Plus a bit of commentary:
Plus a bit of commentary:
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.
This is a report on an ongoing trial: the rest of this account can be found here (and at the top bar of this blog).
On September 22nd, the judge warned everyone in the courtroom that come hell or high water (and, I am paraphrasing here), this trial was going to finish tomorro – that is, today. In order to make sure that this indeed comes about, she would recall everybody into Courtroom #20 of the Elgin Street Courthouse in Ottawa, Ontario, at 9am instead of the usual 10am – adding a one-hour ‘buffer’ to their time.
Aware of this, I arrived at the Courthouse nice and early – about 25 minutes after 8. I strolled slowly through the parking garage, stopping to chat with one of the attendants whom I got to know well enough to say ‘hi’ to over the duration of these proceedings. Then I had a tea and went to the ladies room before – with plenty of time left – strolling up to the 2nd floor and to the appointed courtroom.
Surprisingly, I did not see any of the actors in our little drama – and I began to get an uneasy feeling. Did I get the time wrong?
I checked my notes and the wall clock and, sure enough, I still had 12 minutes before the proceedings started.
Ah – there was a paper sticky-taped onto the door – perhaps the press finally figured out the importance of this case to their own ability to report the news and enough of the showed up to have to move things to a larger courtroom!!!!
Here was some incoherent message about teenagers and dating…. But, the look at that sheet of paper gave me a glimpse through the double doors’ windows…and it looked like the trial was already ongoing!!!
Not wanting to make a lot of noise inside the courtroom upon my arrival, I took my notepads and scribble-tools (today I was using a blue Zebra pen, fine point – they write quite quietly and have a good feeling in the hand, heavy but not too much so…) OK, I got my implements to hand and intramurated velocitously. (Yes, I am a huge fan of Black Adder – and if has, at times, affected my vocabulary….though, the character I most closely identify with is Baldrick.)
OK – in I sneak and sit down as quietly as possible.
Everybody is in and things are in full swing!
Barbara Kulaszka is standing up and speaking.
To her left, Connie Fournier sits calmly, wearing a dark purple pantsuit and a cream blouse, which I will later notice has a delicate black embroidery and is accented by a single strand of knotted pearls, long enough to reach beneath the blouse’s collar. The overall look is pleasing, but, from behind, the bob in which her hair is cut is just the wrong length, making her neck appear shorter than in had in her previous outfits. However, this optical illusion is dispelled when Connie glances back and gives me a warm smile.
To the right of Ms. Kulaszka sits Roger Smith, aka Peter O’Donnel, in his blue blazer and another pair of tan slacks. His shirt will later be revealed to be almost a twin of his earlier one – black and charcoal stripes, but instead of a blue pinstripe, this one has a gray one.
Next is Mr. Steven Frankel, the brilliant young lawyer representing the CCLA.
To his right, Mr. Burnet, the Plaintiff’s lawyer, had his gaze firmly fixed on the judge and was listening intently to Ms. Kulaszka’s every word. He had better, too – at the end of the day, he’d have a chance for a brief rebuttal to all the defendants’ closing arguments, so listening intently was very critical.
On the far right, as usual, was Dr. Baglow…I bet he does not hear that phrase very often!!! Sitting far back from the table, his legs elegantly crossed in front of him, he had a calm and almost serene demeanour. In his signature black suit and, as he once wrote, ‘the most comfortable walking boots on Earth’, I glimpsed a navy cuff of a shirt, if I am not mistaken…though, I must admit, I was so busy trying to catch up with what was being said that I did not take the time to note this down. My apologies.
Later, during a break, Dr. Baglow helped me out: he said he noticed I was wondering about the pin in his lapel. It was indeed some sort of an abstract maple leaf: a pin denoting 30 years in the Public Service. During another break, he let me know that the reason why he only wore his gun-metal-rimmed glasses at some times was because they were reading glasses and he only needed them at some times.
