The ‘Warman vs. FD/internet privacy’ appeal hearing: the facts

April 12, 2010 — xanthippa

Thursday, 8th of April, 2010,  the Superior Court of Ontario held an appeal hearing of the ‘Richard Warman vs. Connie Fournier, Mark Fournier and John Does’, often also referred to as the ‘Richard Warman vs. Free Dominion’ case and the ‘Richard Warman vs. internet privacy’ case.

But, let me start at the beginning.  Let me stress that I have absolutely no legal training, so these are my personal observations and should in no way be considered to be anything other than those of a regular person trying to make sense of this case and its implications on our daily lives.

First, the facts:

The case was appealed.  The Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic requested and were granted intervenor status.

So much for the ‘dry facts’!

More of what I have said about this hearing is listed on this page.

Posted in freedoms, opression, society, technology. Tags: , , , , , , , , . 3 Comments »

‘Warman vs. internet privacy’ case appeal hearing, part 3: introductions

April 11, 2010 — xanthippa

They narrative of my observations of this event started out in a rather tongue-in-cheek manner:  fully aware of the importance of this case, this was my way of relieving some of the tension.  However, now that I will be describing the proceedings themselves, my reporting will be as accurate as possible. Connie Fournier’s observations of these same proceedings can be found here and here.

When I last left off, the 3 judges had entered the courtroom, dispensed with another matter and invited all the lawyers present – for both sides in the action as well as the two intervening parties.

Describing positions as seen from the spectator benches in the courtroom, the introductions began on the right:

On behalf of the intervenor Canadian Civil Liberties (CCLA), there  were

Representing the appellants, Connie and Mark Fournier, there was

On behalf of the intervenor Canadian Internet Policy and Public Interest Clinic (CIPPIC), there was

On behalf of the complainant, Richard Warman, there were

Very interesting group of people!

The judges did not introduce themselves.  However, these are their names (again, the order is from right to left, as observed if one had their back against the ‘main’ door):

  • The Honourable Mr. Justice Herman J. Wilton-Siegel
  • The Honourable Mr. Justice James C. Kent
  • The Honourable Mr. Justice Thomas A. Heeney

I do not know the name of the Clerk of the Court or the Bailiff.

As I said in my earlier post, the spectators included David Fewer, as well as Connie Fournier, Mark Fournier, Guy Poirier, a young woman whom I presume to have been an aid to the Katz/Lewis team, an unidentified blond woman in a gray pantsuit and myself.

Surprisingly enough, these were all the people there!

    Posted in freedoms, opression, society, technology. Tags: , , , , , , , , , . 1 Comment »

    My observations from the ‘Warman vs. internet privacy’ appeal – part 2

    April 10, 2010 — xanthippa

    When my narrative last left off, I had finally arrived!

    (Connie Fournier’s excellent report is here and here.)

    It seemed like a miracle, but, despite my bumbling and probably due to more luck than skill, I had found Courtroom #36 where the hearing of the appeal of the Richard Warman vs. the Free Dominion folks, Connie and Mark Fournier and their users, was being held. There were none of the throngs of reporters I had expected – perhaps their quest in finding this well-concealed hearing was less successful than mine.

    After exchanging greetings with Mark and Connie, as well as Guy Piorier (a blog reader who also came to lend his support to the Fourniers), it was time to get oriented a little.

    I was there in time – he courtroom was still locked! The hearing had been scheduled for 10:00 o’clock. So far, so good.

    So, how much time was there before things got going? A quick glance at the clock just to the left of the courtroom door said it was…. 10:34.

    10:34?!?!?

    Ah – it was showing ‘real time’! Not the ‘we-stole-an-hour-from-you-and-you-can’t-do-anything-about-it’ time! OK – let’s get that adrenalin back under control….

    10:45 – as the clock read: a huddle of black robes just outside the courtroom door. Yup – the door is still locked.

    The air is positively crackling with anxious anticipation!

    10:50 – as the clock read: doors opened and the lawyers – plus whom I presume to have been a support person to one of their ‘groups’ – and all the waiting spectators enter Courtroom #36.

    Stepping into the courtroom was like taking a step backwards in time. By about an hour. The clock inside was set to the Daylight Savings Time.

    OK – I am new at this ‘on the grounds, reporting’ thing, but, I seem to recollect that I am to give as many facts as I will have managed to collect. Here, then, is the full and complete list of spectators who entered the courtroom: Mark Fournier, Connie Fournier, Guy Poirier, David Fewer and, well, yours truly. Yes. That is it. In total.

    Instead of fighting for a seat with throngs of other spectators, as was my fear, I now had a different dilemma with respect to finding a seat. Do I sit on the bride’s side, or the groom’s side?

    Is referring to the sides as ‘bride’s’ and ‘groom’s’ disrespectful to the court?

    That box in the middle – that is ‘the prisoners’ box’ and, apparently, it is disrespectful to refer to it as ‘the penalty box’. I know, because I asked.

    Things did work themselves out. There were 3 sections of seats: one on each side and one in the middle, right behind the prisoners’ box. Mr. Fewer took a seat on the left (all the ‘side’ references I’ll make are as if you were to stand with the ‘main’ door immediately behind your back), towards the front. The young woman whom I presume to have been a support person to the ‘Warman’ lawyers sat a few rows behind him.

    I followed Connie and Mark towards the front right, where we shared a row, while Mr. Poirier sat right behind us.

    The lawyers resolved themselves into seats at a long table immediately in front of the prisoners’ box, with their backs to us, spectators. Their 6 chairs were facing forward, divided in the middle by a lectern they would speak from when making their submissions to the court (I think that is the proper term – if not, please excuse me….the sum of my ‘legal experience’  is watching ‘Jurisprudence’ on TV, so these are all strictly the observations of a legal amateur).

    Immediately in front of the lawyers’ table, and slightly raised, was the Clerk’s table – he sat facing us. At the left side of the Clerk’s table sat another person.

    10:02:10 – a deep hush descended on the courtroom. The atmosphere was so thick, you could not just ‘cut it with a knife’ – you could chip at it with an ice-pick! The only thing we could hear was the distant heartbeat of high-heeled pumps, drumming purposefully through the corridors of justice…

    10:05:15 – another spectator wafted in. A young blond woman in a gray pantsuit, high-heeled pumps and a perplexing demeanour. She sat in the very middle of the ‘spectator area’, which took up roughly 2/3 of the area of the room.

