The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 2)

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’.

1.

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.

2.

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!

Advertisements

20 Responses to “The ‘Baglow case’: ‘Motion for a Summary Judgment’ hearing (Part 2)”

  1. Mrs. Numpty Mews Says:

    Excellent summation and quite admirable of you not to call anyone a crybaby.

    Xan says: Thank you!

  2. Jay Currie Says:

    Thank you for this.

    John has a very silly position. It is unfortunate that he insisted on bringing it to Court. Now his sock puppetry and his own republication are exposed.

    There is something about Free Dominion which drives lefties crazy. And, not being terrifically sensible, the first thing lefties do when their opinions are challenged or even examined is think about going to law.

    This sort of conduct poisons the blogosphere and underlines just how desperate the cultural left has become now that it has pretty much lost control of political discourse in Canada.

    [On a personal note: I expect my blog, in a rather different form, will be back over the next few weeks. But, for the moment, I am enjoying the hiatus and regaining a bit of perspective. Blogging can very easily become pointless trench warfare as John is demonstrating. But it can also be far more than that.]

    Xan says:

    Thank you.

    I, too have been on a bit of a hiatus – or, rather, I have not been blogging because I was taking meds that affect the reason…and so did not want to publish anything I wrote while under the influence of painkillers.

    Curious thing: not being able to comment, I could not bring myself to actually follow current events! The frustration was just too much for me to take…so I more or less isolated myself and, as you say, regained some perspective.

  3. truewest Says:

    Xan,
    Thanks for the report, which offers a helpful summary of the proceedings. A few points:
    – O’Donnell’s argument that he was attacking “Dr. Dawg” and not John Baglow is a loser. You can defame someone without naming them. All that is required is sufficient detail to allow them to be identified by someone who knows them. In this case, Baglow makes no secret of the fact that he is Dr. Dawg.
    – this case would seem to turn on the whether, in the view of a reasonable person, O’Donnell’s statement constituted expressions of opinion or statements of fact. I’m not sure that determination can be made in a mini-trial or summary trial, but I guess we’ll see.
    – Contrary to Jay’s assertion, it seems to me that right-wingers are more inclined than lefties to “go to law” when insulted or criticized: see Ezra L, Conrad Black, Kari Simpson (the plaintiff in the WIC case).

    BTW, Jay, nice to hear that you’re coming back. Wondered what happened to you.

    Xan says:

    Thank you, truewest, for your comment.

    It is essential to hear all points of view – and I appreciate yours.

  4. Crusader Says:

    Love your blow by blow and am happy to see that Jay is alive and well – pending his return to the blogosphere.

    It never fails to amaze me as to the set-up against FreeDominion as if what you reported was accurate then Dawg himself set up the link to his real name (readily available on the net) as he also wrote for one of Canada’s papers. His home address is no secret & so are his days as a union organizer along with his deceased partner.

    The tactic is right out of the Leftist Playbook of “Maximum Disruption” and the connection of characters is no coincidence. Disruption by Union proxy? Mark Steyn best describes it as the leftist world of the overly sensitive and offended.

    Xan says:

    Thank you for your comment, Crusader.

    As I stated in my conclusion, my never-humble-opintion (formed on the basis of what I heard in the court hearing) is that ‘Dr. Gawg’ was not particularly worried about defamation…just angry that the discussion ‘Peter O’Donnel’ set up on FreeDominion drew traffic away from his blog and towards the FD site. Dragging them to court seems to me to be the revenge, letting the process be the punishment…

    (Aside: much of my family was wiped out by the Crusaders….one branch for following the ‘wrong’ kind of Christianinty (they were gnostics, their teachings were loosely related to the Cathar and Bogomil ones and there were 3 separate Crusades led against us on these grounds) and another branch for refusing to accept any form of Christianity whatsoever and remaining Pagan (2 separate Crusades were led against us on those grounds). Even my own grandmother remembers standing on guard, as a child. to watch and make sure the Jesuits would not catch them at prayer – as it would have meant the whole family would be barricaded in their home and burned to death. I truly and honestly do not understand why anyone would wish to self-associate with such atrocities, committed against civilians, based on religious tribalism!)

    • truewest Says:

      “As I stated in my conclusion, my never-humble-opintion (formed on the basis of what I heard in the court hearing) is that ‘Dr. Gawg’ was not particularly worried about defamation…just angry that the discussion ‘Peter O’Donnel’ set up on FreeDominion drew traffic away from his blog and towards the FD site”
      You think this was about website traffic? Seriously?

      Xanthippa says:

      Based on what I heard in court – yes!

      • balbulican Says:

        Xan – in all honesty, you are mistaken. That’s not how Dawg thinks.

      • truewest Says:

        Xan, If you had any idea what’s actually involved in prosecuting a defamation claim, and how much it costs to take a matter like this to trial (which is clearly Dawg’s intention) you might have some sense of how ridiculous that opinion sounds.
        Then again, you seem to think Ezra Levant is a great wit, so perhaps I’m not surprised.

  5. Marie Ève Says:

    You said: As far as I could tell, nobody stayed to support Mr. Baglow.

    Mr Baglow’s supporters work and have jobs.

    Xan says:

    Thanks for your comment.

    I am glad to hear that – and the FD supporters also work. Most took holidays to come and supoport them.

