



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Smith, 2012 ONCA
    892

DATE: 20121218

DOCKET: C50073

Rosenberg, MacPherson and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Smith

Appellant

Heather Pringle, John Bilton and Katherine Oja, for the
    appellant

Deborah Krick, for the respondent

Heard: December 4, 2012

On appeal from the conviction entered on May 29, 2008 and
    the sentence imposed on January 26, 2009 by Justice John F. McCartney of the Superior
    Court of Justice, sitting with a jury.

MacPherson
    J.A.:

A.

INTRODUCTION

[1]

In November 2002, the appellant was convicted by Pierce J., sitting with
    a jury, of two counts of making obscene material, one count of possessing
    obscene material for distribution, and two counts of distributing obscene
    material through internet websites. The charges related to two types of
    material: audio-visual material and written stories.

[2]

On appeal, this court upheld the sole conviction relating to the written
    stories but allowed the appeal and ordered a new trial on the four counts
    relating to the audio-visual material: see
R. v. Smith
(2005), 76 O.R.
    (3d) 435, leave to appeal refused [2005] S.C.C.A. 464 (
Smith I
).

[3]

The second trial on the various obscenity charges relating to the audio-visual
    material took place over a three-week period in 2008. The appellant was
    convicted by McCartney J., sitting with a jury, of two counts of making obscene
    material, one count of possessing obscene material for the purpose of distribution,
    and one count of distributing obscene material. He was sentenced to a fine of
    $28,000, two years of probation with conditions including 240 hours of
    community service, and repayment of the fine during the probationary period.

[4]

The appellant appeals against conviction and sentence.

B.

facts

[5]

The appellant operated two websites, one free and one that could be
    joined for a fee. The count of distributing obscene material related to
    material distributed by the appellant through these websites. The counts of possessing
    and making obscene material related to audio-visual material seized from the
    appellants home and retrieved from the appellants computers.

[6]

Generally, the material at issue in this appeal consists of audio-visual
    materials and still photographs of naked or almost naked women being shot or
    stabbed in the breasts and/or lower abdomen, directly above the pubic area.

[7]

All of the video scenes and photographs are acted; no one is actually
    killed or injured through the violence that is depicted. The audio-visual
    materials are relatively short and have little plot or dialogue beyond the
    killing of the women. The perpetrators of the violence, usually male, speak and
    behave as though the women deserve what happens to them.

[8]

Frequently, the camera pans over the womens naked bodies, particularly
    their breasts and genitals, and pauses as women appear to die. The still
    photographs include depictions of naked women with arrows or knives stuck in
    their abdomens, between the breasts or protruding from the rectum, or of blood
    flowing from injuries inflicted by bullets, as they lie appearing to die.

[9]

In order to simulate the realistic appearance of the womens skin being
    pierced by bullets, arrows and knives, a unique special effects technique was
    used that employed an air compressor and computer editing software.

[10]

The
    Crowns position at trial was that the material was obscene because the undue
    exploitation of sex was its predominant characteristic. According to the Crown,
    the material depicted explicit sex with violence. In addition, the material
    created a risk of harm to the community by potentially inciting sexually
    deviant individuals to act on their fantasies.

[11]

The
    appellants position at trial was that none of the material depicted explicit
    sex. Even if it did depict explicit sex, the appellant submitted, it would be
    tolerated by the community and so would not constitute the undue exploitation
    of sex. The appellant submitted that the evidence called by the Crown about the
    risk of harm caused by exposure to the material should not be relied upon.

[12]

The
    appellant was convicted on all four counts and received the sentence set out
    above.

C.

Issues

[13]

The
    appellant raises the following issues on the appeal:

(1)

Did the trial judge err by
    admitting evidence in relation to meta-tags, banners, and links to other
    websites?

(2)

Did the trial judge err by
    admitting as evidence written obscene stories contained on the appellants
    website?

(3)

Did the trial judge fail to
    adequately instruct the jury on the use to be made of the written obscene
    stories?

(4)

Did the trial judge err by
    admitting evidence of the appellants psychiatric condition through the
    testimony of Dr. Collins?

(5)

Did the trial judge err by
    admitting opinion evidence from Dr. Malamuth about the nature of the impugned
    material?

(6)

Did the trial judge properly
    charge the jury on the issue of explicit sex?

(7)

Did the trial judge err by
    refusing to grant a stay for delay pursuant to s. 11(b) of the
Charter
?

(8)

Did the trial judge impose a
    sentence that was unduly harsh?

