Another quick note about ‘the day in court’

Today, was a lively day in court with a number of interesting twists and turns.

After court, I went home to check on my ‘little one’, then came back downtown and joined  Connie and Mark Fournier and Roger Smith for a most enjoyable dinner at Yangtze, one of Ottawa’s tastiest restaurants (and just a block away from ‘catsmeat-Kinsella’s’ favourite Ottawa haunt).  I must admit, we had fun discussing all kinds of things and relaxing after a most exhausting week.

I know, I am woefully behind in my reporting on the case – my apologies, but, it will have to wait a another day or so:  I want to do a good job and, right now, I am just a little too tuckered out to do it justice.  I do promise to catch up and do it sequentially, so, please, come back tomorrow evening for the next installment.


P.S.  Today, at one point during the afternoon, Madam Justice Polowin said:  OK, now I know what a SLAPP suit is – but, what is ‘lawfare’?


30 Responses to “Another quick note about ‘the day in court’”

  1. Maikeru Says:

    After court, I …. joined Connie and Mark Fournier and Roger Smith for a most enjoyable dinner … I must admit, we had fun discussing all kinds of things and relaxing after a most exhausting week.

    Both Westcoast Woman and I had the same pleasure when Mark and Connie visited Vancouver .
    Connie is the rose between those two thorns…=)

    And speaking of thrones, one trusts that the bench hearing the various arguments is immune to shenanigans illustrated herein by ‘Delbian’ and ‘Voice of Reason’.

    • xanthippa Says:

      I certainly hope so.

      Madam Justice Polowin is certainly not afraid to ask questions, she takes copious notes and checks that she understood various points correctly, and so on. I will write up the details from my point of view, but, sitting in court 5 days in a row has really taken a lot out of me and I was too tired to write things up right away. But, I am thinking things through, comparing in my mind which were the most important ones and which were less relevant, and I WILL write it up (though I am not certain if I’ll go day by day or thread by thread regardless of how it jumped around in time…).

    • Voice of Reason Says:

      What shenanigans???

      You are just another one of those free speech warriors afraid to hear a differing opinion. Connie and Mark banned hundreds of people from their board because they did not approve of their speech. Huge hypocrites! Yet they let people like EK stay with his endless fecal terms and lame veiled bigotry.

      You lay down with dogs, you wake up with fleas Mak.

      • Maikeru Says:

        What shenanigans ???
        I opined:
        To their credit, ‘Heritage Front’ did not force CHRAct Sec13.1 onto Canadian society, …
        You observed:
        That is good of you to give neo nazis some credit, it could also be confused with sympathy for them.

        Granted, it could be deliberately misrepresented as such by a dishonest person.

        I’m familiar with the genesis of Heritage Front – “the most racist gang to hit Canada since the Dirty 30’s” and the resurrection of that ‘gang’ tag by the grace of Hedy Fry, several years after the ‘gang’ was busted by a CSIS mole, a 15 y.o. runaway, and a punk rocker.
        No ‘War Measures Act’ was necessary.

        I’m also familiar with the evolution of ‘human rights’ hate-speech Hearings, Provincial and Federal, and the resulting steps taken by Parliament to protect citizens from legal bounty hunting.

        You are just another one of those free speech warriors afraid to hear a differing opinion.
        Does that nonsense apply to, say, Mr. Lemire’s opinion ?

        Connie and Mark banned hundreds of people from their board because they did not approve of their speech.
        As of yesterday, they banned all 12000 members, because they can not be seen to approve their speech.
        Happy now ?

        Huge hypocrites! Yet they let people like EK stay with his endless fecal terms and lame veiled bigotry.
        You lay down with dogs, you wake up with fleas Mak.

        Edward’s commentaries are so popular that they are often screen-copied, and mounted on other sites, helping spread his message.
        As an aside, Mr. Kennedy is the person to call for help in pruning or falling trees on your estate, during spring cleanup.

      • Voice of Reason Says:

        “I’m familiar with the genesis of Heritage Front ”

        Really…. Well, that says a lot about you. I know very little. I am going to keep it that way.

      • xanthippa Says:

        Come on – just as we were getting along so well!

        Knowledge of something does NOT imply approval thereof.