    I called her demeanour perplexing, and, to me, it was. It was not so much what she did – but how she did it. She sat there. Very, very deliberately, she avoided all eye-contact, looking either directly ahead or at her very nice shoes. If my shoes were that nice, I’d probably spend considerable time looking at them, too – but she did not look like she had the industrial dose of OCD that I do, so that is probably not saying much.

    Perhaps she had a tooth-ache. She would come in at the last moment, then rush off, at the start of each break, so nobody could say hi to her (I would have liked to have). But, I am getting ahead of myself!

    10:05:45 – announced and ushered in by the bailiff (who looked nothing like Bull Shannon), the 3 judges who would be hearing this appeal entered the courtroom.

    They did look very official (in a good way). They wore black lawyers’ robes, but with a crisp, bright red sashes t top the off.

    Upon taking their seats, the judge in the centre went over some correspondence from an appellant from a case that was put before the Fournier one, but where the appellant had mistakenly showed up the day before the proper date (perhaps the appellant got help form the information kiosk), so they agreed to hold that hearing over till the 10th of October, 2010.

    At this point, the person sitting at the side of the Clerk’s table was excused.

    Next, the judges invited everyone to introduce themselves….but, that shall be then next instalment in my report. And, as the real, serious stuff is about to start, I’ll try to minimize injecting humour to relieve the tension of this truly important legal event.

    Posted in freedoms, opression, society, technology. Tags: , , , , , , , , . 2 Comments »

    Connie Fournier’s take on the ‘Warman vs. Free Dominion’ appeal hearing, part 2

    April 9, 2010 — xanthippa

    With Connie’s permission, here is how she saw, heard and understood the hearings of the ‘Warman vs FD John Doe Appeal’, as transcribed from her notes and posted here, on Free Dominion.

    Part 1 is here. This is part 2.

    The next person up was Tamir Israel representing the Canadian Internet Policy and Public Interest Clinic (CIPPIC). He is a soft-spoken and intelligent young man and he, too, had a firm grasp on the issues at stake here.

    He started by saying that the position of the CIPPIC was that anonymity should not be an absolute shield. (We agree with all of our intervenors in that regard, btw).

    Tamir said that privacy, through the lens of anonymity, should be protected. He said that the online sphere has unique issues which force privacy issues to the forefront that weren’t visible before. He continued saying that the problem with the online sphere is that activities that used to take place in a more private setting are now occurring in a semi-private setting online. He said privacy is control over your personal information, and that there is a reasonable expectation of privacy.

    Tamir went on to say that anonymity is important for allowing people to do things they once did in private, like having conversations with friends, political speech etc., in a semi-private sphere.

    Tamir hit a huge bullseye when he said that, in criminal cases, a warrant is required in order to get personal information, and that the warrant was only issued if there was reason to believe the person was guilty. He also said that information about anonymous posters reveal much more than identity.

    One of the judges quickly jumped on this and agreed that there was a parallel between discovery in civil matters and a search warrant in criminal cases.

    Tamir said that the position of the CIPPIC was that an intermediary must be convinced that there is wrongdoing. He said it is inherent in the adoption of an alias that there is an expectation of privacy. (Another bullseye!!)

    Tamir said that Terms of Service on a website were insufficient to use as evidence that there was no expectation of privacy because the adoption of an alias shows otherwise.

    *  *  *

    Next, Tamir talked a bit about the process that the CIPPIC would recommend as a test in these cases.

    As far as procedural steps go, if the intermediary is a Party in the action, they should disclose the existence of the information on the John Does. The plaintiff should take steps to try to identify them on his own.

    There could be a Counsel for the John Doe if they do not wish to come forward (this, I think, would come out of the balancing that was discussed before). If the standard was a prima facie case, the Court could rule out Does whose comments did not meet defamation standards.

    Tamir noted that if a John Doe was outed for the purposes of a defamation suit, the case went to Court and the plaintiff lost, the damage would already be done to the John Doe. He suggested that three things should be considered:

    – the strength of the claim
    – the gravity of the defamation
    – the breadth of the readership

    He said that identity is not relevant to assessment of whether or not a comment is defamatory.

    Tamir said that an intermediary should use readily available tools to notify the Does that they are being targeted with a lawsuit. Possible tools would be private messages or emails, and that a 20 day limit should be set for this notification.

    Tamir stated clearly that the identification between a screen name and a real name is the link that the privacy refers to. It is the context in which they are being disclosed that makes the name private. He stressed that there is an expectation of privacy between a name and a username.

    *  *  *

    Tamir Israel was finished his submissions, and it was on to James Katz representing Richard Warman.

    Katz seemed pretty relaxed and ready for his turn as we waited for the judges to return.

    Katz started out by saying that he disagrees with the use of the BMG case and the Irwin Toy case as examples in this case because they applied to third parties (ie the people with the information were not being sued).

    Immediately, a judge asked him about the case that Wendy made about the potential for abuse where a plaintiff would simply sue the information holder, too, to get around having the prove a prima facie case. Another judge asked why there should be a test in cases where the information comes from third parties, but not when the information holder is a party in the case. They asked him if he saw a distinction in principle that would justify the different standards.

    Katz said that he didn’t see a distinction in principle.

    At this point, Katz started talking about how what Warman was requesting was a different KIND of information. I, honestly, wasn’t really sure what he was trying to say, and I don’t really think the judges were either because they looked a bit puzzled.

    One distinction that Katz was making was that an IP address, by itself, would not lead directly to the Does, and that a prima facie case would be required at the next level when they wanted subscriber information from the internet service providers.

    A judge said, “Your argument turns on the Court being satisfied that individuals cannot be identified directly by this information.”

    Katz replied that the “nature” of Free Dominion makes him believe that the emails wouldn’t identify them because they want to hide behind these identities and they would be “pretty good at covering their tracks”.

    *  *  *

    I forgot to mention that Katz started his statement by reading a list of names Warman was called by our members. “Thug, Nazi, brownshirt…”, and some that are too awful to even mention.

