Concerned Citizen seeks justice – again

Next year will be the 800th anniversary of the Magna Carta.  While the significance of this document is no longer taught in schools, we should all take a moment and recall some of the reasons for its being.  And while I am no historian or legal expert (my training is in science, not law), I have learned a bit about our heritage as the Children of the Magna Carta.

One of the many reasons why this Great Charter is so important is that it ensures that the ‘King’s justice’ will be available to all the citizens, not just the select few who are rich or high born.  For this purpose, the Charter establishes local courts where individual citizens can have their grievances heard and ruled on, thus truly bringing the rule of law to all of the citizenry.

I cannot stress the importance of this:  it is one of the foundational principles of our civilization.

In a real sense, it establishes the governance through which individuals, regardless of their means or position in society, can seek legal redress for their grievances.  In other words, in establishes the means through which every citizen can be a true equal in the eyes of the law.

Having grown up on the wrong side of the Iron Curtain, I have lived in a society where all kinds of laws to protect human rights exist, but there are no means in the system for ordinary citizens to attain them.  The necessary result of this kind of system is tyranny:  if you have no means of legally seeking a remedy to wrongs, the laws that assure you of your rights are meaningless.

This is why, in Canada (as in other Magna Carta descended societies), there is a system of governance in place for simple citizens who are unable to afford fancy lawyers to seek justice through our courts.  And THAT is how all citizens are equals before the law.

And so it is – in theory.

In reality, it has become exceedingly difficult and prohibitively expensive for one of us, ‘the unwashed masses’, those of us not living privileged lives, to seek legal redress of wrongs through our legal system, be it criminal or civil.  Lawyers, as well as court costs and all the accompanying bits (transcripts necessary to ‘move things forward’ and so on) are not cheap.

Like, really, really not cheap.

In other words, the financial burden severely limits regular citizens’ access to legal remedies for wrongs suffered.

So, what is a Concerned Citizen (CC) to do when there is an appearance (real or imagined) collusion between various politicians and, what’s worse, between different levels of government which results in very real costs, exerted from said Concerned Citizen through increasing his tax burden?

Well, this particular CC has decided to try to reduce his legal costs while seeking justice for the damage of unnecessarily increased taxation by trying to bring lawsuits against the politicians and/or bureaucrats in the centre of this perceived financial wrongdoing by self-representing.  He is, after all, the founding member of the Municipal Citizens Action Group – so he takes the frivolous waste of taxpayer dollars very seriously and is driven to bring us all justice.

And what a bumpy road it’s been!

You know that saying, ‘you can’t fight City Hall’?

Well, CC is trying to fight not one, but two City Halls and a Provincial Government to boot!

For non-Ontario residents, this is probably a new issue – because lamestream media barely covers it.  But, in a nutshell, here is the crux of the matter.

Ontario government passed a law permitting various municipal transportation authorities (run at an ‘arm’s length’ by the municipal governments) to use the open bidding process to choose the best advanced electronic payment system for the collection of public transportation fares.  The municipalities, when they decided to go electronic, started this competitive bidding process and, in many cases, chose an inexpensive commercially available system already proven to be reliable in many municipalities, including Gatineau, just North of the Ottawa River from the City of Ottawa.

So far so good, right?

Not so fast.  The Ontario Provincial Government had, in its wisdom, decided that two  of the largest system, the Toronto and Ottawa ones were – and this is where things get fuzzy – mysteriously moved to abandon the bidding/contract process altogether and, instead, purchase a Metrolinx Presto system somehow backed (or something) by the Ontario Provincial government.

What is more, the Presto system was not ‘commercially available, off the shelf’ system that had been tried and proven effective:  oh no, that would be too easy!  Instead, Metrolinx began to develop a whole new, ‘custom’ system with a ‘custom price-tag’.

A very, very BIG ‘custom pricetag’!

Oh, and did I mention the system sucks?

Late.

Not working.

In other words, what was predicted all along by people when the competitive bidding process was abandoned.

Now, I do not know this to be true, but I have heard a rumour or two that some Liberal insiders, friends of the Provincial government bureaucrats and politicians, have made a pretty little profit on this whole Metrolinx/Presto venture.