      • Voice of Reason Says:

        “As an aside, Mr. Kennedy is the person to call for help in pruning or falling trees on your estate, during spring cleanup.”

        No, thanks. I already have an arborist who is a very nice person. Not filled with hate, anger and still seething with rage over a stupid seat belt ticket four years later.

      • Maikeru Says:

        Correction posted to FreeDominion:

        I mentioned on ‘Xanthippa’s Chamberpot’ blogsite, and ‘Dammit Janet’ blogsite, that FreeDominion had restricted the ability to comment to a limited number of members, but that comments had been stopped altogether during the course of the Baglow lawsuit.

        The latter claim is an error caused by having logged out either by accident or glitch, and seeing only that seen by the general public when accessing FreeDominion.

        Comments are still open to a limited selection of members.

        Xanthippa has posted comments on the Hearing after Courtroom attendence.
        DammitJanet has commented briefly on the mention of her blogsite during testimony.
        Both have been gracious in posting my comments therein.
        Xanthippa has posted comments about the case after attending many hours in the Courts where argument is being heard.
        DammitJanet has commented briefly on the mention of her blogsite during testimony.
        Both have been gracious in posting my comments therein.

      • Maikeru Says:

        Maikeru said:
        “I’m familiar with the genesis of Heritage Front ”

        Voice of Reason said:
        Really…. Well, that says a lot about you. I know very little. I am going to keep it that way.

        This particular conversation flows from your comment above about ”free speech warriors afraid to hear a differing opinion”

        Now be truthful, and change your pseudonym to ‘Voice of Ignorance’, as you have no ability/basis to reason on such matters, nor to attempt to denigrate those more informed than yourself.

  2. Marky Mark Says:

    We have had defamation laws for a long time. One way to think of it in terms of “freedoms” is that the value of freedom of speech is tempered by the value of the right to be free of having one’s reputation unjustly maligned with damages resulting from defamatory speech.

    Yes, the internet has changed the ability of people to engage in discourse, but I’d be surprised if a court were to conclude that the laws of defamation don’t apply in that venue. The question will be how to interpret existing laws in that context including the added factors of people using assumed names and political debate. I had thought that the Court of Appeal expected that a trial would include each side bringing forth non-party experts to assist-I will be interested to see if this occurs.

    While you couldn’t have more passionate individuals as adversaries in this particular case, in my view it is unfair to expect a case of this importance to be fully funded by the litigants. There is nothing stopping the legislature(s) from stepping in and creating new statute law to clear things up–to me, that would be a better solution.

  3. CodeSlinger Says:


    Statutes are seldom, if ever, a solution to anything.

    At best, they are a cure that is worse than the disease.

    This is because they attempt to replace the simple, universal, and principled concept of morality with the convoluted, idiosyncratic, and arbitrary concept of legality.

    More precisely, statutory law replaces malum in se (inherently wrong) with malum prohibitum (wrong because we say so).

    An act is a crime only when harm results to a person due to the violation of that person’s rights by another person.

    Yet the state arrogates to itself the power to declare something to be a crime by fiat, without regard to whether any actual harm has been done, or whether anyone’s rights have been violated. It makes no attempt to discern whether a law is just or unjust, and holds that a law derives its force simply by decree.

    But an unjust law is no law at all.

    By refusing to distinguish between just and unjust law, the state reduces the law to an instrument of oppression.

    It is by this means, more than any other, that the state moves to become the master of the people, whom it was created to serve.

    Therefore statutory law has no place in a free society – except to the extent that it upholds the inalienable individual rights of every person.

    • markymarkincanada Says:

      I think those who would like religious law (and not man made law) to be what rules us would agree with that argument.

      I was comparing the situation before us where private and not particularly wealthy litigants are bearing the burden of a difficult case which may lead to further clarity in the law in this area, on the one hand, and the legislature clarifying the law as as result of proper deliberations and submissions from interested parties, on the other hand.

      We aren’t talking crimes/criminal law/the “prosecution” here–we are talking civil law. Take all the partisanship out of this and ask yourself if you’d be OK if you’re a property owner and someone wants to “trespass” on your property. Why shouldn’t that person have his “freedom” and “rights” limited in that case?

      Which rights would you decide ARE the inalienable individual rights and WHO decides?

