A little seasonal music…

Ottawa’s ‘green-bin’ program and Orgaworld: an open letter to journalist Rob Snow

Hi Mr. Snow!

There are some very important questions we need to learn about Orgaworld – how they got awarded the contract and what type of due diligence was or was not done leading up to this.  Forensic audit should only be one step in this process.

I wonder if there is a clause in the Ottawa ‘deal’ with Orgaworld which would permit us to cancel the contract without penalties (to us):

  • IF Orgaworld fails to produce ‘usable’ compost?
As per The Toronto Star, the compost Orgaworld produces from the Toronto ‘diversion program’ is so toxic, it would kill any plants growing from the soil it was used to ‘enrich’.
The sole reason for the green-bin program is to produce compost that can be used as fertilizer. 

If independent tests show that the compost Orgaworld produces is so toxic that it cannot be used as fertilizer, would this constitute ‘non-compliance’ and/or ‘breech of contract’ by Orgaworld?

  • IF Orgaworld is caught shipping some of the materials from the green-bins to be disposed of as garbage?
In Toronto, whose program is admittedly different from ours, they estimate that up to 22% of the materials Orgaworld accepts is not composted, but burned or dumped in landfills.
Is this standard practice here? 

What percentage of the ‘Ottawa green-bin materials’ we think is being composted does Orgaworld dispose of as ‘garbage’?

We are paying much more for ‘composting’ than we would be for ‘garbage disposal’:  if Orgaworld does not actually compost a certain percentage of the material, should they not refund us that percentage of the fees we pay them?

Would ‘not-composting’ materials we pay them to ‘compost’ constitute ‘non-compliance’ and/or ‘breech of contract’ by Orgaworld?

  • IF any of the materials (finished or not) Orgaworld releases from their plant is found to contain active pathogens which should have been rendered inert in ‘properly produced compost’?
The Toronto Star had found that some of the compost produced from the Toronto program which had been sold as ‘finished product’ actually still contained some live germs which should have been killed in a ‘proper’ composting process.  (To be fair – it does not specify if it was Orgaworld’s product or another manufacturer’s.) 

In an separate incident, it was found that Orgaworld had dumped tons of semi-processed bio-matter – ‘unfinished’ and in various stages of decomposition in places like gravel pits, farm fields and city-owned land without preparing these places to accept bio-waste.

This is an active threat to public health!

Rotting food contains bacteria and other micro-organisms which are toxic to us, humans.  The composting process kills these infectious agents, so that by the time the finished compost is spread on land, the deadly pathogens are neutralized and cannot enter the drinking water system and/or cling to the produce grown in that soil (like, say, e-coli contamination of spinach…).  Some pathogens can become airborne, causing people who inhale them to become ill.

The ‘accelerated’ processes in use in the modern ‘composting factories’ rely on a highly controlled and regulated environment to achieve the composting process which kills these deadly germs. (In the natural, non-accelerated composting process, this takes years and this is why our ancestors had exact composting practices instead of just dumping rotting food on their fields.)

If the bio-matter is dumped outside of this controlled environment before it is completely turned into compost, these pathogens will still be active and pose a serious danger. 

(In addition to the ‘leaching’ and ‘airborn pathogen’ dangers, this could lead to a type of decompostion during which Nitrous Oxide (N2O) is released:  this ‘greenhouse gas’ is 240 times ‘stronger’ than Carbon Dioxide (CO2)!)   😉

Would endangering public health through disposal of only partially-neutralized bio-waste constitute ‘non-compliance’ and/or ‘breech of contract’?

Which brings me to some questions:

What is the quality of the compost Orgaworld produces from the Ottawa ‘Green-bin program’? 

Has anyone tested it?

If so, who?

And where?

How independent are the testing facilities?

The Orgaworld’s Ottawa composting factory had a fire a few months ago.  Fire/smoke is an indicator of ‘improper composting practices’.  Has there ever been an investigation to ascertain which ‘best practices’ were breached in the composting process and caused the fire and how the resultant product will be impacted?

What are the provisions in the Ottawa-Orgaworld contract for non-compliance/breech of contract?  What are the penalties specified?

Are these provisions/penalties ‘similar’ to the ‘industry standard’?

How does this compare to the ‘standard’ for other ‘City contracts’?

How does this compare to the ‘standard contracts’ in the private sector?

Who is responsible for the oversight?  What are the terms and conditions?  Are they being fulfilled?

Who is responsible for any action should there be non-compliance/breech of contract?

Where/how can citizens (especially taxpayers) monitor this process?

