Thank you Valerie and Elsa: you made the legal defense fund happen!!!
Thank you Valerie and Elsa: you made the legal defense fund happen!!!
For the background on this case, please see here.
For the full ruling, see here.
Prior to the closing arguments, I begged John Baglow to, please, stop this lawsuit, even at such a late date. I promised I’d help him fundraise to cover his costs if he, even at this point, called the whole thing off.
Because I firmly believed that any ruling on this case would necessarily be a loss for freedom of speech and a disaster for all of us who socialize on the interwebitudes!
And I was right!
Yes, Connie and Mark Fournier, as well as Peter O’Donnel, have won because even though Madam Justice Polowin found the comments to be defamatory, she also found them to be fair comment and dismissed the case.
So, yes, the Fourniers and POD have won.
But it is a bittersweet victory for them and a decided loss for freedom of speech in the internet.
Let me explain why…
First, let’s name the elephant in the room: the process is the punishment.
Baglow has dragged the defendants through the court system for years and cost them tens, if not hundreds, of thousands of dollars in court costs and lost time/productivity. Yet, in her wisdom, Madam Justice Polowin did not order Baglow to pay the Fournier’s court costs.
Not having any training in legal matters, I find this mindblowing.
If the words were deemed to be ‘fair comment’, as Madam Justice Polowin had ruled, why should the Fourniers and POD have had to pay tens of thousands of dollars in legal fees, travel and accommodations in order to defend themselves against what she has ruled is a baseless accusation?
And why should they have to pay half the costs of a court expert in internet communication: an ‘expert’ who is so very up on internet communication and customs that he testified that he’s never ever heard of Godwin’s Law?!?!?
An internet communication expert who’s never heard of Godwin’s Law?
Come on, this is a joke!!!
Even my mother-in-law, who needs help logging on to Facebook, has enough internet savvy to know Godwin’s Law, aka reducto ad Hitlerum…
But, that is besides the point: the bitter lump of coal (actually, coal is not that bitter, but you know what I mean…) here is that while the defendants may have been found innocent, but they still get punished by not having their costs covered and having to pay for an ‘expert’ which would not have been necessary had the judge had even high-school level knowledge of the online world around her.
Second, I most vociferously disagree with some of her rulings on a the various issues raised in the case, because they will, in a very real sense, cause a serious chill in online communications. It will probably take me multiple readings to fully analyse the significant damage this ruling poses to freedom of speech, but, one of her rulings practically jumps out at me.
This is the ruling that providers of an online discussion space are considered to be the publishers of what other people post to these fora, whether this is moderated or not.
This spells a disaster for every blogger that permits comments and makes the running of un-pre-moderated discussion fora a very serious liability danger: most will probably be limited to permitting only politically correct speech and no discussion of controversial topics whatsoever.
In reality, Madame Justice Polowin ruling means that, for example, WordPress or Blogger, by providing a platform for publication with the aim for people to come there and exchange ideas, that this makes WordPress or Twitter etc. the publishers of that communication and just as liable for the words published on their platform by third parties as if they themselves had written it.
Just think about the impact this ruling will have…
Sorry, I’ve got to leave this here for now….you see, dear reader, I suddenly have this terrible pounding headache….
Connie and Mark Fournier have won!!!
Most awesome news!!!
I’m off to read the ruling here – will comment more (and finally post the missing write-ups) soon!
Earlier, I wrote about Eric Brazeau’s upcoming trial and I said he had already served more time in jail than was possible for the ‘crime’ he had committed.
I was wrong!
I did not expect the judge would not only sentence him to double what the prosecution was seeking, but also that the judge would not apply the usual 2.5 to 1 credit for time served pre-trial, as is customary in Canada…
Oh, how naive I feel…
So, let me be the first to say:
One of the most distrusted professions in Canada is ‘lawyers’.
The other one is ‘politicians’.
Yet our judges are ‘patronage appointments’ of lawyers by their politician buddies.
Ever wonder what is wrong with our judicial system?
I just can’t put my finger on it….
UPDATE: JE SUIS ERIC!
In case you have not been following his case, Eric Brazeau is most definitely Canada’s Political Prisoner.
OK, so he may not be a very likeable guy – I’ve heard from people who are frustrated with him but support his cause as well as from people from the freedom of speech movement who cannot stand him. Having never met the guy, I am unable to pass my own judgment.
And this is the crux of the matter ‘BUT!!!’.
Regardless of anything else, it would be irresponsible to not bring the facts of the matter to public knowledge.
Eric Brazeau had a politically incorrect conversation while using Toronto’s public transit.
Eric Brazeau was very, very careful to restrict his commentary to a codified, dogmatic doctrine – without any allusions to peoples or cultures.
As a direct result of this conversation (and, I have seen a private video of it, so even though I am not permitted to publish it, I can honestly report to you, my dear reader, that this conversation was limited to factually accurate criticism of a doctrine without any allusions or references to people, individuals or practitioners of any doctrine), Eric Brazeau was arrested and jailed without any possibility of bail.
Eric Brazeau charges criminal charges as a result of this private conservation because it is charged that the conversation ‘offended’ some people who eavesdropped on it.
The judge said that the possibility that Mr. Brazeau might have another politically incorrect conversation while on bail was sufficient reason to keep him in jail to await his trial without any possibility of bail.
By now, he has spent more time in jail awaiting trial than the longest possible sentence he could receive for the charges he is facing!!!
If being held in jail for longer than the maximum potential sentence – and for speech, not deeds – is anything other than the very definition of being a ‘political prisoner’ (and I say this as the daughter of a former dissident in a communist country – not some naive idealist), then the term ‘political prisoner’ has been rendered meaningless!!!
OK – disclosure: this really, really gets under my skin!
Many of the ‘free speechers’ will not stand up for this guy, because he is not likeable.
The last time I looked, being an asshole did not mean you did not have human rights – or that setting a precedent of our society being OK with stripping a jerk of his human rights because we don’t like him is OK….because when people who don’t like you come to power, the legal precedent of it being OK to treat YOU as less than human will have been set…
So, I planned to be there tomorrow morning, in the Toronto courtroom, to witness Canada’s baby-step towards tyranny. By the way, his case number is 4815998145000366701, in case you can follow it or go to 2201 Finch Av W in Toronto this Monday, 5th of January, 2015 and report on it (if you can and do go, I will be very happy to publish your report on the case – just contact me with your account!).
I had planned for months to attend – I planned to travel to Toronto the day before and attend this trial and then, on Wednesday, the ‘Concerned Citizen’s appeal’ in the Presto scandal case. But…
…you may have noticed, my dear reader, that I have been unusually ‘quiet’ lately… I’ve been a little under the weather and am simply not fit to travel and so, unhappily, I will miss both court dates. You cannot imagine how angry and sad this makes me, but, as the saying goes: the spirit is willing but the flesh is weak…
So, if you can make it there, do let me know and I will do my best to spread the word!
EDIT: P.S. There are two trials scheduled for 10 am in courtroom #211 at the Finch Street Court location in Toronto – so, there is no way to tell whether Mr. Brazeau’s trial will be first or second…but, scheduling two trials for one day….having witnessed quite a few civil cases (but no criminal ones), I find it difficult to believe two trials which could strip people of their civil liberties could possibly be sufficiently heard by one judge in one day…