  4. Maikeru Says:

    Marky Mark said:
    I had thought that the Court of Appeal expected that a trial would include each side bringing forth non-party experts to assist-I will be interested to see if this occurs.

    Your comment on 18 June 2012 at the comment ‘DammitJanet’ blogsite was very interesting:

    Marky Mark said:
    By the way, during oral argument the justices said they had never themselves been on any blogs.
    They are saying that someone who is an expert needs to take them through how they really work – I don’t know if that is about the expectations people have when they visit a blog and/or comment or the implications of Google and other search engines to see how what is said before a very small audience may have widespread (and permanent) repercussions.

    Given that I am almost instantly able to mount a comment you made quite some time ago, that bears on comments you made yesterday, it’s clear that there has been a sea-change in communications not witnessed since the Gutenburg press made typesetters the then modern-day monks.

    Connie Fournier is as fine an ‘expert’ on discussion forum commentaries and protocol as anyone in Canada today, and, as with others who have found themselves on the bleeding edge of evolving social mores, finds herself a defendent against reactionary dogma rather than being called upon as a expert in the ‘discipline’ under observation.

    For myself, FreeDominion is/was a blessing insofar as posting there enabled me to post extended commentaries on important topics without the bother of maintaining a blogsite, ‘twitter-like’ comments, links to other commentaries, and sharing of ‘youtube’ videos such as this classic (and relevant) tune:
    Nobody Hurts You

    • markymarkincanadaMarky Mark Says:

      I`m trying hard to discuss this at a high level without weighing in on the merits of the case. I will just say this–it would have been very easy for the publishers at Free Dominion to back down and remove the comment. Most publishers would have done that. That they chose otherwise reflects a passionate belief in principle, which I respect. And you also have to give Dr. Baglow credit for sticking to his principles.

      I agree with you about the sea change in communications. I agree that a court or the legislature has to address whether longstanding principles re: defamation ought to be modified in any way in this new era. I don`t think one of the litigants, however knowledgeable, is what the learned appellate justices had in mind when they contemplated that a trial would involve expert testimony.

      Given the sea change and the desire or need to have the longstanding principles examined in our new era, it seems a bit much to expect that the burden (financial, emotional, time commitment and otherwise) be borne solely by these private litigants.

      I also have the impression that some on your side of the debate are making a much broader argument than the defendants in this case appear to be making–it seems that some of you are against defamation laws altogether. Others seem to be saying that they are fine in terms of the old era, but they do not work at all in the new era. We shall see. If a major newspaper cannot print a damaging untruth about me without being accountable to me, I am not sure why the same writing published on the internet should be treated differently.

      I will leave the factors of assumed names, consent and contextual features around political speech to the actual judge and to those who have more scholarly expertise on the topic than do I.

    • markymarkincanada Says:

      I meant to reply under here but seem to have put it as a new comment to the thread. Oh well.

  5. Maikeru Says:

    Addendum to my responce to MM:
    Having read several of the transcripts from Sec 13.1 Hearings in their entirety (zzzzzzz), those which included the testimony of Karen Mock in particular, I’m unconvinced that ‘expert witnesses’ are of any use to the Courts in this particular arena, other than to illustrate that prejudice is a facet of human nature.

  6. CodeSlinger Says:


    Your attempt to draw a parallel between me and “those who would like religious law” tacitly presupposes a false dichotomy. Namely, that thinking rights are granted by God is the only alternative to thinking rights are granted by a piece of paper.

    But, you see, the word “granted” does not describe how a person comes by his rights.

    A right is not what someone gives you, it’s what no one can take away from you.

    — Ramsey Clark, U.S. Attorney General, 1967-1969

    In other words, every person has inalienable individual rights, simply by virtue of existing.

    Not granted by God.

    Not granted by the state.

    Not granted by consensus.

    Simply by virtue of existing.

    What are these inalienable individual rights? They are:

    Life, liberty, property, privacy, self-defence, and self-expression.

    Why these and only these?

    Well, the rights to life and liberty are the essential primary rights and the rights to property, privacy, self-defence, and self-expression are necessary and sufficient to guarantee life and liberty. By necessary and sufficient, I mean that nothing more is needed, and nothing less is enough.

    These six rights form an irreducible core: you either have all of them, or you may as well have none of them.

