Paige Desmond
A battle of words was fought in Ontario Superior Court here last Thursday as the sentencing hearing for former district resident Donald Smith, now living in Kenora, started at 9 a.m.
But what was intended to be a short hearing, expected to end by noon, became a courtroom marathon that lasted until nearly 7 p.m.
Smith was convicted by a jury May 29 on four counts relating to making, possessing, and distributing obscene material stemming from an OPP investigation back in October, 2000. But the investigation by the Crown as background for its sentencing recommendation, which included a $98,000 fine, was made a hot issue by the defence, requiring a lengthy time to sort out.
The defence claimed the Crown investigated the financial records of Smith’s wife, Lorna, which violated her privacy rights under the Canadian Charter of Rights and Freedoms.
Calling the search “a warrantless seizure of personal information,” defence lawyer John Bilton sought to have her financial information excluded.
“You can’t just throw out evidence that the Crown wishes to bring in,” Justice Jack McCartney told Bilton. “All this is doing is trying to throw us off track.”
Addressing the matter, Assistant Crown attorney Kent Saliwonchyk told the court he did not intend to rely on the financial records in the course of his submissions regarding sentencing.
In addressing the accusations of violating Charter rights, the Crown replied information gathered about Lorna Smith, including boat registration records, a photo of the family’s home, motor vehicle records, and Canada Revenue Agency records, was publicly-available information and therefore no rights were violated.
“There has been no seizure,” explained Saliwonchyk. “There were requests made for public information and they were answered.”
The defence also sought that an affidavit by Fort Frances OPP Sgt. Scott Gobeil be struck based on information contained in it regarding Lorna Smith’s financial information.
This motion was denied by
Justice McCartney.
Defence counsel went further in requesting that Lorna Smith be granted standing in the trial for the purpose of having Sgt. Gobeil’s affidavit struck and to seek damages caused by the airing of her information in a public forum such as the court.
Saliwonchyk presented past decisions relating to the Paul Bernardo case, and others, as argument for not granting Lorna Smith standing.
Her application for standing subsequently was refused.
In his sentencing submission, Saliwonchyk provided reasoning for placing Donald Smith on probation and levying a hefty fine.
Citing Smith’s first trial and the sentence imposed upon conviction of five charges, Saliwonchyk stated Smith is in “the exact same position today as in 2002,” and therefore requested a similar punishment as was imposed initially, which included a precedent-setting $100,000 fine.
Recalling how experts testified the subject matter of Smith’s videos was “inviting” men with fetishes for sexual violence against women, Saliwonchyk argued “that is the harm we’re trying to address.”
Saliwonchyk also said the accused can “best be described as unrepentant” due to his contesting of the 2002, which later landed in the Court of Appeal Court and resulted in a new trial on four of the five charges for which Smith originally was convicted.
The appeal court also reduced Smith’s fine to $2,000.
“The most important considerations would be denunciation, deterrence, and the need to promote responsibility on the part of Mr. Smith,” the Crown argued.
However, Saliwonchyk continued that the people were not seeking to have Smith punished for fulfilling his right to trial.
If Smith is unable to pay the fine, the Crown is seeking 1,000 hours of community service, or a combination of fines and community hours—a punishment “which essentially seeks to recover revenue generated” by materials available for purchase on Smith’s websites as well as address the community harm caused by said materials, explained Saliwonchyk.
Following a lengthy cross-examination by Bilton of Sgt. Gobeil’s affidavit which sought to prove Smith no longer has any involvement in websites similar to those he once operated, the defence then made its sentencing submissions.
Bilton argued materials in mainstream media, such as movies and other artistic works, contain the same type of content which Smith was producing and profiting from.
“It’s not fair that Mr. Smith should have this big hammer swing on top of him,” Bilton asserted.
He also argued that because Smith already has endured nearly three years’ probation, eight years of litigation, and extensive legal fees, the charges should be stayed (which, for the purpose of an appeal, would be considered an acquittal).
The sentencing decision is expected sometime in October.
