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!!!!

YES!!!

No…

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!!!

BAZINGA!!!

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!!!

 

Dr. Baglow vs Freedom of Speech: September 18, 2014 – Part 1

This is a continuation of a prolonged court, the earlier bits of which are here:  Day 1 part 1 and part 2 , Day 2Day 3 and Day 4 part 1 and part 2 of this trial were covered in March, 2014 (write-ups by me at links).  Day 5 is more or less covered by days 6 and 7.…  Day 6 is here.  Day 7 part 1 is here – sorry about having had to chop this up into short little bits, it seems my original write up was too long for WordPress to format correctly… part 2 is here.

Dr. Baglow’s impression of my coverage of the court hearings, as per Twitter, is here.

September 15th, 2014 account is here.  Roger Smith presented his side of the story (defense) and was cross examined.

September 16th, 2014, was the second day of the trial phase where the defense gets to present their case.  Today was the day that, as Minister Jason Kenney referred to her, ‘the famous Connie Fournier’ took her place on the stand.

September 17th, 2014, the third day of this phase of the trial, the plaintiff’s lawyer finished his cross examination of Connie Fournier and Mark Fournier took the stand to both testify and be cross examined.

Today, the 18th of September, 2014, was a most tantalizingly interesting day in  court!!!  Today was the day that the court-appointed ‘internet expert’ was due to testify!!!

I must admit, I was terribly curious to meet this ‘political blogosphere expert’!!!

If you have been following my reporting on the legal encroachments on our unalienable freedom of speech for a while, you may note that over the years (!) of my observations in the courtrooms, this will have been the first time ever to hear ‘expert testimony’.

Exciting indeed!

So excited, I completely forgot to note down what shirt Roger Smith was wearing today – and as the days bled together, all I can swear to is that he wore tan slacks and a blue blazer (I could see those even from behind…).  My apologies.

Connie Fournier wore charcoal trousers with a narrow pinstripe, sensible square-toed shoes, a pretty tan blouse with bright red poppies and a matching blood red cardigan with shiny gold nautical-style buttons.  For jewelry, she wore a simple, elegant circle of tiny diamonds and pearls suspended on a golden chain.

She and I entered the courtroom a little early (the air was thick with expectations – you can’t blame us!), about 20 minutes before ten am when the court was due to reconvene.  Madam Court Clerk was already at her post, busily getting things ready for the day.  (We were back to the original Court Clerk – the same lady from the Spring who tried to persuade Dr. Baglow that he should like cats and who didn’t want to be blogged or Tweeted about.)

Our entry into the courtroom was an intolerable intrusion into these preparations.  Chastised, Connie and I took the hint and extramuralized velociotously.  This seemed to put Madam Clerk into a good mood, as later, she happily joked about tossing out somebody’s cigarettes and chattered about her background, both legal and pre-legal.  Mr. Frenkel turned on his boyish charm and Madam Court Clerk just melted!

Oh, yes – Mr. Frenkel from the CCLA was back in the courtroom and no longer stood in for by the nice young woman (I hope this is an OK turn of phrase).  He wore the traditional lawyer robes, but differed from the other lawyers present in that he wore very crisp gray pants, instead of the traditional black ones.  His youthful face was framed by glasses with serious, dark frames which added gravitas to his appearance.  He really is a brilliant young lawyer – a heavy hitter by any means of assessment!

Dr. Baglow sported a cream, opened necked shirt which contrasted strikingly with his black suit and his ubiquitous riding boots, also black, with adorable silver trimmings.  His watch was also silver, while the frames o his glasses looked to me a gun-metal coloured more than silver.  In the left lapel of his suit jacket, he wore a silver pin – perhaps some abstract maple leaf?  Dr. Baglow truly is a very handsome man, at the height of his strength.

The charismatic Mark Fournier wore his navy, pin-striped suit with a navy shirt.  His chiseled cheekbones were flushed with expectation and, when they thought nobody was looking, he and Connie held hands.  Sorry, ladies, this one is hopelessly in love with his wife!

Jeremy, a frequent spectator at these hearings, was back in the courtroom and everybody – on both sides of this lawsuit – was happy to see him.  Dr. Baglow even chatted with him shortly (they are both history buffs) and, I am afraid I must report that in the courtroom, Dr. Baglow used the ‘B’ word:  the one word which is still beyond the pale in the civilized parts of the Universe.  Luckily, the judge was not yet in and nobody else seemed to notice that word (or, perhaps, its signifacance)…

Now, Otawa is the Capital of Canada.

If it were up to Justin Trudeau, Ottawa would be the weed Capital of Canada.

As it is, our esteemed Mayor Watson and his eco policies have turned Ottawa into the ragweed Capital of Canada.

And, right now, we are at the height of the ragweed season.  Thus, everybody who has to speak for any length of time is struggling not to wheeze and cough all over the place.  This requires frequent sips of water and everyone is struggling to have a fresh supply of cough-suppressant candies, the consumption to which Madam Justice Polowing had excluded from the usual food/drink ban in the courtroom.

Which brings me to another little detail in the courtroom:  all the tables have an ample supply of silver carafes of water and everybody (well, the important people at the front of the room) has access to white styrofoam cups from which they can sip this water.

Except, of course, the judge.  She (or he, as it may happen) always has a classy tall glass filled with ice water on her high table!

This is yet another reminder of the status in the courtroom:  the ruler from on high gets the civilized glass cup, the courtiers up front (if you excuse the pun) get to sip the nectar from the styrofoam cups … and us peasants in the gallery don’t.

Interesting observation:  Dr. Baglow sits at the front table (which faces the Judge, the Court Clerk and Recorder and witness box) with his lawyer, while Mark Fournier, equally a participant in this, lets his lawyer represent him at the table and humbly sits in the spectator are with the rest of us peasants.  I have long wondered why this is so…and why this seems unquestioningly accepted by everyone, even when there was not enough room at the front table…

Oh, my – I’m rambling.  My apologies, my indulgent readers!  Let me get right down to the court expert!!!

