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New trial ordered and number of convictions tossed out

|Written By Shannon Kari - for Law Times

The Ontario Court of Appeal has ruled that "sexualized nudity" is notsufficient to constitute explicit sex under the Criminal Codedefinition of obscenity.

The court made the finding as it set aside a number of convictions against Donald Smith, who previously ran an unusual Web site that contained stories and video clips depicting "fantasy violence" against women.

Brian Greenspan says the crux of the ruling was rejecting the trial judge's decision 'to create a Sharpe-related definition and have it stand for adult pornography.'
Brian Greenspan says the crux of the ruling was rejecting the trial judge's decision 'to create a Sharpe-related definition and have it stand for adult pornography.'

In November 2002, Smith was convicted by a Superior Court jury in Thunder Bay, Ont., of making and distributing obscene material. Justice Helen Pierce imposed a term of probation and a $100,000 fine. Smith was also prohibited from accessing the Internet and ordered to "irrevocably" assign his interest in his Web sites to the Crown.

The Court of Appeal ordered a new trial on several counts and upheld an obscenity conviction on only one charge relating to graphic stories available on the Web site. The fine was reduced to $2,000 and the appeal court noted that there was no jurisdiction, as a term of probation, for Smith to be ordered to turn over his interest in the Web sites to the Crown.

The site operated by Smith included written stories submitted by members as well as audiovisual material that he produced, using a digital editing technique. The site included a warning that said it contained "nudity and fantasy violence" and a link where Smith said "I hate real violence."

The audiovisual clips included scenes of topless women with apparent knife wounds, or with arrows protruding from their lower abdomen or breast. Actors were used for the clips and the wounds were simulated using digital editing software. There were no explicit acts of sex portrayed in the video clips.

The Crown argued at the appeal hearing that Pierce was correct to adopt a definition of explicit sex that was very close to the findings of the Supreme Court of Canada in the context of child pornography in its 2001 ruling in Sharpe.

"Although in Sharpe, the Supreme Court included depictions of nudity within the scope of the child pornography prohibition, in my view, it is not appropriate to incorporate nudity from the definition of explicit sexual activity in child pornography into the concept of explicit sex in adult obscenity," wrote Justice Susan Lang. "The prohibition on child pornography and the prohibition on adult obscenity serve different goals," said Lang, with justices Marc Rosenberg and Janet Simmons concurring.

"In furtherance of the goal of protecting adults, usually women, the Code criminalizes only adult pornography that involves the undue exploitation of sex because only the undue exploitation of sex promotes harm," said Lang.

"Sexualized nudity is a nebulous term and therefore unhelpful," said the Court of Appeal, in defining what level of sexual content is required, which when combined with violence, would be considered obscene under the Criminal Code.

"The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one," wrote Lang. "The trier of fact will determine whether a reasonable person who viewed the material would determine, in all the circumstances, that the material was explicitly sexual in nature. The part of the body depicted; the nature of the depiction; the context of the depiction; the accompanying dialogue, words, or gestures; and all other surrounding circumstances will be relevant to this determination," said the Court of Appeal.

Brian Greenspan, who represented Smith, said "the nudity was not extreme" in the video clips on the Web site.

"It was certainly not like the explicit sex you can see every night of the week" [on cable television]. Greenspan suggested the "critical point" of the Court of Appeal's ruling was to reject the trial judge's decision "to create a Sharpe-related definition and have it stand for adult pornography. Nudity does not constitute explicit sex," said Greenspan.

In upholding the conviction for the graphic written material on the Web site, the Court of Appeal said the Crown "demonstrated that these stories did not have artistic merit. Clearly under the Butler test, these stories are obscene."

The court also upheld Pierce's decision to admit the "meta-tags," "banners," and "links" as evidence at Smith's trial and found that their potentially prejudicial effect did not outweigh their probative value.

Meta-tags are hidden HTML codes placed in the front page of a Web site, containing the Web site's description. Many search engines use the data in meta-tags to index a Web site, rather than looking at the contents of the page.

"Meta-tags, banners, and links on an Internet Web site 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," wrote Lang.

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