    • Crusader Says:

      Yes Marie – they work for the government and like his bestest pal Richard – seem to have no problem getting time off to testify about the hurt they have endured.

  6. MariaS Says:

    Great reporting Xan. Thank you. Been a while since I read about one of our favorite lefties.
    One question: Did the plaintiff enter the courtroom on his own two feet or was he pushed there in a pram ?

  7. balbulican Says:

    “nobody stayed to support Mr. Baglow.”

    Indeed. Humans tend to stand on their own two feet. Sheep travel in herds.

    Xanthippa says:

    A clarification here is probably a good idea…

    I did not see anyone who came there to support Mr. Baglow in the afternoon. That much is accurate.

    However, in the morning, there were some people who came in, but left when it became clear that the case would not be heard until noon-ish. As I stated in my post, I did not identify most of these people.

    I have no direct knowledge about who these people were and whom they came to support – or if they came out of simple curiosity. It has been asserted by another person that at least one individual (I did not ask permission to name him – so I will not) did indeed come in the morning to show support for John Baglow. I have not verified this assertion either way, but, in the interest of accuracy, I think it is worthy of this qualified mention.

    Thank you, Balbie, for calling my attention to the fact that a clarification is called for!

  8. balbulican Says:

    My pleasure, Xan. Long time, no spar! 🙂

    Xan says: Indeed!

    May I trouble you for a bit of honest advice, please?

    John Baglow stated in his post (which so kindly linked to mine) that he does not wear cowboy boots. However, I DO recall quite clearly that the person who sat at the plaintiff’s table with John Baglow’s lawyer, who responded to the lawyer when the judge asked him to clarify something with his client – and whom I thus presumed to BE John Baglow – that person WAS indeed wearing the boots I described.

    Since his assertion, I actually went and verified with other people who were in the courtroom – they also say that on that particular occassion, John Baglow indeed did wear the boots I had described.

    This leaves me at a loss: I do not ascribe great importance to the boots as such. I only mentioned them because the man himself was so difficult to read, the boots were the most expressive bit of him. Plus, I liked them!

    Yet, with his statement, he has thrown the accuracy of my report into question. While he did not state that I was factually wrong (he did not state that he did not wear cowboy boots to court that way – just that he generally does not wear them), he certainly implied that I was not accurate in reporting this particular detail, thus indirectly but most definitely diminishing the credibility of my report.

    While I have no wish to ge hung up on a minor and irrelevant detail like the plaintiff’s footwear, I do not like this impled-but-not-clear statement that undermines my credibility. This is worrisome: on many levels. I am, after all, an Aspie and poor at those social skills…facts are most important to me.

    I’d rather be wrong – and correct it – than inaccurate.

    Yet, I am confident in my facts.

    In addition, I do not wish to make a mountain out of a molehill…

    You, Balbie, move in these circles. Could you please suggest a non-inflammatory means I could employ to arrive at an accurate resolution of this?

    • balbulican Says:

      Well, you could send him a note and say – “I thought those were cowboy boots. Weren’t they cowboy boots?” Seriously, he’ll tell you.

      Xan says: Thank you!

  9. mahmood Says:

    Ooh Balbull, so when your pal Bobby Day was searching for the Nexofassholery P.Ross’s address with the support of Johnny Baglow that was a herd(flock/mob)of sheep?…because there’s some question of Bobby being human? Thanks so much for the clarification my dear fellow…indeed.

  10. mahmood Says:

    Aaah, cowboy boots in Johnny Baglow’s world view would connotate a redneck/hillbilly and that’s not the persona J. Baglow is interested in cultivating, no siree. He would, I’m sure, refer to his big boy boots as shitkickers, more in line with his portrayal of a badass blogger who takes no prisoners. Personally I think he should show up in the courthouse wearing rubber boots/wellies better able for him to wade thru the pile he generates. But I am speculating and for all I know he may have been wearing capezio ballet slippers. I, as everyone else, wait with bated breath for Balbull to clarify the boot conundrum.

    • Crusader Says:

      Johnnie – who likes a title of Dr. surely would like to portray himself as a man of the people, a guardian of the poor and enslaved masses, wears a type of cowboy hat to bridge the gap let alone fading hairline.

      Yes wellies are his old colonial style.

      But he loves the attention so let us not spoil it.

  11. Peter O'Donnell Says:

    Hey Xan, Jay and everyone else, no comment on the hearing but would like to tell the people of Ontario, if you want to get rid of the heat, just bring in carbon taxes, works like a charm here in BC. 🙂

    I am very busy at the moment preparing for my duties as the new NDP MP for Trois-phoques-et-un-chaton. I sure hope I can visit this apparently charming town before my term is over. But if not, the pay will be much appreciated.

    Xan says:

    Good luck!

    And, I am sure you will not dissapoint those who voted for you… ;0)

    By the way – you can take yout carbon taxes and shove them where the sun don’t shine. Like, say, Vancouver. Personally, I hold the belief that in order to keep governments truly accountable, all taxes ought to be voluntary (like tipping in a restaurant).

  12. Free Dominion wins the Baglow case! « Xanthippa's Chamberpot Says:

    […] Last month, I reported my observations and opinions (strictly personal ones) of the hearing for summary judgment in the ‘Baglow case’:  here are part 1 and part 2. […]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

%d bloggers like this: