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!
UPDATE: Here is what Jay Currie has to say about this ruling.
MORE UPDATE: Here are my initial thoughts after having read the full ruling. They’re not happy thoughts…
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…
Many of you are aware of the National Council of Canadian Muslims (NCCM) and their victimization at the hands of Prime Minister Harper’s spokesperson, Jason MacDonald, who so unkindly dismissed NCCM’s objection to the PM’s selection of a Rabbi, saying “We will not take seriously criticism from an organization with documented ties to a terrorist organization such as Hamas.” .
NCCM (formerly known as CAIR-Can), of course, hotly disputes any such connection.
As such, NCCM announced on May 26th, 2014, their intention to lay a defamation suit. Some more coverage on this is here and here.
So far so good. I mean – bad.
‘Good’ in the sense as in these are agreed-upon, known things.
Yesterday morning, someone who’s been following my Dr. Baglow vs. Freedom of Speech reporting, had tipped me off that a Statement of Defense had been filed ‘in an Ottawa court’, and I, being from Ottawa and knowing the Court House, well, perhaps I could go and fetch it.
Yes, the case is exciting, but now, other bloggers turn to me for Ottawa court news!
(Plus the Municipal Taxpayers Action Group is going to court in Toronto on Monday, the 6th of October, 2014 and had asked if I’d be able to cover it…unfortunately not, but, if you are in Toronto, go and support them! I’ll publish a press release from them as soon as possible about the proceedings on Monday.)
(OK – so it doesn’t take too much to amuse me…but I’ve never claimed it did!)
So, yesterday, instead of writing up Connie’s closing arguments for the Dr. Dawg defamation case (I am a very slow writer – my apologies, but I only have so much time…), I popped over to the Elgin St. Courthouse (Ontario court) because my experience with defamation lawsuits suggests that that is where they’re ‘duked-out’.
So, back to my old haunt I go.
Isn’t it interesting how quickly one becomes a ‘familiar stranger’ if one regularly shows up at even such a busy place as the Ottawa City Hall (best parking for the courthouse) and the Elgin St. courthouse itself. I’ve been there for everyday of one week, then a few days the next week and then I showed up on Thursday of this week…yet, people remember me as a ‘familiar stranger’. Not enough to sit and chat – but well enough to smile, say hi to and otherwise exhibit signs of recognition.
Now, I ought to be clear: I may ‘stick out’ a bit more than some people… Perhaps it’s my look (after all, I DO have the body of a goddess – an Upper Palaeolithic fertility goddess is still a goddess!!!), perhaps it’s my socially awkward demeanour or my silly grin… Or, it may be my eccentric wardrobe (notice than in none of my ‘sartorial reports’ do I describe what it is I am wearing – there is a reason for that….many of my clothes are self-made and show it). Whatever the reason, people do tend to remember me.
Still, whether it was visiting a relative in the hospital for a few weeks or now the courthouse, people tend to quickly begin to regard me as part of the ‘fittings’. It usually starts very casually, but, pretty soon, it is clear that if I were to abuse the situation and ask for access to a restricted area ‘because I forgot my badge that day’, I’d be able to get to just about anywhere….because people naturally form communities and will extend great help to others they perceive as members of their community. It’s one of the best things about people – without this, we would never have built a civilization.
But…when out communities get so large that we begin to extend membership status to people who are only ‘familiar strangers’ (as anthropologists like to put it), the security implications are troubling, at best…
As usual, I am off topic… Refocusing!!!
Once I had irrevocably set my circuits to finding this paperwork, I set out for the Elgin St. court house to hunt them down. But, from past experience, I knew that it was much easier to get public records on a case if I had the case number in hand. So, before I did set out, I took some time to see what I could find online.
I realized that something had to have been filed because I found this most impartial (LOL) report .
“I have no doubt that this punitive prime minister has added the NCCM to his long list of enemies and intends to crush them — if he can — in the courts. So Harper has retained Peter Downard, a top-flight defamation lawyer in Toronto, to carry a big, blunt legal stick for him while he’s busy posturing for another kind of fight with the real terrorists in Islamic State. (Downard is also representing MacDonald.)
Downard may have written his clients’ 22-page statement of defence, but every word of it oozes Harper’s noxious political modus operandi and his distinctly vengeful way with opponents.
Here’s the extent of Harper’s ‘evidence’: The NCCM was once called CAIR-CAN. That acronym was similar to a U.S.-based organization called CAIR. The two groups, NCCM insists, were and remain separate entities.
Not in Harper’s eyes. CAIR once appeared on a list of unindicted co-conspirators entered in a case involving another charity allegedly providing “material support” to Hamas. De facto: CAIR-CAN (now NCCM) and CAIR are one happy Hamas family. Talk about your legal Hail Marys.”
Yeah, riveting reading…but, there is no link (at least, not that I could find) to the actual Statement of Defense (is that not ‘standard’ for journalists?) and nowhere did I find the case number.
Still, having looked at the Notice of Libel (which I found via Atlas Shrugged’s ‘Litigation Jihad’ post, thank you), I wrote down the full names of the litigating parties and, as that was the best I could get, I headed downtown.
Hurry up and wait!
I hurried up to the civil division, took a number – and waited.
The nice bureaucrat at the wicket too a moment to listen to me – and shrugged that without a case number, there is nothing she can do to help. Rather crestfallen, I showed her my notepad with the ‘Notice of Libel’ info jotted down on it hoping this might help….
No such luck. If I wanted any filed document, I’d have to give her the case number.
By now, my lower lip was quivering as I inquired as to how might I proceed to find it…
With this, she could help me – over there, there is a public access terminal and I can go search their database from there to find out the case number. Once I have it, I can come back and she’ll see if she can help me.
Having spent the better part of a decade on the Executive Board of Directors of an IM/IT professionals organization (now officially part of the Canadian Advanced Technology Alliance), I thought I just might be able to handle a database search, right?
Well, not so much…
It seems that no matter what keyword I entered in what category, I could not find this particular case.
I could find all kinds of other things: for example, case #CV08000410200000has Stephen Harper pitted against the Liberal Party of Canada and the Federal Liberal Agency of Canada. Case #CV080004317100 pits Stephen Harper against the Ottawa Police Board Services et al and case#CV11000532100000 has Helena Geurgis battling Novak et al, including one Harper, Stephen.
But, though there are very many other cases involving ‘a Harper’, these were the only ones I could find involving ‘Stephen Harper’.
And there were absolutely 0 cases involving the National Coalition of Canadian Muslims – or NCCM.
Wondering if, perhaps, I was using the search engine poorly, I thought I’d do a test using some familiar names. Plugging ‘Baglow’ into the search engine uncovered a few cases: ‘Baglow, John v. MacNair, Adrian Raphael Alexander’ is case #CV090004648900SR, ‘Baglow, John v. Smith, Roger et al (that includes Fournier, Connie and Mark) ) is case #CV10000494620000, ‘Baglow, John v. Smith, Roger et al’ (including the same, plus Kelly, Stephen and CCLA is also listed as a participant) is case #CV10000498030000, ‘Baglow, John v. Pearse et al’ (Pearse, Gary; Baman, Gail; The Island Marble Corporation)’ is case #CV99CV0121570000, ‘Baglow, John v. Billings, Rosemary Graham’ is case #FC02FL0017630000 and ‘Baglow, John Sutton v. Barrymore’s Music Hall’ is case #SC08001042970000.
There is no way of knowing, without doing some legwork outside of the court house, if all these ‘Baglow, John’ people are, indeed, the same person. But, having come up with this list made me fairly confident that I was indeed using the database search engine effectively.
Having drawn a blank, I went back to the wicket… The nice bureaucrat who had helped me earlier was away for the moment, but a younger, prettier one took pity on me and heard me out. Taking my notepad, she entered the names into the terminal in front of her and, in a few keystrokes, told me that they did not have any such case in this courthouse’s database.
No, it did not mean the case is not in front of the Superior Court of Ontario – just that it is not registered in this particular courthouse and thus it is not scheduled to be heard there.
No, she had no idea where else it might be heard, or how I could find out the case number.
Yes, she agreed, without knowing the case number, I am not likely to get far…
My time being up, I left rather crestfallen…
After some back-and-forth communications with my betters, I got only one suggestion: try the Federal Court in the Thomas D’Arcy McGee building on Sparks St..
Yes – I was a bit skeptical – defamation is, in my experience, a provincial matter. But, as this involves the current holder of the Office of the Prime Minister of Canada as well as Her Majesty the Queen of Canada, there could be some weird twist to this and not checking the Federal Court records would be a serious omission.
So, today, instead of writing up Connie’s closing argument – off to Sparks St. I go!
he nice people at the information desk of the Thomas D’Arcy McGee building directed me to the Federal Court’s registrar’s office and, as soon as I walked in, a nice (very good looking) young man in a green t-shirt and faded blue ‘skinny-jeans’ smiled at me in acknowledgement while he finished up a phone call, then came right over. He took my info down cheerfully and started clicking away at his computer.
He clicked and he clicked and he clicked…
Every minute or so, I heard a ‘loud click’. It took me a while to trace the sound – it was a little machine on the desk used for date/time stamping documents as they were submitted! OK – now I knew the source and the reason for the sound. Still, every time it ‘clicked’ in the hushed room, I just about ‘jumped out of my skin’! (Gosh – I hope that is not a ‘racist’ sentiment!!!)
As he was searching, the nice young man chatted with me a bit – not ‘polite small-talk’ but actually ‘down-to-the-point questions. I explained my situation, and that if only I could find out the case#, I could probably ‘run with it’. He smiled disarmingly – the case # is what THEY like to work with, too!
He truly did all he could to find the case # – but, he failed…
As of now, I am no closer to figuring this out..
Oh – I almost forgot: this morning, I also called the PMO’s office in the morning to try and find the case #. I phoned (613) 992-4211 – and the nice lady who answered the phone said I’d need to speak to ‘one of the aids’ about this. She transferred me helpfully, and all I gt was an answering machine: so, I left my name, contact info and that I am looking for any info about this case in general and the case # in particular. As of now, I have not heard back…
If you, my dear reader, have any suggestions as to how I could follow up on this, I would greatly welcome your help!!!
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!
Thank you for reading this far!!!