See here for ‘Part 1’, which includes the background, the facts of the case (as agreed upon by both sides in the case) and the legal point of this hearing.
July 21st, 2011 was a blisteingly hot day in Canada’s capital. The temperature outside climbed up to 36 degrees Celsius and the humidity stood at close to 100%.
Just before ten in the morning, when I arrived at the corridor outside of Coutroom 36, where the hearing was to be held, the air conditioning at the elegant Elgin St. courthouse was already having trouble limping along and the temperature indoors was significantly above room temperature (defined at 21 degrees Celsius) and bordering on uncomfortable.
When I arrived, many people were just filing out of the courtroom: another case was being heard first, and this would take intil at least 11:30… when the court would take its first break. This dampened the spirits of the little group of people who, like I, had come to show support for the Fourniers and ‘Peter O’Donnel’ from FreeDominion, the defendants in a defamation suit brought against them by ‘Dr. Dawg’: many could not stay the full day…
Among the friendly faces, I recognized Fred Litvin of the Free Thinking Film Society, who was one of those who could not stay the full day. Andrew Phillips, leader of the Libertarian Party of Canada, as well as longtime freedom of speech supporters Roland and Fran (plus your never-humble correspondent) stayed for the duration of the hearing. As far as I could tell, nobody stayed to support Mr. Baglow.
I was curious to see John Baglow – having never laid eyes on him before. He wore a crisp blue shirt (curiously evocative of ‘the working class’ and of ‘cowboys’ at the same time) with aviator-style sun-glasses in place of a tie, dark pants and cute black cowboy boots with the most adorable little metal trimmings. In his hands, he held a summer-weight (possibly straw), white, fedora-type hat. His whitish-gray mustache matched his hair and I could read nothing from the neutral expression on his face. John Baglow, the man, remained a closed book to me.
John Baglow was represented by Peter Francis Burnett – a lawyer who struck me as competent and who has a very pleasant, confident voice.
The Fourniers were represented by Barbara Kulaszka, while ‘Peter O’Donnel’ (who had flown in for this hearing from BC) represented himself. The Fourniers are being sued for hosting the forum on which the insult was published, ‘Peter O’Donnel’ for having posted the insult.
The case was presided over by Mr. Justice Annis, J. (as the sheet outside the courtroom announced). The judge struck me as sharp, very sharp, and quite well versed in the internet, the blogosphere and the issues (and lingo) surrounding it. In other words, a judge who was knowledgable of the context and its complexities – something that is always a good thing, but which unfortunately does not always occur. After all, judges cannot be experts in everything…
I have exactly zero legal training – therefore, my observations must be unedrtood as those of a layman and nothing more. I am working from an imperfect understanding, and the few notes I took during the hearing. I will do my best to be as accurate and to present the case as correctly as possible with my limited understanding, but I am bound to make mistakes. If you can correct me, please, post a comment doing so!
Also, rather than presenting the case sequentially, I will address the individual ‘major points’ raised. It seems to me this way, it will be easier to follow the various threads of reasoning.
Ms. Kulaszka was the first person to address the court, as it was she who had filed the ‘Motion for Summary Judgment’ which this hearing was for. She was arguing that as both sides had submitted affidavitsin which ‘their side’ of the story was fully explained, and that since all the basic facts of the case are aggreed on by all the parties involved, all the facts relevant to the case are before the judge: the judge can, therefore, make a summary judgment based on this material and there is no need for a full-blown, costly trial which would drag on for years.
She spent a long time explaining the context of the ‘debate’ and the various insults traded, and so on. She described the trail – a debate about the ‘Omar Khadr’ affair which started on the Jay Currie blog (no longer up), moved from there to ‘Dr. Dawg’s Blog’ (where it degenerated to insults, back and forth), and from where it moved on to FreeDominion, a discussion forum. None of these facts were in dispute, by any of the parties.
As I understand it, if the facts in a case are all clear and no further evidence needs to be presented, it can be ruled on by the judge directly. If there are points which need closer examination, then the judge will rule that the longer, costlier process of a full trial will take place. This is what the defendants had requested and what the plaintif was fighting against: which is what this hearing was about.
Ms. Kulaszka cited ‘the McVeigh case‘ (see my list of some legal precedents on why I think it was relevant, and which may have taken place in BC, but under similar rules of Civil Law procedures to Ontario’s) as an example where a judge had all the facts in place and could rule on the whole case based on the evidence already submitted.
Mr. Burnett implied that it was silly of her to cite the McVeigh case, because there, the defendants lost!
Ms. Kulaszka pointed out that she raised the case only as a precedent in that was similar and demonstrated that the ‘mini-trial’ format of ‘Summary Judgment’ was applicable in this case.
The next major point of disagreement between the two sides, as I understand it, was a rather salient point over where a particular line lies… Mr. Burnett argued that IF the words that were used against his client COULD be construed as defamatory, then a full-fledged trial must take place to decide if they were indeed defamatory in this particular instant. Ms. Kulaszka argued that a full trial should only be held IF there are FACTS that are disputed: if all parties agree to the FACTS, then the judge has all he needs to make the ruling.