And there were legitimate reports at the time, from mainstream media, of municipal politicians claiming that the only reason the cities of Ottawa and Toronto have gone with this overpriced, untested and underperforming system is because if they had not done so, the Provincial government would have withheld funds due to the cities from gas taxes (for road maintenance) and for public transit expansion.

Interestingly enough, the former Provincial Minister of Municipal Affairs (through whose office this ‘threat’ would presumably have been channeled) had since become the Mayor of Ottawa – and, all of a sudden, nobody in Ottawa, bureaucrat or councilman alike, remembers telling the media that there ever was any threat.

And, the former Provincial Minister of Transportation (from whose office this ‘threat’ would presumably have originated or been channeled) had since become the Premier of Ontario – the head honcho herself!

And not only had the previous bidding process been abandoned by the Toronto and Ottawa Transportation bureaucracies in favour of the overpriced and under-performing Metrolinx/Presto system, they have also both failed to enforce hundreds of thousands of dollars in penalties permitted under the contract.

Money that had to be made up by squeezing the taxpayers even more…

This is where things begin to get very, very interesting.

CC was trying to figure out some way to get to the bottom of this whole mess and reparation of financial damages for the taxpayer.  But, where to start?

One of the things he tried doing was to sue Kathleen Wynne, the now Premier of Ontario.

In Ontario, a private citizen may lay criminal charges against someone else and pursue a private prosecution in the criminal justice system.  That is still leftover from the Magna Carta days – even if the costs are so prohibitive, CC had to represent himself, despite not being trained in the law.

However, at their discretion, The Crown may, at any point in time, take over a private citizen’s criminal prosecution and pursue it as it wishes.  Or not at all.

This has been done in the past when citizens, frustrated with race-based policing, tried to get justice in face of Police so cowed by the Liberal government that they would not enforce the law if the victims were of the ‘wrong’ race.  The pattern – quite invariably – was to let the citizens spend as much money on the private prosecution as possible, then take it over and immediately dismiss all charges.

This case was no different:  when CC was heavily invested in private criminal prosecution of Kathleen Wynne, the Ontario Premier, The Crown took over the prosecution and moved to have all charges dismissed.

But, this was different:  the top guy governing the public prosecutor’s office in Ontario serves 100% at the pleasure of the Premier of Ontario.  CC appealed the dismissal of the charges, arguing that since the head of public prosecution is employed by the Premier, dismissing charges against Kathleen Wynne who happens to be Premier is a bit of a conflict of interest and that instead of dismissing these charges.

Slam dunk – right?

After all, even the appearance of a conflict of interest is a definite threat to our constitutional democracy, right?

Well, I was in court that day, watching the judge jump through loops of logic so convoluted that she ended up ruling that had CC brought an action against Kathleen Wynne – the Minister and Premier, he would be correct that The Crown was in a conflict of interest to drop the charges.  But, he had brought the charges against Kathleen Wynne, that means the private person of Kathleen Wynne, and since her actions in this were as a Minister/Premier, not a private person, there was no conflict of interest…

Really.

At every step of the way, CC has been thwarted by obfuscation and, what in my never-humble-opinion constitutes miscarriage of justice.

But, CC is tenacious.

At every step, when he was thwarted, he pushed the judge in question to tell him how else  to approach the issue so that he could get an honest ruling on the true merit of the core issue.  In fact, he pushed so hard that, at times, I and his other supporters spectating were afraid he would be disciplined for trying so hard!

And, whenever thwarted, CC would file a new suit based on the direction of the previous judge.

And the new suit would come up and the judge would, invariably, demand very costly transcripts of all the cases that were filed before – yet these would suit to obfuscate the issue and CC would find himself arguing the previous, already lost case, instead of the new one.  And if he resisted introducing the transcripts, wanting the suit to be judged on the new grounds, he would be told that no decision can be reached without the the transcripts, even though he kept insisting this was a brand new case that ought not be tainted…

This last Friday was no different.

The case was presided over by Justice Charles Hackland, known for presiding over high-profile cases – such as temporarily removing former Toronto Mayor Rob Ford from office on conflict of interest charges.  (Of course, Rob Ford was a Conservative, and Justice Charles Hackland’s ruling was later reversed by another impartial judge…)

The very start was an omen of things to come…

Usually, it is up to the prosecution to present their case to the judge first.  As such, CC stood up and was ready to present his case when, in the most patronizing tone ever, the judge asked him to sit down, saying that he’d like to hear the intro to the case from the defense because, you know, lawyers speak a common language and so, non-lawyer CC should just shut up and listen to his betters.