    *  *  *

    Katz cited a case called Caro Energy Limited. He said that an IP address is a tool that can be used by a third party to identify a computer. A judge jumped in to say that nobody was arguing that this information was relevant.

    Another judge, again, brought up the point that email addresses could result in directly identifying Does. Katz said that Warman would prove a prima facie case for the third parties in regard to the IP addresses. He says that the rules for Simplified Procedure state that info that is not privileged should be produced and that Judge Kershman looked at privacy considerations when he made his ruling on the motion. Katz cited the Wilson case that said there was no expectation of privacy with an IP address. A judge said that, in the Wilson case, the Does consented to the release of their information and that our John Does chose to be anonymous.

    At this point, Katz brought out the FD user agreement and read the part that states that if you break the law we won’t protect you and you are on your own. I guess because it hasn’t been proven that any of the Does have broken the law, this line of thought didn’t really go anywhere and it was dropped quite quickly.

    A judge asked Katz if the motions judge erred in saying that relevance and privilege are all that is important in deciding if information should be disclosed.

    Another judge quoted Kershman where he talks about Irwin Toy in his ruling. The judge asks Katz, “Isn’t that a rejection of the privacy issue?”

    A different judge said that the Kershman ruling appears to be a conclusion of law, and that his decision regarding privacy did not seem to be related to specific evidence before him.

    A judge remarks that Kershman appears to have based his decision on Wilson because it was more current.

    When asked by a judge if he felt that Kershman had made an error in law, Katz said he didn’t think so.

    Katz concluded his submissions by stating that Warman would be willing to attempt to meet a test if the judges rule that a test needs to be met. He said Warman is very serious about protecting his reputation.

    *  *  *

    After Katz finished his submissions, the judges gave our side the chance to respond.

    Tamir Israel kicked it off by saying that PIPEDA rules say that IP addresses ARE identifiers and need to be protected as such. He used the example of a social insurance number. The number itself can’t lead you directly to a person, but, using that number, you can get all kinds of information about the person.

    He reiterated that a prima facie case can be made without knowing the identity of the Doe. Issues such as malice would not been to be proven at this stage.

    Tamir finished by arguing for a prima facie case to be the standard with a balancing of interests afterward.

    Wendy then took to the podium again and talked about Section 8 rights. She said there had to be a consideration of the totality of the situation, and she pointed out that there was consent from the Does in Wilson, it didn’t really relate to our case. Wendy said that it is important to remember that a test must be applied to make sure privacy issues are considered. She said that a fair reading of the decision in our motion shows he felt the Simplified Procedure rules were absolute and that there was no affirmation of freedom of expression as a Charter Right. She continued, pointing out that, on BMG, Kershman simply said that the rules were different for third parties.

    Finally, Wendy read from the Kershman ruling where he said that the plaintiff is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” Wendy said that Kershman is being disapproving of the speech on FD. She said that he is saying that this is controversial speech, so that is a reason to reject…REJECT the Charter issues. She finished up by saying that if Kershman did consider it, he was wrong in law.

    Barbara chose to let Wendy’s powerful last words wrap up our case for us, so we were done.

    At this point, the judges asked us to stick around for 15 minutes because they wanted to talk and then come back and maybe ask some questions.

    *  *  *

    After the recess, the judges came back and they had two questions. They wanted the parties to agree on costs, and it was agreed that the losing Party would pay $10,000 to the winner.

    Then, they asked an interesting question.

    The judges wanted to know, because there is a prima facie test when someone requests information from a third party, how you would prevent duplication if you added another test at the “lower level”. (For example, if they had to pass a test to get the IPs from us, then had to pass it again to get the subscriber information for those IPs from Bell).

    Wendy said that it is wrong to assume that there would always be a second step. After the first step, the John Does could be identified though their emails. She said that if there was another application for information, if there is consistency in law, they could simply pull up the first motion and make a few changes and submit it again for the new information. The costs would be minimal. She also noted that ISPs don’t usually oppose motions for information if they meet the BMG test. In any case, Wendy said, the cost is small compared to the rights at stake.

    Tamir got up to say, also, that the Court can incorporate the need for ISPs to disclose subscriber information into the first order so that the same order can be used at both levels.

    With that, we were done!

    This is it – in Connie’s own words!

    While many of my observations were similar, there were several points I saw/heard/understood quite differently.  I apologize for how long it is taking me to write up my take on this, but, I am a slow thinker, slow writer and it is taking me forever to decipher my handwriting in the 48 pages of notes I took.  So, please, bear with me – my version of the event is coming ‘soon’!


    Posted in freedoms, opression, society, technology. Tags: , , , , , , , , . 4 Comments »

    Connie Fournier’s take on the ‘Warman vs. Free Dominion’ appeal hearing, part 1

    April 9, 2010 — xanthippa

    With Connie’s permission, here is how she saw, heard and understood the hearings of the ‘Warman vs FD John Doe Appeal’, as transcribed from her notes and posted here, on Free Dominion.

    I’m about to start transcribing the notes I made at the hearing today, and I’ll post them in chunks on this thread, so keep watching.

    Keep in mind that I made no attempt to quote people verbatim because I can’t write that fast. I’ve recorded the gist of what everyone said, and added some of my own impressions.

    *  *  *

    I don’t know if there were FDers who tried to find us today and couldn’t locate the Court room. I know of one person who couldn’t find us, and everyone seemed to have difficulty. The issue was that our names weren’t on the docket, it only said “Divisional Court”. For those of you who tried to come and couldn’t find the room, I’m really sorry we missed you.

    When we went into the Court room, there were a large assortment of lawyers at the front. It turned out that the majority of them were our intervenors, so we were happy to see this. The panel of three judges came in and asked the lawyers to identify themselves. In attendance were:

    Wendy Matheson, representing the Canadian Civil Liberties Association
    Madeline Biderman, Canadian Civil Liberties Association
    Barbara Kulaszka, representing us
    Tamir Israel, representing the Canadian Internet Policy and Public Interest Clinic
    Stephanie Lewis, representing Richard Warman, and
    James Katz, representing Warman

    Also in attendance was David Fewer from the Canadian Internet Policy and Public Interest Clinic, but he didn’t make any submissions.

