The couple who is leading the legal fight for the freedom of the internet in Canadian courts was recently interviewed on the ‘Just Right’ radio program.
The couple who is leading the legal fight for the freedom of the internet in Canadian courts was recently interviewed on the ‘Just Right’ radio program.
Free Dominion is in the forefront of the battles for the freedom of speech and for the freedom on the internet, Their path has not been easy, but they are determined and brave and understand just how important freedom is. They have already won some important rulings in court regarding privacy on the internet, which is why they made it to Michael Geist’s list of internet achievements of 2012!
However, legal battles are expensive.
If Mark and Connie, the people behind Free Dominion, run out of funds, no amount of determination will help. The wanna-be-oppressors know this. That is why, just as Mark and Connie announced their new fund-raising campaign, they have tried to keep the word from getting out by hitting their site with a DDoS SYN attack…
Please, help spread the word!
And, if you can, chip in a bit…
From Connie Fournier:
‘As many of you know, Mark and I are fighting three trials this year related to issues of online freedom of speech. We just started our largest fundraiser because we need to raise $50,000 to cover the cost of all of those trials.Almost immediately, the Free Dominion website was attacked by hackers. We are fighting what is called a DDoS SYN attack where dozens of computers are sending messages to our server in an attempt to overload it and shut it down. We keep blocking IPs, but new ones spring up almost immediately and the attacks start again.Sometimes we will have periods where the site is accessible to read, but many people cannot post. Then they come back and increase the attack until the site becomes inaccessible again.We desperately need help!We can’t get the word out about our fundraiser because many of our regular readers can’t get into our site to find out about it.We really need people who care about free speech to circulate this email, tell your friends, or post it on your blogs.Somebody doesn’t want us to meet our fundraising goal, but we have to do this. Internet freedom depends on it!Here is the link to our fundraiser, please pass it around! http://igg.me/at/internetThanks so much for your help!Connie’
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.
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.
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:
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:
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.
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.
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!!!
Tomorrow, January 3rd, 2013, Mark and Connie Fournier from Free Dominion and John Does will again be at the Elgin St. (Ottawa) courthouse in yet another motion hearing in the lawsuit brought against them by Richard Warman.
Whether you’d like to support them or if you would just like to observe lawfare at work, come on down. Other cases permitting, the ball should get rolling around 9 am.
This case has already set legal precedents in the field of internet privacy which are being cited in Canada as well as in the USA, so it is worth it to keep our eyes on this one!
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!
Free Dominion, the oldest conservative internet discussion forum in Canada, has made the pages of WorldNetDaily!
‘Mark Fournier, in a statement on the website, explained that the appeals court has instructed parties to return to Superior Court with expert witnesses who can better inform the court of the many new issues related to the situation.
“Traditional defamation law is badly in need of an update in its application to the Internet,” Mark Fournier wrote.
“Unfortunately, and for reasons we do not understand, the high court ordered us to pay John Baglow $14,000 in costs. It is difficult because the appeals court wants us to help them examine these important issues, yet they placed a financial burden onus that could potentially knock us out of the game. If this happens it will be bad for Canadian Internet users.
“We will remain in an era where Internet arguments will be settled by SLAPP suits and lawfare, and, to us, that is completely unacceptable.”’
The article also lists the link where one can donate to help the Fourniers fund the legal battle to keep our internet speech free and a link to the long list of legal battles the Fourners have already withstood!
The website is in Arabic, but since it is easy to get translated (not well, but understandably), please, feel free to visit the site ‘Free Saudi Liberals’.
According to Human Rights Watch, that website’s creator Ra’if Badawi has been arrested and charged under the cyber-crimes law for having created and operated this website. Apparently, providing a forum where people can discuss matters of concern ‘infringes on religious values’.
He is also criminally charged with ‘not obeying his father’…
‘Court documents show the evidence against Badawi includes a post on the website that asks, “is God unjust?”, sarcastic remarks about the Saudi religious police and a senior scholar, and a post that asks, “why is Saudi’s Grand Mufti blind?”‘
Online political forums are important to society.
And, it is not only in Saudi Arabia that online forums are targeted by censors. Right here, in Canada, the methods may be civil rather than criminal law, but, the impulse to censor is the same. At least here, we can help people who are unfairly targeted raise the funds for their defense.
The Free Dominion fundraising site is here.
Jewish Defence League Fundraiser for Marc and Connie Fournier of Free Dominion
Monday July 9, 2012, 7:00 pm——9:00 pm
Toronto Zionist Center, 788 Marlee Avenue
Marc and Connie Fournier run the site Free Dominion. They have been sued several times by people who want to limit free speech on the Internet. They are certainly not rich. These suits could affect everyone of us who write or comment on the Internet. It’s time to help the Fourniers fight suits from people that promote ‘Israeli Apartheid Week’ and the Muslim Brotherhood. Now is the time to fight back.