At least, that is how I heard it!

It was with this opening sentence of the judge that I thought CC’s case was lost.

I have, over my career as a blogger, been to a few hearings, both before the provincial and federal judges.  In some cases, I saw people represented by lawyers, in others, I saw not-rich people self-represented. In all instances of self-representation, the judges made sure to make the law as accessible to the citizens as possible, some of them even citing that it is their duty to make sure regular people have as ready an access to the courts as people who can afford expensive lawyers and that they were both willing and legally obligated to make this happen.

Never before have I encountered a case where the judge would be, from the onset, contemptuous of a private citizen’s effort to get justice, even though they cannot afford a $500/hour lawyer.

Perhaps I am misreading this:  after all, I am an Aspie and nuances of human behaviour often escape me.  But, from the onset, I thought the judge was actively annoyed that a non-lawyer would dare to argue a case before him.

In this part of the overall effors, CC was trying to sue the City of Ottawa for not acting on the clauses in their contract with Metrolinx/Presto to collect penalties in non-delivery/non-performance of their system.  From what I understood, the unnecessary cost to the taxpayer of this whole fiasco topped half-a-billion dollars…though I have no idea of the breakdown of all this, since I did not have the court documents in front of me.

Still, half-a-billion dollars here, half-a-billion dollars there, and, pretty soon, you’re talking real money!

Predictably, the City of Ottawa lawyer poo-poohed the whole issue…

When CC was finally allowed to speak, he was no longer permitted to present the issue as a whole.  Instead, he was subjected to questions from the judge like:  “It seems that the City of Ottawa may have some claim, but have failed to act on it.  What gives YOU any standing to file a lawsuit on their behalf?”

This, necessarily, put CC on the defensive…and he did his best to defend his position.

Still, being on the defensive and explaining his legal standing in this, he had no opportunity to present his core issue.  The judge got more and more alienated from him as the morning wore on.  The judge broke with the statement that he did not really comprehend why CC was there and that, following the break, he was to explain why he ought to have a standing interest in this matter.

During the morning break, CC and his loyal band of supporters (including me) talked over the morning’s events and worried about how to get the core message across.  Being my not-so-shy self, I tried very hard to help come up with the proper explanation for why CC had a valid interest in this case.

OK, I was a bit pushy.  That’s my nature!!!

In the end, when the case resumed after the morning break and some administrative stuff got out of the way, CC asked the judge to permit me to explain the core of his case.

Amused, the judge agreed!

And so it came that I got to actually talk in a case I was covering, as a blogger.

I stated my name for the court record and explained that I was a blogger who was following this case – and that I would be glad to help the court understand CC’s position because since I have been writing about his quest, I might be able to help.

OK – this was very adrenalin-producing.

I do not recall a single thing I said.

Yet, I do recall trying to explain the situation as I have in the words above, though condensed to a few short sentences.

After a short 3-4 minutes, the judge asked me if I knew whether CC had ever sought advice from a lawyer.  I replied truthfully that I had no idea, I just wrote about the case and had never met CC outside the courthouse.

Still, I felt that question was rather ominous – as if only a legal expert were permitted to seek justice….it left me very pessimistic, regardless of what was to come.

Following my brief little speech, CC did an awesome job presenting his position.  In my mind, he truly made his case.  He explained that he submitted evidence that a Dianne Deans, the head of the City of Ottawa Transportation Committee, had been quoted in the newspapers saying that the Province (and these are my paraphrasing, not her exact words) had threatened the City of Ottawa with withholding transfer payments to the City if they did not go with Metrolinx/Presto and/or enforced the penalties for late/not working systems.  I may have misunderstood his argument, but, to the best of my highly flawed recollection, this was the central point of his argument.

When he had asked The City about is, he claimed (I think) that Dianne Deans claimed never to have made such a statement to the media.  She replied in an email – not a sworn statement which the CC had sought because a sworn statement was subject to cross examination, while a simple email was not.

The City lawyer argued that the email, which blamed a bureaucrat for the leak, was answer enough.