Mr. Snow:  you are an excellent journalist who often interviews our City Officials as well as all kinds of other interesting people.  Would you, please, find the answers to these questions?

If you do find any answers to these questions – or any other relevant information – I would be very happy to publish all of it on my blog.

Sincerely yours,

Alexandra,
blogging as Xanthippa

References (in case the links get stripped out from the text):
http://www.thestar.com/iphone/article/660864
http://www.thestar.com/news/gta/article/660862
http://www2.macleans.ca/tag/orgaworld/

Click to access 382500-11.pdf


http://www.ehow.com/list_7313994_hazards-composting.html
http://www.pma.com/resources/issues-monitoring/food-safety/key-learnings-real-world-terms
http://www.extension.org/article/28585
http://www.owma.org/committees/members.asp?mode=d&org=244
http://www.ottawacitizen.com/news/Smouldering+compost+sends+firefighters+Orgaworld+plant/3427666/story.html

Thomas Sowell says: read this

Thomas Sowell is one of the smartest people on the nets.

Really.

And, he highly recommends ‘Justice, Denied’ by Quin Hillyer published by ‘The American Spectator’:

‘Under attorney general Eric Holder, the Obama Department of Justice (DOJ) is dangerously politicized, radically leftist, racialist, lawless, and at times corrupt. The good news is that it’s also often incompetent. This means the Holderites can bungle their leftist lawlessness so badly that even the most reticent of judges are obliged to smack them down.

The abuses by the Holderites are legion. They range from DOJ’s infamous abandonment of the already-won voter-intimidation case against several New Black Panthers to multi-faceted assaults on traditional standards of voting rights and obligations; from a growing list of lawsuits deliberately destructive of border security and citizenship laws to outrageously race-based bullying tactics; from efforts to undermine military discipline and state sovereignty on homosexual-related issues to the dangerous obsession with terrorists’ “rights” to the detriment of national security; and, finally, to the selection of judges openly contemptuous of the existing law-all while dedicated to a vision of judge-imposed “universal justice” based not on the text of American statutes but instead on the reigning cultural standards of coastal and international elites. While doing all this, the Holderites operate the least transparent DOJ in decades, treat congressmen and independent agencies with contempt, and claim breathtakingly spurious “privileges” against disclosure of public information.

This isn’t law enforcement and it isn’t justice, but instead is subversive of both.’

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 4

Here are part 1, part 2 and part 3:  they set the tone (1) and cover my imperfect observation of how Mr. Katz presented the plaintiff’s case (2&3).  Again, I warn I am an untrained and uninformed observer and these are just my opinions…

We resume our tale as Ms. Barbara Kulaszka picks up the proverbial ball for the defense.  She is an extremely intelligent lawyer – certainly among the most intelligent people I have ever met.  With meticulous care, she began to dismantle Mr. Katz’s points, one by one.

Where Mr. Katz started out by referring to precedents from the US (not particularly relevant here, in Canada, as we have a different legal legacy), Ms. Kulaszka went straight to one of the most pertinent rulings on this type of a matter by no less than the Supreme Court of Canada: the  ‘Wic radio case’ .

If you are not familiar with it, here is an excellent comment/explanation of the case and its significance.  In a nutshell, it sets a precedent to ‘thaw’ some of ‘the chill’ surrounding freedom of speech:  a radio guy and an anti-gay-literature-in-the-schools person had a debate on air, during which the radio guy called her all kinds of names (including a Nazi) and, in a fit of hyperbole, suggested or implied she would condone violence against gays.  She sued.  Lost.  Won on appeal.  Supreme Court overturned the appeal and said original ruling should have stood.

One of the Supreme Court Justices even went as far as to suggest they should have gone further, been stronger in the wording of their ruling to side with the freedom of speech versus the defamation thingie.  Public figures, following the Wic radio case, were fair game for all kinds of criticism to the point of name-calling.  The danger of ‘chilling public debate’ was so great and so very detrimental  to society that public figures – or figures who put themselves directly into public lime-light – would simply have to grow thicker skin.  At least, that is my layman’s understanding…

As Mr. Katz had (during his bit) kept insisting this is not about ‘freedom of speech’ but Mr. Warman’s reputation, and as he claimed that Mr. Warman is not, indeed, a public figure but rather ‘just a private citizen’, Ms. Kulaszka began to chip away at his case from here.

Even though Mr. Katz tried to define a ‘public figure’ to be ‘elected officials only’, Ms. Kulaszka (pronounced like ‘Gulash’, but with a ‘K’ sound in the beginning and ‘ka’ sound added to the end) pointed out that Mr. Warnan had, indeed, run for public office in the past. But she did not get side-tracked into a discussion of whether ‘running for office’ is equivalent to being ‘an elected official’ and thus giving any weight to Mr. Katz’s bogus definition – nobody in their right mind was buying into it anyway.