The expert turns out to be none other than Dr. Greg Elmer.

A quick google search shows he is quite well known and respected, as you can see here (with a ‘roguish-grin’ picture), here, here and here.

Dr. Elmer looks to be in his early-to-mid forties, a competent, intelligent and gentle man.  His hair is cropped very short, according to the latest ‘almost bald’ style and his eyes are quick to smile, the rest of his face following quickly.  His handshake (yes, I introduced myself when he looked at me inquiringly as I looked him up-and-down and scribbled on my notepad (a new one, on sale at Staples – with red lines and a pretty shell-design in one corner – I am a sucker for stationery and have been, from my earliest childhood…and mid-September, one can get awesome deals on stationery!) furiously – so I thought I’d better say ‘Hi!’) was cool and confident.

His clothing was very dark and classy and blended harmoniously.  A black suit (and shoes and socks, of course), the shirt was a deep blackish-blue and his tie was ever so slightly brighter/warmer blackish-bluish-purple.  The overall effect was very pleasing and classy.

At the start of the day, Dr. Elmer looked a little apprehensive – as if he were not quite sure how all this was going to go down.  Don’t misunderstand me – he did not seem worried or scared  – just apprehensive and vigilant as intelligent people tend to be when they face a situation new to them:  trying to drink it all in and analyze it and do their best in a new situation.

Madam Justice Polowin breezed into Courtroom #20 at approximately 9 minutes after ten am and worked hard to put Dr. Elmer at ease.  (Madam Court Clerk recognized her footfall right away, as soon as the staccato of her high heels became audible, and alerted us to her coming from ‘behind the scenes’.)

She looked crisp and fresh – in her billowing black judges’ robe, crisp white collar, her look is accentuated by a red sash that marks her out as a judge.  And when I say ‘sash’ I mean a diagonal thing like ‘Miss America’ or ‘Miss Universe’ would wear – but red, substantial-woolen-looking and with no words on it.  Today, her look was accentuated by delicate pearl stud earrings instead of the earlier delicate gold ones.

Madam Justice Polowin seems to like Mr. Frenkel – who is from the Canadian Civil Liberties Association, which, in turn, is an impartial intervenor in this case – and she relies quite a bit on his advice.  No, not all the time, but the Judge seems to trust him, as he is not part of either side in this debate and so he can be more impartial, his only goal being a good and just legal precedent in Canada, with no financial or otherwise vested interest in one or the other party winning.  Plus he comes across as an incredibly intelligent man, wise beyond his years.

Thus, Madam Justice Polowin entrusted Mr. Frankel with the admin bits of entering Dr. Elmer’s CV and particulars of how he had been engaged to come to court into the record, then jumping through the necessary legal hoops of having him formally qualified as ‘a court expert’.  It started out slowly, but, once done, Madam Justice was pleased to tell Dr. Elmer that now, he can add to his CV that he is a qualified court expert (the exact wording of his ‘expertise’, as per Madam Polowin, was so convoluted only a real-life-lawyer could get it and I most certainly could not wrap my pen around it, but it was something like expert…blogosphere…social…media…communication…political…plus-plus-plus…).

The upshot of all this was that Dr. Elmer knows his stuff, is good in ‘new media’, internet, blogs, message boards etc. with special focus on politics and Canada.  He studied it, lives it, teaches it and researches all aspects of it.  He gets to be a TV ‘expert’ on it – plus he has published a lot, including in ‘peer reviewed’ thingies.

Big Dog!

The only bit about him I did not like was his casual use of the word ‘collaborative’/’collaborate’.  Where I come from, ‘collaborators’ are lined up against the wall and shot – and the ‘normalization’ of this word necessarily includes the normalization of the practice of ‘collaboration’…something that ought to be avoided by moral people everywhere….  Aside from this (and I know I am bucking the trend here – but I AM RIGHT), I liked this court expert a lot!

Aside:  Dr. Elmer testified that, ‘in collaboration with others’, he created a ‘scraper tool’ – a bit of technology that collects data about people from social media sites – my ‘NSA warnings’ went off on that….think ‘Person of Interest!’

The next bit of questions/answers (between Mr. Frankel, the Judge and Dr. Elmer) was about the specifics of this case.

Did Dr. Elmer look through the Free Dominion site and Dr. Dawg’s Blawg?

No, he did not – not specifically.  Because he thought it would have been prejudicial – so once notified, he avoided them, even if he was aware of them before.

The judge regretted that, a it limited her questioning to the ‘general’, not ‘specific’ bits….but agreed that for the optics, this was likely better.

A bit of back-and-forth, but, eventually, it all got worked out, Dr. Elmer’s report got accepted as evidence and ‘fact’ without needing to be read and all that kind of good stuff.  Which, in the legal order of things, brought us to the cross examination of the expert witness.

Mr. Burnet, the plaintiff’s lawyer, got the first crack at Dr. Elmer.

Now, I must qualify this:  as at mid-day every day for the next few months, I have an obligation – and so I had to leave at 5 to 10 minutes after 11 am.  I return to the courtroom as quickly as I can, but, it does mean that today, I only caught the beginning of Mr. Burnet’s cross examination, as well as all of Ms. Kulaszka’s (Mark Fournier’s lawyer) and Connie Fournier’s cross examinations.  For this, I do apologize – but, obligations do intrude on my ‘court time’! The best I can do is tell you, my dear readers, what I saw and heard.

Mr. Burnet started the cross examination ‘softly’, but got ‘tough’ rather quickly.  If I ‘got the drift’ of where he was going with his questions, it seemed to be about people being able to find things out about people who post opinions, etc., online.  As in, employers or potential employers often ‘google’ their employees or potential empoyees….can get into trouble, loose a job or not be offered one.

Dr. Elmer agreed – but in a qualified way.

As in, one can track if someone is tracking them online – but they would have to actively track it, have purchased metrics services, etc., which not everybody does.  Thus, some people may remain unaware of who searched them up on the interwebitudes and what they found – and may use the info.