CC pointed out that he demanded to know, from the City of Ottawa, if a bureaucrat was the actual source of the quote (rather than the Transportation Chair, Dianne Deans), that The City was obligated to tell him the identity of that bureaucrat (Norwich ruling).

The City lawyer claimed this was frivolous and unnecessary – and since the Province was the source of all this unpleasantness, CC knew who the culprit was and the Norwich thingie did not apply.

The judge reserved his ruling.

Yes, I do think this is a very meritorious case.

No, I do not think justice will be done.

I hope to be proven wrong!

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Daniel Hannan: Anomalous common law

 

Is ‘Halal meat’ acceptable to non-Muslims?

We have been told, over and over, that ‘Halal meat’ is the ‘lowest common denominator’ for all peoples:  that is, that serving ‘Halal meat’ does not infringe the sensibilities (religious or otherwise) of non-Muslims while serving non-Halal food does….the logical conclusion being that serving Halal meat is the best course of action.

Indeed, in the UK, many have bought into this line of reasoning, including many schools.  They no longer offer a non-Halal meat option.  Indeed, many supermarkets in the UK offer Halal-slaughtered meat only – without labeling it as ‘Halal meat’ or ‘Halal-compliant-meat’ or ‘Halal-slaughtered-meat’.

However, serving/selling Halal meat is not as ‘universally acceptable’ as many Islamist lobbyists would like us to believe…even if we were to leave out the implications of the rules required for ‘Halal certification’, which violate our hiring/labour laws based on not discriminating on the grounds of relgion when hirin workers, as in order to maintain ‘Halal’ certification, only Muslims and/or Muslim supervisors are permitted.

When I was doing a little bit of research on this, I discovered that ‘Halal-certified meat’ could, indeed, be problematic.

The first group to be strictly forbidden to consume ‘Halal meat’ my research encountered were the Sikhs….who are very strictly forbidden from consuming ‘Halal meat,’ indeed.

It would appear that there are two distinct, both important, doctrinal reasons for the prohibition.

  1.   Sikhism requires that an animal is to be killed in as swift and painless manner as possible in order for them to be able to eat it.  The Islamic method of ‘Halal slaughter’ violates this by requiring animals to be slowly and painfully bled to death.  When India was conquered by Muslims and the Koranic method of slowly bleeding the animal to death was imposed, Sikh religious leaders forbade all Sikhs the consumption of meat slaughtered in such a cruel manner.  Most Sikhs will prefer to become vegetarians rather than eat meat that was slaughtered by either the Halal or Kosher method.
  2. Sikhism forbids the eating of food that was ‘prayed over’ or that was ‘sacrificial’.  This, of course, would apply to all ‘Halal meat’, which is prayed over and dedicated as a sacrifice to ‘Allah’ as it is slaughtered.

Here are the references:

  • Sikhs.org – Sikhs.org/meat
  • this source adds a third reason – ‘sovereignty’ 
  • even Wikipedia has some info on it:  Prohibitions in Sikhism     (Not that I consider Wikipedia to be an authoritative source – I included it to demonstrate that this is a well known principle of mainstream Sikhism and does not just represent the position of some obscure fringe sect.)

The Sikh method of animal slaughter is called ‘Jhatka‘.  It is very clear that Halal meat cannot be Jhatka meat and Jhatka meat cannot be Halal meat, as described in one of the references cited already above (first bullet).  They are, by definition, mutually exclusive.

What I found interesting while doing this research is that meat-eating Hindus are strictly prohibited from eating Halal meat.  The references  found are not deeply scriptual, but they do demonstrate this is a widely held belief: here and here.

Here is a news report that demonstrates that Buddhists also find the consumption of Halal meat problematic on doctrinal grounds.

Needles to say, secular humanists are very strongly opposed to the consumption of Halal meat because of the extreme cruelty of the method of slaughter.  Here is just one example.

What is interesting is that when I was poking around on the internet, I have found a curious twist to things:  in both the Old Testament and in the Apostolic Letters of the New Testament, there are clear and strict prohibitions for Christians on the consumption of all sacrificial meat.  As all Halal meat is, indeed, sacrificial meat by the virtue of the prayer chanted over them as they are slaughtered (this is indeed the Sikh and Hindu interpretation, as well), some of the better-informed, or, perhaps, more doctrinally-adherent Christian sects are, in fact, interpreting this to mean that Christian scriptures strictly forbid the consumption of Halal meat.