    I will have to get back to you with the names of the panel of judges because I forgot to write them down.

    The Court room was much larger than the one we were in for the motion hearing in Toronto last week, and there were lots of chairs for spectators. We had two friends join us, there was another young woman who sat on the far side and was, I believe, part of the Katz team, and one other young woman who sat in the very middle and didn’t talk to anyone. We were speculating that it might be Lucy Aubrack or Mary Dufford standing in for Richard Warman because he wasn’t there.

    *  *  *

    The first person to take the stand was our faithful lawyer, Barbara. I can’t imagine what it must be like for lawyers to stand up there and face down THREE judges!

    The first point that Barbara made was that Free Dominion is a political message board where we talk about news from a conservative perspective. I was glad to hear this because I, like many people here, was annoyed by the way that the motion judge had characterized Free Dominion in the motion we were appealing.

    She said that our appeal raises issues of what protections will be afforded to anonymous posters. Immediately, one of the judges jumped in and said, “You mean, what protections, if any.” Mark and I looked at each other and gulped. It was obvious this wasn’t going to be easy.

    Barbara stressed that IP addresses and email addresses are capable of identifying John Does, and that they can reveal much more than their identities. She said that if you google an email address, you can often find it on many other sites. Some of those sites can contain postings that are of a very personal nature.

    She went on to say that you can compile a total profile on someone using just their email address, and that profile can contain information about lifestyle choices, beliefs or health problems.

    There was a bit of back and forth at this time because the panel of judges didn’t seem to be getting that information that could be obtained from an email address could also be obtained by tying a username to a real person. That was never really resolved satisfactorily because there were some misunderstanding in how the questions were being asked and answered. But, we knew from reading our intervenors’ factums (is that a word?) that they would be addressing this issue very shortly.

    After Barbara made her brief preliminary statements, she deferred to the intervenors to address those privacy issues.

    *  *  *

    I got ahead of myself a bit there, and I forgot a bit of what Barbara said.

    She talked about balancing the rights of the plaintiff and of the anonymous posters. One of the judges asked her if a publisher had published a book for an author who wrote under a pseudonym such as Mark Twain, would the publisher be required to reveal the name?

    Barbara said that she believed he would, and that the online world is different because so much information can be obtained when a person has spent so much time online.

    Another judge asked if we should use the emails ourselves to try to find the identities of the Does and turn the information over. Barbara said that there is nothing in the law that would oblige a defendent to go through multiple steps to find identities, that we are only to turn over existing documents.

    As an aside, Barbara mentioned the issue with the server clock. It has been notoriously wrong at times and the dates on the posts in the database are not reliable. This really means that the IP addresses could be used and people could be misidentified, but the judges didn’t seem to understand her point…I guess it was a bit too technical. One judge just responded that he didn’t think that meant anything and that considering it would just be an open invitation to make sure people have a defective server clock.

    Barbara mentioned that Richard Warman has been able to identify four of the John Does already. She said that, since he knows the identities, she felt that the appeal should be allowed on those four. The judges said that they didn’t want to allow the appeal on those four because it would set a precedent they might not intend to set, but that James Katz (Warman’s lawyer) could stay the motion with respect to those four people. That means that the email and IP information will not be turned over for the known John Does.

    Barbara asked Katz if they knew who any of the other John Does were. Katz looked like he didn’t know what to say for a few moments, then one of the judges said, “You are working on it?” and he said, “Yes, we are working on it”.

    Make of that what you will.

    *  *  *

    The next person on the stand was Wendy Matheson representing the CCLA. She was a very dynamic speaker, and she knew exactly what she was talking about. Wendy said that the position of the CCLA was that in NO CASE should the identities never be disclosed, but that it should not be automatic. Automatic disclosure of personal information on anonymous posters creates Charter Rights issues.

    Wendy said that the basis on which the motion ruling was made was flawed in an important way. She said that people who are in possession of personal information should disclose that they have it, but state that they are objecting to the disclosure. Then, to order production, the Court must establish that there is a prima facie case against the anonymous posters. [This means that it has been demonstrated to a court that a case can be made that the anonymous posters actually defamed the plaintiff. It would mean that frivolous claims could be dealt with without ever having to disclose personal information of innocent posters].

    Further, it is the position of the CCLA that the Party who is in possession of the information should take reasonable steps to inform the John Does that they are being sued so that they can choose to come forward and fight if they wish.

    Wendy said that the CCLA was asking for a prima facie test to be applied in these cases, but, given the Charter Rights issues, the standard should really be even higher.

    In describing what would be required to prove a prima facie case, Wendy suggested that it include an Affidavit from the plaintiff stating that the posts were made and that they were false and defamatory. When asked by the judge if she thought it was important that the Affidavit say that the posts were false, she said that it should.

    She said that this would screen out people who are doing this for improper purposes.

    *  *  *

    There was a lot of discussion during this hearing about a case they called “Norwich”. The case law from that case requires that the plaintiff show a bona fide case before they get personal information about anonymous Does. A bona fide case simply means that the plaintiff has a genuine intention to sue them.

    Wendy went on to say that there had been some discussion about the frailty of the information (the IPs might be wrong or might not exist), but that we needed to consider what the process should be if the information is right. She mentioned a case she called “Wagg”, where the ruling showed that obligations under civil procedure are subject to the Charter.

    She came back to the Mark Twain analogy because that analogy was used in the Wagg decision, and the court concluded that anonymous speech is protected.

    A judge said that you must decide if a post was made with a reasonable expectation of anonymity.

    Wendy said that the Court must have the opportunity to balance the interests of the anonymous posters and the plaintiff in these cases.

    Wagg indicated that Charter Rights are an issue. In the test for that case, it was asked:

    Is it relevant?
    Is it privileged?
    Are Constitutional rights at stake?

    Wendy continued, saying that freedom of expression is at the forefront of a defamation case. The Supreme Court of Canada has been talking a lot about this recently. Freedom of expression is one of the most fundamental rights we have, and that true freedom of expression must protect speech we don’t agree with, even offensive speech.

