This is a continuation of a prolonged court, the earlier bits of which are here: Day 1 part 1 and part 2 , Day 2, Day 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
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.
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!!!