Smith weighing appeal of guilty verdict

Woodyatt resident Don Smith may file an appeal of his conviction and sentence last week with the Ontario Court of Appeals.
“We’re going to seriously consider an appeal, particularly as far as the definition of obscenity that was used here,” Smith’s lawyer, Darren Sawchuk, said after Madame Justice H. Pierce imposed her sentence Thursday morning.
“The sentence that was imposed exceeds anything given out in an obscenity case in Canada,” Sawchuk said.
“When you consider the accused had taken steps to not cross the line, it’s unfair,” he added, referring to the fact Smith had—based on his research of obscenity law in Canada—never considered material on his free and paid Web sites as obscene.
Smith himself refused to comment on the verdict and sentence.
A jury found Smith guilty of creating and distributing obscene material over the Internet last Wednesday afternoon. They had begun deliberating his fate just before noon on Tuesday.
Justice Pierce ruled Smith, 47, must pay a $100,000 fine—far in excess of what Sawchuk had noted was the average fine in other Canadian cases dealing with obscene material ($1,000).
But the judge felt her decision was justified, calling the material deemed obscene “a poison to society” with the “power to change our perceptions.”
“Why should women be portrayed as victims? Or men? Are we, as a society, to choose profit over dignity?” she remarked. “Mr. Smith did.”
But Justice Pierce noted she felt Smith did not feel he personally had any personal bias or hatred against women.
Her decision was based on Crown evidence that a mixture of sex and violence was dangerous to adolescents, and viewers predisposed to sexually sadistic behaviour, as well as to women, who may feel a lowered sense of self-worth and increased fear of abuse if exposed to such material.
The hefty fine was more in line with what Crown Attorney Howard Leibovich, who was serving as co-counsel on the case with Crown Attorney Christine Bartlett-Hughes, had suggested.
Leibovich said $60,000 (U.S.) would have been suitable, based on an approximate amount he had determined to be equal to proceeds Smith made on the paid Web site.
Smith’s sentence also included three years’ probation.
As well, as of last Thursday, Smith must revoke any interest in his Web site on which the material deemed obscene was available, including any copyrights; not access the Internet nor reside in a place where access to the Internet is available; and not participate, in any way, in any Web site in the future.
He also must report to a probation officer as required, and must advise the OPP of any change of address.
“From the Crown’s perspective, we’re satisfied,” said Leibovich, who opted not give any specific comments on the verdict and sentence.
The jury announced its verdict around 3:30 p.m. last Wednesday, finding Smith guilty of 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.
He had been charged back in October, 2000.
Justice Pierce noted the fine and probation were standing orders and not in lien to any individual counts.