D.

analysis

(1)

Meta-tags, banners, and links to other websites

[14]

The
    meta-tags, banners, and links to other websites were admitted at the first
    trial. In
Smith I
, this court affirmed the trial judges ruling on
    this issue, saying at para. 62:

The trial judge did not err in admitting this evidence. The
    meta-tags, banners and links on an Internet website are analogous to the
    dustcover and preface to a book: they inform the viewer about the content of
    the publication and provide context for the work.

[15]

The
    same evidence was led at the second trial, and the defence made no objection at
    that time. Accordingly, the trial judge did not make a formal ruling on the
    admission of this evidence.

[16]

On
    appeal, the appellant asserts that the ruling in
Smith I
has been
    overtaken by the subsequent decision of the Supreme Court of Canada in
Crookes
    v. Newton
, [2011] 3 S.C.R. 269 (
Crookes
). Based on that
    decision, he argues, the banners, links and meta-tags were not relevant to the
    content of the appellants website and should not have been admitted.

[17]

I
    do not accept this submission. First,
Crookes
says nothing about
    meta-tags and banners. Second, with respect to hyperlinks,
Crookes
and
    this case are quite different.
Crookes
was a defamation case where the
    issue was whether creating a hyperlink to a third partys defamatory work is
    the type of act that can constitute publishing that work. The courts focus
    was on the sufficiency of the act for the purposes of defamation; its comment,
    at para. 30, that a hyperlink, by itself, is content-neutral must be
    understood with that in mind. In this case, the hyperlinks were adduced only as
    context for the content that the appellant published on his own website.

[18]

Third,
    the trial judge explicitly instructed the jury that the meta-tags, banners and
    links could be used only to give context to the images in question, that is,
    to the audio-visual material displayed by the appellant on his own websites.
    For these reasons, this courts decision relating to the admissibility of
    meta-tags, banners and links in
Smith I
remains good law and the trial
    judge in the second trial was correct to follow it.

(2)

The written obscene stories  admissibility

[19]

At
    the first trial, the appellant was convicted of distributing obscene material,
    namely, three written stories displayed on his pay website. The conviction for
    this offence was upheld by this court: see
Smith I
at para. 50.

[20]

At
    the second trial, the trial judge admitted the three written stories as
    evidence on the basis that they provided context for the contents of the
    appellants websites.

[21]

The
    appellant challenges this ruling. He contends that the trial judge did not
    weigh the prejudicial effect of the stories against their probative value. He
    also submits that, on a proper assessment of these factors, the stories should
    not have been admitted.

[22]

I
    disagree. Although the trial judge did not use the words probative value and prejudice
    in his four-page ruling on this issue, it is clear that these are precisely the
    factors he considered. His discussion of whether the stories are remote from
    the audio-visual material is directed to the probative value of the stories.
    Moreover, he explicitly states that the jury will need to be cautioned about
    the limited use of the stories, namely, to provide context for the contents of
    the website on which the audio-visual material is shown. This is a clear
    recognition of the potential for prejudice and the need to guard against it.
    Furthermore, the focus of both the oral and written submissions of the parties
    was on probative value and prejudicial effect.

[23]

As
    for the trial judges actual decision, admitting the stories as evidence of context
    easily comes within the consistent message in the leading obscenity cases that
    the work as a whole  in this case, the appellants websites  must be
    considered: see
R. v. Butler
, [1992] 1 S.C.R. 452 at para. 55 (
Butler
),
    and
Smith I
at para. 61.

(3)

The written obscene stories  jury charge

[24]

The
    appellant submits that the trial judge did not instruct the jury on the use it could
    make, and not make, of the evidence relating to the three stories.

[25]

The
    trial judge did instruct the jury on the proper use to be made of the stories.
    The trial judges caution was expressed in this fashion:

I would like to then mention
the
    special treatment that must be given to the stories
, the meta-tags,
    banners and links, which we have been talking about, in this material.
Now it is important to remember that the accused is
    not on trial for anything but the images on the videos made by him and the audio
    and visual images in his computers and on the websites. However, the stories
,
    meta-tags, the banners, the links
may be used to
    give context to the images in question
. However, they must relate to the
    images in question. So for example, the meta-tags, the banners, the links that
    are seen on the free site can only relate to the material on the free site,
    because that is where the material appears. Likewise the stories which appear
    on the pay site, only relate to the pay site, because that is where they appear,
    and must be, so the use of this material must be confined to the specific areas
    that they appear in.           [Emphasis added]

[26]

In
    my view, this was an appropriate caution. The trial judge made it clear that
    the appellant was not on trial for the stories, instructed the jury on the
    only use that could be made of the evidence, and specified the material for
    which the stories could provide context. In its closing address to the jury,
    the Crown, too, stated that the appellant was not on trial for the stories, and
    told the jury not to convict on the basis of what was in the stories. The trial
    judge did not say that the stories were themselves obscene or that the
    appellant had been convicted of criminal offences in relation to them. Nor did
    defence counsel object to this aspect of the charge. I would, therefore,
    dismiss this ground of appeal.