As I absolutely had to leave, Mr. Burnet was just getting started on the Rehtaeh Parsons sad, sad story and trying to use her tragedy to ‘score points’ – something I found rather distasteful and a bit ‘cheap’.

[Edit:  I took out the last clumsy sentence, as it was speculative.]

 

 

 

 

Dr. Baglow vs Freedom of Speech: September 15, 2014

This is a continuation of a prolonged court, the earlier bits of which are here:  Day 1 part 1 and part 2 , Day 2Day 3 and Day 4 part 1 and part 2 of this trial were covered in March, 2014 (write-ups by me at links).  Day 5 is more or less covered by days 6 and 7.…  Day 6 is here.  Day 7 part 1 is here – sorry about having had to chop this up into short little bits, it seems my original write up was too long for WordPress to format correctly… part 2 is here.

Dr. Baglow’s impression of my coverage of the court hearings, as per Twitter, is here.

Which brings us to the first day of the ‘fall session’ of the trial, where the defense part of this case starts.

Aside – I understand that the court-ordered ‘blogosphere expert’ will be testifying on Thursday..

I showed up in court nice and early – long before the information desk folks (on the 2nd floor of the Elgin St. Courthouse in Ottawa – but facing the main Elgin St. entrance) got the memo about which courtroom this particular civil case will be heard in.   However, as time passed on, I learned that the case will have been heard in Courtroom #20 – the courtroom closest to the main/front entrance (and thus dubbed ‘the smoker’s courtroom’).  Here are the players:

Justice:          Polowin, J.

Plaintiff:        Baglow, John

Lawyer:          Burnet, Peter Francis

Defendant:     Smith, Roger

Self-represented

                 Fournier, Connie

Self-represented

                 Fournier, Mark

Lawyer:            Kulaszka, Barbara

As the ‘players’ arrived on the ‘playing field’, these were my observations:

Barbara Kulaszka (BK) looked her steadfast self:  short hair kissed with just a tiny bit of silver, billowing lawyer’s robes framing her slender frame, she was her true self.

Peter Burnet, (PB) slightly balding and silver, looked distinguished (edit:  a complained-of phrase has been removed here).

Roger Smith looked dashing in his tan slacks, brown shoes, blue blazer, dark (black or charcoal) shirt with a blue-inside-a-gray-striped shirt and blue thin-striped tie, his silver hair dashing, his cheekbones chiseled above his silver, manicured beard/mustache.

Dr. Baglow wore his signature outfit:  black suit, blue shirt (opened collar, as if to stress his ‘blue collar’ sympathies), the ubiquitous riding boots (with delicate and adorable little silver trimmings), silver watch, rings on the ring and pinkie fingers of his left hand, silver hair and tailored silver mustache accentuated by the gun-metal framed spectacles he twirled in his hands more than he wore.

The charismatic Mark Fournier wore a new-looking dark blue suit with a thin gray stripe, black shoes and a cream, open-necked shirt.

Connie Fournier was elegant in form-fitting dark trousers which flattered her shape and a dark violet, v-necked thin-knit pullover (with cute button-sleeve detail) which highlighted her fine, strawberry-blond hair cut into a flattering bob.

To complete the picture, let me just say that the same Court Clerk (from the spring) who did not want to be blogged about (and worried she’d be ‘Twittered’) presided over the case, fussing over the improperly entered ‘stuff’ from the spring and lamenting that it will fall to her to re-enter and correct it all.  The ‘Madam Court Reporter’ was a pretty young woman sporting longish black hair with flattering bangs.  Her trim figure was perfectly framed in a navy blue, long-sleeved knit dress accentuated by a thin brown belt with gold-coloured metal trimmigs.  Her pumps were impeccable!

Also, the CCLA, an intervenor in this case, was not represented by Mr Frankel, but by a competent-looking young woman in a black-and-white striped shirt, black slacks and blazer and bright red flat shoes (which she shed while she sat cross-legged on the spectator bench) – I understand Mr. Frankel will rejoin the case later in this week.

Courtroom #20 differed from most court rooms in that on the right side, it sported a sturdy-looking gray sofa with 4 fluffy-looking pillows.  I can only presume that Dr. Baglow’s past blood-pressure difficulties motivated the court to pick a courtroom with a sofa in it.  Otherwise, Courtroom #20 was much like most of the courtrooms in the Elgin St. Courthouse in Ottawa:  creamy-white walls with the ‘head’ wall (behind the judge) being a wood-panel in the same tan colour as the doors and the wooden-bits of the spectator benches, bearing the Canadian Coat of Arms. (The back wall – not the benches!) The seat bit of the upholstered spectator benches was a muted pink, which clashed rather badly with the crude orange-red of the floor carpeting.

It is difficult to describe the air of expectation one can only experience in the courtroom, with everyone present and waiting for the judge to arrive.  I can only liken it to a cross-section of the feeling which, as a 14-month-old (OK – I’m an Aspie and remember this), you are expecting the vaccine-baring MD to enter the room where your mother is holding you down overlapped with the dread you feel as you are sitting at a desk, awaiting your fist Calculus exam paper to arrive.  Add to this the distinct staccato of high heels in the distance – it is ever present, even if completely unrelated to the judge’s arrival – and you approach the hushed tenseness that awaiting the judge’s arrival in the courtroom accompanies!

As in – no movie could possibly do it justice!!!  No amount of suspense could possibly capture the breathlessness of these moments!!!

At 10:05, Madam Justice Polowin, J., entered.

Her hair was longer and lighter than before – and her (paler than before) face looked puffy and strained.  Yet, her eyes looked as intelligent and as sharp as ever!

The first session of the first morning of a hearing are usually taken up with tedious ‘housekeeping’ or ‘administrative’ matters.  Not so in Madam Justice Polowin’s courtroom today!  We went straight to the start of the defense’s case!!!