This made me a little envious: I also have glasses, but mine (purple-rimmed) are progressive trifocals….yet, I still vacillate between wearing them or not. When I wear them, I can actually see what is going on: the major things, like people’s expressions and demeanour (I may not be able to decipher it, but I can at least describe it) – and the minor things, like, say, what I am writing down. However, I cannot shake the feeling that, when I am not wearing my glasses, I get a much better feel for everything….that I can better absorb the atmosphere and emotions and all that. So, I am constantly putting my glasses on, taking them off, putting them on, taking them off….sitting on them….sorry, I am rambling….
As I started taking notes, Barbara Kulaszka (BK) was just speaking about Dr. Baglow having been at the forefront of the Omar Khadr re-patriation movement.
If you read my blog regularly, my dear reader, you will know my views on the huge miscarriage of justice that is the Omar Khadr case. Perhaps it is my Aspieness, but, I am a big one for the adherence to the rule of law. Yes – sure, I hate some laws and believe that we MUST change them – but, until such a time that we DO change them, we are obligated to follow them.
And, according to the Geneva Convention, there was only one legal manner to deal with Omar Khadr: two bullets to the back of the head.
Anything less is a failure to adhere to the International Law and endangers civilian populations at the hands on non-uniformed combatants. The Americans ought to be prosecuted for War Crimes for having permitted Omar Khadr to live and even rendering him medical aid!!! Such a travesty!
At an earlier time, I actually had a conversation with Dr. Baglow about Omar Khadr and I mentioned that the two of us would probably agree that, in his case, the International Laws were not followed. Indeed, I raised the subject specifically because I expected him to elaborate, so that I would have the opportunity to point out just how deeply misguided – if not downright evil for endangering civilian populations everywhere – his position on Khadr was.
Unfortunately, Dr. Baglow just sighed deeply and looked so very, very sad that I did not have the heart to continue the conversation…and thus did not have an opportunity to enlighten him on the error of his thinking.
OK – back to the important stuff!!!
BK was explaining how Dr. Baglow was at the forefront of calling for the repatriation of the War Criminal Omar Khadr.
Next, she defined what the word ‘supporter’ means: one who supports.
For example, a ‘supporter’ of the Maple Leafs’ is NOT somebody who plays hockey with them, who is a member of the team. Rather, it may be somebody who buys their merchandise or watches their games or just says things that are nice about them. Even, perhaps, just expresses sympathy with them when they are loosing…
Similarly, saying somebody is a ‘Taliban supporter’ – it does not mean he is one of the Taliban!
Rather, it means somebody who may say things that express empathy with the Taliban….
OK – I am having a hard time wording the next bit: most likely because BK is much nicer a person than I am, much kinder and gentler…and I am ‘choking’ on typing the words she actually said, as they show way more of an empathy for Omar Khard than I am deeply convinced he deserves… But, she was speaking for the defendants, not me, so I must choke down my opinion and report to you, my dear reader, her words…
BK said that ‘expressing support for ‘the human rights’ (as if a non-uniformed combatant had any, under international law) of Omar Khadr’ could be interpreted as expressing empathy for the Taliban’ – and, by definition, that would be included in ‘being a supporter of the Taliban’.
Indeed, argued BK, the plaintiff himself used the very same logic when he said that the CCLA supported father Boissoin (a Catholic priest who was given a lifetime ban by a Human RIights Tribunal on speaking about the Catholic Church’s position of homosexuality), saying that the CCLA ‘gave aid and comfort to hate speecher’ and that they were ‘hate-speech facilitators’…that the CCLA ‘stands with haters’ and ‘aids in homophobia’.
BK asserted that ‘giving aid and comfort’ is, indeed, the very definition of ‘supporter’!
At this point, Madame Justice (her black judicial robe, white collar and red shash accentuated only by perl stud earrings and simple, elegant rings on the ring finger of each hand) nodded her head in assent and reasoned agreement.