Instead, she had focused on making  her own , very valid, points!

Ms. Kulaszka presented all kinds of evidence (including huge ‘featured’ article in the Ottawa Citizen with a huge photo of Mr. Warman) that Mr. Warman had, through his own actions (including repeatedly using Section 13 of the Human Rights Code to persecute people whom he perceived as not believing the ‘proper’ things)  propelled himself into the public forum.  Therefore, he is no longer ‘just a private citizen’.  The name Mr. Richard Warman is well known in Canada. His image is well recognizable.  In newspaper articles, Mr. Warman describes himself as a community activist.

The Wic radio case demonstrates that ‘community activists’ do, indeed, legally qualify as ‘public figures’…and that the Supreme Court of Canada itself has ruled that calling a ‘community activist’ all kinds of nasty names (especially as hyperbole) is not actionable on the grounds that they may be/are defamatory…

The conclusion is inescapable:  Mr. Warman is, indeed, a ‘public figure’!

Therefore, criticism of Mr. Warman falls into the category of ‘political speech’.

All the items Mr. Warman is seeking to sue for ‘defamation’ for are within the scope of the ‘Wic case’ and, therefore, not actionable as defamation by a public figure.

Therefore, ‘freedom of speech’ trumps protecting Mr. Warman’s reputation from defamation.

Thus, ‘prima facie’ for a defamation case has not been established.

Which means Richard Warman’s side has not met ‘the test’.

Therefore, no disclosure of identities should be court ordered.

Bing.

Bing.

Bing.

Ms Kulaszka lined up the dominoes and let Mr. Warman’s own words ‘push’ the first one!

One cannot simply state ‘these words are defamatory’:  one must actually prove it.

Next…

Since one of the things Mr. Warman’s defense team seemed to have found most defamatory was that he had been called ‘a Nazi’, Ms. Kulaszka brought out some excellent examples of how the term is currently used in popular culture.

Like, what is the deal with the ‘Soup-Nazi’ on Seinfeld?!?!?

Calling the vendor a ‘Soup-Nazi’ did not, in the least, imply that the character had somehow subscribed to the ideology of the National Socialists:  rather, it described his humourless and intolerant behaviour!

Building on this, she referred to submissions to the court that demonstrated that this was the manner in which the term was typically used on the Internet, crowning it with describing Godwin’s Law (quoting from Wikipedia):

It states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”[3][2] In other words, Godwin put forth the sarcastic observation that, given enough time, all discussions—regardless of topic or scope—inevitably end up being about Hitler and the Nazis.

As Godwin’s Law was formulated back in 1989 – out of frustration from using the term ‘Nazi’ so frequently and indiscriminatingly in the discussion fora, it is clear that calling someone ‘a Nazi’ in this context could  not possibly be misunderstood by anyone as in any way being ‘realistic’.  It would most certainly not affect someone’s reputation!

And Ms. Kulaszka did not end there, quoting from several ‘liberal’ websites, including ‘BigCityLib’, to demonstrate the ‘common usage’ of this and related terms (like ‘brownshirt’) among all ‘stripes’ of bloggers – not just ‘right-wing’ ones or those posting on Freedominion.

‘Vulgar abuse’ is not ‘defamation’.

Systematically, Ms. Kulaszka addressed the 4 points the plaintiff had to establish, targeting each of the arguments made by Mr. Katz.  And, demolished them.

Bing.

Bing.

Bing.

She saved the argument I found most powerful for the very end…

People craft an ‘anonymous’ identity for themselves online – but that does not mean that they only use that identity in one place.  Many – if not most – people who spend a significant amount of time online will use that same crafted identity in many different online communities:  from discussion fora (like FreeDominion) to blogs to support groups.  Support groups for serious issues, where other survivors of things like sexual abuse or addiction help each other overcome some very difficult, painful and intensely personal issues.

It is precisely because of this perceived anonymity that people are not afraid to seek help, while they are protected by this online anonymous label.

If their identity from FreeDominion is revealed, their anonymous identities (the label they use online) (and/or ip address which will also identify them) will necessarily be published alongside their real-life name!

Then, everyone and anyone will be able to trace them:  from friends, relatives and neighbours to employers – and on and on.

Revealing their identity to Mr. Warman, so he may proceed with a defamation suit, must be weighed against the potential damage which could be done to the anonymous posters if  it became known what they had anonymously posted not just on FreeDominion, but on every other site on the internet.  Including sites that may deal with such intensely personal topics as incest survivor, and so on.