In conclusion, Sikhs, Hindus, Buddhist and Christians are doctrinally forbidden from consuming Halal meat and secular humanists tend to avoid it on animal cruelty grounds.

Thus, any and all claims that ‘Halal meat’ ought to be the ‘default’ or ‘lowest common denominator’ for serving food in schools or other institutions, or that it is not necessary to label ‘Halal-slaughtered-meat’ as ‘Halal-compliant’ or ‘Sharia-compliant’ in our restaurants and retail stores is an obvious violation of the freedom of religion provision of our constitution – and, as such, cannot be permitted and/or tolerated.

After all, each and every one of us deserves the right to make a choice – an informed choice – about the food we consume.

It is our constitutional/common-law right – now let us make sure our governments require the proper labeling so that we can, indeed, make the informed choice our constitutional/common-law rights give us!!!

CodeSlinger on ‘natural rights’

A few days ago, I posted on the 2nd Amendment and a pro-gun ownership ad.  After a short comment exchange, I received this response from CodeSlinger which, in my never-humble-opinion, deserves a full post of its own. 

It is that important!

CodeSlinger says:

And this ramifies into the whole issue of the source and nature of rights and morals.

By claiming that rights are conferred by the state and morals are a matter of consensus, the neo-liberals utterly destroy the concepts of rights and morals. They reduce rights to the status of mere privileges, and they reduce morals to the status of mere laws.

In this way, neo-liberalism is no better than the religions it denigrates. Neo-liberals claim that rights and morals are handed down by the state, while religious people claim that rights and morals are handed down by God. They do not recognize that a man has rights simply by virtue of existing, nor do they understand that right and wrong are determined solely by what kind of creature a man is.

A man is a living creature capable of reason and compassion. From this it follows immediately that his inalienable rights are life, liberty, privacy, property, self-defence and self-expression. It also follows directly that whatever causes a man harm by violating his rights is wrong, and whatever is not wrong is right.

Recognition of these principles places strict limits on the rightful power of the state vis-à-vis the individual, much the same way that the American Constitution was intended to do, only more so. It leads to the understanding that the only legitimate purpose of the state is to equally protect the equal rights of each and every individual. Everything the state does beyond that causes more harm than good.

And, of course, this flies in the face of everything the neo-liberals want, which is why they hate the Constitution and the principles of inalienable individual rights and universal morality on which it is based.

These principles give them freedom to do as they please, but also burden them with responsibility to take care of themselves — all without violating the rights of such others as have not violated theirs.

But neo-liberals would rather give up their rights and freedoms and bow down to the state, which they want to make all-powerful, because they foolishly think an all-powerful state will take care of them. This desire is hopelessly unrealistic and childish, and it is exactly what religious people want from their God.

Thus when neo-liberals call themselves citizens of a state, they mean exactly the same thing that religious people mean when they call themselves children of God. In this regard, religious people are more honest than neo-liberals, because they acknowledge that being taken care of by an all-powerful entity reduces them to the status of children — or chattel, which they acknowledge when they compare themselves a flock of sheep.

Neo-liberals seek to spare themselves this admission by secularizing their beliefs and values. But a rose, by any other name, would smell as sweet.

The cultural Marxists who created neo-liberalism, complete with its politically correct self-sacrificial secular Edenism, were highly accomplished psychologists and sociologists. They knew perfectly well that this would happen. If they tore down traditional religious and family values and created widespread conditions leading to arrested emotional development, there would be only one possible replacement that could meet the subconscious psychological needs of the resulting post-modern tribe of hopelessly lost adult children: the apotheosis of the totalitarian state.

That’s right, neo-liberals worship the totalitarian state, even while they fancy themselves to be oh-so-sophisticated and secular.

This is what really underlies their rabidly relentless attack on the Constitution and the principles it is based upon.

Free Dominion and John Does won the right to have a jury trial!

In today’s world, individual civil liberties are consistently being eroded, bit by bit, from all sides.

Religious an ethnic minorities demand special group rights, only to then use these extra powers to oppress minority voices within their community.

Corporations with well-funded lawyers and lobbyists are subverting the patent and copyright law infrastructure to erode individual customer rights to an unprecedented degree.

