Dr. Baglow vs. Freedom of Speech: September 23rd, 2014 – Roger Smith aka Peter O’Donnel

This is reporting on a real-life (unfortunately) court case, the whole narrative of which is indexed in Dr. Baglow vs Free Speech – and listed at the top bar of this blog.

As I left off, Barbara Kulaszka, the lawyer representing the defendant Mark Fournier, had finished her closing arguments.  It was now Roger Smith’s (known online as Peter O’Donnel) turn to make his closing arguments.

It is difficult to describe Roger Smith in a few words because he is quite a complex person.  Even my short exposure to him made that clear.  So, what I write, can only be a very tiny glimpse of this unique (in a very good way) and highly intelligent man.

Roger Smith is of a similar age as the plaintiff, Dr. Baglow, and both have silver hair – but that is where the physical resemblance ends.

Where the extroverted Dr. Baglow is expansive, speaks loudly with expressive body language (his doctorate is, after all, in poetry – so some theatricity ought to be expected) while the introverted Roger Smith is shy and humble in his demeanor, speaking softly and gently.

So, one has to listen carefully when Mr. Smith speaks – not just because he is soft-spoken, but also because he makes many little jokes under his breath!  And his jokes are well worth straining one’s ears for.

Even Madame Justice Polowin seems to enjoy his jokes – her eyes sparkle and she has even, a couple times, rewarded Mr. Smith’s humour with the kind of smile usually reserved only for Mr. Frankel.  (At least – in this courtroom…..though Connie has, at times, earned it as well.)

I will be paraphrasing a lot, but, to the best of my understanding, Roger Smith’s defense revolved around the following points:

Firstly, he asserted that the impugned words were actually not defamatory – and urged the judge to find that way.  After all, the fact that the late Jack Layton was referred to as ‘Taliban Jack’ not only did not cause him any defamation, it seemed to actually help his electoral success!

Madam Justice was nodding her head in assent.

Secondly, he (RS) did not mention the plaintiff by name – Roger Smith’s online pseudonym called Dr. Bglow’s online pseudonym a name.  But, pseudonyms are not the same as real-life names and, as even the court’s own expert had testified, people often build a very different, unique persona for their online pseudonym – one which intentionally differs in tone and perhaps even opinions from their real-life identity (for various legitimate reasons).  Thus the two ought not be conflated:  Roger Smith did not call Dr. Baglow anything – Peter O’Donnel called Dr. Dawg a name, that’s all…

In addition, the context of the debate – ongoing, skipping around all through them interwebitudes from blog to blog to discussion boards and back again, over a number of days – had reduced the defamatory potential of the impugned words to exactly zero.

Since that debate did bounce around from one online place to another, it is not the easiest thing to follow the actual real-time sequence in which the various comments were made because some were time/date stamped in one time-zone, some in another.  In order to make it easier for Madam Justice to follow the timeline, RS had taken the pains to sequentialize them in Appendix A.  Madam Justice was much less interested in this at that point in time than Mr. Smith was, but, in my never-humble-opinion, she will find it a useful tool as she reviews the evidence.

Which she will – she made that abundantly clear!

For the duration of the trial – and even in the communication that was not publicly visible, like the various emails that form the voluminous body of the exhibits in this trial and tribulation, the plaintiff and his lawyer, Mr. Burnet (who had, actually, commented as a ‘guest’ on the Warman trial coverage on this very blog in the past), had referred to Roger Smith as an old crank, a wingnut.

This, I believe, was the very word that Madam Justice Polowin used extensively when questioning the court expert on online media and communications – and he assured her that once a person has acquired an online reputation as a ‘wingnut’, nothing that person says will be taken seriously by anyone else and his commentary will either be skipped right over or simply seen as humorous interlude…

But, I digress…

Throughout this whole ordeal, Peter O’Donnel had been referred to as a crank, a nut, a wingnut…and his writings were referred to as ‘incoherent rambling’ and ‘woolly essay’.  In other words, ridiculed and dismissed.  There was even one email read into evidence from Dr. Baglow to someone (Jay Currie, I suspect, but am not certain) where Dr. Baglow dismisses Peter O’Donnel as an inconsequential crank, saying he’s probably not even going to bother suing him because coming from him, the impugned words ‘mean nothing':  it was the Fourniers he was going after for having provided a forum for this speech to be uttered.