It is only if the judge finds that the potential damage to Mr. Warman’s reputation (should he not be able to sue for defamation) is greater than the potential damage to the anonymous posters should their identities be revealed – only then would the 4th point of Judge Wilton-Seigel be met.  Only then should the court order for the identities to be made public.

This really struck home to the judge.  She asked if there were means through which this additional information about the anonymous posters could be kept private, if their identities were published.  And, she was very pensive when she found out it would not be possible…

With that, Ms. Kulaszka finished her presentation and the judge broke for lunch.

Following the lunch break, with everyone refreshed, it was time for Doug Christie to speak.

Despite the Warman camp’s earlier objections, the judge had ruled that Mr. Christie, who represents some of the people who had posted comments on the Freedominion site, may briefly address the court as his clients rights will have been impacted by any ruling on this motion.  And, Mr. Christie came in, no hold barred!

Actually, I think Mr. Christie had pointed out some of the most important ‘bits’ which had not already been ‘demolished’ by Ms. Kulaszka (her time was limited…).  And, he addressed them most eloquently and in terms even a ‘legal ignoramus’ like I could ‘get’ his points!

Earlier, Mr. Warman’s most excellent lawyer, Mr. Katz, had referenced ‘the Brown case’.  Now, Mr. Christie pointed out that Mr. Katz should have noted the footnote in the ruling on that very case:  rhetorical hyperbole are not actionable!

Mr. Christie also noted some Supreme Court ruling (I could not take notes fast enough to record the detail here) that ‘adjectives constitute comment’.

(Now, some of the other spectators there that day had pointed out during the lunch break, Mr. Warman wished to sue people who had stated he ‘had behaved LIKE a Nazi’ – not that he WAS a Nazi, but rather that his behaviour was similar to the behaviour of Nazis…..  and that the term ‘like’ – wording used by the plaintiff in this motion – defines ‘comment’.  I am not sure if Mr. Christie’s point referred to this, or to another part of plaintiff’s case.)

Mr. Christie stressed that in order to have a case for ‘defamation’, the statement made must be such that it would be likely to be taken ‘at face value’ by anyone reading it (as that is the only way it could be detrimental to one’s reputation) – which, in these cases, it clearly could not be.  The postings were merely vitriolic, could not seriously be ‘taken at face value’ and thus could not damage reputation!

Next, Mr. Christie had returned to one of the terms Mr. Katz had vexed most poetic about:  the one which Mr. Katz claimed his client’s reputation was defamed through suggestion of sexual impropriety/deviance – something that one cannot realistically defend against without harming one’s own reputation even more….

Mr. Christie said that during the lunch break, he took the time to look up the term in question.  And, he could not – and he named a number of the ‘standard’ dictionaries – find the term ‘facophiliac’ in any of them!  (Please excuse me if my spelling is imperfect – taking ‘real-time’ notes is harder than it seems!)

In other words, there is no such word!

It is a ‘made-up’ word with no real, definable meaning!

And, according to our laws, you cannot actually defame someone by calling them something that is not a real word!!!

If I am not mistaken, that one got a giggle from the judge – perhaps because Mr. Katz had belaboured this insult so much….going on and on and on about how very defamatory to his client’s reputation it was to be called this.

“Incoherent statements cannot carry a defamatory meaning because they carry no meaning:  they are incoherent!’

This was a reference to a statement (referred to both by Mr. Katz and by Ms. Kulaszka) which Mr. Warman believes defames him.  In this statement, he is called all kinds of things from ‘communist’, ‘Iranian thug’, ‘Stalinist’, ‘Nazi thug’ and many more.  It seems rather ‘incoherent’ to seriously imply that someone is all of these things at once!  It is, by definition, an incoherent statement – and therefore not defamatory..  (OK, Ms. Kulaszka also addressed it and it seems to me that this statement clearly is either that ‘vulgar abuse’ thing (as per Ms. Kulaszka) and not actionable on those grounds OR ‘an incoherent statement’ (as per Mr. Christie) and not actionable on the incoherence grounds…..there really is no middle ground on this one!)

Mr. Christie tidied things up and pointed out that for these – and other – reasons, the ‘prima facie’ part of the 4-part-test was not met:  therefore, Mr. Warman has an insufficient case.

With a few rebuttal comments by Mr. Katz (it is not necessary to prove that people are likely to ‘believe’ the statements – as long as they contained words  that had, at some point in time, in other cases, been deemed ‘defamatory’ then this part of the case has been met) and Ms. Kulaszka (Mr. Katz had started out pleading ‘context’ – and now wishes to deny it and go on words alone, but the meaning of words changes over time so the time/place/context are essential), the hearing was over.

