All the caveats from part 1 (more or less forming most of part 1) apply. Please read them….DLDR: borrowed clunky tech and limited internet time, cannot highlight (thus link etc.) – will update once my computer is fixed. Also, these are all jut my highly imperfect personal observations and opinions and ought not be treated as anything more than that.
An account of Day 1 can be found at The FreedomSite Blog.
I have been struggling with how to write up this part, because things got quite sensational at some points and I am quite terrified that if I repeat what I believe to have heard in court, I will open myself up to being sued because as I understand the current state of Canada defamation laws, truth is not a defense there, either, as a person is presumed to be guilty and malicious and if the words are ‘spoken maliciously’ then their truthfulness is irrelevant.
In my online persona, I have chosen to emulate Xanthippe, the wife of Socrates and THE proverbial nag: I am good at nagging, so I thought I’d go with it. But, as Xanthippa, I try my best to channel Xanthippe with all her vitriol and sharp tongue – that’s part of the fun of creating an online persona: it is not you you, but that persona you, so you can say what the you you might, but in a different way, more in line with the persona you are attempting to channel. (Remember, if it were not for anonymous speech, the Federalist Papers could never have been published and the USA would still be a Crown possession.)
Something that Xanthippa says with the persona-appropriate vitriol which defines her and signifies no more than a reflection of her nature could, quite easily, be misinterpreted as ‘malicious’ when all I am doing is role-playing…presenting my opinion, but with a satirical twist. And satire does not come across too easily in the courtroom!
Aside: there will be more personas I am developing in a different, non-written online project, but more about that later. (But, if anyone has an old but nice wig they’d be willing to donate to that effort, I would be eternally grateful.)
Back to the trial: first on the order were some legal tidying-up thingies and once these were out of the way, Madam Justice Polowin esplained that she is a bit of a luddite and barely knows how to use email…and has never ever read a blog. A ‘clean slate’ she called herself. I am not convinced this is the best background for this case, as it may get very technical, but (and I am jumping ahead in time somewhat) she took copious notes of everything and whenever she needed to understand a point, she not only asked for a clarification, she actually repeated her understanding of the point and asked for confirmation that it is accurate. That, in my never-humble-opinion, is a good thing.
Another point of interest was that motion was introduced that any potential witnesses are to be excluded from the courtroom until after their testimony and cross examination, so as not to be influenced by what they hear and see before they testify. All parties agreed and a nice-dressed gentleman (Mr. Bow, Dr. Baglow’s IT guy) got up and left the courtroom.
Now the opening statements.
Mr. Burnet, Dr. Baglow’s lawyer, went first. He seems like a competent lawyer and he assumed that reasonable, avuncular style that must be effective because it is affected by so many lawyers (good and bad). Personally, I find that particular form of arguing patronizing and irritating at best because the Aspie in me considers it to be a form of manipulation. And we, Aspies, are very allergic to being manipulated: we see such manipulation as using a subtle form of shaming in order to disguise the lack of convincing evidence. This opinion of mine was only strengthened by Mr. Burnet’s nervous habit of scratching the inside of his left ear with the arm of his glasses.
But, that is my perception of his mannerisms and not a reflection on Mr. Burnet’s case because a lot of lawyers affect that style – and a lot of lawyers will try to act as if they have a weak case in order for their opponents to underestimate it and not prepare adequately. And I am sufficiently poor judge of human body language that I would never venture to guess if he was really nervous or pretending to be nervous as part of his courtroom strategy.
If I understood Mr. Burnet’s opening statement accurately, it boils down to a few major points (and I am paraphrasing, at times quite heavily, as my notes are incomplete and I cannot but channel Xanthippe – so, any vitriol you detect below is ‘satire’ and, at times, dark sarcasm, and not malice whatsoever in any way, shape or form):
- he anticipates that the defendants will try to defend themselves by trying to suggest that there ought to be one set of laws in real life and a different set of laws on the internet and that this is wrong: the same laws should apply the same way to everybody, for a person’s a person, no matter how small or virtual
- his client is a retired civil servant, openly and proudly (sic) left wing, enjoys political discourse and enjoys being a blogger in order to promote intelligent (sic)political debate in the public sphere and that while his blog is the primary vehicle for this, he also does so on other blogs and in traditional media. He engages with people with differing political views.
- the defendants’ site is ‘extremely right wing’ and their political views are ‘extremely right wing’ which makes them offensive, which is why his client did not usually engage at Free Dominion, but he did engage in a discussion with Mr. Smith on a different blog…
Aside: up to this point, Mr. Burnet had very considerately explained all the technical terms and jargon patiently answered the many detailed questions the judge had asked. He kind of got into the habit of talking for a bit, then looking up and asking if any explanations were needed. So far, so good. Now, Mr. Burnet delved into how Mr. Smith and his client had gotten into a heated debate about Mr. Baglow’s glaringly hypocritical position* on the re-patriation of Omar Kadr…and he looked up to the judge and asked if she had heard of Omar Khadr. Madam Justice Polowin smiled amusedly and said that even though she may be a luddite, she does read the papers…
- His client learned about the offensive comment on the Free Dominion site from somebody else, contacted the Fourniers and demanded a takedown and an apology, but got none.