So, RS continued, he was surprised that in his closing arguments, Mr. Burnet had promoted Roger Smith to an intelligent man, a deep thinker … and his writing was promoted to ‘well-composed prose’!

It was at this point that Roger Smith earned one of Madam Justice’s impish smiles and her cheeks even flushed a bright pink, as I suspect she was working hard to stifle a fit of giggles…apparently, this ‘promotion’ had not gone unnoticed by her!

Working on his momentum, RS continued building his defense, recalling the plaintiff’s words (which Dr. Baglow regretted and apologized to ‘our agricultural workers’ for having used) ‘yokels with pitchforks’ and re-classified Omar Khadr and his ilk of terrorists (the subjects that evoked the impugned description of Dr. Dawg from Peter O’Donnel) as ‘super-yokels with rifles’.

And, a substantial number of Canadians (59%, if I understand it correctly) do hold the belief that lending moral support to Omar Khadr is indeed ‘giving moral support to the enemy’…it would, in very real terms, enhance their geopolitical struggle on the other side of the world if their members were receiving moral support from some people over here, undermining our political will to continue in the armed struggle.

RS asserted that leftists often make common cause with terrorists in their regional struggle.  (Indeed, I would have taken this further, pointing out that many leftists believe that their utopian end justifies any means and that supporting (directly or indirectly) the enemies of our Western society, based on civil liberties, will bring our civilization down faster, which will help them build their tyrannical dystopia that much faster.)

The judge interrupted RS at this point, saying he need not belabour this:  she understands that he means that ‘support’ is more than just money or direct fighting…

During this bit, Dr. Baglow was leaning back from the table, his long legs elegantly crossed in front him in a classical ‘power pose’ – but he was very fastidiously studying his manicure.

Mr. Burnet was using the index finger of his left hand to tap his ear, listening carefully to every word and undoubtedly preparing for his rebuttal at the end of the day.

Indeed, RS continued:  support can be passive, like supporting ‘carbon taxes’…I suppose the climatologist in him cannot be suppressed! (By the way, according to the brief discussions we had during breaks, our scientific conclusion on ‘Global Warning’ are pretty similar.)

His essay (within which the impugned words were contained) covered a number of topics – from Steven Harper to long-form census (something that was VERY HOTLY debated in my own family:  one of those instances where my brilliant economist father-in-law, who had been a special economic adviser to 4 different Liberal Prime Ministers – two as PM’s, two while Ministers of the Crown who later went on to seize ‘the brass ring’, well, he and I battled long and loud over the souls of the next generation of our family over this issue! I think it was the next generation of our family that won:  they were forced to consider the issue from all possible angles and reach a conclusion of their own (not that they’d tell us what that is)!!!  Which, really, is the point…  Though my hubby and my mother-in-law tried throwing things at us (figuratively!) to change the topic….it seems not everyone appreciates a heated, no-holds-barred political discussion at the dinner table!  Which reminds me – I must get something awesome prepared for the next family holiday….) Re-focusing!

The essay covered things as diverse as the ‘beer and popcorn’ fiasco and lamented the hypocrisy of calling conservatives ‘yokels with pitchforks’.  RS admitted freely that it was a poorly written essay, and that it rambled a lot and would not have won any essay contests!  Indeed, it was so poorly written that the thread was virtually unread…until, that is, this whole thing erupted!  Then Streisand effect took over….once Dr. Dawg and MsMew sank their teeth into it (my words, not his).

OK – I must admit to you, my dear reader, that I have mangled both the wording and the timing of the various arguments.  I am working both from memory and my notes – and when I see something touched on, I keep writing – spilling the whole scoop to you, even when it ought to have just been foreshadowing…then, I read on and find the full argument I described 300 words ago only happened now.  Please, forgive me my sloppy reporting – I just wish someone better at it than I would have been in the courtroom to present another accounting of the events.

I would be remiss if I did not mention that throughout the trial, different people did drop in for a bit here and there.  Today, for example, Mr. Frankel’s sister-in-law, who is a law student, dropped by the courtroom to watch the closing arguments (and got to have lunch with Mr. Frankel to boot!).

He-who-must-not-be-named (on pain of legal action)  also dropped in every now and then, though not today.

And Canadian Cynic, known in the blogosphere for his knowledge of Linux (good) and for hurling misogynistic slurs at conservative women (sad, so very sad) on the internet (at least, that is what a quick Google search suggested), also popped in a few times:  I even saw him chatting with Dr. Baglow in the hallway, but no matter how hard I tried to establish eye contact, I failed.