Governments are abusing powers given them for legitimate security purposes to spy on their own citizens.

Even though these all seem like separate issues, they all have one thing in common:  slowly but certainly, they are stripping us of our rights.  We must fight all these assaults, as best as we can.

And, there are brave and strong people among us who are indeed standing up and fighting for our rights.  The one tool we must not loose, the one without which we will be completely unable to defend ourselves, is freedom of speech.  Anonymous speech is an essential component of freedom of speech, both on city streets and on electronic super highways!

Mark Cuban and Notch have recently each donated quarter of a million dollars to EFF to help protect our freedom on the internet.  Mark Cuban even went as far as to establish  ‘The Mark Cuban Chair to Eliminate Stupid Patents’!

Here, in Canada, Connie and Mark Fournier are fighting the same fight, though in a slightly different manner – and more and more of us are beginning to understand the importance of the legal precedents they are setting in this most worthy battle.

 

Today, a motion hearing in the case of Warman v. Free Dominion and John Does was held in Ottawa. Connie Fournier has written up her account of today’s hearing here.

I have reported on this case in the past.  If you are unfamiliar with it, here is a quick summary (simplified and the way this all appears to my untrained, layman’s eye, to the best of my highly limited understanding):

Richard Warman is suing Free Dominion and its founders/operators, Connie and Mark Fournier, and several of the posters on the forum Free Dominion (the ‘John Does, two of whom have still not been identified) for posting things online about him that he does not want people to post online.

It’s kind of hard to keep the details straight because this is not the only lawsuit Mr. Warman has brought against the Fourniers and Free Dominion (FD).

And, FD and the Fourniers are not the only ones who are being sued by Mr. Warman – he has filed tens of lawsuits against many conservatives in Canada in what his targets believe are attempts to silence political debate in Canada.

This particular lawsuit has been going on for five or so years…so far!

The last time there was a hearing in this case, the judge gave both sides until the end of January 2013 to file any amendments to their pleadings (i.e. improve their arguments, which they have to adhere to when they argue their case in court).  Still, whenever an amendment to pleadings is made, the other side has to see the changes, so they may address them and therefore submit corresponding little changes of their own.

So, whenever one side makes changes to their pleadings, the other side gets to see them and either agree to the changes or argue in a ‘motion hearing’ why these changes should not be allowed – and why.

Warman’s lawyer had submitted some changes to their pleadings and the Fourniers and their lawyer did not contest them.  However, when the Fournier’s and their lawyer submitted some changes of their own (some as a response to the changes from Warman’s side and some of their own) Warman’s side refused the changes and forced this motion hearing to decide which, if any, of these changes will be permitted.

And that is what today’s court session was about.

I arrived at Ottawa’s Elgin St. courthouse nice and early and headed to Courtroom #35, where this motion hearing was being held.  Since I have last been there, they have added nice new little boards beside the door to each courtroom, where a lit sign informs you whether the court is in session.  Below that there are special bits where sheets of paper can be affixed which inform you of all kinds of things, including what cases are scheduled to be heard there, who is the judge hearing them, and so on.  In the past, these announcements were simply stuck to the wall beside the courtroom door with sticky tape – this looks much fancier and very professional.

The information posted on the new fancy board let me see that today, the 3rd of January 2012, civil motions including  the Warman v. FD & John Does will be heard by Justice Toscamo Rocammo.

Connie and Mark Fournier arrived smiling and full of confidence, with their lawyer, Barbara Kulaszka following them shortly.  Just as we were entering the courtroom, Richard Warman (in a stark black suit, starched white shirt and shiny silver tie) arrived – on the heels of his lawyer, the ever charming James Katz.  (I am sad to report that Mr. Katz is still clean-shaven and has not returned to wearing his distinguished-looking beard.)  Both were smiling and though Mr Warman was busy studying his shoes as he passed me, he offered me a polite greeting.

The courtroom itself was very quiet and as we entered, we all automatically adopted very hushed tones.

Mr. Warman’s side was seated on the left (as one would reference it when just walking through the doors in the back wall of the courtroom).  Mr. Warman seated himself with his lawyer at the front (the tables from behind which the lawyers plead their case) while the Fourniers sat further back, on the spectator benches, letting their lawyer Ms. Kulaszka sit at the table by herself.  The courtroom itself was large, with a glass prisoner box in the centre and a spacious jury seating at the front right, at right angles to both the judge and the litigants/spectators.