    *  *  *

    The next case that Wendy brought us was a York University case. This ruling stated that a user has the ability to roam the internet with anonimity. In this case, the test that was applied was a bona fide case. The internet is a revolutionary tool for free speech, and anonymity is a critical component of that free speech. Nobody is suggesting, however, that freedom of expression provides a blank cheque.

    The point was made that the Wagg case was not in front of the motions judge who made the ruling we are appealing. It came after.

    In the York University case, apparently disclosure was eventually ordered.

    A judge asked if, in that case, it was decided because there was no reasonable expectation of anonymity.

    Another judge remarked that, in our case, there is no consent from the John Does so anonymity is expected.

    Another case was cited, I didn’t get the name, which dealt with a City Ordinance that stated that hand bills must have a name and address on them, or you could not hand them out.

    Wendy talked about how anonymous pamphlets have played an important part in history. Historically, anonymous speech has allowed for speech that would not have been possible. One example is the Federalist Papers.

    *  *  *

    Wendy said that any defamation case requires a consideration of freedom of expression. She said that the Supreme Court of Canada has shown a trend in favour of freedom of expression. Beginning with the Casey Hill case where the Supreme Court said that privacy is grounded in man’s autonomy and that reputation protection must be balanced with protection of privacy and that they are equally important.

    In 2008, the Supreme Court considered a case against a controversial radio host. They said that traditional tort regarding defamation needs modification to protect free speech, and that there has been a chilling effect from defamation.

    In a case last year, the Supreme Court said that the balance is off between freedom of expression and reputation protection, and that reputation protection is currently given too much weight.

    Wendy said that the mere allegation of defamation is not enough to defeat freedom of expression. Commencing a defamation suit does not take away the Court’s responsibility to proect freedom of expression.

    She went on to say that privacy finds its way into Charter rights. She said it is a component of Section 7. There was a case called BMG which was about music sharing. The court found that a test was necessary before the anonymity of the anonymous Does could be broken, this case involved a request on a third party for information. [this becomes important later] In any case, Wendy said that a test was required in this case and that the ability of a defendant to share music is surely less important than the right to anonymous speech.

    One judge asked, “When someone chooses to use a very public forum, doesn’t he waive his right to privacy?”

    Wendy responded that privacy is tied to their identity, and that privacy is a Charter value, if not a Charter Right.

    She went on to say that interests of privacy are increasing, not decreasing. The Court below [the Motion court] has given no consideration of privacy.

    *  *  *

    There was a bit of back and forth discussion of a scenario where an abused wife could be posting on a forum and it could be decided that it was unsafe to reveal her identity. Both Wendy and the judges worked at fleshing out the scenario.

    Wendy said that society is being forced to conduct our lives online. It is unreasonable to say that if you want to protect your privacy you should have to stay off the internet. She said that the most reasonable test would be to require a prima facie case and a balancing of Charter issues. She said that protection of 2B Charter Rights is more powerful than defamation.

    The Supreme Court of Canada has acknowledged the chilling effect of defamation claims.

    Wendy said that is a well established line of authority for discovering identity in order to sue someone in a case she called Norwich. In this case, the plaintiffs sued Customs and Excise for information related to a trademark case. This case required a five part test and a principled approach. Cases that used the “Norwich rules” were not constitutional, but discovery was still not automatic.

    A very powerful argument was made by Wendy that, if this motion ruling stands, it will make cases like BMG where plaintiffs have to prove a prima facie case in order to get information from a third party, moot. She said that proving a prima facie case will be avoided when a plaintiff simply adds the information holder to the statement of claim as a party.

    For instance, if you wanted the information on someone and Sympatico held the information, you could just name Sympatico and they would have to turn it over without meeting the usual test.

    Wendy said that it is a disappointment to have to consider protential unprincipled behaviour in making this decision.

    She closed her remarks by reiterating that disclosure should not be automatic on the issuance of a Statment of Claim. She said it is insufficient in a lawsuit to simply name the information holder and get the information, there must be a process. A process which ignores Charter right and values, she stressed, should not be adopted.

    The Norwich test has been adopted by the Federal Court of Appeals.

    That was the end of the sumbissions for the CCLA.

    *  *  *

    To be continued…HERE

    Posted in freedoms, opression, technology, war. Tags: , , , , , , . 5 Comments »

    A day in law-law land

    April 9, 2010 — xanthippa

    Yesterday, 8th of April, 2010, I spent the day at the Ontario Courthouse at 151 Elgin St, downtown Ottawa.

    No – I am not in trouble.  At least, not more than the whole thing of ‘breathing’ implies.  Rather, I went to see how the appeal case of ‘Richard Warman vs Personal Privacy and Internet Anonymity’.

    I will be writing that up shortly – and posting link to Connie Fournier’s write up of it.  But, I have about 48 pages of notes, so it’ll take me a while to write it up (most of that time will be spent in trying to decipher my handwriting).

    This post is called  ‘A day in law-law land’ not because the case itself is not meritorious, nor because it was not argued well.  It was the ‘getting there’ that felt like being in one of those weird Kafkaesque dreams….much of it due to my unpreparedness, I’m sure, but also because I am so very unfamiliar with he mechanics of how a courthouse operates.

    After packing my ‘little ones’ (OK – they are taller than I am) off to school, I headed downtown, to the heart of the City of Ottawa, to witness our legal future being made.  In my never-humble-opinion, this is a very important case because it is in the intersection of several really, really important issues which our society really needs to ‘figure out’ how to ‘deal with’:  privacy issues, freedom of the internet, freedom of speech.

    You know, the biggies!

    So I figured that I would have no problem figuring out where ‘the case’ was:  just follow the throngs of reporters and TV crews and all that!

    Since the Courthouse is right next to the Ottawa City Hall, and since the Ottawa City Hall is -by far – the cheapest place in downtown Ottawa to park (it cost me just $12.00 for the whole day!), I parked there.  But, it meant that I entered the Courhouse through a door in the back, not the main entrance.  People stood all around, smiling so as not to look nervous – or just giving up and looking grim.

    Lots of people were marching around in a self-assured way,  some pulling little suitcases on wheels.  You know, sort of like pilots and stewards/stewardesses do – but without the smiles.  Since we were nowhere near an airport, I figured that there had to be another purpose to this and resolved to devote some of my time to observing it further in the hope of figuring it out.  But not now – now I had to find the courtroom where this appeal case was being heard, in the hopes of getting there early enough to be able to squeeze in, get one of the last available seats in the courtroom…

    No throngs of reporters in sight….