In addition, BK carried her momentum forward, this was the medium of a Message Board – not a scholarly dissertation…which, through medium alone, classified this as a ‘comment’…
The Judge wondered about this being ‘fair comment’ if fully 41% of Canadians shared Dr. Baglow’s view. If I were the lawyer, I would have quickly pointed out that the fact that this automatically meant that 59% of Canadian did NOT share Dr. Baglows view – making this a very fair comment indeed. But, I am not a lawyer, nor do I play one on the internet…
Instead BK took a much better tack, pointing not to peasant logic, like I would have, but to actual law: she presumed Mr. Frankel would speak to this later (to which he nodded – earning one of Madame Justices’ broad smiles), but, the legal test (as per the WIC radio case ) was whether ‘anyone can honestly hold that opinion’. Not the majority, not 41%, but ‘anyone’. (And, I am heavily paraphrasing – I am simply not able to take notes fast enough! You, my dear reader, ought to fire me and get a faster writer to report on this!!!)
As in, of ‘anyone’ can honestly hold and express this belief – that is the test.
This, the Judge agreed with.
Which is where things took a turn into territory rather unknown to your reporter – but one that seemed very familiar to both madame Justice Polowin and Ms. Kulaszka: the Vietnam War issue… They had a fun back-and-forth about someone named ‘Jane Fonda’ and a nickname of ‘Hanoi Jane’ – but, not knowing the context, this did not make much sense to me. But, the two of the seemed happy, joking, agreeing – on the same ‘note’, if you get my drift. ‘Ancient argument’, ‘based on fact’ – these were the terms ‘flying about’.
In his turn, Dr. Bagglow seemed so bored, he was in danger of falling asleep…
Which is where the topic of ‘Taliban Jack’ got re-introduced (it had been discussed ‘many’ times before to illustrate how hyperbole and nicknames and memes work).
From here, the proceedings took a turn into legaleese: another field I am blissfully ignorant of. All I can do is report the words…and badly, at that, as I am not fast enough to get them all down…my deepest apologies, my dear reader!
Madame Justice Polowin wanted to know how does this get ‘around’ the ‘Grant’ test.
BK disagreed – the ‘test’ here was not ‘Grant’ but ‘WIC‘. People listening to a ‘shock jock’ would know a well-followed controversy, the facts of the case were known to the audience in that case as in this one. Roger Smith was talking about ‘Dr. Dawg’ – a pseudonym.
If people did not know who ‘Dr. Dawg’ was – then, saying something about a ‘pseudonym’ was clearly not defamatory.
If people DID know who ‘Dr. Dawg’ was – then they would have been following the controversy and been aware of the background facts…and thus would have been able to understand the sense in which the words were uttered – making them, yet again, not defamatory!!!
What needs to be weighed here is the state of mind of Dr. Baglow during this whole exchange: from the very beginning, his aim was to find a pretext to sue her client.
The judge did not, to my untrained eye/ear, appear particularly empathetic to this line of reasoning…as expressed by the succinct: “So?!!?”
Which I took to imply that the plaintiff’s state of mind had no relevance on whether or not he was defamed…by the defendants…
BK handled this rather well.
As Dr. Baglow sighed deeply and examined his manicured hands, BK explained tat re-posting the disputed words AGAIN using his sock-puppet persona ‘MsMew’ ensured that even if the original words were taken down by Roger Smith, they would remain on the site – along with the malicious identification of Dr. Dawg as Dr. Baglow. This demonstrated malice – but not on the part of her client, but on the part of Dr. Baglow…
Indeed, BK continued, given the definition of the word ‘supporter’, her client did not think the impugned words were ‘defamatory’ in any way, shape or form (yes, I am paraphrasing).
Dr. Baglow, on the other hand, had demonstrated malice with his ‘sock-puppetry’ – and, as Dr. Dawg and MsMew, it was he who was bullying her client.
As for ‘malice’, the ‘WIC’ case demonstrated that even though the ‘shock-jock’ ‘hated’ Ms. Simpson’, that was irrelevant in the legal ‘finding of malice': rather, paragraphs 67 to 85 (of the ruling in the WIC case, I can only presume) show that since the dominant motive was that the ‘shock jock’ ‘believed’ what he said, the fact that he also hated her did not matter.