In addition to the above-mentioned participants and a smattering of spectators (yours truly included), there were two more people present during the proceedings – but they were participants in a motion hearing for another, quite unrelated case, which was also being heard this morning.

At 10 o’clock, the (presumably) judges clerk came in and announced that as the judge was quite tied up this morning, we may have to wait for a while before the hearing would begin.  By this point, the tension in the room was palpable and the hushed tones became even softer….to the point that I realized that the pen I had taken out to take notes with (and with which I was drawing nervous doodles while waiting) was exceptionally loud and I scrambled to find another, less noisy one.  That’s how thick the atmosphere was!

At 10:07, the bailiff came in through the door at the judges’ end of the room, ushered in a young, dark haired mystery woman and seated her in the spectator gallery directly behind Ms. Kulaszka.

At 10:20, we rose and Madam Justice Toscamo Rocammo herself entered, the traditional black judges’ robes with a bright crimson sash billowing about her slender frame.  Her dark hair was cropped in a shapely cap and her gaze was sharp and penetrating. She positively bristled with energy and intelligence.

I am not knowledgable in what is ‘usual’ behaviour for judges, having only spectated in a handful of cases.  However, Justice Toscamo Rocammo’s behaviour was somewhat different from how I have seen other judges behave – much more direct and very refreshing.

She informed us that she had read through all the submissions and understood them.  She also realized that their motion was set for 1 hour only and that if they (and I am strongly paraphrasing here) intend to haggle over every detail in every paragraph, this would – by far – not be enough time.  She gave the lawyers a choice:  pick a different date, when more time could be set aside for the hearing, or she could give them some guidance as to what parts of their respective positions were strongest and they could then focus their arguments accordingly, so we could get through it in that one hour.

Wow!

This seemed to take both lawyers by surprise and they hummed and hawed a little bit, so the judge repeated her offers and then queried them again as to which way they’d like to proceed. Led by Ms. Kulaszka, both lawyers agreed that they would welcome the judge’s guidance and would like to hear her views on the case.

Because all the parties involved – the judge and both lawyers – were very familiar with all the facets of all the arguments, I can now choose to report exactly what was said in the sequence it was said, or I can jumble up the timeline a little and present the various points that were made in the point by point fashion, so that those of us who have not studied the full submissions would follow the points themselves….  I do hope you’ll forgive me, but I am going to choose the latter option because, to be perfectly frank, that’s the only way, with my limited layman’s knowledge, I think I can make it understandable.

1.  Increased costs from additional discovery

If, at this point, the type of trial is switched from ‘by judge’ to ‘jury’, Mr. Warman’s side argued, this would necessitate that they do a whole new lengthy and costly ‘discovery process’, which is unnecessary and who should pay for it…  Madam Justice made it clear she did not think a whole new discovery process would be necessary.

2.  Jury Trial

The FD side was asking that instead of being heard only by a judge, they would like their case to be heard by a jury as well.  The Warman side said that, 5-or-so-years into the trial, it’s a little late to request such a big change:  there’d have to be a whole new discovery process and that is costly and time consuming and unfair and all that.

Justice Toscamo Rocammo said that whatever her own personal feelings may be, there is a legal precedent for situations  of ‘late jury notice’, set in the case of Nikor v. Proper in 2010 (2010 ONSC 2307).  The test that is applied in these situations is two-pronged:

1.  Circumstances.

2.  Prejudice (is someone trying to get an unfair advantage)

She stated that the right to a jury trial is a very fundamental one and to vacate it, one must have a very strong argument.

The affidavit Mr. Katz had submitted to support his claim that the request for a jury trial be denied was, in her opinion, unsupported and unsupportable.  She told Mr. Katz that his case ‘has frailty in the second prong of the argument’, while Ms. Kulaszka’s argument ‘is good’ and strong.

Madam Justice pointed out that this case was getting ‘long in the tooth’ and that, from her reading, both parties bear a partial responsibility for this but that.  And, some cases are complex and they do need the time to sufficiently address all the facets of the case.  However, (and here, I am very strongly paraphrasing) since the previous judge had given both parties till the end of January 2013 to file any amendments (such as this), she does not see why the counsel did not simply agree with this and forced a hearing to be held at all.  It is my impression that she considered it a disrespectful waste of the court’s time and of everyone’s money…

3.  Increased time for cross-examination

Both sides were asking for a 2-hour increased cross-examination time on the witness stand – to address all the amendments and changes that were made…  I must honestly admit that if Madam Justice addressed this point at this time, it escaped me.