On this last day of this case, there was also a youngish man with a mop of blond hair, a gray tweed jacket, light open-necked shirt with a subtle stripe and blue jeans.  I approached him during the lunch break and sked if he were a reporter.

“Sort of” he smiled as he slid over a copy of Frank magazine.  “I’m with them!”  I saw him later chatting with Canadian Cynic.  Funny thing is – Frank magazine’s name did actually pop up in the trial earlier, as an example of how different print media have differing ‘standards’ for ‘discourse’…as in, one would not expect as colourful a language in, say, CTV or CBC or ‘Globe and Mail’ as one would from ‘Frank magazine’…  And demonstrating that different segments, even wihin the same ‘print media’ would have different levels of discourse and expectations of the way language is used is at the very heart of this court case: the plaintiff asserts that once published, even to one person, the ‘language’ must be ‘standardized’ and it really is of no relevance whether this is a scientific treatise or a tabloid or a shock-jock-thingie (WIC radio case)….while the defense is claiming that in different platforms, the participants are performing for different audiences and that the expectations and understandings of the particular audience of their message board is of paramount importance because it is the perceptions of that segment of the citizenry who will be exposed to the impugned words, so, how they perceive will define their defamatory potential.

OK, I have been generalizing again – but I think that this is important because conveying the ‘flavour’ of the differing sides is so core to this very case….

Thank you, my dear reader, for having indulged me thus far.

I have attempted to capture both the substance of Mr. Smith’s defense as well as the atmosphere in the courtroom.  But, let me return to it, in my most imperfect manner.

Roger Smith explained to the judge that he truly and honestly held the belief that what Dr. Dawg had posted in his comments constituted giving aid and comfort to the terrorists and enemies of Canadian Armed forces in Afghanistan – and that while he held these beliefs about the words posted by Dr. Dawg, he did not harbour any personal malice against Dr. Baglow himself … but that the evidence bore out that, sadly, this was not true in reverse.

RS pointed out that while Dr. Baglow had reached out to Connie and Mark Fournier, asking them to settle out of court, he had not presented any such opportunity to Mr. Smith himself.  Not once had Dr. Baglow extended Roger Smith the courtesy of even contacting him…

Any reading of the discussion, as it evolved over the 7 or so days, will reveal deeply vitriolic comments made by Dr. Baglow – much more so than by RS.

‘Begly’ (the name that the defendant, at this point, thought was Dr. Dawg’s meat-space name – not even being aware of the proper name of the pesky paintiff who thinks himself so important that ‘everyone’ knows him, yet he should not have to meet the ‘higher bar’ for defamation set for ‘public figures’ – he’s the only ‘public figure’ who should have the ‘private person’ protections against legitimate political criticism), Zyklon B, pot-calling-the-kettle-black…you get the picture.

At this point, Mr. Smith became unsure if pointing out just how much of a chill a ‘guilty’ verdict would cast over the interwebitudes and just how cluttered the courts would become with defamation cases if the bar were to be set this low…  Being a principled person, he wanted it judged on the merits of this case – which he honestly thinks are insufficient for the finding of defamation.  But, this is where he was, in my never-humble-opinion, torn:  he wanted the court to be aware of the potential real-life implications of setting the bar this low, without appearing to ‘fear-monger’ or some such thing.

Madam Justice Polowin found this rather endearing:  she assured Mr. Smith that the so called ‘floodgates argument’ is not without merit and is, at times, successfully employed by real-life lawyers at court so he, as a self-represented citizen, ought not be ashamed of raising it.  And she smiled…

I know my words do not do justice to this moment at court but I’d like you, my dear reader, to know that this was a ‘Moment’ with a capital ‘M’…if you excuse the expression.

At this point, Roger Smith concluded his defense by saying that he cannot afford a fancy lawyer and that it would probably have been wise not to fight this battle, but, that he was not fighting it just on his own behalf but also on the behalf of the many Canadians who cherish their freedom of speech and exercise it, including on the internet, and that he felt that it was his moral obligation to our society to fight this battle!

In her right, Madam Justice Polowin seemed to understand this – and appreciate the kind of sacrifice it took Roger Smith to go on and fight for all of us!!!