OK – I freely admit, there was a bit here that went 100% ‘over my head': something about ‘Ross vs. New Bruns’ or something somewhat similar….predominant motive, tab 12 paragraph 106…I have no clue what this was about…
Yet, this concluded this bit and, in the next installment, I shall report on Roger Smith’s closing arguments!
This seems like an appropriate rant for today:
This is one in a long thread of posts, the full listing/ordering of which can be found in this header page.
Change was in the air on this sunny, crisp September Monday morning. On the drive to the Elgin St. Courthouse in Ottawa, I heard the radio announcer say that fall will descend on us at 10:29 today (thought I have since learned she ought to have said 22:29). The sun was trying its best to warm the day, but the wind was chilly and cutting.
Peter Burnet, the plaintiff’s lawyer, did not seem to mind the chill as he walked up Elgin Street just before 8:30 am: he seemed preoccupied with what the day would bring! And no surprise – he was the first one scheduled to give his closing arguments: a lot of pressure, indeed.
Later, when I saw him (suited up in his black lawyer’s robes) in front of Curtroom #20, he paid a compliment to my ‘sartorial reporting‘ on this case.
Yes, I had to look it up: which shames me a bit, my dear reader. I really should have known that word!
When I was studying Physics at Carleton University, back in the late 80’s, I needed to supplement my income (I usually worked a few part-time jobs, but hourly wages were rather meager) because not only did I pay for my own education, my hubby (then fiance) and I had planned to marry and buy a house, so I needed not only to pay for schooling, but to also raise enough money for a down payment (well, my share) upon graduation.
To do this, I found an extremely fun and easy way to make money: I started to design clothing.
No, I never built up any stock or anything – it seemed more prudent to me to just design one-off pieces only after I would receive an order for them. I did a couple of things at cost for a few people, then word began to spread and soon, I could pick to fill only a few of the requests that came my way. This was not only fun, but let me set a high enough price per piece to hire people to do the ‘making’ of the piece once I finished the design and bought the materials.
This was a truly fun aspect of the whole venture: I had met a number of women from Muslim backgrounds who were thrilled to be in Canada, but whose husbands did not want them to work outside the home. So, I would explain to them exactly what to do and how, and they could do it, on their own, in their homes – and earn a little money on the side (I was very fair, making sure the ‘maker’ earned exactly double of what my pay for the ‘design’ was – and the ladies knew and appreciated this). It gave them a bit of independence, but in a way their husbands accepted. And, they would whisper to me, it made them feel ‘more Canadian’!
The communications barrier was a bit high at first, but while I had been taking English as a Second Language classes, I had had the opportunity to learn few conversational phrases and words from dozens of languages, so, using this and practical examples, I could train the first few ladies, who would then train their friends – as need arose.
So, it had been great fun as well as a source of income. But, despite ‘exclusive offers’ from some ‘prestigious design houses’, I could not see myself happily existing in the world of the fashion industry, so, when I earned my Physics degree, I said goodbye to this chapter of my life!
Still, I should have learned the language…
Today, there were a number of students floating through the courthouse, reading what courtroom had what hearing, and choosing which ones to sit in on. Two of them indeed chose to sit in on the early bit of this morning’s going on’s.
There was another observer in the courtroom as well – I have not met him personally, but he bears a striking resemblance to Robert Day. To court today, he wore a black shirt bearing ‘Networked Insights’ embroidery (I think) and brownish pants and shoes.
Connie Fournier wore flattering black slacks and shoes, a pretty blouse flecked with black, white and red dots, and the blood red cardigan with the shiny gold nautical-look buttons. Her usual good cheer was there, as was her ready smile, but she looked pale and tired: this is definitely taking a heavy toll on her health. I just wanted to hug her and tell her all will be alright – but, I couldn’t because I really don’t know that…I felt so stupid and useless!!!
Mark Fournier, on the other hand, looked as steady as a rock. That man’s stamina, optimism and faith in humanity has no limit! He looked his charming self, smiling, joking, carrying heavy boxes as if they were nothing. He wore his navy blue pinstriped suit with an open-necked burgundy shirt.