    So, I started to walk around – I was bound to see them somewhere!

    After wandering about for about 10 minutes, I still did not see any gaggles of reporters.  Nor any information booths – I’d been on the lookout for these for the last 7 minutes or so, too:   just in case.

    Circling back to the main entrance, I began to suspect that the big desk with huge signs that people with disabilities ought to go talk to them there to get help might, perhaps, also double as an information desk.  So I approached it, hoping they would tell me where to go.

    Taking a look at my walking cane, they started to want to help me with ‘accessibility’…  Now, OK, I was walking with a cane, but my issue was not ‘accessibility’, it was trying to find out where it was I wanted to ‘access’!

    After claiming ignorance of any ‘Richard Warman vs. Personal Privacy and Internet Anonymity’ case, they offered me a list of the day’s schedule:  it listed times, court room numbers and the names of the judges who will be doing the judging in those rooms.  Not the names of the cases….

    I did not know the names of the judges!

    It was about then that I began to notice the beautiful architecture of the Courthouse – and just how much it looked like the descriptions of The Castle!

    Any and all descriptions of the case I was looking for drew nothing more than blank stares…until one of the guys picked up on a clue:  did I say this was ‘an appeal’?  Yes?  Well, then I had to go down the hall to the right and sign in at kiosk #4.  That way!

    All right – I guess it is a security measure.  Makes sense.

    I followed the vague wave of the arm and, at the end of the hallway, there truly was a kiosk#4.  It was one side of a counter which sort of intruded into an area of cubicles:  I was on the ‘halway’ side of the counter.  On the ‘cubicle’ side, there was a lady searching through a bankers’ box of papers, another lady typing busily on her keyboard, a distracted looking person (also female, I think) dejectedly rushing around with a bunch of files clutched tightly to her chest…..

    After standing at the counter for about 4 minutes, another person – this one young, male and smiling – appeared from the bowels of the cubicles and actually acknowledged that I was standing there.  After he finished his conversation with someone invisible from my vantage point, he came over to see what I wanted.

    He was very nice.  Why would I think I needed to sign in?  He obviously thought me only partly ‘there’, if I thought I needed to sign in….  But, at least he did know that there was some sort of an appeal being heard that day.  He consulted his paperwork and directed me to courtroom #37.  He was really rather nice.

    Now I regretted that when I wandered around earlier, I was only looking at ‘people’ and looking for crowds instead of paying attention to the numbers of the courtrooms I was passing by.  I had no idea where #37 was!  So, I wandered about some more….

    Finally, I gave up and went back to the ‘information desk’.  They already suspected my ‘disability’ was not limited to the cane bt that I probably also had ‘diminished capability’ – explaining to me that courtroom #37 was on the third floor…

    Makes sense – of course!

    Now my forehead was hurting, too.

    The Courthouse is really beautiful.  Built in the ‘open-middle-to-to-give-an-air-of-grandeur’ style.  Lots of skylights light up the spacious halls.  Very pretty.

    The elevators are all glass – the back side exposed to the brightly lit, multi-story open area.  To access them, one has to sneak into the dark narrow hallway behind the information desk.  So I did – and was on my way to courtroom #37!

    Disappointment!

    I must have bumbled around so long, everyone must already be in the courtroom and these 3-4 people left out front must mean there are no seats left!

    But, no – the courtroom is locked, nobody inside.

    The people in front have never heard of Richard Warman.

    My heart dropped.

    Leave me a simple task, like showing up at the Courthouse to see the wheels of justice in motion – and I can’t even do that!

    There were a lot of people in the room next to courtroom #37 – so I explored.  It was the ‘jury-duty-call-up’ room.

    As I was preparing to leave, I noticed that two of the people who rode up in the elevator with me (and whom I saw walking purposefully towards some goal during a few different points in my adventure – one was even pulling one of them little suitcase thingies on wheels) were walking towards a small group of people…. Hey!  One of these people is Mark Fournier!  And there’s Connie!

    YES!

    I FOUND IT!!!

    I asked Mark and Connie to pose for a photo.

    Did you know taking pictures in the courthouse is forbidden?

    My day in law-law land was off to a great start!

    Posted in freedoms, society, technology. Tags: , , , , , , . 5 Comments »

    If we don’t stand up for our right to be offended…

    April 7, 2010 — xanthippa

    In Canada, we have freedom of speech!

    At least, that is what our Constitution says….though many bureaucrats, apartchiks and pseudo-activists would like us to believe otherwise.   Don’t let them fool you!

    …because each and every one of us has ‘the right to BE OFFENDED’ !!!

    Why?

    ‘Being offended’ is a very human, emotional, natural reaction!

    Nobody, truly nobody, has the right to dictate to you what you may – or may not – be offended by!

    However, if we permit the government to silence speech that ‘offends’ some people, it paves the road for the government to not only regulate speech, but to also dictate what we MAY – or MAY NOT – be offended by!

    Yes – if we permit the government to ban speech which ‘offends’ – or, as the abominable Section 13 puts it, ‘IS LIKELY TO OFFEND’ – we are, in a very real sense, permitting the government to regulate both our speech and our emotional reactions to ‘stuff’!

    Think about it – it is the logical extension:  if the government regulates speech and ‘protects’ you from anything ‘bad’ which ‘might be likely to’ generate negative feelings of any kind – then you no longer have the right to ‘be offended’ by this ‘sanitized’ speech….  After all, it has been ‘filtered’ in the most rigorous manner to remove all ‘offensive’ things – so, if it is spoken, it cannot possibly cause you to react in a negative manner, to cause negative feelings in you!

    If the message is ‘fine’ (approved), and you still react negatively to it, feel bad or – get offended by it – the  there has GOT to be something wrong with YOU!

    ….nothing a re-education camp ‘sensitivity training’ could not fix!