The first person to take the stand was Roger Smith (aka Peter O’Donnel).  He explained that even though ‘Roger Smith’ is his legal name, it is not ‘unique’ – both ‘Roger’ and ‘Smith’ being ‘common names’. ‘ Peter O’Donnel’, however was somewhat less unique – and as it was his birth name, he used it extensively  (though not exclusively – he sometimes picked ‘humorous nicnames’) in his online activities.

It is my impression that Roger Smith is a very reluctant defender:  it seems to me that he believes that his only defense lies in his truly held beliefs (and that promoting these is in the public good), but that he also thinks that having to justify his deeply held ‘political beliefs’ in front of a judge is very inappropriate of itself (regardless of the eventual ruling) and subversive of our democracy itself – akin to having to having one’s very thoughts needing to br sanctioned by a court of law….which, obviously, is a violation of the most fundamental freedom – the freedom of thought.  So, it seems to me, he is very reluctant to present his beliefs and convictions to the court – yet, his only defense (it seems to me) lies in him claiming to ‘truly believe’ what he had said/written/posted on the internet.  As in – it seems to me as though Roger Smith believes that it is not his statement of his beliefs, but his convictions themselves, which are on trial here – a form of ‘thought-crime-policing’, if you will.

And, since (in my never-humble-opinion) he thinks ‘thought-crime’ ought not be a ‘crime’ (if you excuse my clumsy expression of the principle), he is having difficulty with the whole matter.

As in, defending his views would be a bit of  a violation of the ‘thought-is-not-a crime’ bit.

At least, that is the impression I have been left with following his testimony and the bit of cross-examination I saw.

The testimony bit of the day merely repeated what had been entered into the record in the past – just the light it had been cast in was ‘slightly’ different.  And by ‘slightly’, I mean ‘a lot’.  As in, the bits that the prosecution entered in as ‘strong’ evidence now seemed rather silly and frivolous…which is not much of a comfort, since in a civil case of libel, ‘malice’ is presumed and needs to be disproved, rather that that whole ‘innocent until proven guilty’ bit of jurisprudence….

Yes, much revolved around SmallDeadAnimals (SDA) and Jay Currie’s blog posts, as well as Free Dominion and the Conservative blogosphere in general…plus Dr. Dawg’s blog –  ‘progressive’ site run by the plaintiff (civil prosecution).

Roger Smith’s background – from Math and Science to an Honours’ BA in Geography in order to become a ‘Climatologist’ (‘Climate Scientist’ in Newspeak), along with the necessary Global Warming/Anthropogenic Climate Change baggage – was discussed, as was the means by which Roger Smith makes his living as well as his online identity  – all this was explored at great length.

Then we got into the relevant bits – the 7 words which are the subject of this lawsuit (and which I therefore fear to mention – on the pain of ‘re-publishing slanderous material’) and the context in which they had been uttered.

It seemed to this court observer that Mr. Smith not only proved (beyond a reasonable doubt- a much more strenuous test that required in a civil lawsuit) that he believed the truthfullness of his statements, but also that stating them in an online forum was ‘in the public interest’.

Actually, this is where things got rather interesting – after the lunch break (1-2 pm), when Roger Smith had finished his testimony and his cross examination by PB commenced!

PB seemed obsessed with the idea that Roger Smith’s view of what constituted ‘appropriate speech’ was ‘beyond the pale’.

Which is rather funny – considering me being in the audience (and the only person there in the courtroom with the express purpose to report to you, my dear readers, on the contents of this hearing)!!!

If you read my blog regularly, you may know that I am a free speech absolutist – because I am an anti-slavery fundamentalist.

Perhaps it is my Asperger’s that informs this bit of me, but, for better or worse, I cannot help but see this issue in black-and-white – with no gray in between.

To me, this is the necessary extension of the principle of self-ownership:  if you own your self, then you and only you are responsible for your reaction and any and all resultant action you may take based on what you hear/read.
In other words, if you can be swayed to bad actions through ‘hate-speech/incitement to violence’ you hear, then you are admitting that the speaker is a de-facto part-owner of you and thus, submitting to their will is a tacit admission/permission of slavery.  And I am 100% against slavery!!!
Self-ownership implies self-responsibility!
A 100% self-ownership (i.e. anti-slavery fundamentalism) implies a 100% self-responsibility, thus making all forms of hate-speech/incitement irrelevant.
Which means that all hate-speech/incitement laws are an admission of and permission for a form of slavery – something I will never accept.
And since I cannot accept any form of slavery, I cannot acknowledge that hate speech/incitement can sway a self-determining, self-owning individual…which makes outlawing it an admission that my core principles are irrelevant…something I cannot accept.
I hope this makes some kind of sense to you – it certainly makes sense to me.
But, that is me – and (thankfully) not the subject of this particular lawsuit.
Anyhow, it seemed to me that PB spent most of his cross-examination time trying to ‘nail’ the ‘bit’ where Roger Smith drew ‘the line’ between ‘permitted speech’ and ‘illegal speech’.

SILLY BUNNY!!!

As IF there ought to be such a thing as ‘illegal speech’!!!!

 

Roger Smith said he drew the line between what ought to be permitted speech and not somewhere between what Ernst Zundel said and what is routinely said online by people whom ‘the progressives’ label as ‘Neo-Nazis’ but who are in reality no such thing.

As in – according to Roger Smith – Ernst Zundel was ‘illegal speech’ while the wrongly villified ‘neo-nazis’ who were not really ‘neo-nazis’ were OK…if you actually listened to what they truly said rather than just buying into their rhetoric.

But, PJ tried very very hard to paint this in the worst light possible – as in, he tried to twist Roger Smith’s words into saying that Ernst Zundel’s crap (and his claims ARE crap) was OK but the Neo-Nazis were not OK.

It seemed to me that Roger Smith, naturally nervous, being on the stand and all, did not really understand where PB was aiming with this ‘twisting’.  But, the judge sure did!  And, she put PB in his place on it, too.

However, this was not the only bit of testimony that PB tried to twist – and I am not entirely certain that the judge (much less Roger Smith, who was justifiably nervous, arguing for his retirement fund and all) quite got the manipulation or not.

