Xanthippa's Chamberpot

This is one in a long thread of posts, the full listing/ordering of which can be found in this header page.

Change was in the air on this sunny, crisp September Monday morning.  On the drive to the Elgin St. Courthouse in Ottawa, I heard the radio announcer say that fall will descend on us at 10:29 today (thought I have since learned she ought to have said 22:29).  The sun was trying its best to warm the day, but the wind was chilly and cutting.

Peter Burnet, the plaintiff’s lawyer, did not seem to mind the chill as he walked up Elgin Street just before 8:30 am:  he seemed preoccupied with what the day would bring!  And no surprise – he was the first one scheduled to give his closing arguments:  a lot of pressure, indeed.

Later, when I saw him (suited up in his black lawyer’s robes) in front of Curtroom #20, he paid a compliment to my ‘sartorial reporting‘ on this case.

Yes, I had to look it up:  which shames me a bit, my dear reader.  I really should have known that word!

When I was studying Physics at Carleton University, back in the late 80’s, I needed to supplement my income (I usually worked a few part-time jobs, but hourly wages were rather meager) because not only did I pay for my own education, my hubby (then fiance) and I had planned to marry and buy a house, so I needed not only to pay for schooling, but to also raise enough money for a down payment (well, my share) upon graduation.

To do this, I found an extremely fun and easy way to make money:  I started to design clothing.

No, I never built up any stock or anything – it seemed more prudent to me to just design one-off pieces only after I would receive an order for them.  I did a couple of things at cost for a few people, then word began to spread and soon, I could pick to fill only a few of the requests that came my way.  This was not only fun, but let me set a high enough price per piece to hire people to do the ‘making’ of the piece once I finished the design and bought the materials.

This was a truly fun aspect of the whole venture:  I had met a number of women from Muslim backgrounds who were thrilled to be in Canada, but whose husbands did not want them to work outside the home.  So, I would explain to them exactly what to do and how, and they could do it, on their own, in their homes – and earn a little money on the side (I was very fair, making sure the ‘maker’ earned exactly double of what my pay for the ‘design’ was – and the ladies knew and appreciated this).  It gave them a bit of independence, but in a way their husbands accepted.  And, they would whisper to me, it made them feel ‘more Canadian’!

The communications barrier was a bit high at first, but while I had been taking English as a Second Language classes, I had had the opportunity to learn few conversational phrases and words from dozens of languages, so, using this and practical examples, I could train the first few ladies, who would then train their friends – as need arose.

So, it had been great fun as well as a source of income.  But, despite ‘exclusive offers’ from some ‘prestigious design houses’, I could not see myself happily existing in the world of the fashion industry, so, when I earned my Physics degree, I said goodbye to this chapter of my life!

Still, I should have learned the language…

Today, there were a number of students floating through the courthouse, reading what courtroom had what hearing, and choosing which ones to sit in on.  Two of them indeed chose to sit in on the early bit of this morning’s going on’s.

There was another observer in the courtroom as well – I have not met him personally, but he bears a striking resemblance to Robert Day. To court today, he wore a black shirt bearing ‘Networked Insights’ embroidery (I think) and brownish pants and shoes.

Connie Fournier wore flattering black slacks and shoes, a pretty blouse flecked with black, white and red dots, and the blood red cardigan with the shiny gold nautical-look buttons.  Her usual good cheer was there, as was her ready smile, but she looked pale and tired:  this is definitely taking a heavy toll on her health.  I just wanted to hug her and tell her all will be alright – but, I couldn’t because I really don’t know that…I felt so stupid and useless!!!

Mark Fournier, on the other hand, looked as steady as a rock.  That man’s stamina, optimism and faith in humanity has no limit!  He looked his charming self, smiling, joking, carrying heavy boxes as if they were nothing.  He wore his navy blue pinstriped suit with an open-necked burgundy shirt.

D. Baglow wore his flattering black suit with an open-necked black shirt, black boots and silver detailing (fixtures, watch, maple-leaf pin in the lapel).  He looked serious and somber.

Roger Smith is a deeply interesting man.  He has humble mannerisms, but his eyes betray a high intelligence and sparkle with humour – the kind of person whom you could trust with anything without worries, in the knowledge that he has both the integrity and the intelligence to do ‘right’ in every possible situation.  The more I see of him, the more I like him and the deeper my respect for Roger Smith grows.

Oh – yes – Roger Smith wore tan slacks, black-and-charcoal striped shirt with a blue pinstripe inside the charcoal stripe, and his blue blazer.  His hair looked very crisp, as if he had gotten a haircut to look sharp in court today.

The pretty young Court Recorder wore a pale cream, long-sleeved, fine-knit sweater and looked a little tired:  Madam Court Clerk (a bit of purple sleeves showing at her wrists under her black court robes) even joked that we were all keeping her awake!

Madam Justie Polowin breezed in at just before 10:10, looking bright-eyed and with subtle pearl earrings as the sole decoration I could see above her black robe, white collar and scarlet judges’ sash.  She was ready to go!

Mr. Burnet, the plaintiff’s attorney, was the first one to deliver his final arguments.  He passed some documents up (they are always passing some documents up – I just wish I could get me paws on them documents!).

Mr. Burnet stated that his argument would be broken up into 3 parts (and, of course, I am paraphrasing, as I could not possibly write all this down as it was said – the transcripts will be available soon, this is just to give ‘flavour’ of what went on:

1. overview, nature of the case, statement of principles and applicable laws
2. evidence
3. law

Before he delved into the depth of his argument, Mr. Burnt handed out a sheet of paper with the name and URL of a prestigious Vancouver law firm that, he asserted, has all the relevant cyber law precedents listed in a convenient and easy-to-navigate manner.  Unfortunately, I did not get that sheet, so I am unable to direct you, my dear reader, to that site.  (IF anyone has that URL and is willing to share, please, do so in the comments!!!  Thank you!)

