Dr. Baglow vs. Freedom of Speech: September 23rd, 2014 – Barbara Kulaszka

This is a report on an ongoing trial:  the rest of this account can be found here (and at the top bar of this blog).

On September 22nd, the judge warned everyone in the courtroom that come hell or high water (and, I am paraphrasing here), this trial was going to finish tomorro – that is, today.  In order to make sure that this indeed comes about, she would recall everybody into Courtroom #20 of the Elgin Street Courthouse in Ottawa, Ontario, at 9am instead of the usual 10am – adding a one-hour ‘buffer’ to their time.

Aware of this, I arrived at the Courthouse nice and early – about 25 minutes after 8.  I strolled slowly through the parking garage, stopping to chat with one of the attendants whom I got to know well enough to say ‘hi’ to over the duration of these proceedings.  Then I had a tea and went to the ladies room before – with plenty of time left – strolling up to the 2nd floor and to the appointed courtroom.

Surprisingly, I did not see any of the actors in our little drama – and I began to get an uneasy feeling.  Did I get the time wrong?

I checked my notes and the wall clock and, sure enough, I still had 12 minutes before the proceedings started.

Ah – there was a paper sticky-taped onto the door – perhaps the press finally figured out the importance of this case to their own ability to report the news and enough of the showed up to have to move things to a larger courtroom!!!!



Here was some incoherent message about teenagers and dating….  But, the look at that sheet of paper gave me a glimpse through the double doors’ windows…and it looked like the trial was already ongoing!!!

Panic time!

Not wanting to make a lot of noise inside the courtroom upon my arrival, I took my notepads and scribble-tools (today I was using a blue Zebra pen, fine point – they write quite quietly and have a good feeling in the hand, heavy but not too  much so…)  OK, I got my implements to hand and intramurated velocitously. (Yes, I am a huge fan of Black Adder – and if has, at times, affected my vocabulary….though, the character I most closely identify with is Baldrick.)

OK – in I sneak and sit down as quietly as possible.

Everybody is in and things are in full swing!

Barbara Kulaszka is standing up and speaking.

To her left, Connie Fournier sits calmly, wearing a dark purple pantsuit and a cream blouse, which I will later notice has a delicate black embroidery and is accented by a single strand of knotted pearls, long enough to reach beneath the blouse’s collar.  The overall look is pleasing, but, from behind, the bob in which her hair is cut is just the wrong length, making her neck appear shorter than in had in her previous outfits.  However, this optical illusion is dispelled when Connie glances back and gives me a warm smile.

To the right of Ms. Kulaszka sits Roger Smith, aka Peter O’Donnel, in his blue blazer and another pair of tan slacks.  His shirt will later be revealed to be almost a twin of his earlier one – black and charcoal stripes, but instead of a blue pinstripe, this one has a gray one.

Next is Mr. Steven Frankel, the brilliant young lawyer representing the CCLA.

To his right, Mr. Burnet, the Plaintiff’s lawyer, had his gaze firmly fixed on the judge and was listening intently to Ms. Kulaszka’s every word.  He had better, too – at the end of the day, he’d have a chance for a brief rebuttal to all the defendants’ closing arguments, so listening intently was very critical.

On the far right, as usual, was Dr. Baglow…I bet he does not hear that phrase very often!!!  Sitting far back from the table, his legs elegantly crossed in front of him, he had a calm and almost serene demeanour.  In his signature black suit and, as he once wrote, ‘the most comfortable walking boots on Earth’, I glimpsed a navy cuff of a shirt, if I am not mistaken…though, I must admit, I was so busy trying to catch up with what was being said that I did not take the time to note this down.  My apologies.

Later, during a break, Dr. Baglow helped me out:  he said he noticed I was wondering about the pin in his lapel.  It was indeed some sort of an abstract maple leaf:  a pin denoting 30 years in the Public Service. During another break, he let me know that the reason why he only wore his gun-metal-rimmed glasses at some times was because they were reading glasses and he only needed them at some times.

This made me a little envious:  I also have glasses, but mine (purple-rimmed) are progressive trifocals….yet, I still vacillate between wearing them or not.  When I wear them, I can actually see what is going on:  the major things, like people’s expressions and demeanour (I may not be able to decipher it, but I can at least describe it) – and the minor things, like, say, what I am writing down.  However, I cannot shake the feeling that, when I am not wearing my glasses, I get a much better feel for everything….that I can better absorb the atmosphere and emotions and all that.  So, I am constantly putting my glasses on, taking them off, putting them on, taking them off….sitting on them….sorry, I am rambling….

 As I started taking notes, Barbara Kulaszka (BK) was just speaking about Dr. Baglow having been at the forefront of the Omar Khadr re-patriation movement.