Anyhow, that is where I had to leave off – having real-life obligations and all….I do hope to be filled in on the bits I missed and report to you tomorrow!!!

 

 

 

 

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 3

NOTICE:  this post discusses and assesses the testimony given by Mr. Bows, so, if any reader who is banned by the court from reading about Mr. Bow’s testimony until his own is finished comes across this post, they ought to leave this page right away in order not to breach the court’s order.

Day 1 part 1 and part 2 are here.  (all previous caveats still apply, though I have temporarily borrowed a slightly better tech.)

Day 2 is here.

Alternate account is here:  day 1, day 2, day 3, day 4.

Day 3, Wednesday, was the ‘broken-up day':  Madam justice had a previous commitment for a 3 hour meeting smack dab in the middle of the day.  So, the court was scheduled from 9:30 to 10:30, then a bit of a break, then again from 1:30 to 5:00.  And, as I had commitments of my own which I had been neglecting due to the trial, I took the morning to try and get caught up on some of them.  So, I missed the morning hour…

I was there for 1:30, ready to go!  But, the most exciting thing to happen was that the bailiff announced that the courtroom clock had finally been fixed!!!  It now actually displays the correct time….

After a bit of waiting, we learned that Madam justice had finished her meeting, but needed a bite to eat, so the court would not reconvene until 2 pm.  Oh well…

At 2 pm, on the dot, the court reconvened.  And, I had another little surprise:  Dr. Baglow was not on the stand!

Could he have finished his testimony and been cross examined by 4 people in the span of the morning hour?  Not quite…

Because the trial had originally been scheduled for 3 days only, that is how long Mr. Bow had planned to be away.  In order to accommodate him, all the participants agreed to permit Dr. Baglow’s  testimony to be interrupted in order to let Mr. Bow testify and be cross examined first.

Mr. James Edward Bow chose to swear on the Bible, then settled in to the witness box.  In his dark grey suit, white shirt, striped tie, with understated wire-rim glasses complementing his dark hair and eyes, he looked handsome and dapper.

Aside:  while talking about what people were wearing…Connie wore a fuchsia cardigan that was almost identical in colour to my own top, but mine was short sleeve, so all awkwardness was avoided!  Sorry – humorous interlude over!

Mr. Bow testified that he lived in Kitchener, Ontario and worked as a freelance writer with a web designed business on the side.  While he never had any formal training in web designed, he had worked for a number of tech companies in the 90’s and received a lot of on the job training.  In 2005, when his daughter was born, he became a stay-at-home dad while doing the writing and web stuff on the side from home.   As a stay-at-home mom who also blogs, I can relate!

When Mr. Bow testified that he had received his degree in Environmentalism, I began to seriously doubt Dr. Baglow’s sanity:  is he really bringing a capital ‘E’ Environmentalist to try to support the veracity of a contentious claim?  Really?!?!?

I had to work hard to suppress a bout of giggles:  like ANYONE on EARTH would ever again believe a word that comes out of the mouth of an ‘E’nvironmentlist!!!

Disclosure – my  background is physics, field of data acquisition and analysis…and I specialized in helping scientists/technologists avoid ‘conformational bias’…so, I find the modern ‘E’nvironmentalists particularly, well, how can I put this without being defamatory…’not up to snuff’ scientifically and having a very, very deep, perhaps un-bridgeable, credibility deficit.

In my never humble opinion, Mr. Bow’s testimony bore out the expectations one would have of an ‘E’nvironmentalist:  lots of claims of technical expertise followed by ‘D’uh, I don’t know how to do that…’

To his credit, Mr. Bow tried very hard to support his friend, Dr. Baglow, but to anyone with an iota if IT knowledge, he simply did not come across as credible – to my never-humble-thinking.

He blamed Dr. Baglow for not updating the comments before they attempted to migrate them to the new platform (without explaining why they could not have simply gone through the steps of updating step by step by step…), completely forgetting that if they had both migrated the site to the new spot (for the hosting of which Mr. Bow got paid by Dr. Baglow) AND left the old site up, instead of shutting it down, the defendants in this case would not have been deprived of access to information essential to their defense.  No amount of difficulties with migrating the comments over would have caused this damage had they not actively shut the old site down…

In another bit of testimony, Mr. Bow testified that it was Dr. Baglow’s decision to stop trying to recover the ‘lost’ comments, or he would have continued to look for ways of migrating them over.  In my never-humble-opinion, this was Mr. Bow covering his rear end, making sure his incompetence did not get perceived as malice and shifting all responsibility for the ‘lost’ comments squarely onto Dr. Baglow.

At this point, my other-world duties pulled me out of the courtroom:  I may have put off fixing my own broken (front) tooth till next week in order to attend the trial, but, I could not put such limitations on ‘my little one’ (OK, he’s taller than I am, but he will ALWAYS be ‘my little one’!!!) and I had to leave the courtroom in order to take HIM to the dentist…

When I left the courtroom in a rush, I found Dr. Baglow pacing nervously in front of the courtroom:  by the judge’s order (and as per ‘normal’ practice, he was excluded from the courtroom while other witnesses for his side’ were ‘on the stand’).  As we had exchanged pleasantries in the past few days, and as he had always been very civil towards me, I greeted him and had a little (though very hurried – I had stayed in the courtroom well into my time-margin).

During this exchange, he pointed out to me that I had indeed misunderstood the timing when he had joined the NDP.  I had reported on this in Day 2:  having heard that he had torn up his NDP membership card during Buffalo Bob’s reign, and the accusations that Bob Rae’s political opponents were motivated by anti-Semitism (since Mr. Rae’s wife is Jewish), I wanted to head off any potential smear campaign against Mr. Baglow due to the confluence of this.  Yes, I pointed this out in my reporting – but, with sincere and honest statement of fact that I do NOT believe Dr. Baglow to be an anti-Semite – specifically to ward off any potential smear campaign.