    The inalienable individual rights give form and substance to the idea that every individual is inherently entitled to live and to act in his own self-interest, and is immune from being interfered with in so doing. Further, because man is a rational animal, mental life and liberty are as important as physical life and liberty. Neither has much value without the other.

    Reverence for inalienable individual rights is the cornerstone of a free and just society – without it, democracy is just mob rule in disguise.

    Thus it is vitally important to remember two things.

    Firstly, that the purpose of a Bill of Rights is not to confer rights upon the people, but to impose limitations on their infringement by the state.

    And secondly, that laws (whether civil or criminal) are – at best – nothing more than pale and imperfect reflections of universal moral principles.

    These moral principles are universal in the sense that they transcend ideology (whether religious or secular), they transcend culture, and they transcend consensus.

    Why? Because they can be derived from human nature and the nature of things by reason tempered with compassion, much as we derived the inalienable individual rights above.

    Viewed in this way, we see that equality is just a symmetry principle: my right to swing my fist ends at the tip of your nose, and vice versa. For exactly the same reason, my right to walk around ends at your property line, and vice versa.

    All of these ideas are brought together very eloquently as follows:

    Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

    — Thomas Jefferson, 1819

    • markymarkincanada Says:

      Very interesting-I will have to pull out all my political theory texts from way back when that canvass the thinking from Plato through to modern times. Not everyone agrees that individual rights are all that matter and not all who disagree are collectivists like in communist countries. Even the Declaration of Independence in the US refers to “The People.”

  7. CodeSlinger Says:


    I don’t claim that “individual rights are all that matter.”

    They are, however, the single most important factor standing in the way of the never-ending attempts by the state to transform itself from servant into master.

    Thus the primary function of the state is to equally protect the equal rights of every person, by acting as the guarantor-of-last-resort of the inalienable rights of all individuals.

    Anything the state does which interferes with this primary function is illegitimate, which is precisely what we mean when we say that the government that governs least, governs best.

    If these principles were widely known and appreciated by the people, it would put an abrupt stop to the creeping totalitarianism which is inexorably transforming Western civilization into a hideously ingenious combination of Huxley’s and Orwell’s worst nightmares.

    And that is precisely why these principles are not taught in state-controlled public schools.

    You’re quite right that not all who disagree with the primacy of individual rights are communists. Some of them are fascists.

    But the collectivism that is strangling the West is neither. It is a diabolically clever mixture of the two, which is best characterized by the phrase privatize the profits, socialize the losses.

  8. markymarkincanada Says:

    I wonder if we can think of a single state in the history of the world that has done what you are suggesting should be done. Look at the modern nation-state, for instance, which values collective rights over the rights of the individual especially if from a minority. You call everything else illegitimate, which really means no state is legitimate.

    Fascinating topic-I really do need to go back and look at all the political theorists I studied because I cannot really remember the early ones who said what you are saying–maybe they don`t exist…

    • xanthippa Says:

      Ahmmmm…‘may be they don’t exist’?

      Are you kidding me?

      These are the principles on which Western civilization had been built!

  9. markymarkincanada Says:

    I really do not think that is true. I cannot think of a single country that was true to the principles being described.

    • xanthippa Says:


      I am not saying that countries are ‘true’ to these principles – just that these principles are the foundation upon which our civilization is built, which even cursory research will confirm.

      And they can very easily be derived from first principles, taking ‘I own my body’ as the most basic of these. (In other words, starting from the primary anti-slavery stand, these principles can be easily derived.)

      • markymarkincanada Says:

        The USA was about home rule and not individual rights. And they had slaves. I get your point about the ideals, but they in each case were limited only to members of certain groups such as men, Christians and property owners.


      • xanthippa Says:

        Gotta start somewhere!

        Once you define human being, then acknowledge that human being the most core right of self-ownership, you have the basis from which these basic rights are derived.

        And, yes, we have improved (quite significantly) the definition of who is a human being…but that only strengthens the argument and does not detract from it in any way, shape or form.

      • markymarkincanada Says:

        OK–well bringing it back to defamation and whether the legislature should pass a law to do any required clean up-or even sticking to the law exactly as it is–it is not clear to me how the inalienable rights of the individual are served by allowing him or her to be defamed without being entitled to recover damages. (This does not pre-suppose that defamation has occurred in the case at hand.)