My opinion?

It is only Mr. Katz’s considerable skill and eloquence that has prevented this thing from having been kicked out of court long ago!

But then again, I am not a lawyer…

 

 

30 years in Canada

Today, I celebrate a very personal anniversary.

Exactly 30 years ago today, I arrived in Canada.

Exactly 27 years ago today, I became a Canadian citizen.

Since my parents and I refused to swear our oath of allegiance on either the Bible or the Koran, and the bureaucrats did not know what to do, I suggested we swear it on a picture of The Queen.  So, that is what we did!

Exactly 3 years ago today, Aqsa Parvez was murdered by her family for the crime of wanting to be a Canadian – just like I became!

Excuse me – I have to go cry…

 

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 3

Disclaimer:  These are my observations, my opinions and I have no legal training at all.  So, take it for no more than it is!

Part 1 is here. Part 2 is here.

When I left the tale at the end of part 2, Mr Katz – Richard Warman’s lawyer – was making a presentation to Madam Justice Blishen that Mr. Warman’s request that Free Dominion hand over the IP addresses of the site’s members whom  Mr. Warman wishes to sue for defamation satisfies the 4 points set out by Justice Wilton-Siegel and, therefore, that FreeDominion should indeed hand over the info.

Context, Mr. Katz kept stressing, is essential.

He also expounded that this case is not about freedom of speech on the internet – it is only about defamatory statements made about his client!

Some of the defamatory statements were couched as ‘statements of opinion’.  And THIS is where Mr. Katz made one of several pronouncements which rather floored me.  This is probably because I am completely lacking in any law school stuff, so my mind must be insufficiently trained to ‘get’ it.

Please, judge for yourself!  (And, if you could explain it to me, I’d greatly appreciate it.)

Mr. Katz said that in order for something to be a ‘statement of opinion’, it must contain the information on the basis of which this opinion had been formed.

In other words, the statement:  “Lawyers are, in my opinion,  cute little bunnies.” would not, under Mr. Katz’s suggested definition, count as ‘statement of opinion’ because it does not say why I had arrived at this opinion!  By his definition, this is a ‘statement of fact’.

I sure hope I’m misunderstanding this, but this  sure is what I thought I heard – as I have written it down as such. (See – I’m supporting my opinion, just in case…)

Mr. Katz then went on for significant length to say that one of the things his client was called suggests ‘unnatural sex acts’.  I will, of course, not repeat the term itself because I do not wish to defame Mr. Warman, even indirectly!  Let it suffice that Mr. Katz explored at length the damage that could be done to one’s reputation by accusations of ‘unnatural sex acts’.  (Again,  I did not hear the word ‘unfounded’ or ‘false’ in there, but I am certain from Mr. Katz’s tone that this was implied.)

Mr. Katz belaboured this point until the judge began to show unmistakable signs of impatience.

At this point, Mr. Katz referred to the Vigna v Levant case, where (if I caught this bit correctly – my notes show I was not sure I heard this bit correctly) Mr. Levant was found guilty of defamation by calling someone ‘a censor’ on his blog.  Whatever the detail – someone was found guilty of defamation by calling someone else ‘a censor’ in a blog.

Mr. Warman had, apparently, been called ‘a censor’ by the defendants in this case.  This, according to Mr. Katz, constituted the ‘prima facie’ case for the defamation lawsuit to proceed, thus satisfying the ever-important Wilton-Siegel point #2.  (Again,  just because one person is defamed by being called ‘a censor’ does not mean the term is, in itself, defamatory.  The term is only defamatory if it is used falsely.  My best guess is that to get ‘prima facie’ ruling, the term has to be found defamatory in some instances while the actual defamation trial has to find that it is defamatory in THIS case.)

At this point. Mr. Katz recapped the 4 Wilton-Siegel points (not in order):

  • he had demonstrated point #2:  the ‘prima facie’ case for defamation
  • his client did all he could to ferret out the identity of the ‘John Does’ through other methods, satisfying point #3
  • he read into record the Free Dominion membership disclaimer, in order to demonstrate that if the members made defamatory statements on the site, they had lost their expectation of anonymity (and thus satisfying point #1)
  • balancing of ‘stuff’ for point #4….

Since Mr. Katz had not really addressed this bit before, he got to it in greater length at this point. In my imperfect understanding, the gist of his argument was that since Mr. Warman was a private citizen and not a public figure, calling him bad things is not part of public debate or political debate or any such related thingie.  It is nothing but defamation – not ‘free speech’, protected on any grounds whatsoever.