D. Baglow wore his flattering black suit with an open-necked black shirt, black boots and silver detailing (fixtures, watch, maple-leaf pin in the lapel). He looked serious and somber.
Roger Smith is a deeply interesting man. He has humble mannerisms, but his eyes betray a high intelligence and sparkle with humour – the kind of person whom you could trust with anything without worries, in the knowledge that he has both the integrity and the intelligence to do ‘right’ in every possible situation. The more I see of him, the more I like him and the deeper my respect for Roger Smith grows.
Oh – yes – Roger Smith wore tan slacks, black-and-charcoal striped shirt with a blue pinstripe inside the charcoal stripe, and his blue blazer. His hair looked very crisp, as if he had gotten a haircut to look sharp in court today.
The pretty young Court Recorder wore a pale cream, long-sleeved, fine-knit sweater and looked a little tired: Madam Court Clerk (a bit of purple sleeves showing at her wrists under her black court robes) even joked that we were all keeping her awake!
Madam Justie Polowin breezed in at just before 10:10, looking bright-eyed and with subtle pearl earrings as the sole decoration I could see above her black robe, white collar and scarlet judges’ sash. She was ready to go!
Mr. Burnet, the plaintiff’s attorney, was the first one to deliver his final arguments. He passed some documents up (they are always passing some documents up – I just wish I could get me paws on them documents!).
Mr. Burnet stated that his argument would be broken up into 3 parts (and, of course, I am paraphrasing, as I could not possibly write all this down as it was said – the transcripts will be available soon, this is just to give ‘flavour’ of what went on:
Before he delved into the depth of his argument, Mr. Burnt handed out a sheet of paper with the name and URL of a prestigious Vancouver law firm that, he asserted, has all the relevant cyber law precedents listed in a convenient and easy-to-navigate manner. Unfortunately, I did not get that sheet, so I am unable to direct you, my dear reader, to that site. (IF anyone has that URL and is willing to share, please, do so in the comments!!! Thank you!)
Mr. Burnet asserted that any time ANYONE is accused of defamation, they invariably ‘cry’ a three-fold defense
Now I must interrupt my narrative to be a little bit descriptive of Mr. Burnet’s manner of argument. As in, the way he speaks and what his body language is (which, please keep in mind, is coming from me, an Aspie – notorious for poor recognition of these very types of things).
When he speaks, Mr. Burnet is very expressive and animated. He moves back and forth, side to side, he pulls himself up and leans forward or shrinks back at just the right times. His voice is tailored to accentuate and give emphasis to his body language. The tone goes up and down, the rhythm varies from a forceful staccato to a most annoying lazy drawl – and no, this is NOT a criticism: I think he is doing this on purpose and doing it quite well, in a true ‘Matlock’ fashion.
(Sometimes, I worry just how much of our legal precedent is affected by who can afford what lawyer….for example, I don’t think Mr. Warman would be anywhere near as successful in the courtroom if he did not have the services of the brilliant young Mr. Katz as his lawyer!)
Mr. Burnet argued that the defendants made it seem like the tort of defamation was out-dated and in need of reform and that this is what this case is about – not so, according to Mr. Burnet!!! He proposed that there is plenty of evidence on the record for defamation and internet and stuff.
Sure, he continued, the defense will claim that this is an important case where precedents will be set (d’uh) and which will shape the future of Canadian online discourse (of course!!!)…but, that is NOT SO!
This is just a ‘run-of-the-mill’ ‘dime-a-dozen’ defamation case which does not require much thinking and which will in no way affect the evolution of law with respect to emerging technologies.
If I may say so, Mr. Burnet sounded very persuasive indeed: had I not been there for much of the trial itself, I might have been persuaded by him! Madam Justice herself seemed to be nodding at times as if to assent – though, in my highly imperfect Aspie perception of ‘stuff’, she seemed rather disappointed and deflated at the prospect of doing all this hard work, all these lengthy hearings…adding extra time to extra time… and this not being a ground-breaking, precedent-setting case… I can only suppose that judges would like to think that their decisions matter.
