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!!!

 

The Sedona Canada Principles Addressing Electronic Discovery

Overview:

1. Electronically stored information is discoverable.
2. In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into
account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest
and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the
court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal
with electronically stored information.
3. As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good  faith steps to preserve potentially relevant electronically stored information.
4. Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the
identification, preservation, collection, review and production of electronically stored information.
5. The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.
6. A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to
search for or collect deleted or residual electronically stored information.
7. A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good
faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect
potentially relevant electronically stored information.
8. Parties should agree as early as possible in the litigation process on the format in which electronically stored
information will be produced. Parties should also agree on the format, content and organization of information to
be exchanged in any required list of documents as part of the discovery process.
9. During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect
privileges, privacy, trade secrets and other confidential information relating to the production of electronic
documents and data.
10. During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation
takes place, while appreciating the impact any decisions may have in related actions in other forums.
11. Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.
12. The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.

The full (2008) document may be found here.

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.

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!

 

Justice must not only be done, it must be seen to be done: except, perhaps, when a taxpayer tries to prosecute Kathleen Wynne – part 4

In Part 1 of this series, I explained a little of the background of the ongoing Presto scandal, which has already cost Ontario taxpayers half-a-billion dollars – and how a concerned taxpayer (hereafter referred to as CT) had searched for who was behind this…and discovered the documents had been signed by none other than Kathleen Wynne, then Ontario Minister of Transportation and now the Premier of Ontario.

In Part 2 of this series, I explained a bit of how the Canadian/Ontario justice system function:  in order to safeguard from a government that will either fail to bring charges against certain individuals or will not uphold certain laws, each and every citizen has the power to, as a private person, lay criminal charges.  However, this safety-valve (a citizen-empowering protection against a corrupt government) is immediately eviscerated by permitting the government of the day, called ‘The Crown’ and represented by the office of the Attorney General of Ontario, who both employs all the crown prosecutors and is appointed by/serves at the pleasure of the Premier of Ontario, can take over any private prosecution and stay the charges for ever….and the example of Gary McHale in Caledonia was explained.  (This very legal precedent was cited heavily by The Crown representative in this court hearing.)

In Part 3 of this series, I explained a bit about the concept of ‘summary dismissal’ – using the example of Baglow vs. Free Dominion and John Does as an example.

Thus, we find ourselves on the morning of the 18th of August, 2014, in the Ottawa Elgin Street courthouse,where the hearing between our concerned taxpayer (CT) and The Crown (which too over his prosecution of Kathleen Wynne, the former Transportation Minister of Ontario and the current Premier of Ontario, whose signature on documents seems to suggest she used undue pressure to force Ottawa and Toronto transportation authorities (meaning ‘government-usurped monopolies’) to use an outdated and overpriced ‘Presto’ system in place of competitively awarded contractors to provide an electronic public transit system payment method).  The CT laid private criminal charges against Kathleen Wynne, as a private individual, for wasting over half-a-billion of taxpayers money in an ongoing action, which CT perceives as criminal.  The Crown took over this private prosecution and shelved it – so it would never see the light of day or be acted upon.  Which CT protested against, and it was these protests that The Crown wanted to be summarily dismissed.  As ‘The Crown’ answers directly to the Attorney General, who is appointed by and serves at the pleasure of the Premier, Kathleen Wynne, CT challenged this on the grounds of conflict of interest.

The setting is the palatial Elgin St. Court Building in downtown Ottawa, smack dab next to the Ottawa City Hall (with its cheap underground parking – seriously, you’d be hard-pressed to find cheaper parking anywhere else in downtown Ottawa).

The courthouse itself is very, very beautiful.

The core of the building is open – from the first floor all the way to the top, filled with light.  I entered on the 1st floor (the underground basement floor houses the prisoner cells), from the City Hall side, walked past the Tim Hortons and was just about to head to the 2nd floor, where the main,  Elgin Street entrance, is with its information booth to find out which courtroom this hearing will be held in.

As I passed the Tim Hortons, I saw Beth Trudeau and a group of other people walking towards the stairs.  As I caught up to them, Beth introduced me all around:  there was Jack MacLaren.  Another was Jean-Serge Brisson. Another was the concerned taxpayer, CT, in a crisp dark suit, with a light shirt and a finely striped tie.  They, too, were in search of the proper courtroom.

The information desk people, you see, my dear reader, were completely baffled as to why CT might be showing up for court today – they certainly had no record of him or his hearing!

So, the little band of corruption fighters was directed to ask at the criminal courts booth – since this is a criminal case, these people were bound to know where to go!

I must admit, when he walked up to the booth, I stayed rudely close so that I may hear the conversation.  Bad manners on my part, perhaps, but I did want to bring you as much of the story as I could…  Everybody else stood a polite distance apart.

The pretty young woman with a ready smile who worked the booth was very pleasant, but quite definite – CT might as well go home as there is no hearing scheduled for him for that day…

CT – a very pleasant fellow, tall, broad-shouldered with eyes so deep one could loose oneself in them forever – was insistent:  he was given official notice that his case was to be heard today and he would very much like somebody to tell him which courtroom to go to.  Charming and polite – yet determined, with steel in his spine!  The pretty young woman frowned, creasing a wrinkle in her otherwise unblemished forehead, and left.

An older, more knowledgeable-mannered woman came in a few minutes and took her place.  CT smiled and asked where his hearing was to be held.  Shuffling the papers authoritatively, the senior woman, too, insisted that there was nothing on the schedule for the day that even remotely resembled the case he was talking about.  As she was telling him that he must be mistaken in the day his hearing was to be held, the younger woman joined her and shook her head in eager assent.

At this point, CT took out the paper with his official notice of the hearing, to be held today, in this courthouse.

‘Oh, THAT case!’

Of course they knew about THAT case!  It was to be held in courtroom #34!

The younger woman even volunteered that they had been discussing this very case just earlier that morning…

Which, of course, begs the question:  if they had been discussing this case just earlier this morning, how come they had both claimed never to have heard of it before?

Should this be chalked up to simple bureaucratic incompetence, or is the fact that they are employed by the people whose boss answers to Kathleen Wynne, the subject of this lawsuit?

I guess we will never know…

 

More to follow in Part 5 of this narrative.

 

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