If you read my blog regularly, my dear reader, you will know my views on the huge miscarriage of justice that is the Omar Khadr case.  Perhaps it is my Aspieness, but, I am a big one for the adherence to the rule of law.  Yes – sure, I hate some laws and believe that we MUST change them – but, until such a time that we DO change them, we are obligated to follow them.

And, according to the Geneva Convention, there was only one legal manner to deal with Omar Khadr:  two bullets to the back of the head.

Anything less is a failure to adhere to the International Law and endangers civilian populations at the hands on non-uniformed combatants.  The Americans ought to be prosecuted for War Crimes for having permitted Omar Khadr to live and even rendering him medical aid!!!  Such a travesty!

At an earlier time, I actually had a conversation with Dr. Baglow about Omar Khadr and I mentioned that the two of us would probably agree that, in his case, the International Laws were not followed.  Indeed, I raised the subject specifically because I expected him to elaborate, so that I would have the opportunity to point out just how deeply misguided – if not downright evil for endangering civilian populations everywhere – his position on Khadr was.

Unfortunately, Dr. Baglow just sighed deeply and looked so very, very sad that I did not have the heart to continue the conversation…and thus did not have an opportunity to enlighten him on the error of his thinking.

 OK – back to the important stuff!!!

BK was explaining how Dr. Baglow was at the forefront of calling for the repatriation of the War Criminal Omar Khadr.

Next, she defined what the word ‘supporter’ means:  one who supports.

For example, a ‘supporter’ of the Maple Leafs’ is NOT somebody who plays hockey with them, who is a member of the team.  Rather, it may be somebody who buys their merchandise or watches their games or just says things that are nice about them.  Even, perhaps, just expresses sympathy with them when they are loosing…

Similarly, saying somebody is a ‘Taliban supporter’ – it does not mean he is one of the Taliban!

Rather, it means somebody who may say things that express empathy with the Taliban….

OK – I am having a hard time wording the next bit:  most likely because BK is much nicer a person than I am, much kinder and gentler…and I am ‘choking’ on typing the words she actually said, as they show way more of an empathy for Omar Khard than I am deeply convinced he deserves…  But, she was speaking for the defendants, not me, so I must choke down my opinion and report to you, my dear reader, her words…

BK said that ‘expressing support for ‘the human rights’ (as if a non-uniformed combatant had any, under international law) of Omar Khadr’ could be interpreted as expressing empathy for the Taliban’ – and, by definition, that would be included in ‘being a supporter of the Taliban’.

Indeed, argued BK, the plaintiff himself used the very same logic when he said that the CCLA supported father Boissoin (a Catholic priest who was given a lifetime ban by a Human RIights Tribunal on speaking about the Catholic Church’s position of homosexuality), saying that the CCLA ‘gave aid and comfort to hate speecher’ and that they were ‘hate-speech facilitators’…that the CCLA ‘stands with haters’ and ‘aids in homophobia’.

BK asserted that ‘giving aid and comfort’ is, indeed, the very definition of ‘supporter’!

At this point, Madame Justice (her black judicial robe, white collar and red shash accentuated only by perl stud earrings and simple, elegant rings on the ring finger of each hand) nodded her head in assent and reasoned agreement.

In addition, BK carried her momentum forward, this was the medium of a Message Board – not a scholarly dissertation…which, through medium alone, classified this as a ‘comment’…

The Judge wondered about this being ‘fair comment’ if fully 41% of Canadians shared Dr. Baglow’s view.  If I were the lawyer, I would have quickly pointed out that the fact that this automatically meant that 59% of Canadian did NOT share Dr. Baglows view – making this a very fair comment indeed.  But, I am not a lawyer, nor do I play one on the internet…

Instead BK took a much better tack, pointing not to peasant logic, like I would have, but to actual law:  she presumed Mr. Frankel would speak to this later (to which he nodded – earning one of Madame Justices’ broad smiles), but, the legal test (as per the WIC radio case ) was whether ‘anyone can honestly hold that opinion’.  Not the majority, not 41%, but ‘anyone’.  (And, I am heavily paraphrasing – I am simply not able to take notes fast enough!  You, my dear reader, ought to fire me and get a faster writer to report on this!!!)

As in, of ‘anyone’ can honestly hold and express this belief – that is the test.

This, the Judge agreed with.

Which is where things took a turn into territory rather unknown to your reporter – but one that seemed very familiar to both madame Justice Polowin and Ms. Kulaszka:  the Vietnam War issue…  They had a fun back-and-forth about someone named ‘Jane Fonda’ and a nickname of ‘Hanoi Jane’ – but, not knowing the context, this did not make much sense to me.  But, the two of the seemed happy, joking, agreeing – on the same ‘note’, if you get my drift.  ‘Ancient argument’, ‘based on fact’ – these were the terms ‘flying about’.