Mr. Burnet proposed that even the prestigious and highly respected CCLA had intervened in some of these cases and made presentations – even to the Supreme Court of Canada (SCC) – but all their lofty arguments have, ultimately, been rejected…so sad…
Aside: there is a great deal of ‘ribbing’ going on ‘behind the scenes’ – that is, when the judge is out of the courtroom – between Mr. Burnet and Mr. Frenkel, the CCLA lawyer. Today, for example, as we broke for lunch, Mr. Burnet ‘mocked’ Mr. Frenkel for being ‘teacher’s pet’ because of how much weight Madam Justice Polowin gives to the words of the strikingly brilliant Mr. Frenkel – and, in turn, Mr. Frenkel mockingly asked Mr. Burnet if he thinks him so stupid as to offer Madam Justice Polowin the same arguments which had previously been rejected by the SCC! All done in the spirit of friendly competition, of course, but the barbs beneath the surface were ‘palpable’…
Mr. Burnet went on in much the same vein for the rest of his argument that I was there to hear. The context is secondary to the impugned words themselves, it is not up to a ‘select audience’ but ‘the reasonable man’ to infer meaning, ‘expectations’ are not an issue – words themselves are, on and on and on.
It does not matter what Dr. Baglow said about the defendants or even what he re-published about himself – that has no relevance at all to what the ‘impugned words’ were and the impact in the ‘real world’ they could have. If the defendants thought Dr. Baglow said bad things about him, they ought to sue him – ‘tit-for-tat’ does not matter. He did not like their words, they say they want debate, not lawsuits, to decide who is right and who is wrong – which is irrelevant as the words themselves are the only thing that stands.
And if only 1 3rd person saw those words, damage must have occurred, so pay up! It does not matter that MsMew was a sock-puppet, EVERYBODY could KNOW that Dr. Dawg is Dr. Baglow, so pay up!
OK – I am NOT trained in legal matters. Not even a little bit. But, it seemed to me that Mr. Burnet was arguing that Dr. Baglow was a well known ‘public figure’ – so well known, in fact, that a large portion of ANY audience would know that Dr. Dawg and Dr. Baglow were one and the same figure. At the same time, it seemed to me, Mr. Burnet was arguing that Dr. Baglow ought to be extended the same legal protections that a ‘private individual’ gets rather than the much lower protections afforded to public figures in general. For example, Jack Layton was frequently mocked as ‘Taliban Jack’ for much the same reasons as Dr Baglow was referred to by the impugned words….except that the impugned words were aimed at the ‘Dr. Dawg’ persona, not Dr. Baglow himself. Either he is a public figure where people know both the names – and the ‘public persona’ high bar for defamation is set, or he gets the protections of a private citizen – in which case one cannot possibly expect the audience to link Dr. Dawg to Dr. Baglow.
At least, that is my perception of the matter.
We shall have to see what the judge thinks!
I’m afraid that, yet again, there were limits on my courtroom time! I was there for much, though not all, of Mr. Burnet’s presentation.
I don’t know where things ended this afternoon, as I was unable to be there for that.
But, I do hope to be in the courtroom tomorrow and let you, my dear reader, know what I see and hear!
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.
September 15th, 2014 account is here. Roger Smith presented his side of the story (defense) and was cross examined.
September 16th, 2014, was the second day of the trial phase where the defense gets to present their case. Today was the day that, as Minister Jason Kenney referred to her, ‘the famous Connie Fournier’ took her place on the stand.
I got to the courthouse nice and early. There was quite a commotion in front of the Courthouse – but for all the wrong reasons… Instead of focusing on this historic case, which will affect every single Canadian’s internet presence, the media was all in a tizzy because of some doofus senator…
Having made my way past the hoards of reporters and cameras positioned in front of the courthouse (as all cameras are banned not just in the courtrooms, but everywhere within the courthouse) and waited with baited breath, in front of Courtroom #20 at the Elgin Street Courthouse in Ottawa.