Which is why I was  very happy that Dr.Bglow corrected my error:  he had actually joined the NDP because he had been inspired by Bob Rae’s electoral victory!  And, as I understood (and reported), it was Mr. Rae’s subsequent policies that got him so disgusted, he ‘tore up his membership card’.

He accepted my assurance that my calling attention to this was an effort to ‘nip in the bud’ any smears – and appreciated it.  I in turn, appreciated being corrected, because I would much rather be corrected in the short run and carry accurate information than be left in error!!!

I promised to correct in in the original post (I put the edit at the top, so anyone reading it will have the correction before getting to the erroneous bit, without hiding I had made an error), and I also promised to describe our conversation on ‘day 3′ to explain how the correction came about.

That was it for me for ‘day 3′ – days 4 and 5 are coming up as soon as I can type them up!

 

As always:  if I have made any errors,  if you can correct/add to this commentary, please do so and I’ll be glad to edit this post in order to add your comment!!!

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 1, part 2

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!

Anyhow:  re-focusing!!!

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.

 

 

 

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 2

EDIT:  Dr. Baglow has been kind enough to inform me that I made a mistake in my reporting of when he joined the NDP.  Indeed, he was inspired by Bob Rae’s victory in Ontario and joined then – but later, he was so disgusted by the political policies that he tore his membership card up.  That is an important distinction, as it completely negates any accusation that Bob Rae’s wife’s religion/nationality had been any kind of a factor in his decision to leave the NDP under Bob Rae’s leadership.

First and foremost, please, see the write up of ‘John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 1, part 1′ for the details and the warnings.  Short form:  using a borrowed tablet to blog till my laptop is fixed, can’t even highlight, so cant’ put in links and such, but, will come back and do so once I’m ‘back in business’.  So, this will be brief and, temporarily, not linked to supporting materials.  My apologies.  Also, these are my observations and opinions and as I am not legally trained and not a human behaviour professional, all of this content ought to be treated as very highly imperfect opinions and nothing more.

Also, if anyone can add to this account and/or correct any of the many errors I am bound to make, please do so!

Day two of this ‘FULL TRIAL’ was held at the Elgin St. Court House in Ottawa on Tuesday, 25th of March.

It started punctually, but, going on the experience from Monday, I thought I had a bit of leeway and did not enter the courtroom until a few minutes past.  By this point, Dr. Baglow was testifying about having received his doctorate, chuckling about how he spent more years in school than he expected – but I did not catch what that doctorate was about.

He went on about his CV, his jobs, his political affiliations over the years, and so and so.  It was very interesting – and quite a lot of content, as he was asked to quote something from page 6 of it.

For example, Dr. Baglow testified that he considered himself ‘more or less’ a ‘man of the left’ and was a member of the New Democratic Party (NDP) while a student at McGill. Then, he was fascinated by the Communist party (though he never actually joined), but the 1968 invasion of Czechoslovakia cooled him somewhat (my words, not his) and he returned to the NDP.  He had stayed with the NDP for much of the time since:  except, of course, for when Bob Rae had run it:  he had torn up his membership card then), but returned thereafter.

Aside:  this is very, very interesting….one of the things Connie Fournier said in her opening statement was that a B’nai B’rith member had (rightly or wrongly) accused Dr. Baglow of anti-Semitism…and Bob Rae has, throughout his career, claimed that he had been persecuted by ‘some segments of the population’ because he is married to a Jew.  I’m sure it is a coincidence, as Dr. Baglow asserts contempt for anti-Semites – and Bob Rae’s politics are enough to turn anyone off, regardless of whom he may or may not be married to.  And while I can see how this co-incidence could, potentially, be abused, as my son is fond of saying, co-incidence is not evidence of causality.  And, in all my (admittedly limited) interactions with Dr. Baglow, I have never detected any anti-Semitism (as almost all Europeans, I am part Jewish myself, so I’m touchy on this).

Another, completely irrelevant, aside:  seeing the tanks roll down our street in ’68 when, as a toddler, I climbed up a sofa and a dresser to look out the window, is one of my earliest childhood memories…

Dr. Baglow was as well groomed as ever, wearing a dark suit/shirt, testified he became a civil servant and then joined PSAC (a public service union) and, eventually, became an executive VP thereof.  In this capacity, he had lobbied for all them policies that I consider to be evil – like, for example, the universal child care thingy.

Indulgently personal aside: I grew up in the Socialist Worker’s Paradise and, as such, was institutionalized (during the daytime) from toddlerhood till gradeschool, in a ‘universal daycare/kindergarten’ system.  I am a survivor of this evil and I fully understand its workings and impact, from the inside.   As such, I swore that I’d rather sell myself on the streets than permit such an evil to ever touch MY children!!!

So, when Dr. Baglow willingly testified that  he had fought FOR such evil institutionalization of innocent children (and seemed proud of promoting what, in my never-humble-opinion, is ‘government enforced child abuse’), I kind of lost my composure for a bit and had a hard time hearing the next bit of testimony.  My apologies.

This is about where the ‘interesting’ bits ended – at least, in my never-humble-opinion.  All the next whole bunch of testimony was about what is the ‘blogosphere’, how to spell the word (neither the judge, nor the person transcribing the trial seemed to know the spelling), and so on and so on and so on.  The only ‘colourful’ bits I gleaned fro this are that Dr. Baglow’s lawyer is a frequent commenter on ‘Dawg’s Blag’, even though he and Dr. Baglow have wildly (and chucklingly so) divergent political opinions.

Perhaos one thing I ought to note is that after Dr. Dawg’s lawyer explained one of the finer points of the blogosphere culture,  he mentioned Omar Khadr.  And, since he ‘got into the mode’ of explaining ‘everything’ to the judge, he tried to explain to her who Omar  Khadr was….Amused, the judge replied that though she might not be up on the latest internet jargon, she’s not an idiot….my wording, not hers, intended to capture her body language, not words.  (Note:  later, the judge demonstrated she knew exactly what a ‘hyperlink’ is, and thus may be tiny bit less of a luddite than she postures as….  To me, this is a very positive thing, indicating she ‘gets’ what she knows and does not know, both, and is not afraid to ask questions!