She beamed a wonderful smile at him, and assured him that, for a self-rep, he had done an admirable job, that he was respectful of the court rules and, along with Connie, they had been some of the most professional self-reps she had ever had the pleasure to preside over.

 

Judge Jim Gray – Judging The Drug War

Food for thought…I have never, ever, in my life indulged in illegal drugs – not even marijuana.

Why?

Because as illegal substances, there is no way of knowing if they are adulterated with poison….

But, I do think that ‘drug laws’ are an abomination:  they are an admission that we are the slaves of the State – if the State did not own our bodies, it would not have the jurisdiction to govern what we do or do not choose to put into them.

Now – aside from the ‘recreational’ drugs, there is another, to me, more important implication of drug prohibition and the related legislation:  the only people who can legally ‘prescribe’ medication are people whom the government permits to do so.

And these are people educated in government controlled facilities, largely funded by drug manufacturers.

This is a glaring conflict of interest.

I am not saying that every MD out there is in the pockets of Big Pharma.  Far from it.  But, the education they receive is not well-rounded…and there is no other field that competes against the ideas – or, indeed, complements them.

No, I am not saying that homeopathy and such are credible – just that the only things that get research money for proper scientific examination are in a very, very narrow field.

Let me give you an example of what I mean:  the ‘placebo effect’.

Currently, it is regarded as no more than a nuisance:  patients think they are getting medicine and so get better…even in cases of legitimate disease that is not just a figment of the patient’s imagination.  So, studies control for it in order to evaluate the efficacy of drugs.

But, turn this around:  if there is a way to ‘trick’ the body into healing itself using no harsh chemicals – why are we not studying this in the most rigorous scientific manner possible?  A cure with no side effects is nothing to sneeze at…

That is just one tiny little example.

Another one is from my own experience:  I have some rather rare health issues which most likely stem from having spent the first 13 years of my life 7 km downwind from a chemical plant in a socialist worker’s paradise (where the people who regulate the chemical plants – the government – are the same people who own them – the government – and there is no governing body over them to bring them into compliance with even the pitiful regulation they do have on the books….).  So, some informed friends did some digging in the scientific literature and found a precedent for treatment of conditions like mine.

Awesome, right?

Wrong!

I cannot get that treatment, because it is ‘not common’ and, whole a whole slew of MD’s I brought it to believe it would likely make it possible for me to live again a semi-normal life (no longer bed-ridden and all that pain), they will not prescribe it because ‘it is unusual’ and ‘prescribing it might make the OHIP – the government bureaucracy that oversees the MDs – suspicious enough to audit the MD who prescribed it, which would be too much of a bother….much better not to help me return to being a productive member of our society…

So – when we talk about drug prohibition, do keep in mind that we are not just prohibiting narcotics and halucinogens – we are prohibiting people from accessing legitimate medication needed for the treatment of real-life medical problems!

Because, like it or not, if I were to go out and seek health-restoring medications for myself, I could end up in jail for life on an ‘illegal drug’ conviction.

Not all drugs are ‘recreational’….but they are all equally illegal!

And that does not even scratch the surface of incentivizing police forces to focus on drug busts and the accompanying property forfeiture instead on preventing property and violent crime…

 

 

 

Thomas DiLorenzo – Labor Unions and Anti-Trust Laws

Comment, please!

TIE-DYED TYRANNY

 

Making the corrupt Ontario Government accountable

This is a continuation in a series about the efforts of one Concerned Taxpayer (CT) to make the corrupt ‘Liberal’ Ontario Government in general and Kathleen Wynne in particular accountable in the court system of our land.

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.

In Part 4 of this series, I sketched the atmosphere that morning and wondered at the difficulties our wonderful civil servant had in telling everyone – the plaintiff included – where the hearing is to be held.

It was really strange:  I had been over at this courthouse observing a number of cases, usually related to the Freedom of Speech, and always, the staff at the Elgin St. Courthouse in Ottawa have bent over backwards to help me find the proper courtroom.  This was the first time when they were not just ‘unhelpful’, but aggressively so!

(Not the guys at the front desk – they just didn’t have the info.  I mean the ladies at the proper counter, who insisted no such case was to be heard that day (18th of August), but who immediately reversed themselves when CT showed them his summons, even volunteering that they had ‘just been discussing this case’…

Now, please permit me to paint the two protagonists:  the CT (Concerned Taxpayer) and the Attorney for the Crown (AC).

CT is tall, dark and handsome.