- Articles with his client’s negative views of the Taliban were freely and publicly available and clearly contradicted that statement, even though his client continued to vociferously support Omar Khadr in his efforts at repatriation
- his client may have used caustic and vulgar language against his opponent – including the defendants – while on the blogosphere but that does not give them the right to do the same to him (implying, though never quite stating, that if they did not like it, they could have sued him like he is suing them)
- the defamatory comment never caused his client any harm, financial or otherwise, but the Canadian defamation laws are so flawed that this does not matter, he can still get money out of this and so he should (the proper legal term Mr. Burnet used, I think, was ‘damages at large’, demanding there not be a breakdown of what were damages and what were penalties, so that the ridiculousness of this situation could more easily be glossed over
- Mr. Burnet stressed very vigorously that under our current Canadian defamation laws, guilt and malice are PRESUMED and almost impossible to disprove, so they should just win by default
- facilitating putting something onto an obscure and unread spot on the internet = PUBLISHING and having editorial control
- this is NOT a Charter challenge because the proper notices have not been filed (with the implications that what the defense is demanding is nothing short of a ‘Charter challenge’ (the judge raised her proverbial eyebrows at this)
- this is not a SLAPP suit (methinks the lady does protest too much)
- this is NOT a case of limiting freedoms of citizens or (I could not help but chuckle at just how sincerely Mr. Burnet managed to deliver this one) libel chill, freedom of speech, blah blah blah…they’re not being silly bunnies or anything like that…..
- just because the internet is evolving does not mean that the tort of defamation ought to evolve with it, to keep pace with emerging technologies is a silly bunny thing to do and any0ne who says otherwise is a snotling-fondler (Please, google ‘snotling-fondler’ for definition as I cannot currently link: it is defined as a vulgar insult and not an actionable term of defamation….’snotlings’ are the lowest form of goblins, which are fictional, so this cannot, by definition, be actionable. And, yes, these are obviously not the actual words Mr. Burnet used, but, in my never-humble-opinion, they capture the ‘spirit’ in which this particular point was offered.)
- (and I think I got this argument’s wording down closely to how it was presented, with a saintly hallow hovering over Mr. Burnet’s head) The tort of defamation is the SOLE LAW that underpins civil discourse & keeps it from descending into a cacophonous, vitriolic shouting match dominated by those with the loudest & most strident voices…. (The reason I think I got this one down relatively closely to what was said is because the judge asked for the statement to be repeated and commented amusedly on the terms used.)
It is not exhaustive nor, obviously, word for word, but I hope this captures the spirit of the opening statement by the plaintiff’s lawyer.
Next up was Barbara Kulaszka, the lawyer representing Mark Fournier.
Honest declaration of bias: I have met Ms. Kulaszka and observed her in the courtroom. In person, I think she is brilliant and very, very nice. I have read some of her writings and been deeply impressed by them – insightful, well researched, documented, eloquently phrased and any other praise you wish to heap upon her head. I have, however, been less impressed by her past verbal performance in the courtrooms: that Barbara Kulaszka, however, did not show up today!
I saw passion and fire – and it was excellent! Not just in her opening statement (sorry, jumping ahead again), but she was up on her feet, objecting, arguing passionately and eloquently. In other words, I liked what I saw!
I may not have captured everything, but here are some of the highlights of her opening statement (again, as with the rest of all my writing, paraphrasing, satire, sarcasm, hyperbole and all that, are in play)
- pseudonyms not the same as the people who use them (quite right – I may have similar opinions as Xanthippa – but I would not express them in the same way that, as Shakespeare calls he, ‘the proverbial shrew’ would!!! – ok, back to Xanthippa’s voice)
- Dr. Dawg called Connie Fournier ‘his worst cyber enemy’ – superhero analogies (In my never-humble-opinion, Connie Fournier IS a real-life super-hero!!! Please, don’t ask me what that would make her cyber-opponents…I don’t want to get sued!)
- the argument started on the Jay Curry blog (Aside: I like his new blog much more than his old one.)
- heated argument, August 2010, Omar Khadr…election year…
- argument started on Jay Curry’s blog, went on to Dawg’s Blog, then there was 1 post on Free Dominion where Roger Smith put up an op-ed type of a post
- Omar Khadr, Canadians getting killed – back to Dawg’s Bawg ‘They dare call it treason’…
- traitor, treason. +++ – John Baglow does not find being called that ‘objectionable’ (unstated implication: is he proud of those epitaphs? Just what kind of a cat is this ‘Dawg’?)