(4)

Dr. Collins testimony

[27]

Dr.
    Peter Collins, a Crown witness, was qualified as an expert in psychiatry,
    particularly in the area of paraphilia, including the effects of exposure to
    sexually explicit material in the development and enforcement of paraphilia.
    Dr. Collins testified that paraphilia is the clinical term for sexual deviance.

[28]

The
    appellant contends that Dr. Collins testimony transgressed the proper
    boundaries of expert evidence by providing a diagnosis of the appellant as a
    paraphiliac; this, submits the appellant, in effect amounted to bad character
    evidence.

[29]

I
    do not accept this submission. The core of Dr. Collins testimony was directed to
    explaining paraphilia and the effect that exposure to material such as was
    displayed on the websites at issue in this case has on those who have a
    paraphilia. This evidence was necessary to establish an evidentiary foundation
    for the community standards test, which the jury would have to apply to render
    a verdict. When, occasionally, Dr. Collins used language that came close to
    sounding like a diagnosis of the appellant, it was in response to questions
    asked by the appellants counsel in cross-examination. Finally, the trial judges
    charge to the jury included a caution with respect to this aspect of Dr.
    Collins testimony:

Now there is one bit of evidence in the case that counsel
    brought to my attention which I would just like to clarify. You will recall
    that when Dr. Peter Collins was testifying he made it clear that he was not in
    any way making any diagnosis of Mr. Smith as having any paraphilic tendencies,
    however he may have left you with that suggestion. Now the difficulty with that
    is that the motive of Mr. Smith  you might take from that that the motive of
    Mr. Smith, if that suggestion lingers with you, might be to commit this
    offence. Now that is totally improper evidence  sometimes evidence just flows
    out as things go along and the reason for that is because in a case of this
    nature, as you may have heard, and I will mention to you again, the motive of a
    person is not [relevant]. And so, for many reasons, not the least of which is
    that this is irrelevant evidence in this case, you must disabuse your mind of
    that suggestion, if in fact it lingers with you.

In my view, this instruction was both clear and
    sufficient.

(5)

Dr. Malamuths testimony

[30]

Dr.
    Neil Malamuth, a Crown witness, was qualified as an expert psychologist on the
    effects of exposure to sexually explicit material, and the effects of sexually
    explicit violent material in particular.

[31]

The
    appellant contends that Dr. Malamuths testimony went beyond the scope of his
    expertise in two respects: first, by providing a definition of what constitutes
    sexually explicit violent material; and second, by offering an opinion that the
    material in respect of which the appellant ultimately was convicted fit into
    this category. In doing so, the appellant submits, Dr. Malamuth usurped the
    roles of both the trial judge and also the jury.

[32]

I
    disagree. A review of Dr. Malamuths testimony establishes that he did not
    define sexually explicit violent material for the purposes of the legal
    definition of obscenity, but, rather, to assist in his explanation of findings
    arising from his research. The entire purpose of Dr. Malamuths testimony was
    to provide an evidentiary foundation for the Crown to argue that exposure to
    the material on the appellants website could cause negative effects and satisfy
    the risk of harm branch of the obscenity test. In order to argue the final
    proposition  that the appellants material posed such a risk  the Crown had
    to introduce the results of research in this area and establish that those
    results were applicable to the material in respect of which the appellant was convicted.
    By necessity, this involved comparing the material that was the subject of Dr.
    Malamuths studies to the appellants materials. Finally, I observe that the
    trial judge made it clear in his jury charge that they were to take the
    definition of the relevant legal principles from him.

(6)

The jury charge with respect to explicit sex

[33]

The
    appellant contends that the trial judges charge to the jury on explicit sex
    was deficient in two respects: first, it did not follow the order for
    addressing the relevant questions set out in
Smith I
; and second, it
    failed to instruct the jury that sexualized nudity, without more, does not
    constitute explicit sex.

[34]

The
    trial judges charge set out s. 163(8) of the
Criminal Code
and then
    explained it in terms that were very close to those used in
Butler
and
Smith I
. When a trial judge instructs a jury about the law to be
    applied, it cannot be an error to do so by reference to the leading
    authorities, especially the leading Supreme Court of Canada case on the point
    in issue. In any event, when the trial judges charge on explicit sex is read
    as a whole, it is clear that the jury was directed to decide, first, whether the
    impugned material, considered in light of the contextual factors identified by
    this court in
Smith I,
depicts explicit sex and, second, whether that
    portrayal constitutes the undue exploitation of sex and violence.