    All ‘pubic entertainment’ – as well as ‘political discourse’ – might just be limited to ‘acts’ like this:

    P.S. – This is NOT a diss at the Arrogant Worms –  they have enough ‘bits’ that would also be banned.  This one simply demonstrates ‘the limits’ of my point…

    Posted in freedoms, human nature, opression, politics, society. Tags: , , , , , . Leave a Comment »

    Free Dominion – court date is 8th of April, 2010

    April 7, 2010 — xanthippa

    Mark Fournier posted on Free Dominion:

    Richard Warman vs Personal Privacy and Internet Anonymity

    April 8, 2010

    161 Elgin Street

    Ottawa, Ontario

    On April 8, 2010 in Ottawa a Divisional Court Justice will hear an appeal of a disclosure ruling in the Richard Warman vs The Fourniers and John Does 1-8.civil case. At issue is whether the Fourniers, operators of the Free Dominion website, should be compelled to disclose confidential information about the website’s members to the plaintiff, Richard Warman. Last year Superior Court Justice Stanly Kershman ruled for the plaitiff in a motion he brought forth seeking information he hopes to use to identify the John Does who posted anonymously in Free Dominion’s political discussion forum. Four of the eight John Does have already been identified by the plaintiff and have been added to the underlying defamation suit brought forth by Warman.

    The defamation case itself will by necessity bring forth a number of public interest issues such as freedom of speech, political commentary and opinion but it will also venture into several areas where our laws are outdated by internet communications. The internet has given us a means to communicate that was inconceivable when our current defamation laws were written and those laws are now in need of legislative upgrades. Until those legal updates are made though we will have to fight for our internet anonymity and personal privacy in the courts.

    This appeal of the disclosure ruling of Kershman is more important than the case from which it grew. There are now privacy issues at stake that didn’t previously exist. Outing someone’s internet alias can have far-reaching effects that should not be on the table in a minor civil squabble. Because of the serious privacy issues surrounding this appeal of Kershman’s disclosure ruling, the Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic will be intervening. This is good news for those on the freedom side of the debate.

    Nothing will bring justice in our courts and action in our parliament like public interest and participation in these cases. If you are near Ottawa and can get the time to go to the courthouse on Elgin Street please do so on April 8, 2010. This is an important battle in the ongoing contest to protect our freedom and it should be witnessed by the public.

    See you there!

    Apparently, the time has not yet been set – but the Fourniers will be at the Courthouse by 9 am.

    Posted in freedoms, opression, society. Tags: , , , , , . 1 Comment »

    Machette attack on Jewish students – in Ottawa!

    April 5, 2010 — xanthippa

    Update:  the attack occurred not in downtown Ottawa, but just on the other side of the Ottawa river in Ottawa’s twin city, the Gatineau, PQ.  This area is still within sight (and walking distance) of both the Supreme Court of Canada and the Parliament buildings. BCF has the Michael Coren interview with Nick Bergamini.

    Nick Bergamini is a student at Carleton University and active in student government.

    According to his facebook page:

    …

    “Quickly, we both responded that yes we were Zionists. All of a sudden we were surrounded by 10-15 men who began to shout at us in Arabic. We tried to back out and run away. All of a sudden, I was struck in the back of the head. I’m not sure if it was a fist, a rock or a pipe but it left me dazed and bleeding.

    We quickly ran back to the bar and stood beside the bouncers. The crowd of anti-Israel thugs dispersed.

    About 10 minutes later, assuming that it was safe, we began to walk home. We were walking through a parking lot when a car pulled up next to us. The driver shouted “I fucking hit you, you Jew.”

    We stood our ground. Quickly we had three guys around us. We were able to push them away. As the cowards that they were, they retreated. Then I heard, shouts of “Open the trunk!” One of them opened the trunk and I saw glistening in the street light the reflection of a 12-inch machete. “Fucking Jew,” he shouted. I began to run for my life as he was only 5 or 6 feet away.

    I ran, and as I looked back, I saw the long shiny blade slicing through the air about 12 inches from my neck. I ran as fast I could and, thanks to my grade 9 track and field training, got away.

    People who were around the scene said the blade came within inches of my neck.

    Read his whole post here!

    Is this really happening here, in Canada?

    Here, in Ottawa, Canada’s Capital?

    Here, right downtown Ottawa – just blocks from our Parliament and the Supreme Court of Canada?

    Now?

    Yes, that would indeed appear to be true!

    Question:  This happened in the club district, downtown Ottawa.  At 1:45 in the morning, this is hardly an abandoned or ‘quiet’ part of town – being so close to the University of Ottawa campus, there are usually quite a few people about!  The Ottawa Police usually have a ‘presence’.  It’s their job!

    So, I am curious to hear their side of the story:  how come these guys are not arrested yet?

    OK – so Nick Bergamini and Mark Klibanov got themselves beaten up and bloodied.

    OK – so some guys with a machete chased them, trying hard to decapitate them.

    Goodness knows, we all loose our tempers, some times!

    A much more dangerous crime occurred in Ottawa that night!

    They were engaging in hate speech – right in the middle of a crowd!

    Do you realize just how many people might have had their feelings hurt?

    How many might have been traumatized: by hearing there were 2 Zionists in our midst?

    How do the police expect us to be able to sleep tonight?  We are a city – nay, a community – traumatized!

    After all, we ran that Zionist Ann Coulter right out of town (yes, she may be an anti-Semite, but she is still a Zionist!)! Yeah, the Ottawa Police made sure she was not permitted to speak!

    We thought we could relax a little…..

    But no!  Now these two Zionists crop up!  Right in the middle of the City!

    They even freely and openly admit they are Zionists – and through the admission of their very existence, they traumatize a whole crowd!

    Just think of those poor thugs – they must really have had their feelings hurt!  They were so traumatized, they got their machete out and went after the Zionists!

    This is really, really terrible!  These two Zionists have provoked these poor guys so much, they might never calm down from it and suffer from post-traumatic stress disorder for the rest of their lives.

    Yet, Nick is obviously still free to write this up for his facebook page!  Writing down all this self-incriminating evidence – how he admitted openly that he was indeed a Zionist!

    So – how long do YOU think it’ll take the Ottawa Police to arrest Nick Bergamini and Mark Klibanov for their hateful speech!?!?!

    And the Ottawa Police have still not arrested them… Sheeeeesh!!!

