Dr. Baglow Vs. Freedom of Speech: September 22nd, 2014

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

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

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

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

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

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

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

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

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

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

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

Still, I should have learned the language…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At least, that is my perception of the matter.

We shall have to see what the judge thinks!

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

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

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

 

Dr. Baglow vs Freedom of Speech: September 16, 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.

I got to the courthouse nice and early.  There was quite a commotion in front of the Courthouse – but for all the wrong reasons…  Instead of focusing on this historic case, which will affect every single Canadian’s internet presence, the media was all in a tizzy because of some doofus senator

Having made my way past the hoards of reporters and cameras positioned in front of the courthouse (as all cameras are banned not just in the courtrooms, but everywhere within the courthouse) and waited with baited breath, in front of Courtroom #20 at the Elgin Street Courthouse in Ottawa.

I was rather taken aback by the unusually large group of people also waiting in front of Courtroom #20… I was sure Madam Justice Polowin would try to stay in the same courtroom, but these people looked unrelated to this case.  At 9 am, they all filed into the courtroom – much to my bewilderment (yes it does not take much to bewilder me….).

It turns out that Madame Justice Polowin also had this child custody case that needed to be heard and she had scheduled it before the Baglow vs. Freedom of Speech case I was there to cover…  You have to admire a judge that will juggle multiple cases at once:  it may not look so on the surface, but, in order to ‘do justice’ to a case (if you will excuse the turn of phrase), a judge has to read TONS of paper (almost literally!)….and to be up to speed on multiple cases at once would require such a sharp focus that I must admit I am awed by judges who make it look effortless.

(And – make no mistake – Madam Justice Polowin takes copious notes, more so than any other judge I have seen, and she is totally on top of ‘stuff’!!!)

By 10 am, the earlier case people had filed out of the courtroom and we all filed in – with the judge still sitting at the top of the room. And she looked ready for the day!!!

Dr. Baglow had exchanged his blue shirt for a cream one – otherwise, he either has multiples of the same dashing black suit or he wore the same one as yesterday.  He also wore his signature black riding boots with the adorable silver trimmings – and, for the record, they were spotless and shining!

The ever-charismatic Mark Fournier, who had worn a cream shirt with yesterday, had  exchanged it for a blue one – but much darker one than Dr. Baglow had worn yesterday. Ok, ok, I am a sucker for patterns…but it did not look like the two had swapped shirts!

Roger Smith had exchanged his shirt for a green one, otherwise he looked  the same as his dashing, distinguished and elegant self as yesterday…

The lawyers looked their ‘selves’ – in their lawyer robes and black shoes to match…difficult to write up their fashion sense since they have to wear these traditional outfits which make them look the same day after day….

Now let me get to the star of the day – and I do mean star!!!

Connie Fournier wore a very flattering dress:  power red, textured knit, with cap sleeves…fitted through her bust through to her narrow waist (accentuated by a thin, shiny black belt) and with a playful ‘twirl’ bit at the bottom, which was just below her knees. Her outfit was perfected by her perfect black pumps – not too high, but high enough….the heel being not too thick, neither a ‘slutty thin’…  She looked perfect – a force of nature!!!

(OK – I wex a bit poetic here….but, if Connie had had a professional ‘dresser’ or ‘stylist’, they could not have done a better job of turning her out for court today!)

[IF I were to characterize the defense team, Connie Fournier would be Roger Daltrey, Roger Smith would be Pete Townshend, Mark Fournier would be Keith Moon and Barbara Kulaszka would be John Entwistle...just saying...]

As well-dressed as she was for the court, Connie Fournier’s mind was in even better a shape or state of readiness…  But, that is Connie!!!  No matter what situation life hurls her into, she is there, ready, brilliant – and smiling to boot!  There are very few people on this Earth whom I admire as much as I admire Connie Fournier!

The day started out with Connie Fournier on the witness stand, testifying to her own defense.

I was there for much – but not all – of Connie’s testimony – and I had to leave before the cross examination started:  my apologies to you, my readers, but I am not a lawyer or paid to report on things, and my other-life-pressures have put a limit on the time I can spend in the courtroom…  I just wish there were other people, better versed in legal matters, who could/would report on this momentous case….but, alas, there seems to be a dearth of them, so you, my dear readers, are stuck with my limited and incomplete observations.  My apologies go to you!

Connie had testified to many of the things we had heard in the courtroom before – but presenting them from her unique and informed point of view.

For example, it seemed funny to me just how Dr. Baglow seemed to shrink in his seat as she testified about the many and various instances where Dr. Baglow, using his Dr. Dawg personna, smeared Connie Fournier as a ‘white supremacist’ and a Nazi sympathizer – all the while as Connie Fournier’s metis husband was sitting in the spectator section of the courtroom…because, them ‘far right’ ‘white-supremacists’ and ‘Neo-Nazis’ go out of their way to marry people with a Native-Canadian background!!!

(Ok, I may be a ‘danged’ immigrant myself, but, through my hubby, my children share in the Ojibwe bloodline, so I am particularly sensitive to this issue….)

Let me just stress that I am convinced Ms. Fournier is neither a ‘white supremacist’, nor a ‘Neo-Nazi':  not ‘just’ because she is married to a man who is a metis, but also because her father is an evangelical minister and she takes her Christian roots very seriously – including the ‘love thy neighbour’ and ‘all human lives are sacred’ bits.  I’m just waiting for the so-called ‘progressives’ to try to pain Mark Fournier as ‘a white metis’….