In his turn, Dr. Bagglow seemed so bored, he was in danger of falling asleep…

Which is where the topic of ‘Taliban Jack’ got re-introduced (it had been discussed ‘many’ times before to illustrate how hyperbole and nicknames and memes work).

From here, the proceedings took a turn into legaleese:  another field I am blissfully ignorant of.  All I can do is report the words…and badly, at that, as I am not fast enough to get them all down…my deepest apologies, my dear reader!

Madame Justice Polowin wanted to know how does this get ‘around’ the ‘Grant’ test.

BK disagreed – the ‘test’ here was not ‘Grant’ but ‘WIC‘.  People listening to a ‘shock jock’ would know a well-followed controversy, the facts of the case were known to the audience in that case as in this one.  Roger Smith was talking about ‘Dr. Dawg’ – a pseudonym.

If people did not know who ‘Dr. Dawg’ was – then, saying something about a ‘pseudonym’ was clearly not defamatory.

If people DID know who ‘Dr. Dawg’ was – then they would have been following the controversy and been aware of the background facts…and thus would have been able to understand the sense in which the words were uttered – making them, yet again, not defamatory!!!


What needs to be weighed here is the state of mind of Dr. Baglow during this whole exchange:  from the very beginning, his aim was to find a pretext to sue her client.

The judge did not, to my untrained eye/ear, appear particularly empathetic to this line of reasoning…as expressed by the succinct: “So?!!?”

Which I took to imply that the plaintiff’s state of mind had no relevance on whether or not he was defamed…by the defendants…

BK handled this rather well.

As Dr. Baglow sighed deeply and examined his manicured hands, BK explained tat re-posting the disputed words AGAIN using his sock-puppet persona ‘MsMew’ ensured that even if the original words were taken down by Roger Smith, they would remain on the site – along with the malicious identification of Dr. Dawg as Dr. Baglow.  This demonstrated malice – but not on the part of her client, but on the part of Dr. Baglow…

Indeed, BK continued, given the definition of the word ‘supporter’, her client did not think the impugned words were ‘defamatory’ in any way, shape or form (yes, I am paraphrasing).

Dr. Baglow, on the other hand, had demonstrated malice with his ‘sock-puppetry’ – and, as Dr. Dawg and MsMew, it was he who was bullying her client.

As for ‘malice’, the ‘WIC’ case demonstrated that even though the ‘shock-jock’ ‘hated’ Ms. Simpson’, that was irrelevant in the legal ‘finding of malice’:  rather, paragraphs 67 to 85 (of the ruling in the WIC case, I can only presume) show that since the dominant motive was that the ‘shock jock’ ‘believed’ what he said, the fact that he also hated her did not matter.

OK – I freely admit, there was a bit here that went 100% ‘over my head’:  something about ‘Ross vs. New Bruns’ or something somewhat similar….predominant motive, tab 12 paragraph 106…I have no clue what this was about…

Yet, this concluded this bit and, in the next installment, I shall report on Roger Smith’s closing arguments!

Thank you for reading this far!!!


9 Responses to “Dr. Baglow vs. Freedom of Speech: September 23rd, 2014 – Barbara Kulaszka”

  1. peterodonnell Says:

    During the trial, there was an interesting discussion of the Omar Khadr situation. I didn’t comment at that time and now I can’t seem to find the discussion. Can you remind me where that was located? I was going to add my own views on Khadr, which apparently lie somewhere between your own (meaning our hostess) and those of the Canadian left. When I say “somewhere between” it is akin to saying that Calgary is somewhere between Vancouver and Ottawa. Or perhaps more like Merritt, as I think my arguments have in spades. But not very much Hope. (see where I’m going with this, Jay?)

    • xanthippa Says:

      I’m not sure I have written that bit up yet….I am jumping around quite a bit. My apologies!

      • peterodonnell Says:

        Just actually wondering where I was reading comments from Baglow and Currie, et al, on the Omar Khadr question … as I mentioned to you in courthouse conversations, I wanted to post my thoughts in that discussion, but I can’t seem to find it. Maybe I will post them here instead. I am not quite of your own (Xan’s) view that terrorists should expect their end to be a swift execution in all cases. Whatever the Geneva Convention and other relevant laws may or may not say, the best practice is probably that carried out, to remove high-value intel targets to a safe detention site where their innermost thoughts can be probed to save lives in the free world, and even in Russia for that matter.

