As of press time Wednesday, a jury continued to deliberate the fate of Don Smith, a Woodyatt man charged with creating and distributing obscene material back in October, 2000.
Closing statements by both the defence and the Crown on Monday afternoon drew the line that the jury must determine if the material has artistic merit or is harmful to the community.
During his closing statement, defence lawyer Darren Sawchuk said the jury must keep in mind that determining what is obscene is about “community standards.”
“Canadian obscenity law is about what you wouldn’t tolerate allowing others to see. It’s tolerance versus taste that matters here,” he argued.
“If you’re left with any doubt the materials seen fall below the lowest community standard, then acquit.”
Sawchuk reminded the jury the defence’s case is based on the testimony of experts, referring to Dr. David Annandale, a professor of literature and film, and Dr. Barry Grant, a professor of film studies and pop culture, and is therefore “rational, not frivolous.”
He noted Dr. Grant called the video clips and movies Smith made “tame,” while Dr. Annandale said the written material evidence in question “didn’t fall below the standards set by the Marquis de Sade,” one of the sources referred to by Dr. Annandale as an example of “the extreme end of horror.”
And referring to the series of five videos and one DVD—ranging from “slasher movies” to hardcore pornography—that were viewed by the jury as another part of the defence, Sawchuk said, “When you look at standards of community tolerance, listen to what the experts said.
“Mr. Smith’s movies may have come close to the line. When we see that these other materials go past the line, there is doubt,” he added.
Determining whether or not materials are obscene also depends on its artistic merit, said Sawchuk, noting Dr. Grant and Dr. Annandale said both the video and written materials had some artistic merit, whether for special effects (in the videos) or as examples of the horror genre established centuries ago (written materials).
“At the end of the day, the issue isn’t whether you, me, the judge, or anybody else thinks the materials are in good taste. It’s about tolerance,” he concluded.
Meanwhile, Howard Leibovich, serving as co-counsel on the case with Crown Attorney Christine Bartlett-Hughes, started off his closing statement Monday afternoon by defining “obscene” as that which unduly exploits sex and violence and presents a substantial risk of harm.
Addressing the first aspect, Leibovich stressed the indicted materials—both written and visual—all have a common element of sex and violence.
“It’s just nude women being killed. No story,” he remarked, adding that under Canadian obscenity law, nudity is considered “sex.”
He also questioned the veracity of testimony by Drs. Annandale and Grant, saying the former said the indicted written materials were “amateur and clumsy, and couldn’t be compared to the works of a professional,” but then started comparing them to the work he wrote his thesis on (Sade).
And he refuted Dr. Grant’s observation the indicted movie material probably would only be of interest to those interested in special effects.
Citing Crown witness psychologist Dr. Neil Malamuth, Leibovich reminded the jury the expert said mass media images of violence against women could lead males to greater possibility of violence against women, desensitization against violence against women, and greater acceptance of myths about violence against women, while women can be affected with a lowered self-esteem and enhanced fear of violence against them.
“He never said it was a direct cause. It just added to the risk level by changing attitudes,” he noted.
Leibovich added another expert called by the Crown, psychiatrist Dr. Peter Collins, said the indicted materials would “be of great interest to a sexual sadist,” helping them fantasize through a medium (the Internet) which validates that fantasy due to the fact others are doing the same as they are.
Such materials, being available on the Internet, would be of most risk to adolescents, who are most impressionable when developing psychosexual behaviour.
While Sawchuk had pointed out in his closing statement that benign materials could be abused by sexual sadists, Leibovich stressed “that’s not the point. You can do something about violence against women.”
“I say if there is undue exploitation of sex and violence with artistic merit, it is obscene. There can be no doubt, this is dirt for dirt’s sake,” concluded Leibovich.
“I submit this will cause harm to the community. I submit you find this material obscene.”
Leibovich also said police evidence provided by Det. Sgt. Robert Gagnon of the OPP’s Electronic Crime Unit proved that Smith undoubtedly is guilty of one of the five counts against him—distributing obscene matter (in this case, three stories) via a Web site.
Madame Justice H. Pierce spent about two-and-a-half hours Tuesday morning giving her charge to jury, before they began deliberating around 11:45 a.m.
As she reviewed the evidence brought forth by counsel, Justice Pierce reminded the jury to keep in mind just what is the meaning of “tolerance,” adding they must remain objective.
“It’s a standard of tolerance, not taste, you are determining here—what Canadians would not abide by letting other Canadians see,” she remarked.
Likewise, she asked jurors to consider artistic merit—for example, what is the dominant purpose of the work, the importance of visual effects in it, does exploitative sex have a role—when going over the case for Smith’s defence.
Justice Pierce noted the jury only has to find one piece of indicted material obscene, not all of them, to find Smith guilty.
Smith is facing five charges, including two counts of making videotapes featuring undue exploitation of sex and violence, one count of possessing similar material on a computer for the purposes of distribution, and two counts of distributing obscene matter via a Web site.
The defence is asking his client to be acquitted on all counts.
The trial got underway here Oct. 28.