I was rather taken aback by the unusually large group of people also waiting in front of Courtroom #20… I was sure Madam Justice Polowin would try to stay in the same courtroom, but these people looked unrelated to this case. At 9 am, they all filed into the courtroom – much to my bewilderment (yes it does not take much to bewilder me….).
It turns out that Madame Justice Polowin also had this child custody case that needed to be heard and she had scheduled it before the Baglow vs. Freedom of Speech case I was there to cover… You have to admire a judge that will juggle multiple cases at once: it may not look so on the surface, but, in order to ‘do justice’ to a case (if you will excuse the turn of phrase), a judge has to read TONS of paper (almost literally!)….and to be up to speed on multiple cases at once would require such a sharp focus that I must admit I am awed by judges who make it look effortless.
(And – make no mistake – Madam Justice Polowin takes copious notes, more so than any other judge I have seen, and she is totally on top of ‘stuff’!!!)
By 10 am, the earlier case people had filed out of the courtroom and we all filed in – with the judge still sitting at the top of the room. And she looked ready for the day!!!
Dr. Baglow had exchanged his blue shirt for a cream one – otherwise, he either has multiples of the same dashing black suit or he wore the same one as yesterday. He also wore his signature black riding boots with the adorable silver trimmings – and, for the record, they were spotless and shining!
The ever-charismatic Mark Fournier, who had worn a cream shirt with yesterday, had exchanged it for a blue one – but much darker one than Dr. Baglow had worn yesterday. Ok, ok, I am a sucker for patterns…but it did not look like the two had swapped shirts!
Roger Smith had exchanged his shirt for a green one, otherwise he looked the same as his dashing, distinguished and elegant self as yesterday…
The lawyers looked their ‘selves’ – in their lawyer robes and black shoes to match…difficult to write up their fashion sense since they have to wear these traditional outfits which make them look the same day after day….
Now let me get to the star of the day – and I do mean star!!!
Connie Fournier wore a very flattering dress: power red, textured knit, with cap sleeves…fitted through her bust through to her narrow waist (accentuated by a thin, shiny black belt) and with a playful ‘twirl’ bit at the bottom, which was just below her knees. Her outfit was perfected by her perfect black pumps – not too high, but high enough….the heel being not too thick, neither a ‘slutty thin’… She looked perfect – a force of nature!!!
(OK – I wex a bit poetic here….but, if Connie had had a professional ‘dresser’ or ‘stylist’, they could not have done a better job of turning her out for court today!)
[IF I were to characterize the defense team, Connie Fournier would be Roger Daltrey, Roger Smith would be Pete Townshend, Mark Fournier would be Keith Moon and Barbara Kulaszka would be John Entwistle...just saying...]
As well-dressed as she was for the court, Connie Fournier’s mind was in even better a shape or state of readiness… But, that is Connie!!! No matter what situation life hurls her into, she is there, ready, brilliant – and smiling to boot! There are very few people on this Earth whom I admire as much as I admire Connie Fournier!
The day started out with Connie Fournier on the witness stand, testifying to her own defense.
I was there for much – but not all – of Connie’s testimony – and I had to leave before the cross examination started: my apologies to you, my readers, but I am not a lawyer or paid to report on things, and my other-life-pressures have put a limit on the time I can spend in the courtroom… I just wish there were other people, better versed in legal matters, who could/would report on this momentous case….but, alas, there seems to be a dearth of them, so you, my dear readers, are stuck with my limited and incomplete observations. My apologies go to you!
Connie had testified to many of the things we had heard in the courtroom before – but presenting them from her unique and informed point of view.
For example, it seemed funny to me just how Dr. Baglow seemed to shrink in his seat as she testified about the many and various instances where Dr. Baglow, using his Dr. Dawg personna, smeared Connie Fournier as a ‘white supremacist’ and a Nazi sympathizer – all the while as Connie Fournier’s metis husband was sitting in the spectator section of the courtroom…because, them ‘far right’ ‘white-supremacists’ and ‘Neo-Nazis’ go out of their way to marry people with a Native-Canadian background!!!