    Hat tip:  Blazing Catfur

    Posted in freedoms, opression, politics, religion, society. Tags: , , , , , , , , , . 4 Comments »

    Is Guy Earle the ‘next George Carlin’?

    April 5, 2010 — xanthippa

    Or, perhaps, Lenny Bruce….

    Actually, the ‘Lenny Bruce’ comparison works well – in some ways…

    October 4th, 1961: Lenny Bruce performed a stand-up comedy routine (during which he tended to ‘riff-on-the-fly’) at a night club in San Francisco. He was promptly arrested and charged with violating Section 311.6 of the Penal Code of California – the clause which claims that banning ‘obscene speech’ is a ‘reasonable limit’ on ‘free speech’.

    May 22, 2007: Guy Earle performed a stand-up comedy routine (which he adjusted to talk back to some hecklers in the audience) at Zesty’s in Vancouver.  He was promptly charged with violating Section 13 of the Human Rights Code of Canada – the clause which claims that banning ‘hurt-speech’ is a ‘reasonable limit’ on ‘free speech’.

    Yet, like George Carlin, I suspect Guy did not expect such a vicious censorship attack form ‘the left’…

    And – yes, we are banning ‘hurt speech’!

    By now, the very people in charge of protecting human rights fail to recognize that the ‘right to be offended’ is essential in any healthy society!  Instead, they seem to be under the unjustifiable impression that there is some ‘right NOT to be offended’….silly bunnies…

    Punishing people for saying things that offend is not just silly, it is contrary to the fabric of our society!


    It was not justifiable when Lenny Bruce and George Carlin and Richard Pryor were persecuted for words that offended some within their audience and it is not justifiable when Guy Earle is persecuted for using words that offend some within their audience…

    Hey!  Doesn’t this sound a little similar?

    But, there ARE differences!

    When Lenny Bruce and George Carlin were charged for saying stuff people found offensive (and, yes, regarded ass ‘dangerous’ to ‘morality’ the ‘fabric of society’), they faced an actual real court:  one where their rights as citizens who are innocent  until found guilty were respected.  Guy Earle – well, he is not that lucky.

    Guy Earle is facing a ‘Human Rights Tribunal’….one which can try people not for their actions, but for how others might, perhaps, react to their words.

    One where the investigators actively search out ‘thought crimes’, demanding ‘intentions’ are as actionable as ‘actions’.

    One where the defendant, if found innocent, has no means of recouping the cost of his/her defense…which can run into tens, even hundreds of thousands of dollars.

    One where the ‘process’ of being investigated and prosecuted is the punishment itself!

    Even though the fateful night when Guy Earle talked back to his hecklers in Vancouver may have been almost 3 years ago, the ‘trial’ (it’s more of a semi-star-chamber thing than a real trial) is only taking place now.  After all, it takes a while to financially exhaust the HRC’s victim properly prepare the case!

    Well, last week, to be exact….as Mark Steyn comments:

    It ended a day early, due to Mr Earle’s inability to pay for a flight to Vancouver to defend himself in person and his lawyer’s decision to withdraw from the proceedings after pseudo-judge Heather MacNaughton, Chief Commissar of the British Columbia “Human Rights” Tribunal”, opted to ignore the BC Supreme Court’s ruling on potential jurisdictional overreach and carry on with the trial. It remains to be seen whether the defence’s actions were the right thing to do.

    ‘The ‘right’ thing to do”…

    The right thing for WHAT???

    Let us consider the implications of withdrawing one’s defense from the HR Tribunal:  unless I am mistaken (and I am certainly no legal expert), this means he is forfeiting his right to appeal any ruling they may pass against him.  And, once passed and registered with a real court, an HRT ruling is as legally binding as if it had been issued  by a court.

    Among past rulings of various HR Commissions, lifetime speech bans have been know to be included….hardly something conducive to making a living as a cutting-edge comic!

    Yet, it was not until after people like Lenny Bruce, George Carlan and Richard Pryor got their asses (the term seems appropriate, given the topic) tossed into jail that ‘people’ woke up – and began to fight against being oppressed by their own governments.

    Last week, I had lamented what had happened when a bunch of thugs were permitted to use threats of violence to cancel the planned speech by Ann Coulter at the University of Ottawa.  While the condemnation of the thughs (both the students who threatened violence and the provost who had whipped them up into a frenzy) and of Alan Rock, the president of U of O has been very well covered, the criticism of the role the Ottawa Police played (or, rather, were either unable or unwilling to play) was not.

    George Jonas put it rather well:

    Resisting any temptation to enforce the law, Ottawa’s finest exemplified Canada’s definition of moral leadership by observing neutrality between lawful and lawless.Coulter later wrote the police “called off” her speech because they couldn’t guarantee her security. Interesting, if true. Will it start a trend? Will police call off property rights at the scene of robberies-in-progress? “Look, lady, it’s just a cash register. If they want it so badly, how about letting them have it?”

     

    My own attempt to state this, phrased as a letter (and sent, among others, to the Chair of the Ottawa Police Services Board – the civilian body in charge of supervising the Ottawa Police) has been much, much clumsier.  The Chair – Mr. El-Chantiry (whom I had had great respect for) has sent me back a very brief reply, telling me in no uncertain terms that it is not the job of the Police to police.

    His full response – along with my reply letter to him (sent just as the Easter long weekend began, so he really has had little or no chance to reply and defend his position) were the subject of my last post, found here.

    The reason I mention this?

    Aside from the obvious one, denial of freedom of speech,there is another connection.  In the comments to that post, CodeSlinger and I got into a bit of an extensive discussion about what happened, how, why – and what the best remedy is.  CodeSlinger suggests that it was wrong for Ann Coulter to permit her speech to have been canceled:  some things are worth fighting for, even if one must put himself or herself into potential danger of injury or arrest.

    What does Mr. Earle plan to do – should the verdict of the BC HRT be unreasonable?  Oppressive?  Will he continue to behave in accordance with his innate rights, instead of submitting to the unreasonable intrusion of quasi-legal busibodies?

    If he does, he will be arrested and his ass will be tossed into jail…

    Is Mr. Earle showing he has the courage to be the next ‘George Carlin’?

    Posted in freedoms, opression, politics, society. Tags: , , , , , , . 3 Comments »
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