Therefore, Mr . Warman’s right to sue those defaming little bastards (I AM paraphrasing to reflect Mr. Katz’s tone of voice) trumps their weasely little ‘right to privacy’ and their identities ought to be handed over on a silver platter.  Like, yesterday.

At around this point, the York case was cited as precedent. Mr. Katz said this case was, to a great degree, based on the York case.  Again, my lack training in ‘the law’ is interfering with understanding:  I would have thought that the York case would not be something Mr. Katz would like to bring attention to, because (unless I am mistaken), the York case judge goes pretty far to stress: ‘Internet encourages free speech and anonymity is a critical component of this speech.’

But, back to Mr. Katz and his case: this is when Mr. Katz made the other statement that took the breath out of my lungs!

While trying to establish that Mr. Warman is a private citizen and not a public figure – and therefore the law does not protect criticism of him as ‘political speech’, Mr. Katz stated, with a straight face, in the most ‘everybody KNOWS this is so’ voice, that in order for someone to be a ‘public figure’, they have to be ‘AN ELECTED OFFICIAL ONLY’!!!

According to Mr. Katz, even Her Majesty, Queen Elisabeth II, would not qualify as a public figure!!!

Who would have thunk it…. our good Queen, not a ‘public figure’…  Tomorrow, it will have been 27 years ago that I swore my oath of allegiance to Queen Elisabeth II and all her heirs – as I enjoyed the privilege of becoming a Canadian Citizen!  I take my oath seriously – and this really, really offended me.

Of course, Mr. Katz did not mention that Mr. Warman did actually RUN for public office – he just failed to get elected.  I think.  Or, I could be mistaken.  I am not making any statement about Mr. Warman, whatsoever!

With this, Mr. Katz finished up.

….more to come….

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 2

I have absolutely 0 legal training, so all these are simple observations and the conclusions and opinions are in no way expert.  I will do my best to be accurate, but these are all still nothing more than my personal observations and opinions.

Part 1 can be found here.

When I left off the tale, it was high noon and Madam Justice Blishen was listening to Mr. Katz, the lead counsel for Mr. Warman, present an argument why Mr. Christie, counsel not for Free Dominion but one of the co-defendants in the main defamation suit, has no standing at this hearing and should not be permitted to address the court.

This hearing was held solely to determine whether Richard Warman’s request that Connie and Mark Fournier, of Free Dominion, hand over the ip addresses which would reveal the identities of a number of Free Dominion members meets the 4 criteria, as set out by Justice Wilton-Siegel.  Mr. Katz argued that since that had nothing to do with the defamation itself, and since Mr. Christie was only representing clients in the defamation portion of the case, he has no standing before the court.

Mr. Christie eloquently argued that his client is being sued for defamation.  The second of the Wilton-Siegel points requires that Warman demonstrate that there is enough damaging ‘stuff’ there for a defamation lawsuit to go ahead ( establish a ‘prima facie’ case – this is to avoid ‘unjustified’ requests for identity disclosure).  If he can show that there is no ‘prima facie’ case – this second point – then there is no case against his client in the least!

Therefore, it is in his client’s interest that he address the court at this hearing.  (There was some specific word that was used in both Mr. Christie’s client’s case – so that was brought up and discussed, but to my untrained mind it seemed that the word itself was less important itself as it was only one of the ‘means’ to break the ‘prima facie’ point,)

Mr. Katz also pointed out that since Mr. Warman had arrived at a settlement with Mr. M– last Thursday, who had been Mr. Christie’s client, Mr. Christie has even less of a standing….

Mr. Christie pointed out that he is not there on behalf of Mr. Martin, but rather of Mr. B–.

In a most reasonable voice, Mr. Katz said yes, but Mr. Christie is trying to represent Mr. M.– here, and that has already been settled!

Mr. Katz truly does use his voice very, very effectively:  he conveys at least as much (if not more) meaning in the tone of his voice as he does in the words he speaks.  An excellent skill for a trial lawyer!  (My personal opinion is that without Mr. Katz’s expertize, Mr. Warman’s may lawsuits would never have gotten as far as they have…)

Of course, Mr. Christie could not be rattled that easily – and the judge ruled that since the rights of Mr. Christie’s client are going to be affected by any ruling here, she will permit Mr. Christie to address the court briefly after the other parties have made their main arguments.

Point one to Mr. Christie.