Mr. Burnet asserted that any time ANYONE is accused of defamation, they invariably ‘cry’ a three-fold defense

1. Free Expression
2. opinion not fact
3. Charter rights!!!

Now I must interrupt my narrative to be a little bit descriptive of Mr. Burnet’s manner of argument.  As in, the way he speaks and what his body language is (which, please keep in mind, is coming from me, an Aspie – notorious for poor recognition of these very types of things).

When he speaks, Mr. Burnet is very expressive and animated.  He moves back and forth, side to side, he pulls himself up and leans forward or shrinks back at just the right times.  His voice is tailored to accentuate and give emphasis to his body language.  The tone goes up and down, the rhythm varies from a forceful staccato to a most annoying lazy drawl – and no, this is NOT a criticism:  I think he is doing this on purpose and doing it quite well, in a true ‘Matlock’ fashion.

(Sometimes, I worry just how much of our legal precedent is affected by who can afford what lawyer….for example, I don’t think Mr. Warman would be anywhere near as successful in the courtroom if he did not have the services of the brilliant young Mr. Katz as his lawyer!)

Mr. Burnet argued that the defendants made it seem like the tort of defamation was out-dated and in need of reform and that this is what this case is about – not so, according to Mr. Burnet!!!  He proposed that there is plenty of evidence on the record for defamation and internet and stuff.

Sure, he continued, the defense will claim that this is an important case where precedents will be set (d’uh) and which will shape the future of Canadian online discourse (of course!!!)…but, that is NOT SO!

This is just a ‘run-of-the-mill’ ‘dime-a-dozen’ defamation case which does not require much thinking and which will in no way affect the evolution of law with respect to emerging technologies.

If I may say so, Mr. Burnet sounded very persuasive indeed:  had I not been there for much of the trial itself, I might have been persuaded by him!  Madam Justice herself seemed to be nodding at times as if to assent – though, in my highly imperfect Aspie perception of ‘stuff’, she seemed rather disappointed and deflated at the prospect of doing all this hard work, all these lengthy hearings…adding extra time to extra time… and this not being a ground-breaking, precedent-setting case…  I can only suppose that judges would like to think that their decisions matter.

Mr. Burnet proposed that even the prestigious and highly respected CCLA had intervened in some of these cases and made presentations – even to the Supreme Court of Canada (SCC) – but all their lofty arguments have, ultimately, been rejected…so sad…

Aside:  there is a great deal of ‘ribbing’ going on ‘behind the scenes’ – that is, when the judge is out of the courtroom – between Mr. Burnet and Mr. Frenkel, the CCLA lawyer.  Today, for example, as we broke for lunch, Mr. Burnet ‘mocked’ Mr. Frenkel for being ‘teacher’s pet’ because of how much weight Madam Justice Polowin gives to the words of the strikingly brilliant Mr. Frenkel – and, in turn, Mr. Frenkel mockingly asked Mr. Burnet if he thinks him so stupid as to offer Madam Justice Polowin the same arguments which had previously been rejected by the SCC!  All done in the spirit of friendly competition, of course, but the barbs beneath the surface were ‘palpable’…

Mr. Burnet went on in much  the same vein for the rest of his argument that I was there to hear.  The context is secondary to the impugned words themselves,  it is not up to a ‘select audience’ but ‘the reasonable man’ to infer meaning, ‘expectations’ are not an issue – words themselves are, on and on and on.

It does not matter what Dr. Baglow said about the defendants or even what he re-published about himself – that has no relevance at all to what the ‘impugned words’ were and the impact in the ‘real world’ they could have.  If the defendants thought Dr. Baglow said bad things about him, they ought to sue him – ‘tit-for-tat’ does not matter.  He did not like their words, they say they want debate, not lawsuits, to decide who is right and who is wrong – which is irrelevant as the words themselves are the only thing that stands.

And if only 1 3rd person saw those words, damage must have occurred, so pay up!  It does not matter that MsMew was a sock-puppet, EVERYBODY could KNOW that Dr. Dawg is Dr. Baglow, so pay up!

OK – I am NOT trained in legal matters.  Not even a little bit.  But, it seemed to me that Mr. Burnet was arguing that Dr. Baglow was a well known ‘public figure’ – so well known, in fact, that a large portion of ANY audience would know that Dr. Dawg and Dr. Baglow were one and the same figure.  At the same time, it seemed to me, Mr. Burnet was arguing that Dr. Baglow ought to be extended the same legal protections that a ‘private individual’ gets rather than the much lower protections afforded to public figures in general.  For example, Jack Layton was frequently mocked as ‘Taliban Jack’ for much the same reasons as Dr Baglow was referred to by the impugned words….except that the impugned words were aimed at the ‘Dr. Dawg’ persona, not Dr. Baglow himself.  Either he is a public figure where people know both the names – and the ‘public persona’ high bar for defamation is set, or he gets the protections of a private citizen – in which case one cannot possibly expect the audience to link Dr. Dawg to Dr. Baglow.

At least, that is my perception of the matter.

We shall have to see what the judge thinks!

I’m afraid that, yet again, there were limits on my courtroom time!  I was there for much, though not all, of Mr. Burnet’s presentation.

I don’t know where things ended this afternoon, as I was unable to be there for that.

But, I do hope to be in the courtroom tomorrow and let you, my dear reader, know what I see and hear!