      • xanthippa Says:

        Well, that is the travesty of justice here!!!

        Judge Annis dismissed the case because he found that the words were not, in any way, shape or form, capable of being defamatory.

        The Appeals Court did NOT address whether the words were defamatory or not – it only noted that ‘internet speech’ does not have enough legal precedents and some ought to be set.

        So, the litigants in this case – BOTH SIDES – (sorry, not shouting, poor borrowed tech, caps is emphasis, my apologies) are victimized here by being forced to bear the cost of setting a legal precedent not because of ‘defamation or not’ – that part of the ruling was not touched – but because of the venue in which it happened.

        Both parties are injured by carrying the costs throughout the duration of this trial and the eventual loser will be financially responsible for setting an ‘internet’ precedent…

        Laws ought to be made by the lawmakers.

        Yes, of course, with our civil law, precedents are necessary, I don’t dispute that. All I am saying is that it is the lawmakers who ought to have hearings with expert witnesses before drafting bills, having proper public input on them, then passing the result into law….in areas where the existing law has not kept pace with emerging technologies. It’s the degree of change here that I think calls for lawmakers, not law interpreters, in this particular case.

        Relying on private citizens to FUND testimony of expert witnesses is simply a misplacement of the burden….and, if the judge makes a ruling without experts (since neither one nor the other side could not afford to pay for them during the trial) and their input, the resulting ruling will necessarily be limited by the lack of expert testimony and public input. Yet, such a ruling will set a legal precedent and set into place a series of legal rules which will quite clearly not be based on the best possible input/consultation process.

        Thus, it is not only the litigants in this case, but all of us Canadians and other Westerners (yes, international legal precedents are routinely cited in courts) who are the victims here, as we will have to live with new rules that are not based on the best information possible.

        THAT is why this trial is such a travesty!!!!

      • markymarkincanada Says:

        I think I was the one who suggested (above) that if the law is to change, legislators should be the ones to lead that charge after the very sort of process you described. I am not sure how we are disagreeing here.

        In fairness to the C of A, I think all they were asked to decide was whether it was an appropriate case for summary judgment or not–they concluded that it was not and that the matter required a trial where the trier of fact could assess the evidence given including cross examination and any expert testimony (which is the very thing that you are doing by being there, even if you are not the trier of fact) Their point about experts was not that experts be asked to suggest a change to the law but that hey could be brought in by the litigants (who I suspect cannot afford experts) so as to help a trier of fact interpret the current law in the context of online political debate. The C of A thought experts could speak to how certain comments made in an online forum would be understood. From their decision:

        [29] A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence to provide the court – whose members are perhaps not always the most up-to-date in matters involving the blogosphere – with insight into how the internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse in the particular context in which that discourse occurs….[…]

        [36] No expert evidence was tendered concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader; indeed, ladening the record with the possibly contentious type of expert evidence needed in a first-impression case of this nature, and then seeking summary judgment, would be counter to the rationale underlying the simplified procedure. The motion judge placed considerable weight on Mr. Smith’s explanation for the comments he made in arriving at the decision that the impugned statement involved comment rather than fact and was, therefore, (a) less likely to be taken as defamatory, and (b) the basis for a fair comment defence. Yet Mr. Smith was not cross-examined on the various important subtleties of that evidence, nor was he cross-examined on the issue of malice in the context of fair comment. These issues need to be threshed out at a trial. […]

        The plaintiff alleges defamation has occurred. The defendants dispute that claim. The judge will hear all the evidence and listen to arguments from both sides as to why the test for defamation has or has not been met, based both on all of the evidence (the facts) and the law.

  10. CodeSlinger Says:


    This is an aspect of this trial that I had not even considered.

    And you are SO right!

  11. CodeSlinger Says:


    Well, if you won’t accept the idea on its own self-evident merits, and absolutely must have an “authority” to lend it credence, then let’s start with this:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few … They … consequently are instruments of injustice … The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

    — Thomas Paine, The Rights of Man, 1791

    These ideas are not new!

    They form the very core of the philosophical foundations of the French and American Revolutions.

    And the degree to which Western states have not been true to these principles is the degree to which these revolutions have been betrayed.

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