At this point, Mr. Katz complained that this is supposed to be a short hearing and now, so much of it had already been wasted by the above argument…

The man has some daring!  He was the one wasting the court’s time – now he complains about it, trying to shift the blame on to Mr. Christie!  And in such reasonable tones….  He truly is another Daniel Webster!  (The one from the story, not the Canadian lawyer…)

As he opened his main argument, Mr. Katz presented to the judge that the main aim of today’s hearing is to determine if there is a ‘prima facie’ case for Mr. Warman to proceed with his lawsuit.  (i.e. Wilton-Siegel point #2)

Point #3 – whether his client has done all he can to ferret out the identity of the anonymous posters on his own has been satisfied:  Ms. Kulaszka, the counsel representing Free Dominion, has conceded that this point has, indeed, been satisfied.

The judge pointed out that points #1 and 4 are also important. (#1 is whether or not the posters had a reasonable expectation of anonymity and the tricky one, #4 deals with weighing ‘public interest’, ‘freedom of speech’ and ‘right to privacy’)

Mr. Katz cited a precedent ruling set in Nova Scotia in June of 2010.  Unfortunately, even though I was aware of the ruling at the time, I cannot remember enough of the important details to find it, so I could link it.  (And, yes, I have spent a lot of time in cyberspace, sidetracking, while looking for this bit – so I have stopped in order to finish writing this up…)

Mr. Katz went on to argue that the specific libels against Mr. Warman are pretty clear.  He listed them.  For obvious reasons, I will not.  (In case you are not aware, it has been alleged that one of the defendants is being sued because he quoted Mr. Warman, from a deposition, where Mr. Warman complains about being called a list of names.  Apparently, repeating these – even when identified as a direct quote of Mr. Warman, could land one in a lot of hot water.)

Mr. Katz stressed that ‘context is important’ and addressed what he called the defendant’s position ‘that nobody takes bloggers seriously, so it is irrelevant if Mr. Warman is slandered in a blog…’.  (My imperfect understanding of the defendant’s position suggests that this is a re-phrasing-to-the-point-of-error of their position, but mine is not the legal mind.)  Of course people take bloggers seriously!

I think it is very nice that Mr. Katz thinks so highly of us!  I like him too!

Then he showed a legal ruling from the US that ‘it is defamatory to refer to someone as a Nazi’.

In my never humble opinion, that statement is clearly false.  Truth is always a defense.  Therefore, that statement could only hold water if it said:  ‘it is defamatory to FALSELY refer to someone as a Nazi’!

No, I am not making any inference as to Mr. Warman:  just because he had joined a number of Neo-Nazi sites does not necessarily mean he is a Nazi.

I am simply addressing the incorrectness of the statement itself:  in our country, truth still IS a defense!  In a real court, anyway…

Alas – I see the wordcount has climbed rather high… So, I will break for now and continue this tale in Part 3.

Richard Warman v Free Dominion: the ‘prima facie’ hearing, part 1

Today, I spent observing more ‘courtly manners’.

In the court-room, that is.

With Madam Justice Blishen presiding over the next installment in the ‘Warman v Free Dominion’ saga.

Background:

  • FreeDominion is the oldest, longest-running online message board in Canada which deals with political matters.
  • Richard Warman is a former Canadian Human Rights Commission lawyer and the most frequent user of Canada’s Human Right’s Legislation’s controversial ‘Section 13’, often described as ‘the censorship clause’.  Richard Warman has also personally pursued complaints under ‘Section 13’ where he was not the ‘injured party’ – on the grounds that there could, one day, be an injured party – and collected a tens of thousands of tax-exempt dollars in ‘damages’ as a result.
  • Richard Warman has also initiated tens, perhaps hundreds, of civil lawsuits against people whom he perceives as having slandered or defamed him
  • Many people on the internet call Mr. Warman all kinds of things….some of them not nice things.
  • Several people have made posts on FreeDominion which Mr. Warman believes defame him – and he has attempted to sue them, as well as the people who run the FreeDominion site, Mark and Connie Fournier.
  • As they have posted under pseudonyms, Mr. Warman has not been successful in discovering the identity of all the people who posted the comments he believes to be defamatory.  He has therefore demanded that the Fourniers reveal to him the identities /IP addresses of these anonymous people, so he can sue them
  • Earlier this year, in an appeal, FreeDominion successfully argued that they should not be expected to just hand over this information when asked:  a ‘prima facie’ case has got to be made that there are indeed grounds for a lawsuit for defamation there, first!  There were two ‘other parties’ permitted to speak to the appeals court about this:  the Civil Liberties people and Michael Geist’s ‘Internet Freedom’ people.
  • THIS HEARING was to determine whether or not the conditions for the disclosure of identities of anonymous bloggers (including a ‘prima facie case’ for a defamation lawsuit in these posts) have indeed been met.