(Ok, I may be a ‘danged’ immigrant myself, but, through my hubby, my children share in the Ojibwe bloodline, so I am particularly sensitive to this issue….)
Let me just stress that I am convinced Ms. Fournier is neither a ‘white supremacist’, nor a ‘Neo-Nazi': not ‘just’ because she is married to a man who is a metis, but also because her father is an evangelical minister and she takes her Christian roots very seriously – including the ‘love thy neighbour’ and ‘all human lives are sacred’ bits. I’m just waiting for the so-called ‘progressives’ to try to pain Mark Fournier as ‘a white metis’….
…more coming soon…
September 18th, 2014 – the day of the expert testimony Part 1 is here.
Oh, my, where to start!
Something that seems so self evident to me appears to be beyond even consideration by the majority of people in today’s society….to the point that people who hold the same convictions as I are presumed not to exist any longer.
That is sad, very sad…
So, please, do let me present to you my reasoning for why ‘Freedom of Speech’ ought to be unfettered and absolute.
If you indulge me, I would like to present several completely different lines of reasoning – all from ‘first principles’, all logical, and all leading to the inevitable conclusion that speech MUST indeed be absolutely unfettered.
First line of reasoning: from the principle of self-ownership.
Each and every person owns his or her self.
Body, mind and soul.
This is the core principle on which our civilization is built – to reject this core principle is to reject our society, our form of civilization. And, since this argument is being made for conduct within this civilization, it is ‘core’ – a fundamental and irrevocable ‘starting point’ for our logical journey.
It is immoral and wrong for one person to own another, which is why we have abolished slavery.
With the principle of self ownership comes the responsibility for absolute accountability for one’s actions.
What this means is that an individual is 100% responsible for one’s own actions.
Regardless of what an individual is exposed to, he or she is absolutely responsible for their conduct as a response to it.
This means that no matter how much somebody else may incite you or lies to you, you and you alone are responsible for acting – or not – on that incitement or on those lies.
Yet, our current laws are written so as to put partial blame for ‘incitement’ or ‘lie’ on the speaker, rather than on the ‘actor’. This is extremely dangerous because it fails to build into our citizens an appropriate sense of self-responsibility, it infantilizes our citizenry – and we must fight against this most vigorously.
For an infantilized citizen is no longer capable of being self-responsible and rejects the self accountability and independence of self-ownership…
In other words, failing to be accountable for one’s actions without blaming others for ‘incitement’ or ‘lies’ (or, indeed, ‘hate speech’) surrenders one’s mind and soul to another: in violation of the principle of self-ownership.
Which will necessarily mean the end of our civilization, since our civilization, as stated at the beginning of this argument, is founded on self-ownership.
I have presented this argument first because it is the most ‘theoretical’ and principle based, in my never-humble-opinion. I would welcome you, my dear reader, to try to find flaws in the logic of this reasoning and present them to me for discussion because I really cannot see how this particular line of reasoning could be faulted.
Many of you might accept this particular argument ‘in theory’ – something that might be wonderful to implement in a utopian society, but impossible to implement in a real-life society of blood-sweat-and-tears humanity. That is indeed a fair objection, to which my only retort would be that this is what we ought to be aiming, that this ideal ought to be what we strive for – and not start out from the very beginning by lowering the standards to such an extreme low that the very existence of those of us who hold this principled point of view is doubted or denied.
This I lament as even many ‘free speechers’ start out the debate by saying ‘nobody thinks freedom of speech ought to be absolute, so let’s start talking about where to draw the lines’…
Freedom of speech MUST be absolute and any and all ‘lines’ limiting it MUST BE ERASED!!! Anything less is an existential threat to our very civilization and the abdication of the principle of self-ownership!!!
* * *
There are less theoretical and more practical reasons – yet all principled – for why freedom of speech ought to be absolute. I shall attempt to present just a few of them (as an exhaustive listing would take a lifetime to compile!) over the next few weeks and hopefully we can engage in a vigorous discussion.
For now, I’d like to start here, from the core principle of self ownership.