JAFA'S CRITIQUE OF THIS JUDGEMENT IS HERE

Case Name:
R. v. Smith

Between
Her Majesty the Queen, and
Donald Smith

[2002] O.J. No. 5018
Court File No. CR-2/02

Ontario Superior Court of Justice
Fort Frances, Ontario
Pierce J.

Heard: November 28, 2002.
Judgment: December 3, 2002.
(36 paras.)
 

   Criminal law — Punishments (sentence) — Fines, penalties and compensation orders — Circumstances when fine appropriate — Probation or probation order — Conditions — Sentencing — Considerations on imposing sentence — Deterrence — Denunciation or repudiation of conduct — Sentence, particular offences — Manufacture, distribution or possession of obscene matter.

   Sentencing of the accused, Smith, for making, possessing for the purpose of distribution, and distributing, obscene material.  Smith owned and operated two websites that featured visual images and videos depicting sexualized violence against women.  The films fused sex and violence, portrayed the violence as being justified, and had no plot or characterization.  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.  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. Smith was 47 years old, married and had two young children. He had earned significant profits from the websites.  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.
 

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."

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

19      The defence submits that the accused, who is 47, married, and the father of two young children, should be granted a conditional discharge, with perhaps a nominal fine. I am referred to R. v. Hurtubise, [1997] B.C.J. No. 3120, (1997) Carswell B.C. 3027 (B.C.S.C.); R. v. S.(V.P.) 2001 Carswell B.C. 990, 2001 B.C.S.C. 619, [2001] B.C.J. No. 930; and R. v. Lowes 1997 Carswell Man. 551, [1998] 5 W.W.R. 147, [1997] M.J. No. 549 (Manitoba Provincial Court).

20      These cases are not binding on me, 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.

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.

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.

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 behaviour.

27      He remains the registered owner of the site.

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.

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.

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.

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.

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?

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

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.

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

Sentence is imposed as follows:

1.  Donald Smith is fined $100,000.  The fine shall be paid before the expiry 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.