 

And what a hearing it was!

Since this hearing was to determine whether there was there was sufficient reason for the disclosure of the identities of anonymous bloggers, perhaps it is best to re-state the conditions, as per the above-mentioned appeal.  From Defamation Law Blog:

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

To reduce the anticipation a little, let me first state that the third point was not much discussed:  everyone agreed that Mr. Warman had indeed done a lot to ferret out the identities of the anonymous bloggers.  So, the arguments revolved around the other 3 points:expectation of anonymity by the posters, whether there is enough material there to proceed with a defamation suit (as in, not just a nuisance lawsuit) and last but not least, balancing of ‘legitimate interests’.

The morning arguments opened a little late:  there was another motion scheduled ahead of this hearing – one involving an almost 30-year lawsuit over some inheritance, which was in the 2nd and 3rd generation of litigants.  I suppose this set the tone a little…

This earlier motion hearing meant that Madam Justice Blishen did not begin to hear this case until two minutes to noon.  To my untrained, layman’s eyes, it looked like this was very good news for Warman and his legal team (headed up by the eloquent and expressive Mr. James Katz).  Mr. Warman kept leaving the court-room and coming back with more and more papers, which he quietly discussed with his lawyers.  Mr. Katz’s student also kept running into the room, bringing in reams of paper and passing them to her boss.

I wondered what this was all about… and I suspect the reason might have been the second lawyer, sitting on the Free Dominion side of the lawyer’s table.  The ever-loyal and very intelligent Barbara Kulaszka was, again, representing Connie Wilkins-Fournier and Mark Fournier of Free Dominion.  The other lawyer was representing several of the other co-defendants in the lawsuit – and was none other than the formidable ans wholly unexpected Mr. Doug Christie!

No wonder there was some serious scrambling from the Katz team!

As the hearing opened, Mr. Katz argued that as this is a hearing to determine if the conditions for revealing the identities of the anonymous posters has been met and not the defamation hearing itself, it only concerns the Fourniers and not the other co-defendants in the defamation suit.  Therefore, Mr. Katz suggested, Mr. Christie had no standing there and should not be permitted to address the court.

In my completely legally untrained mind, it looked like ‘they’ really really really really did not want to give Mr. Christie a chance to speak at all – more than just mere procedural jostling for position or some type of lawyer-bickering.  It almost smelled like ‘they’ were afraid of M. Christie.  And here, I thought he was best known for making good cookies…

All right – I am getting silly.  It has been a very long and exhausting day for me – if I continue now, the likelihood that I will craft my report to accommodate as many puns as possible will increase with every new line.

So, please, forgive me:  I will sign off for now and continue my tale tomorrow.

 

The ‘Richard Warman v FD/internet privacy’ appeal

The ‘Richard Warman vs. FD/internet privacy’ appeal

Update:  the Fourniers won the appeal! Warman is now seeking the ‘prima facie’ ruling…

While we walk through the landscape, we know we were climbing a hill, or crossing a meadow – but we so much a part of the landscape that we are often be unable to tell just how high the hill is, or how close to the summit we are.  Yet, standing atop that hill, looking back at the land one has crossed, the features of the landscape are clear and easy to discern.

So it is with our journey through time…

When ‘history happens’ around us, we are usually so immersed in its details that the minutiae obscure the ‘summits’ which, when future generations look back into our era, will be considered the ‘defining events’.  It is my never-humble-opinion that the legal precedent which will be set in this case will, if not a ‘mountain’, be a ‘hill’ in the landscape of our time.

That is why, on the 8th of April, 2010, I went to see history made, with my own eyes.  It is taking me many posts to describe my observations (and some background material) of this event.  This page will serve as an index:  I will keep adding links to my posts on this topic as I create them.

First – Connie Fournier’s observations of the event were first posted on FreeDominion, then, with her permission, re-posted by me in two parts, here and here.

It is undeniable that I felt the tension of the importance of this event, and attempted to relieve some of it by presenting a tongue-in-cheek description of first, my quest to find the correct courtroom, then of waiting for the hearing to begin.

But the time for humour (if you are generous enough to call it that) was over when the proceedings began.

First, introductions of the people there that day are here.

Next, an overview of the raw facts of this case is here.

A ‘softer’ overview (commentary) of what this case is about is here.

For those of us not schooled in the law,(coming) is an overview of the legal terms which (in my layman’s opinion) define the case as well as some of the cases cited as legal precedents:

Also coming will be the my observations of the presentations. …this page will be updated as this happens.  I apologize for taking so long getting the info up – I am a slow writer…  More ‘stuff’ coming soon!