*   *   *

However, she did offer the counsel on both sides to go, sit down somewhere for 30 minutes (while she’ll begin hearing the second case).  Then, they could come back and inform her that they had reached an agreement (a choice I somehow sensed she strongly preferred), if they will make the shortened arguments or if the case should be re-scheduled for a full hearing at a later time.

Now she did something I have never seen another judge do, either.  She turned to us, the spectators, and asked if we were there concerning this or another matter!

I must admit, I was not sure how to answer the question correctly:  does she mean if we are there in some sort of an official capacity with one party or another, or what….  My face must have shown my confusion clearly (I am NOT fast on my feet, thinking like this….).  Luckily, Connie Fournier came to the rescue and informed the judge we were there for that case, so the judge thanked us and gave us a chance to leave the courtroom.

I waited in the hallway outside the courtroom while the litigants found an open room where they could discuss things in private.

At 11 o’clock, both sides returned, smiling, and we went back into the courtroom…  As the last of us made our way in, Madame Justice was already discussing things with Mr. Katz and Ms. Kulaszka.

The two lawyers had informed her that they had indeed come to an agreement on the majority of the issues:

  • Jury trial was on
  • All changes submitted by the FD side were in
  • Additional costs associated with any additional ‘discovery’ will be paid for by whoever loses the case
  • FD side agreed that Connie Fournier could be under cross-examination for additional 2 hours

The only thing that was still in contention was the FD request that Richard Warman should also be cross-examined for 2 more hours – something Mr. Warman was not willing to agree to.

So, there was a bit of back-and-forth on that as the judge asked some very focused questions on this matter.

The judge said that if Ms. Kulaszka could demonstrate to her that she needed the additional time to cross-examine Mr. Warman as a result of ANY of the changes he had submitted to his pleadings, she would allow it.  At this, Ms. Kulaszka bowed he head low and her short reply was in a voice so soft, I could not hear her words in the spectator seats.

Madam Justice replied to her that since Ms. Kulaszka wanted the additional time for something ‘she could have asked earlier, but did not bother to’, she would not allow the extended time for the cross-examination of Mr. Warman.  A setback, but a relatively minor one!

All sides agreed that this will all be filed and formalized by the end of the day – and the hearing concluded!

As we were were departing, Madam Justice Toscamo Rocammo once again turned to us in the spectator gallery and thanked us for coming and participating in the process.

What a judge!

Outside the courtroom, I congratulated the jubilant Fourniers on this major victory, which puts them into a better position when the main trial itself will take place, likely in early September 2013.

Michael Geist: F is for FreeDominion.com

Over at OpenMedia, Dr. Michael Geist has written up ‘Milestones in 2012 from A to Z

From the remarkable battle over the Stop Online Piracy Act to the massive public backlash against Internet surveillance in Canada, law and technology issues garnered headlines all year long. A look back at 2012 from A to Z:

I particularly like ‘F’:

F is for FreeDominion.com, an online chat site that defeated a claim of copyright infringement involving the posting of portions of newspaper articles.

Well said!

And, congratulations to Connie and Mark Fournier, the founders and administrators of Free Dominion, for the recognition which they so richly deserve.  As I write this, they are heading beck to court.

5 years and no end in sight…

But they do fight the good fight!!!

H/T:  Andrew

Free Dominion: ‘ Richard Warman and National Post owe Fourniers $7,230.44’

From the Free Dominion site:

by Connie Fournier » 10/ 02/ 12 8:02 pm

In an assessment decision filed yesterday costs were awarded against Richard Warman and the National Post for their loss in the Federal Court copyright case. They owe us $7,230.44.

Although this is a drop in the bucket considering what Maximum Disruption has cost us, it is a very substantial award for self-represented litigants, and we are thrilled with this decision!

Read the reasons here: http://www.freedominion.ca/images/Asses … easons.pdf

 

Connie went against some of the most expensive lawyers money can buy – and won!

Well done!