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!!!
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!