Actually, I had been quite impressed by Madam Justice Polowin, J.:  she takes copious notes (Dr. Baglow even slowed his lawyer down a bit by gestures to ensure she gets all the note-taking in).  My own experience is that if I hear something, I may forget it on perhaps even not ‘process’ it correctly…but if I write it down as part of ‘taking notes’ – I can usually recall it very accurately, without needing to refer to the notes themselves.  Having observed Madam Justice Polowin, J., I am wondering if her note-taking serves a similar function because if she writes it down, she seems able to quote it without difficulty…

As best as I can determine, the rest of the morning’s testimony had been taken up by defining terms like ‘thread’ and technical details about who has editorial control over posts and comments and site meters and such…

Of interest to other bloggers may be some little tidbits, otherwise unimportant….

  • Dr. Baglow testified that though his readership fluctuates, it averages about a thousand unique readers per day
  • he currently has 3 co-bloggers who can post, but not have moderating control
  • he described a very different ‘startup’ and ‘functions’ experience from mine – but that is to be expected as I have used different platforms than he has
  • he deferred to his tech guy, Mr Bows (sp?) for all tech details, said not knowledgable himself
  • he uses SiteMeter
  • he does not permit racist, anti-Semitic or any kind of hate speech comments on his blog
  • he did 2 takedowns/apologies (with qualifications, making it seem like Ezra Levant’s claim against him was both a persecution for an innocent and understandable misunderstanding of legalese as well as an ‘over-reach’…and the other was a simple misunderstanding of the facts, rather than a misstatement)

‘The term ‘trolling’ got discussed a lot and had been, in my never-humble-opinion, woefully poorly defined and misrepresented to the court – though, it seemed to me, this was not done as a deception but as a deep and true misunderstanding of the very philosophical basis of the concept of ‘trolling’ and the positive, beneficial and, frankly, necessary (for freedom of thought), function of an ‘internet troll’.

At a point just shy of 11:25 am, Madam Justice said she had received a request from her court staff that they would like a little recess –  and we were adjourned for 15 mniutes.

Oh, how things can change!!!

As we all filed back into courtroom 21, Dr. Baglow’s lawyer became concerned over the redness in the face of Dr. Baglow, who suffers from high blood pressure.  While Dr. Baglow protested and insisted some of this redness was due to a sunburn he had just suffered on his holidays to Cuba*, his lawyer was not taking any chances.  All the lawyers and self-reps met in the judges’ chambers while the court clerk took Dr. Baglow’s pulse, declared it way too high, and called the judge with her finding.

On this note, the hearing was adjourned on medical grounds for a bunch of hours….and, no knowing for how long it would go on for following such  a long break, and considering the start of a migraine in me…well, to make a short story even shorter, I went home to try to recover.  My understanding is that tomorrow morning will be taken up with more background testimony and we’ll not get to any of the juicy/substantial stuff until tomorrow pm…

 

 

 

 

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 1, part 1

Today, Monday, March 24th, 2014, was the first day in the ‘FULL TRIAL’.

First, a few caveats:

*       My computer has died and I am sending it in for service:  this means I have borrowed equipment (my long suffering hubby’s tablet) and this is NOT the ‘ideal’ blogging medium under any plausible definition… so, instead of highlighting or bolding, I will have to capitalize for emphasis.  I am not shouting, just emphasizing  – my apologies.

*       Due to this really, really slow machine with none of ‘my stuff’ on it (and my limited access to it, as I get to ‘share’), I don’t have the quotes/links to previous/cited cases and so on.  I could get them, if I had the time online, but, currently, I do not.  I may – time and technology permitting – re-visit this post and insert quotes and/or links at a later date when time and internet access are more under my control.

*        Due to me being me – and a certified Aspie to boot – my observations are very, very limited.  They are limited both by my lack of legal training (my area of education is Physics, not Law) and my linguistics (while I may have beecome fluent in 5 languages by the age of 13, I have never mastered ‘legaleese’).  I cannot highlight it this mchine, so I cannot link:  please check out ‘Asperger’s on Wikipedia to understand my limitations in abilities to ‘get’ some of the nuances of what went on:  however, if you are ble to correct me or explain any of my observations more accurately than I, please, I TRULY BEG YOU:  COMMENT!!!  Help others get a better, more accurate picture of what is going on,  I would much rather be corrected than go on in ignorance at any time, on any topic, so, please help me and anyone else reading this get a more insightful picture of the situation, if you possibly can.

TLDR: this will be  a condensed, highly personal and highly imperfect account of my admittedly falliable observaions of this first day of the FULL TRIAL of this particular defamation case.  If you can correct me and/or are willing to add to it, please, do!  As I have borrowed and klunky tech, I cannot highlight or link or spellcheck – sorry…

Background:

Connie and Mark Fournier are the operators of Free Dominion, oldest and longest running political forum in Canada until it was sued into silence by Richard Warman.

Roger Smith, aka Peter O’Donnel (and not just online), is a member and frequent content supplier on Free Dominion and elsewhere on the blogosphere.

John Baglow, aka ‘Dr. Dawg’, aka ‘Ms. Mew’, is a guy who is a retired civil servant and unionist, a self-proclaimed leftist activist, an avid blogger, a Richard Warman groupie (imnho), and a guy with a pechant for black riding boots with the most adorable little silver trimmings.

Please note:  all my own dealings with either John Baglow or ‘Dr. Dawg’ have been very amicable and positive.  I have, in the past, asked him to get me in touch with another progressive blogger I have crossed swords with amicably in the past (I may hold many of the so called ‘progressive views’, but disagree with most of the so called ‘progressive metods’ of achieving them) and he had done so very quickly and courteously.  I was seeking some help/publicity for some Tibetan refugees to Canada and Mr. Baglow has provided it and been very nice to me throughout – and, by extension, to them.