        Sure, they deserve no better than to be terminated. They have made the decision to fight a military style campaign against both military and civilian targets mixed indiscriminately together. This Canadian-progressive idea that our own turncoats should retain their full “Charter rights” (apparently these do not extend to conservative bloggers but that’s a different story) is both naive and ridiculous. The moment any Canadian citizen pledges allegiance to any organization such as the Taliban, ISIS/ISIL or Al Qaeda, etc, they voluntarily terminate their citizenship and might as well be citizens of whatever countries tolerate those organizations, or no country at all. They are little different at that point from aliens from outer space come to destroy life on earth.

        However, it is conceivable that one or two of them might regain their sanity and become, if not useful members of society, then at least human again and not quite the loathsome demons who we might associate with numbered events such as 9-11, 3-11 and 7-7. The other number they don’t mention is of course 6-66, thank goodness they weren’t invented when I was in high school.

        So if good old Omar can be rehabilitated slowly but surely, then I subscribe to a modicum of mercy, and say this — let him gradually return to society, but only after there’s a full accounting of what his loathsome family have done and continued to do, in plain sight (of Sun News at least) which certainly looks and smells like treason to many of us. I was in no hurry to see Omar Khadr returned from Gitmo or American jail to Canadian custody. This idea that once a person is “free” of American justice and exposed to the touchy-feely ministrations of political correctness run amok, that they will become a living saint and wonderkind, is as laughable as it is demonstrably wrong (Bernardo, Olson et al).

        And our annual Ottawa political thought crimes trials now exposes, if not for wilful blindness, the absurd juxtaposition of a self-congratulatory elite who would wish to elevate Omar Khadr while pushing into the mud pro-life, anti-homosexual Christians and others — as if the ambitions of Islamic jihad are somehow preferable to the faint theocracy implied by those hated positions. And in my own case, while not the most vocal spokesman around the campfire for those aims, you can add in that our elites would rather have Omar Khadr as a full equal citizen than Roger Smith, Peter O’Donnell or whoever you might want to say that I am, knowing that my greatest crime was to question orthodoxy in the field of climate science and (gasp) use my own brain to do my own thinking.

        There’s the real treason.

        Whether atheist or believer, free speech advocates all, God bless you for your commitment to that which Jesus died for, speaking truth to power. The uncaring state and the jealous religion who conspired in that act have come back into existence, and it is no surprise to those who have kept their faith.

  2. CodeSlinger Says:


    Do you mean this thread here on Xanthippa’s blog?

    • xanthippa Says:

      CodeSlinger, I do believe Peter was referring to a discussion of the Omar Khadr case in the courtroom, during the court case on which I am reporting – but I do believe it is a bit I have not yet written up.

      Yet, while you are here, in this discussion, I would very much like to know your opinions on Omar Khadr, Geneva Convention, and the whole mess this has developed into.

      • peterodonnell Says:

        True, you and I had a discussion of sorts, during the court case, but wasn’t there an exchange of views on Omar Khadr in some of the comments posted in the past two weeks? Or was I somehow seeing beyond this realm into an alternate universe? If so, would appreciate map and other instructions. Meanwhile, I think I just posted the answers to those questions in part, above, but it needs to be said, Omar Khadr was always a bit of a sideshow issue in my mind, it is rather ironic that, of all my “issues,” this one would get me an invitation to the New Spanish Inquisition (nobody expects the, etc). So now that the Ottawa establishment have a twice-as-nice glimpse into my tortured mental processes, it remains to be seen whether the rack or the pyre shall be more appropriate, guilt is of course presumed (innocent until proven conservative).

    • peterodonnell Says:

      No, I missed that one. Sure that I was reading some thread during the recent court case where Jay Currie and John Baglow were exchanging views on Omar Khadr. Could have been some sort of out-of-mind experience, I tend to lose my marbles in the eastern time zone.

  3. CodeSlinger Says:


    Well, my opinion is given in some detail in the thread I linked to above, but since you ask, I will summarize it briefly here.

    Omar Khadr fought against a military alliance which Canada was party to. This is a demonstrated fact. No one contests it, least of all Khadr himself.

    Therefore he is a traitor.

    All the rest of the stuff about whether his tactics were legitimate, whether he was a child soldier – with or without uniform – is nothing but irrelevant obfuscation. None of it matters.

    What matters is that he is a traitor.

    As soon as the Canadian government found out that the Americans were holding Khadr, they should have demanded that he be remanded to Canadian custody without delay. As soon he was in Canadian custody, he should have been charged with high treason, tried, and found guilty.

    Unfortunately, under section 46 of the Canadian Criminal Code, the penalty for high treason is only life imprisonment.

    It should be death by firing squad.

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