The judge asked a lot of questions of both sides on each of the points raised. He understood perfectly the context – he seemed to either be someone who follows the blogosphere or had done an excellent job educating himself on it in depth, including the ‘ascerbic’ debates in comment sections that can degenerate into name-calling matches. He characterized the case as such an instance, and that he simply has to decide whether one of the parties had ‘crossed the line’ during the name-calling…
In any case of defamation, the plaintiff must demonstrate that he/she had indeed had their reputation diminished as a result of the words of the defendants. Here, each side cited a different case as a precedent.
The defence cited the ‘WIC Radio case’ – a shock jock radio guy had, during a ‘live debate’ with an activist, said something that she took offense to and she sued for defamation. The Supreme Court of Canada ruled that any reasonable person would have understood this to be ‘name calling’ and not as ‘a statement of fact’ – so the activist’s reputation had not been damaged. Ms. Kulaszka drew the parallel to this situation: it was a ‘debate’ which degenerated to ‘name-calling’ and was perfectly understood as such by all the readers of the blog/forum. No harm – no foul!
Mr. Burnett raised a different case – Black v. Breeden. In this case, Conrad Black sued a number of newspapers for defaming him. The ruling (as I understand it) was that since the words were printed in ‘The Globe And Mail’ newspaper, the test for whether they are defamatory was whether an average reader of ‘The Globe And Mail’ newspaper would take them to be so. As in, believe them/take them as ‘fact’ – and thus ‘defame’ Mr. Black.
Mr. Burnett’s argument was that since the ruling took the opinion of the ‘average reader of The Globe And Mail’ to be the ‘test’ for defamation in the ‘Black case’, that was also the standard in this case. As in, the opinion of the ‘average reader of The Globe And Mail’…
Ms. Kulaszka argued that the ruling was that ‘the opinion of the average person reading the medium in which the words were delivered’ was the ‘precedent’ set by the ‘Black’ case: since this was delivered in the Canadian political blogosphere, it was the opinion of the average Canadian political blogosphere reader which was pertinent – not that of the ‘average reader ofThe Globe And Mail’.
The ‘Vigna v. Levant’ case was also raised as a potential precedent. However, I am confused about who was the first to raise it. It was certainly referenced by the judge quite a bit when he was asking questions. The judge had also asked both parties to email him by Monday any other ‘interesting blogger-cases’ which he could review for precedents.
I see that the word count is going dangerously up…so I will be more brief. Of course, all the usual ‘defamation’ bits were touched on and argued, that posting on the internet ‘contitutes publishing’, was there malice in the insult, etc. – and were argued well on both sides. However, I would be remiss if I were not to cite some details which set this particular case apart from others and make it very unique indeed.
These two very specific details concern the actions of the plaintiff – and how the defendants interpreted them.
Apparently, the defendant, ‘Peter O’Donnel’ had not done anything to link the persona of ‘Dr. Dawg’ to the real-life person, John Baglow. As such, Mr. O’Donnel told the judge that his insult was directed at the ‘online persona’ of a ‘typical left-wing blogger’ – not the real-life person of John Baglow, whom he did not know or even conceive of as an individual.
It was Mr Baglow himself who had created a ‘sock-puppet persona’ called ‘Miss Miew’ (sp?), who purpoted to support ‘Dr. Dawg’s’ arguments – and who, as ‘Miss Miew’ had ‘outed’ him by identifying ‘Dr. Dawg’ as ‘John Baglow’.
If I understand this correctly, ‘Peter O’Donnel’s’ defence is that the insult was not defamatory, but, even if it were, it was directed at the anonymous persona of ‘Dr. Dawg’ and that it was John Balglow’s own action in linking his real-life name to the persona in that discussion forum – the defendant’s own action – which could potentially have been harmful to his reputation IF the insult was indeed defamatory.
The judge asked for clarification on this point several times: and yes, even the plaintiff agreed that it was his action which linked his name to his online persona in the forum.
The Fournies are being sued for running the forum – and thus for being the ones who had publishe the ‘defamatory words’. However, they were not the only ones!
The plaintiff himself had also published these very same words, in the comment section of his blog – and left them up for many, many months.
The Fourniers claim that since the defendant had himself published these words, about himself, on his own site, they had no credible reason to believe that the defendant had considered the words defamatory.
Mr. Baglow’s lawyer, Mr. Burnett, admitted that this was so, but proposed that the plaintiff’s own actions have nothing to do with the defendant’s culpability and must not be considered in any other context than, perhaps, in the amount of damages to be awarded.
So, there it stands.
If I may indulge in stating my own, never-humble opinion of all this….
- The ‘debate’ started on Jay Currie’s blog – then moved to ‘Dr. Dawg’s’, where it generated substantial traffic. 89 comments on one post alone!
- Then, ‘Peter O’Donnel’ created a discussion about it on the FreeDominion site – and the ‘debate’ moved there. Taking the traffic with it.
- John Baglow tried everything he could to bring the ‘debate’ back to his own site – even re-publishing the most inflammatory bits from the FreeDominion ‘debate’ back on his own site.
- When this did not work, he complained to Connie Fournier and demanded that she’remove’ the offensive words and, effectively, stop the ‘debate’ on the FreeDominion site…so that the ‘debate’ – and the accompanying traffic – would return to his site.
- When she refused, he decided to punish her by suing everyone involved for defamation.
… at least, that is how it seems from my point of view!