I have found him to be pleasant and charming when ever I have interacted with him.  In fact, I find him quite charismatic.

And, I find it admirble that he has brought a young man I presume to be his step-son to the courthouse to observe civic cases:  it is imperative that we get the next genetration interested in our civics, and I give praise to all who do.  Kudos to him for that!!!

Yes, I bash when bashing is due, but I also give credit when that is due, too…so, please, don’t sue me!!!

This particuar ‘flame war’ started on the blog of Jay Curry and bled over to a number of online spots, including Free Dominion, where the 7-word phrase this courtcase is about was posted by Roger Smith.  I am afraid to report what those 7 offending words were, because from the Richard Warman legal precedent, if I, as a private person, publish the ‘public’ documents of what had been filed at court, I, too, might become liable for ‘re-publishing’ those ‘defamatory’ words.

Yes, it is a matter of ‘public record’.

And, yes, it is ‘factual reporting’ of a ‘public document’….or what was said on public record in a court of law and thus apart of ‘public record’…

BUT!!!

Afte the latest Warman vs. Free Dominion and John does decision, that is no defense:  if the factual record is, at some later point in time, found to be defamatory, the factually reporting on it on the internet is considered to be ‘re-publishing the defmatory statements’ and it would open me to liability.  So, my reporting of tody’s events will necessarily be highly constrained.

The subject of the ‘flame war’ was Omar Khadr, his inaccurate (as per UN’s definition) characterization by ‘Dr. Dawg’ as a ‘child soldier’ and the implications of willfully promulgating this demonstrably inaccurate legal description.  Peter O’Donnel’s opinions complied with the UN’s legal definition (thus leaving Omar Khadr outside of the protections UN grants to ‘child soldiers’) while Dr. Dawg attempted to draw the moral high ground by inaccurately describing the Taliban terorist as a ‘child soldier (in the legal, not colloquial, definition) and then demanded the legal protections for Omar Khadr that are only available to UN-defined ‘child soldiers’….a demostrable and rather glaring hypocrisy which ‘Peter O’Donnel’ pounced and opined upon.

In many online spots.

On Free dominion, he opined so in 7 words which I dare not repeat.

These 7 words that ‘Peter O’Donnel’ posted – and which, he asserts, are his honestly held opinon, shared by some 8 million Canadians (according to his opening statement), are the ‘basis’ of this lawsuit.

It was originally dismissed as a frivolous and a vexatious lawsuit. (And, I reported on it – oh, how I wish I could link!!!  The more I use it, the more I loathe this borrowe tech!!!)

Then, it was appealed – and several judges agreed that internet ‘flame wars’ were ‘legally uncharterred terrtory’ and that some ‘precednt-setting rulings’ need to be made here.  Just so us iternet folks would know where the actual boundaries lie…you know, so we could stay within the lines, the lines are your friends…..(OK, old commercial – but applicable!)

Thus, we have a ‘FULL TRIAL’

TLDR:  trial, ruling against Baglow (frivolous), but no legal rules for ‘internet flam war’ so FULL TRIAL to set ‘legal precedent’.  Baglow:  cute guy, charismatic and nice, wrong side of argument here.

OH, MY – OVER A K OF WORDS AND I HAVE NOT STARTED ON TODAY’S EVENTS YET…..deepest apologies, just trying to get the parameters in before I start today’s observations, as I honestly cannot afford to get sued…

FACTS:

These are the facts as posted outside the courtroom #24 at the Elgin St. Courthouse on the 24th of March, 2014:

Justice:          Polowin, J.

Plaintiff:        Baglow, John

Lawyer:          Burnet, Peter Francis

Defendant:     Smith, Roger

Unrepresented

                 Fournier, Connie

Lawyer:             Kulaszka, Barbara

                 Fournier, Mark

Lawyer:            Kulaszka, Barbara

Mr. John Baglow turned up as well groomed as ever:  a dark suit, a blue-collar shirt and them cute riding boots with the adorable silver trimmings he has become so well known for.  He knows what he looks good in and uses it well!

Connie Fournier wore a classy, slim-line dark skirt with a gray pattern, a pretty blouse with a multi-red abstract pattern and a red blazer that accented the blouse perfectly – with an understated, classy gold/gold-tone diamond/rhinestone necklace (sorry – I am not knowledge-able enough to tell the two apart…it was ‘understated’ and ‘classy’ at the same time and I wish I could pull a similar look off….Connie looked smart and classy and – well, we have words for women like that!!!).

Roger Smith wore a blue blazer and khakis – understated, yet elegant.  With his silver-kissed hair, he was easily the most attractive person in the courtroom.

The charismatic Mark Fournier wore a tweed jacket and slacks and, despite his bigger-than-life persona, tried his best to stay in the background.

In addition to the people listed above, the Canadian Civil Liberties Association were interveners in this case – as friends of the court – on the side of the defendants.  The lawyer sent to represent them was a young man named Steven Frankel – and while he had a wedding ring on the ring finger of his left hand, he looked younger than either of my sons.  OK – I officially feel old now….but, when he spoke, he sounded really, really smart!

And, of course, the judge…

Madam Justice Polowin, J., presided over the case.

She looked sharp, with her pale hair cut short-ish, slicked back at the temples and wonderfully fluffy on top, she wore understated light stud earrings (pearls?) and her judge’s robes flowed playfully about her slight frame.  She self-admitted to being a luddite (knowing how to send and receive emails – but nothing else on the internet) and asked for every bit to be explained, internet technology and jargon and culture included.

I see now that it is way late, and I plan to be back in court to observe tomorrow – so I must suspend my narrative here.  Let me just state that, at the end of the day, Madam Justice Polowin stated (at the end of the day) that even though the trial had been scheduled for Monday-Tuesday-Wednesday, she sees no way they’ll get through it all (while doing a proper and thorough job of examining the underlying issues, as the appellate court had directed) by the end of this week and so participants ought to alter their travel plans accordingly…

MORE LATER!!!!!!

 

 

 

 

 

 

 

 

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