AC is short, balding and cute, in the way, say, a chipmunk is.

CT is serious and eloquent.

AC is blustery, flustery and blushes at the first provocation.

Both sides are ‘ready’ and roaring to go.

But, the judge said that only 5 or so minute had been allocated for this hearing and she was absolutely not prepared for more than that.

AC argued that she need not be ready – just kick it out and be done with it…he assured her CT had no case.

CT argued that justice delayed is justice denied and that he would very much like to have a hearing that day.

It seemed that the judge was in a bit of a pickle.  Whoever had scheduled this hearing had clearly not permitted for a proper hearing, had not given the judge a chance to prepare for it and slotted it into an inappropriate category.  I have absolutely zero training in legal matters, my formal education being in Physics and Anthropology of Religion, but to my ‘peasant/scientist brain’, it looked like whoever slotted this hearing into this spot was attempting to sabotage CT’s case.

Yes, of course:  never attribute to conspiracy what can be explained by incompetence.

But – this was beyond incompetence.

If it had just been the case of slotting it into an inappropriate format of hearing. OK – perhaps incompetence.  But, the sheer aggressive unhelpfullness of the clerks coupled with an inappropriate slotting by peers of these clerks – well, let’s just say it seemed one too many complications for random incompetence.

Eventually, after much pleading from CT, the judge agreed to set aside 30 minutes at the end of her day (before another, previously scheduled hearing) to hear both sides.

So, we filed out into the hallway and waited.

When I say ‘we’, I mean CT, an MPP, and a group of other supporters of CT, some of whom were involved with the Language Fairness movement.  CT went to collect his thoughts and condense his arguments into a very shortened form, the rest of us chatted and waited.

Finally, our time was up!!!

We were in!

And, since The Crown initiated the move to dismiss, they were the first to speak.  And the AC did speak, at great length, explaining why it was silly for people to think that elected officials ought to be held accountable for their actions….  It seemed to this observer that his main aim was to waste time, so that CT would not have a chance to argue his case.

Indeed, the Crown’s position took up 20 of the 30 allotted minutes, leaving CT at a distinct disadvantage to make his case.

The AC argued that the transcripts of what occurred during the last hearing are essential to determine the judge’s finding….and, even though CT had requested (and paid for) these transcripts, this hearing came up before they had been delivered and without these transcripts, it would be impossible for the judge to find for CT….

In other words, the AC seemed to argue that since the bureaucracy was too slow to provide the transcripts, the case ought to be summarily tossed out.

Am I the only one to see a flaw in this reasoning?

When CT finally had a chance to present his case, he pointed out that the transcript was irrelevant:  since the person charged, Kathleen Wynne, is now the Premier of Ontario, and the Attorney General serves only at her pleasure, and the Attorney General is the employer of the AC, there is a clear conflict of interest here and the case ought to be moved from the provincial realm (controlled 100% by Kathleen Wynne – the accused) to the Federal level…

The judge appeared shocked at the level if interference this situation would have permitted – and it looked like she was about to rule for the CT, when…

In the counterargument – permitted by the judge – the AC argued that Kathleen Wynne onlu out-ranked the Attorney General as a public figure…and that CT was suing her as a ‘private citizen’.

At this point, the judge seemed to assess the direction ‘from which the wind was blowing’ and, suddenly and without warning, issued her ruling:

IF CT had sued Kathleen Wynne as a member of Ontario Government, he would, indeed, be correct that the case ought to have been transferred to Federal Court because of a conflict of interest.  BUT, since he sued Kathleen Wynne as a person, not as a member of the government, this does not hold since no ‘person’  can have an influence over the office of the Attorney General.

!?!?!

After the ruling had been issued, CT pressed the judge (to the point where some of us in the audience feared him being penalized for his boldness).  He got the judge to admit – for the record – that she had not read the case, the arguments either side made, but was basing her decision solely on what she heard in the very limited time had been allotted to this case due to it being slotted into the wrong bit to be heard/presented.

He also got her to clearly state that had he sued the Government of Ontario rather than a private individual who just happened to be  member of it, he would have succeeded is demonstrating a conflict of interest for the case to be heard in provincial rather than federal court.

Pat Condell: The real enemy within

To learn more about Cultural Marxism, I highly recommend CodeSlinger’s guest post on this subject.

Nanny of the Month: August, 2014

A few days late, but still worth it:

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