[35]

On
    the second issue, the trial judge instructed the jury that they had to decide
    whether the material depicted explicit sex with violence taking into account
    the part of the body depicted, the nature of the depiction, the context, the
    accompanying dialogue, words, gestures, and all other surrounding
    circumstances. He also instructed that explicit sex captures portrayals at
    the far end of the spectrum, in other words it has to be serious. This would
    have left no doubt that the jury had to consider the depictions in their entire
    context, not just the part of the body depicted and the nature of the
    depiction. It was open to the jury to find that, having regard to all the
    circumstances, the material at issue depicted explicit sex. There is no reason
    to think that the jury was misled into concluding that the material was
    sexually explicit by virtue of the presence of nudity or sexualized nudity
    alone.

(7)

Charter
s. 11(b)

[36]

During
    the second trial, the appellant twice applied to stay the proceedings on the
    basis of unreasonable delay, once at the commencement of pre-trial motions and
    then again just prior to sentencing. The appellant contends that the trial
    judge made several errors in these rulings, including a failure to assess the
    reasonableness of the overall time frame.

[37]

I
    disagree. The delays in this case were not unreasonable in the context of the protracted
    and complex proceedings, including two trials, one appeal to this court, an
    application for leave to appeal to the Supreme Court of Canada, numerous
    volumes of disclosure, and the severance of two other accused early on.
As well, the proceedings required scheduling and
    travel arrangements for judge, counsel, witnesses and the accused.
Although the trial judge did not explicitly characterize each delay, implicit
    in his reasons for ruling on both applications is that the constellation of the
    above factors suggested a large amount of inherent delay. I see no error in his
    analysis or in the results reached in the two delay applications.

(8)

Sentence

[38]

Following
    the appellants conviction at his first trial, he was sentenced to a fine of
    $100,000 and three years of probation. On appeal, this court quashed four of
    the five convictions. The sentence on the remaining count was varied to a $2000
    fine. On August 8, 2005, the court released an Addendum to sentence clarifying
    that the probation order was also set aside. By the time the Addendum was
    released, the appellant had served two years, eight months, and 11 days of the
    three-year probation order.

[39]

Following
    conviction at his second trial, the appellant was sentenced to a fine of
    $28,000 (cumulative for the four offences for which he was convicted), two
    years of probation with conditions including 240 hours of community service,
    and payment of the fine during the probationary period. The appellant contends
    that this sentence is unduly harsh.

[40]

At
    the appeal hearing, it emerged that the appellant has served his entire period
    of community service and almost all of the probationary term. Hence, the only
    live ground of appeal on sentence is whether the $28,000 fine is too harsh.

[41]

It
    should be recalled that the fine imposed on the appellant after the first trial
    was $100,000. After the second trial, the trial judge justified the imposition
    of the lower fine of $28,000 in this fashion:

It is difficult to conceive how Donald Smith could repair the
    harm done by his actions on society, particularly, since it will never be
    known, considering the far reaches of the internet, how much damage his
    websites have done. However, there is one thing certain and that is that he must
    not be allowed to profit from his illegal conduct. Now, unfortunately the
    evidence is not entirely clear as to how much Donald Smith did profit from
    membership on his pay website. The evidence indicates that his records show a
    subscription list of some 2,000 members who would be paying $30.00 United
    States currency to become a member. This according to the Crowns calculations
    would have given him a profit of nearly $100,000.00 Canadian. This, of course,
    anticipates a very healthy exchange rate and fails to take expenses into
    account. Unfortunately, there is no hard evidence to support exactly what his
    profit would have been; however, I cant conceive of him netting less than half
    of the Crowns estimate in Canadian dollars which would be $30,000.00.

[42]

In
    addition, the trial judge observed:

It is clear to me that the offender, Donald Smith, has remained
    unrepentant throughout the many proceedings and, in fact, has shown a certain
    defiance, apparently having convinced himself that he is right and the law and
    his fellow citizens who have on two occasions found him guilty of producing and
    distributing obscene material are wrong.

[43]

I
    accept this analysis. It renders impossible any conclusion that the $28,000
    fine imposed on the appellant was unreasonable or unduly harsh, particularly
    since the appellants convictions could have attracted a custodial sentence.

E.

DISPOSITION

[44]

I
    would dismiss the appeal.

Released: December 18, 2012 (M.R.)

J.C. MacPherson J.A.

I agree. M. Rosenberg J.A.

I agree. S.E. Pepall J.A.


