subject to the usual statutory conditions and the following additional terms:

a) That he execute an irrevocable assignment of any interest he may have as of November 28, 2002, in www.perfectshots.com and www.perfectshotsvideo.com to the Crown in Right of Ontario, including any copyright, in a form presented by the Crown.

b) That he not access the Internet nor reside in any place where Internet access is provided, unless in accordance with the fine option program set out in Section 736 of the Criminal Code and only for that purpose.

c) That he shall not operate or be associated with any website in any way, subject to any approved participation in the fine option program, and only for that purpose.

d) As well, the Ontario Provincial Police are to be immediately advised of any change of address or any additional address acquired by Donald Smith.

The Crown does not seek imposition of the Victim Fine Surcharge. In light of the amount of the fine, I do not impose it.

PIERCE J.
 

VIEW. Mr. Smith and his family are the victims in this affair. The prejudice and bias of ALL INVOLVED in this prosecution are a STAIN on the reputation of all Canadians. I am 59 years old and spent 17 years in law enforcement in the U. S. Now I am disabled due to heart and other medical complications. I had always dreamed of moving to beautiful Canada and enjoying my retirement. The people I have met from there have been the most pleasant people I know.

After viewing this case I am rethinking that desire.

In viewing this case I have come to know Don Smith and his family. I would feel proud to count them as friends anytime. What the government has done here is disgraceful by any standard of conduct. If I were a Canadian I would be ashamed of the conduct shown in this case. Even though the Court of Appeals ruled against the crown on most points they persist in this travesty of justice. They wish to haul Mr. Smith before the Supreme Court. They further intend to ruin him and his family as they struggle to survive this runaway train.

They espouse fairness but why isn’t there any investigations into the lies and deceit of police officers?

This judge should be removed without question. She has let personal bias and prejudice prevent the administration of justice.