Warman vs Free Dominion and John Does – the Jury Trial (day 1)

Yet another installment in the Warman vs Free Dominion saga began today (9th of September, 2013) – and I was lucky to be there to witness it.  While I am no legal expert so I could only follow what was happening through my layman’s eyes, I am happy to share my personal observations with you.

As this was a jury trial, the first thing that had to be done was the selection of the jury.  One thing I learned was that while there are 12 jurors in a criminal case, there are only 6 in a civil case.  The process itself is interesting, if lengthy and, for the prospective jurors, I imagine it would be quite tedious and more than a little stressful.

The jury selection room at the Elgin St. Courthouse in Ottawa, where this trial is taking place, is located on the 3rd floor.  As soon as I came off the elevator, I spotted Connie Fournier from Free Dominion  with her lawyer, Barbara Kulaszka and a group of supporters standing in front of Courtroom #37.  Roger Smith, one of the John Does (who is representing himself) was seated nearby, and the highly charismatic Mark Fournier soon also joined the group.  All were either smiling hopefully or looking thoughtful.

Connie Fournier looked elegant in a pretty brown blouse with a simple silver necklace, charcoal slacks and black cardigan and understated black shoes.  Mark wore a simple dark green shirt, sporty black pants and his usual aura of immense energy, coiled  just beneath the surface!  The distinguished-looking Roger Smith wore a tan shirt, darker tan pants (brown shoes, of course),  blue blazer with a blue tie with a subtle tan stripe.  Barbara Kulaszka wore her lawyer’s robes, which drape pleasingly about her slender frame, flattering her tall figure.

Richard Warman breezed in just at the time appointed for the action to start, in his regulation crisp, flawless business suit (dark) with a light shirt and a tan-ish patterned tie.  He was accompanied by his handsome and extremely capable lawyer, James Katz (who appears to have moved from Brazeau Seller LLP to Nelligan O’Brien Payne LLP) and his assistant (grey suit) whom Mr. Katz later identified as a law student.

In the meantime, all the prospective jurors (there were to be several juries, for both criminal and civil suits, to be selected today) had gathered in a crowded room just off the Court Room #37.  When the first judge (not for our case) was ready to start selecting the jury for the criminal case he was to preside over, they (the prospective jurors) were all led in (by the bailiff) and seated in the large and comparatively plush courtroom – however, as this did not concern us and the room was quite full, we left.

We moved to Court Room #35, a much smaller one, where the presiding justice, Judge Robert Smith, wanted to go over some points of procedure with the lawyers and Mr. Smith prior to selecting the jury.

Justice Robert Smith seems very kind and good natured, explaining to the self-represented Mr. Smith that, as he (Mr. Smith) is not a lawyer himself, he (Justice Smith) will explain all the procedures to him and his rights in how to represent himself and he (Justice Smith) urged him (Mr Smith) to ask questions if he has any and he (Justice Smith) will be happy to answer them.

Then there was some amicable procedural back and forth between the judge and the two lawyers and things seemed to be going quite well.  For example, Mr. Katz explained that the 10 days set aside for the trial was spread over 3, rather than 2, weeks due to his obligation to observe some religious holidays, and so on.

Procedural stuff!

The judge asked the counsel to prepare a brief 1 to max 2 page summary not of the facts of the case, but of the positions they’ll be arguing them from, for tomorrow morning.

In addition to the Fourniers, Barbara Kulaszka is also representing one of the John Does, (Jason Bertucci, from BC, aka ‘Faramir’ – who will attend the trial next week).  Several of the John Does Mr. Warman was suing had settled out of court and he had not discovered the identity of a few more, so, as per an earlier court order, the proceedings against the  unidentified John Does was vacated.  In case Mr. Warman was to win and damages were to be awarded to him, the terms of the settlements with the John Does would be revealed so as to prevent ‘double dipping’ (my term, not the legal one) of having overlapping (again, my imperfect understanding, not the legal words) damages awarded in both the settlement and the court case.

…haggling over some late-submitted evidence, the essence of which was quite lost on me…relevance – rulings, binding so stuff can be removed from evidence books if deemed irrelevant….procedural stuff!

Once Justice Robert Smith was happy, we went back to Court Room #37 where the criminal case jury selection was just finishing up (under the watchful eye of Justice Patrick Smith).  (It seemed like metal-workers were everywhere today!!!)

As it concluded, we were told that there was to be a brief break – and all the prospective jurors had to file out of the room, back into the cramped holding room off Court Room #37.

Ten or so minutes later, we went back in to do our jury selection – and all the prospective jurors had to file back in.  It was at this time that I observed something peculiar, but very, very human!