- For his support for Omar Khadr’s repatriation and opposition to the was in Afghanistan, Jack Layton earned the nick-name of ‘Taliban Jack’: this is the same thing! A vocal supporter of the Taliban-linked Omar Khadr’s propaganda message gets tarnished with a Taliban-linked position….logical and natural – and not actionable.
- her client, Mark Fournier, had never wrote or approved those words, Roger Smith did – so he should not be liable for them
- Mark Fournier never repeated those words (though Dr. Baglow did re-publish them on the internet, several times)
- Mark Fournier never received any complaint about those words or any request to remove them – at any point, as the plaintiff only contacted Connie Fournier, never Mark.
- WIC Radio vs Simpson, Hill vs Church of Scientology (precedents)
- not a Charter challenge, ‘incremental changes’ to the law
- ‘publication’ should not be found for something anonymous 3rd parties posted in an un-moderated medium
- Cost of freedom of speech is getting too high, chilling effect, need legal guidance
- words were not capable of defamation in that context
- test is contextual, interactive…quoted justice Labelle in the Simpson case (thick skin quote)
- political rhetoric…
- words do not carry the meaning assigned them by the plaintiff…
- public interest
- malice? – ‘comment’ = editorial comment = hyperbolic language
- comment may not be fair, but that is not what ‘fair comment’ means
- Dr. Dawg had means to refute, used Miss Mew as a sock-puppet
- 3rd of April, 2011 – 10’s of thousands f comments suddenly disappeared, denying Mark Fournier access to information needed for his defense
- justice Annis found the words were not defamatory
- her client is being sued for his political positions and how people react to them, then 10’s of thousands of comments he could have used for his defense disappeared…
There may have been more, but this is what I ‘caught’.
Next came Connie Fournier’s opening statement.
I will not report on what it contained because I am not as brave as Connie and I am afraid that if I told the truth of what was said in public court, I would get sued and loose the family home and my ability to provide a home for my children. Let it suffice to say it included allegations of statements made by Dr. Baglow regarding justice Annis as well as several other, un-named judges which made the judge’s jaw to, quite literally, drop.
Next came Roger Smith’s opening statement.
He was extremely eloquent and, in my never-humble-opinion, totally brilliant.
First, he explained that while his legal name is Roger Smith, his birth name is Roger O’Donnell and he is widely known under that identity in professional circles, specifically in the weather forecasting circles and in Ireland.
Next he explained (to a ‘knowing’ and ‘understanding’ head-nodding of the judge) that by defining his client as ‘proudly left wing’ and the Free Dominion forum as ‘extremist right wing’, the plaintiff (through his judge) had made this a case that is NOT about defamation, but about one’s position on the political spectrum…and, in his opinion, the court of law is NOT the appropriate place to rule on which political opinions are permissible and which ones are not.
By the plaintiff’s lawyer’s opening statement alone, this case is not about defamation of an individual but about which political opinions are legally permissible and which political opinions are against the law…
He was, by far, the most eloquent of the bunch – so much so that I stopped taking notes and listened to him (regardless of the judge’s annoying interruptions) with ever growing respect and admiration (and I do NOT say this lightly!!!).
Next, the judge asked the CCLA lawyer, who did not have the ‘right’ to make an opening statement, to briefly sketch what the CCLA position is, which is what he did, in 5 points: all of which boiled down to ‘we want the law to evolve with freedom of speech in mind and something as ludicrous as this case ought to be tossed out of court…
Actually, it was quite brilliant: the young man (oh, I feel so old) argued their position logically and eloquently and really, really well, bringing in some of the phrases Dr. Baglow’s lawyer used and demonstrating just how ridiculous and absurd those arguments were, without needing to resort to any manipulative means or methods.
I think I love the CCLA!
OK – this is MY highly personal and admittedly prejudiced perception of what went on in court – please, do not treat is as anything more than my highly imperfect and admittedly ignorant opinion of the proceedings.
* * *
* I consider this position to be highly hypocritical because I cannot believe that an intelligent man, with a doctorate to boot, could possibly honestly think that using a colloquial definition of some words which are identical to a ‘legal jargon’ label with a very, very narrow and specific legal meaning, applying them in the colloquial sense to a person who glaringly does not qualify for the legal definition of that term, and then, wrapping himself in the tattered cloak of self righteousness, demanding the legal protections for that person for which he would only qualify had he satisfied the ‘legal definition’…and branding anyone who fails to buy in to his glaringly flawed argument as evil and unfeeling and somehow less than human. Sorry, the man I see in front of me seems much too intelligent not to grasp exactly what the difference between the colloquial and legal definition is, and how Omar Khadr does not qualify for the UN legal definition of ‘child soldier’. Sure, some of the ‘unwashed & uneducted masses’ could have fallen prey to such glaringly obvious propaganda, but not an intellectual with a doctorate!!! In the absence of stupidity/ignorance, the only other possible explanation, in my never-humble-opinion, is hypocrisy…for partisan political ends.