…more coming soon…

 

September 18th, 2014  – the day of the expert testimony Part 1 is here.

In Defense of Absolute Freedom of Speech: The Principle of Self Ownership

Oh, my, where to start!

Something that seems so self evident to me appears to be beyond even consideration by the majority of people in today’s society….to the point that people who hold the same convictions as I are presumed not to exist any longer.

That is sad, very sad…

So, please, do let me present to you my reasoning for why ‘Freedom of Speech’ ought to be unfettered and absolute.

If you indulge me, I would like to present several completely different lines of reasoning – all from ‘first principles’, all logical, and all leading to the inevitable conclusion that speech MUST indeed be absolutely unfettered.

First line of reasoning:  from the principle of self-ownership.

Each and every person owns his or her self.

Body, mind and soul.

This is the core principle on which our civilization is built – to reject this core principle is to reject our society, our form of civilization.  And, since this argument is being made for conduct within this civilization, it is ‘core’ – a fundamental and irrevocable ‘starting point’ for our logical journey.

It is immoral and wrong for one person to own another, which is why we have abolished slavery.

With the principle of self ownership comes the responsibility for absolute accountability for one’s actions.

What this means is that an individual is 100% responsible for one’s own actions.

Regardless of what an individual is exposed to, he or she is absolutely responsible for their conduct as a response to it.

This means that no matter how much somebody else may incite you or lies to you, you and you alone are responsible for acting – or not – on that incitement or on those lies.

Yet, our current laws are written so as to put partial blame for ‘incitement’ or ‘lie’ on the speaker, rather than on the ‘actor’.  This is extremely dangerous because it fails to build into our citizens an appropriate sense of self-responsibility, it infantilizes our citizenry – and we must fight against this most vigorously.

For an infantilized citizen is no longer capable of being self-responsible and rejects the self accountability and independence of self-ownership…

In other words, failing to be accountable for one’s actions without blaming others for ‘incitement’ or ‘lies’ (or, indeed, ‘hate speech’) surrenders one’s mind and soul to another:  in violation of the principle of self-ownership.

Which will necessarily mean the end of our civilization, since our civilization, as stated at the beginning of this argument, is founded on self-ownership.

I have presented this argument first because it is the most ‘theoretical’ and principle based, in my never-humble-opinion.  I would welcome you, my dear reader, to try to find flaws in the logic of this reasoning and present them to me for discussion because I really cannot see how this particular line of reasoning could be faulted.

Many of you might accept this particular argument ‘in theory’ – something that might be wonderful to implement in a utopian society, but impossible to implement in a  real-life society of blood-sweat-and-tears humanity.  That is indeed a fair objection, to which my only retort would be that this is what we ought to be aiming, that this ideal ought to be what we strive for – and not start out from the very beginning by lowering the standards to such an extreme low that the very existence of those of us who hold this principled point of view is doubted or denied.

This I lament as even many ‘free speechers’ start out the debate by saying ‘nobody thinks freedom of speech ought to be absolute, so let’s start talking about where to draw the lines’…

NO!!!!

Freedom of speech MUST be absolute and any and all ‘lines’ limiting it MUST BE ERASED!!!  Anything less is an existential threat to our very civilization and the abdication of the principle of self-ownership!!!

*   *   *

There are less theoretical and more practical reasons – yet all principled – for why freedom of speech ought to be absolute.  I shall attempt to present just a few of them (as an exhaustive listing would take a lifetime to compile!) over the next few weeks and hopefully we can engage in a vigorous discussion.

For now, I’d like to start here, from the core principle of self ownership.

Your thoughts?

David Farrer: A Scottish Libertarian Deconstructs the Vote

 

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.]

 

 

 

 

Thoughts on the Baglow vs Free Dominion ongoing lawsuit

This is something I have been covering for a while – and I am sad to say that I seem to be the lone person giving it attention over time (though others do drop in every now and then).

This is bad because I know I am a poor observer of the human condition, being an Aspie and all!  And this case will determine the life or death of the Canadian political blogosphere!!!

I know I ought to be writing up yesterday and today’s proceedings, but, I am  so very, very tired.  It may not seem like a lot, but, the strain of sitting up all day, several days in a row, is more than my broken body can comfortably handle – and with this weariness, I don’t think I could give do the write-up justice.

Plus I need to be very careful what I write.

Though Mr. Burnet and Dr. Baglow have assured me of their good will and that the complaint about some words (which I admit, I took seriously – given this is a defamation lawsuit and all, so I took them down right away to show good will) was just a joke and I was more nervous than I had need to be.  That is good to know, but, like I said, as an Aspie, I really have a hard time understanding where ‘the line’ lies that ought not be crossed….I would not have thought that the impugned words would have warranted this, either – but obviously, other people think they do, or we would not be here today…

When Mr. Burnet was reassuring me I was OK with what I wrote, I could not help but notice the elegant ring on the ring finger of his left hand.  Masculine, and elegant.  A gold band which encircled some sort of a black stone or center.  Very nice.  On the ring finger of his right hand, he wore a simple golden band.

I am sorry – I know I am rambling.

Which is precisely why I am not writing things up today…

But, I do promise you that I have copious notes to aid my memory and when I am in a more serene state of mind, I will write it all up!

 

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!!!

 

 

 

 

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