Being in a stressful situation, as being in a jury pool, with its inherent loss of control over one’s ‘destiny’ – at least, circumstances in the short term – is much more stressful that one might imagine and which was accentuated by all this ‘group herding’ from one room to the other over and over… but this bonds people together!

And, as the prospective jurors filed in this time around, from the guy carrying his bicycle helmet to the young woman in those ridiculously high heels, these people began to form ‘familiar stranger’ social bonds.  Some sought to sit near the same people as earlier.  Others exchanged smiles and acknowledging nods.  Many began to engage in ‘familiar stranger’ social chatter…

It is exactly this ability of humans to bond under stressful situations, regardless of race or creed, that makes humanity so awesome!

But, I am rambling.  My apologies – I’ll re-focus.

Justice Robert Smith spoke of the supreme importance of jury duty to our system of governance  and I fully approved of all the wonderful, important things he said.

So, the process of jury selection, patiently explained by Justice Robert Smith, was to select 20 potential jurors by drawing their pre-assigned number from a box, which looked a lot like a Bingo drum.  They will come up if their number is called. Then, if any of them had undue hardships, they could tell the judge and he’d excuse them from jury duty.  A gray-haired woman came forward and explained her English was not good enough for her to follow the testimony properly, a young man had been booked to travel on business during trial dates, and so on.  The judge excused them, if their ‘hardship’ were genuine.

The rest of the 20 who were up then stood facing the lawyers  and the self-representing Mr. Smith, one by one, and they (the lawyers and Mr. smith) could either accept them as jury members or reject them.  Each side could reject up to 4 potential jurors, this number being split equally between Ms. Kulaszka and Mr. Smith on the defense side, giving each of them 2 rejections.  Mr. Katz rejected a computer-savvy looking man.  Ms. Kulaszka rejected a nuveau-hippie looking young woman.  That was it.  The next 6 people were sworn (on either the Bible or the Koran) or affirmed in as jurors, the next two as alternates (these were dismissed at the beginning of the trial, when it was apparent that the 6 jurors would indeed be able to serve).

Thus, the jury of 4 men and 2 women was selected!

It was not even noon, and we were free till the body of the trial would start at 2 pm, in Court Room #35.

Perhaps not as exciting a process as the trial itself, but, as I had never seen anything like jury selection before, I found it fascinating.  Hence the recounting thereof…

Promptly, at 2 pm, the Warman vs Free Dominion and John Does jury trial began.

Once the jury was brought in, Justice Smith again spoke to the importance of their role to our society and went on to explain their prospective roles:  his job was to instruct them on what the law is and their job was to listen to the evidence, all of the presented evidence (and no more or less), for themselves, and then draw conclusion on what the facts were and apply the laws, as they are and not necessarily as they think they should be, to these facts and render a decision.  They could take notes, but not take them away with them – and taking notes should not interfere with their paying attention to the testimony.

Justice Smith further instructed the jury as to how things will proceed, how the testimony and cross examination will work, and all that procedural sort of stuff.  He was very good at covering the important points and, if the jurors looked puzzled, he explained closer. Very well done.

Aside:  at some point in the proceedings, the exact moment of which I cannot right now find in my horribly scrawled notes (as I am hurrying to write this all up), Justice Smith announced that any witnesses who are to testify in the case (none for Mr. Warman, though he himself would testify, but as a plaintiff and not a witness and for the Fourniers [who would each also testify, as defendants – not witnesses], there will be four witnesses called:  Tom Kennedy, Paul Fromm, Jerry Neumann and David Icke) are to leave the courtroom and isolate themselves from any testimony before they themselves are called.  (Sorry for the convoluted sentence – it’s a lot of information condensed together, but it is important ‘stuff’.)

All right – if I go into all the details, I will not get this typed up before having to head in again tomorrow morning (I am a slow thinker and an even slower writer).  So, I’ll simply hit the headlines and explain my perceptions of what took place.

Mr. Katz, a most competent lawyer (without whose brilliant work I suspect Mr. Warman’s lawsuit record would be quite dismal – and who is, unfortunately, not sporting that sexy beard of his right now) made his rather brief opening statement.  Quite well, but not as well as I would have expected from his past performances.  (Sad … I love to see a brilliant mind at his best!)

Then, he called Mr. Warman to the stand.


But again, the testimony itself was so much lower quality than what I had expected to see that it left me faintly sad…

Mr. Warman, aided adroitly by Mr. Katz, attempted to paint himself as ‘the victim’.  The courageous human rights activist who saw wrongs being done and took up the challenge to try to make the world a better place…and got nothing but grief and abuse as a reward!

At least, that is what, to my eye and ear, he attempted to sound like.  Just a little too hard…

I don’t know if the jury bought it, but, it did not ring true to my proverbial ear.


