My Rant concerns the longest obscenity case in Canadian history, known as Rv.Smith. It began in October of 2000. The reason the public knows little
about it is because the impugned materials(short films and photographs found on the producer's website) are not even obscene because they don't
contain sex. The films do contain nudity and violence with some very convincing special effects added, but that has not been obscene in Canada since
the early 1970's. The Crown obviously does not want the case to get publicity because it will ignite opposition from major film producers who spend
billions of dollars in Canada each year filming on locations there.
A Jury(of mostly religious zealots, 10 women and 2 men) in the small NW Ontario town of Fort Frances, found Smith guilty in November 2002. The Court
of Appeal overturned the convictions and ordered a new trial. It appears the Judge was hand picked and appointed to her position of "lordship" one
year before Smith's trial. She was a perfect candidate to pump bias into the courtroom. She had been a Social worker, then she became a family law
lawyer, then conveniently appointed to the Smith case(her first Jury trial with having zero criminal law experience).
Smith was given a sentence by Justice Helen Pierce as follows: 3 years probation, can't access the Internet for 3 years, can't live in a home with
Internet connection, forced to assign copyrights and give websites and domain names to the Crown, and pay a fine of 100,000.00!!! The going rate at
the time was 1,000.00 per count and he had five counts, some of which overlap and arguabley cause a double jeopardy legal conundrum.
Portions of that sentence were found by the court of appeal to be "unlawful".
Sentence decision is here:
Court of Appeal decision is here:
Some Case History by Don Smith himself is here:
If you read the Court of Appeal decision you will see that a new trial was ordered. The Crown disagreed with the decision and in November of 2005 the
Crown applied to the Supreme Court of Canada for Leave to Appeal. In February 2006 the Supreme Court of Canada denied the Crown's application for
Leave to Appeal and provided a case summary as follows:
"Smith’s websites portrayed in particular partially or totally naked women simulating extreme violence and death. The materials did not depict
The SCC case number is 31160 if anyone wishes to verify on this
According to the Criminal Code of Canada (section 485), the Crown had 90 days after February 23, 2006 to summons Smith for the new trial if they
decided to pursue the case further.
On May 25, after 90 days had passed, Smith provided notice of claim to the Attorney General of Ontario because he believes that the Police and the
Crown acted on their personal moral beliefs, rather than on the proper legal foundation found in the Laws of Canada. They destroyed his new business,
put 17 women out of work, harassed him with unjust criminal charges, caused him ridicule and scorn in his small community, forced him to sell his
property and spend his entire life savings to pay for legal fees, humiliated him and his family, ran him out of town and generally put him through
hell when in fact his materials do not contain explicit sex.....which the Supreme Court had acknowledged as a reason for denying the Crown's
Application for Leave to Appeal!!
In response to Smith's Notice of Claim, he received a summons in mid July, ordering him to appear in summary court for a new trial in October 2006.
After the Crown discovered they had written the summons for the wrong court, they issued a new one for the Superior Court NW Region in Fort Frances on
September 14th, 2006. But both were issued long after the 90 days set out in section 485 of the CCC which deems the case dismissed after 90 days for
the Crown's failure to issue a summons(dismissed for want of prosecution). A slam dunk for Smith right?
The new judge heard the application to dismiss the indictment based on section 485 which deems the case dismissed, but the judge over-ruled the
Criminal Code of Canada and denied Smith's application and forced the case to a second trial which began in early May, 2008.
To make a long story short, the Judge denied all Smith's applications and gave the jury an improper definition of obscenity which is more blatantly
ridiculous that the first trial judge had given. The judge told the jury that:
"Even where there are no sexual acts, the materials can still depict explicit sex".
Anyone see the oxymoron in that statement? You cannot have explicit sex in the absence of sex acts. That is plainly obvious and you don't need to be
a legal expert to see through this nonsense.
So Smith was convicted a second time for the same charges last May 29, 2008. Now comes the sentencing.
Back up a bit. Recall that Smith received 36 months probation after the first trial. His lawyer tried to get a stay of sentence which was denied in
April 2003. So Smith served out his probation from November 28, 2002 until July 11, 2005. That's 32 months of his original 36 month probation. Also
recall that the court of appeal set the fine for one count at 2,000.00 and threw out the probation order, acknowledging that Smith had no prior
criminal record. (Smith was 46 in 2002 when he was convicted).
Under the Law, Smith could be tried again for the same crimes because he appealed and asked for an acquittal, or in the alternative, a new trial.
But could Smith be punished again, since he was already punished once?
The second trial judge sentenced Smith as follows: 2 more years probation!! 240 hours of community service work(to a guy that has physical limitation)
and a 28,000.00 fine(for a guy with no income who lost his busness and spend his entire life savings defending himself).
Luckily, his lawyer is doing some pro bono work and appealing the sentence and convictions....and he is not doing it for the publicity, because there
has been none. This is going on under most Canadians noses and they have no clue!!
Smith was finally sentenced on January 26, 2009 and the 8 month delay is another story within the bigger picture.
The new probation order imposed by the judge is "double jeopardy punishment". I researched Canadian law and found that Section 12 of the Criminal
Code clearly states that people cannot be punished twice for the same offences. Section 11(h) of the Canadian Charter of Rights and Freedoms also
declares that a second punishment for the same charges is unconstitutional. The UN Charter of Human Rights, article 14 also declares double jeopardy
punishment is a violation of basic human rights. I researched Supreme Court of Canada cases and found numerous cases which clearly state that people
cannot be punished twice for the same offences. This includes probation orders. Smith clearly served out 32 months of a 36 month probation order that
the Court of Appeal ended up throwing out. I can only imagine how that would make the guy feel....knowing that his wife and kids had also suffered
with no Internet access and dealing with moving the family, depression, and anxiety.
A Canadian Judge violating the Law, the Canadian Charter, Article 14 of the UN Human Rights Code? You betcha!! In the USA I believe this falls under
the 5th Amendment. Incidentally, Smith's websites were in the USA and the OPP cops tried to have the FBI, and the KBI shut down his websites and they
said "No". Smith was not violating any US laws. Then the cops had ICE on Smith's ass. Smith lived in a boarder town and visited his relatives in
the USA regularly...While Immigration and Internal Revenue investigated Smith he was denied access to the USA....He was eventually cleared by all US
agencies and told he could travel to the USA.
The true north strong and free has NOTHING to brag about while it's people let this judge get away with such a fundamental violation of the law,
Charter, and human rights.
Look! I am a Christian. I don't care for what Smith was producing. I do care about justice and fairness though. I know for a fact that Smith's
materials do not contain sex and violence, that means they do not qualify as obscene under Canadian Law. What upsets me is that religious fanatics in
the back woods of NW Ontario became a law unto themselves. The OPP officer involved attends a fundamentalist church that Smith and his wife also
belonged to, but they left due to radical "cult like" teachings. The church was upset with him and used this avenue to get back at Smith. The
officers tainted view of morality and Smith leaving the group was his clear motive. He used his knowledge of the system to get Smith even after his
superiors had told him Smith's websites were viewed by them and they determined there was nothing criminal going on.
There is a lot more to this story. Any writers or publicists out their interested in a great book deal? Just U2U me and I can put you through to the
[edit on 19/2/09 by John Matrix]