Because even when he attempted to cloak it is ‘oh, poor me, I’m doing good and the world is picking on me’ whines, he did make some rather stark factual admissions.

For example, Mr. Warman testified that there was a detestable man in the United States of America by the name of Bill White (if I am not mistaken) who got charged by the FBI for uttering death threats against a whole slew of people – and Richard Warman got himself added to that list, somehow.  It went to trial and, that detestable, horrible person was indeed found guilty of uttering death threats against every single person on that list – EXCEPT against Mr. Warman…

Aside:  if I am not mistaken (and I might be), Mr. Warman appealed this and lost – so not one, but at least two courts found his allegations of ‘death threats’ to be less than ‘provable’.  If any of my readers have more info on this, I would appreciate your ‘hard evidence’ because I am very sketchy on this and would like the legal record to be as correct as possible!  The corollary is: this is my highly imperfect understanding of the testimony Mr. Warman gave, not a statement of fact, and it should not ever be mistaken for one!

This bit is important because one of the defamatory comments Mr. Warman is suing about, from what I understand, is that someone claimed that he (Mr, Warman) had, in the past, made false claims that he got death threats…though, the bulk of his (Mr. Warman’s) testimony today was about ‘all the death threats’ from evil and detestable ‘neo-nazis’ (not even remotely connected to any of the people he is suing here – so I can only guess he’s laying groundwork against the claim of ‘his false claim of death-threats’) that he had, over the years, received…

Ah, what a web we weave…

Another ‘fact’ that Mr. Warman had testified to today was that, while employed by the Canadian Human Rights Commission, he was also a complainant who brought cases before the Canadian Human Rights Commission…

Actually, to my untrained mind, Mr. Warman had made himself sound much worse than I suspect the facts of the matter are.  From previous information (which, I suspect, is not available to the jurors), I don’t think there is any evidence that Mr. Warman had himself investigated ‘Section 13’ (the ‘hate-speech’ section) of the Human Rights Code complaints.  Yet, the way he had phrased it on the stand, it would be easy for the jurors to misunderstand his statement to imply that he both brought the complaint to the Human Rights Commission and then investigated it himself….a clear conflict of interest, in my eyes.  A conflict of interest I do not think he is guilty of, but which the jury might misunderstand his words to suggest…

Don’t get me wrong – I am no fan of the past totalitarian actions of Mr. Warman.  But, being an Aspie, I cannot stand it if ‘the rules’ are broken and if ‘the truth’ is not clearly visible – whether that ‘advantage’ is in favour of the team I am ‘cheering for’, or against!!!  Which is why this bothers me so…

I want freedom of speech and freedom of the internet to win – but on the true facts and their merits, not on poorly given testimony which is then misunderstood!!!  That would be a hollow victory!

OK, that is my OCD speaking… sorry, I’ll move on…

Another fact Mr. Warman had testified to was that, while an employee of the Canadian Human Rights Commission, he had brought complaints to the Canadian Human Rights Commission which were investigated by it,then referred to its ‘Tribunall’  – which then awarded him tens of thousands of dollars in ‘damages’…while he was also drawing a salary from the CHRC.  Again, I can not read the minds of the inscrutable jury, but, my to mind (rightly or wrongly) this screamed ‘double dipping’ and ‘corruption’!  Yet, when Mr. Warman testified to it, he tried to make it seem like a good thing.  And, again, I cannot but suspect the appearance Mr. Warman’s testimony created was much worse than the truth of the matter…

Indeed – everything Mr. Warman testified to was couched in the ‘I am a victim – neo-Nazi’s are trying to kill me’ language.  But, the facts he himself put into evidence…to my layman’s mind, they were seriously damaging to his cause, his credibility – and in my highly imperfect comprehension, the way he had painted himself – his very own words on the stand today – were way more damaging to his reputation that anything I have, over the years, read on the internet.  Much worse than what I suspect is the actual truth of the things he had so clumsily testified to today…

It remains to be seen if the jury parsed his testimony the same way I did – most unlikely, as I am much more familiar with the background material so some things that were casually ‘slipped in’ practically ‘screamed’ at me…plus I have a very Aspie mind, and thus are much more sensitive to perceiving even camouflaged injustices/misrepresentations than the average person might be.

One final point:  during some bit where Mr. Warman was explaining just how damaging to his reputation, both as a lawyer and as a person, the posts at Free Dominion were, he flatly said (and I may be paraphrasing slightly, as I am working from notes, but not in the substance of the statement):  they might as well have said I cut heads off of babies!!!

Several jury members visibly cringed at this simile.

I have no idea if this means they had empathy with him for such damaging statements on ‘that accursed website’ or if they thought he was over-exaggerating and thus losing credibility with them…

Only time will tell!